23. Sentencing Hearings

Before a federal sentencing hearing, you may spend hours thinking about the number of months or years the judge will announce. Understanding the hearing gives you more to prepare for: the questions the court must resolve, the information the judge will consider, and your opportunity to speak.

Much of the preparation happens beforehand. The Presentence Investigation Report, objections, sentencing submissions, personal narrative, and character letters may already be before the court. The hearing brings those materials together with arguments and statements that help the judge determine the sentence.

The sequence varies by judge and case, but a sentencing hearing typically follows a pattern, starting with an effort to come up with the appropriate sentencing guideline level.

Resolve Disputes About the Report

The judge must confirm that you and your attorney have read and discussed the Presentence Investigation Report, including any addendum. The court then addresses unresolved issues that affect sentencing.

For example, a prosecutor may argue that your role in the offense justifies increasing the offense level. The defense may dispute the facts or argue that the proposed increase does not apply. The probation officer may have explained a position in the report or addendum.

The judge hears the attorneys’ arguments and may receive evidence or testimony. The probation officer may answer questions or explain the report’s conclusions. The judge must resolve relevant disputes or explain why a ruling is unnecessary because the disputed matter will not affect sentencing or will not be considered.

After listening to all sides, the judge will make a ruling to determine the total offense level and criminal history category. Together, those factors identify the advisory guideline range. The judge will also consider statutory requirements, and whether the crime has any mandatory minimums, or requirement for consecutive sentencing for different counts.

You should prepare early, in every way possible.

Sentencing Recommendations

The prosecutor and defense attorney have opportunities to recommend a sentence and explain their positions. A prosecutor may emphasize the offense’s seriousness, harm, or the need to discourage similar conduct. The defense may present personal circumstances, and show mitigating factors that may warrant a lower sentence.

The probation officer also provides a sentencing recommendation, although that recommendation may be disclosed only to the judge.

If a victim is present at sentencing, the judge may provide an opportunity for the victim to offer a statement. The victim may describe financial losses, emotional suffering, and other consequences of the crime.

The guideline range provides a starting point. The judge must also consider the broader sentencing factors established by law, including your history, the offense, public protection, and restitution. Within applicable legal limits, the sentence may fall inside or outside the advisory range.

Prepare for Your Opportunity to Speak

Before imposing a sentence, the judge must address you personally and offer an opportunity to speak. This opportunity is called allocution.

Allocution allows you to ask for leniency or mercy in your own voice. I encourage people to prepare well before entering the courtroom. Think about what the judge should understand about your response to the circumstances that brought you there.

Consider these questions:

• What responsibility can I honestly acknowledge?
• What do I understand about the harm caused?
• What have I done to atone, reconcile, or change my decisions?
• What actions support my request for the judge’s confidence?

Use your words to explain specific experiences and actions. Someone who has begun treatment, made restitution payments, or contributed to others may have an influence on the judge’s decision.

Allocution generally serves a different purpose from arguing about guilt or disputing a guideline calculation. Keep the statement focused, respectful, and consistent with your legal position. Read the draft aloud so you can hear whether the words sound like you.

Prepare for What Follows

The judge will explain his process for arriving at the sentencing decision. He will announce the sanction, sometimes asking you to stand. Depending on the case, the sentence may include imprisonment or probation, supervised release, financial penalties, and restitution.

The written judgment records the court’s disposition and sentence. The judge signs the judgment, and the clerk enters the judgment. A separate Statement of Reasons records findings about the report, guideline calculations, and the basis for the sentence.

Sentencing brings the case to a conclusion at the US District Court level. Appeals or other proceedings may follow. A prison sentence also creates circumstances that require continued preparation.

Your comprehensive mitigation strategy should help you respond to those circumstances. Review the responsibilities ahead, adjust your plan, and continue building skills, relationships, and evidence of contribution. The judge’s decision establishes the sentence; your decisions afterward will help shape the life you build.