Crimes can take the shape of state crimes or federal crimes. If an offense is a state crime, then it’s charged in state court at the state level. If an offense is a federal crime, then it’s charged in federal court at the federal level.

Examples of federal crimes include:

• Certain drug offenses,
• Fraud, and
• Conspiracy.

If a defendant is convicted of a federal crime, then he or she enters a sentencing phase where a federal judge determines the ultimate sentence. This sentence could include custody in federal prison, years of probation, restitution, and substantial fines. No matter the exact sentence imposed, the sentencing phase of a federal criminal case can be complex and overwhelming. It definitely deserves a closer look for help in understanding.

Our Washington criminal defense attorneys will discuss the following in this article:

1. What is the presentence report?

2. What is the sentencing hearing?

3. What factors will the Court consider in imposing sentence?

4. What are the Federal Sentencing Guidelines?

5. What is time credit?

6. What is an early release drug treatment program?

7. What about home confinement?

1. What is the presentence report?

The first step in the sentencing process is a probation officer creating a presentence report (PSR). The report includes the officer’s recommendation as to what the appropriate sentence in the case should be. A final copy of the PSR is sent to the judge presiding over the case prior to sentencing.

The probation officer conducts an interview with the convicted defendant in order to draft the report. This meeting is typically held within one month after a guilty plea or guilty verdict. The topics covered in the interview, and included within the report, are most often:

• Family background of the defendant,
• Education,
• Employment history,
• Physical and mental health,
• Any history of substance abuse,
• Defendant’s finances.

Further, a probation officer may obtain the following records to include in a PSR:

• Employment records,
• School records,
• Medical records, and
• Tax records.

Finally, the report will also include:

• Offense conduct,
• Criminal history, and
• Analysis of the Sentencing Guidelines.

The probation officer gives the judge a copy of the PSR once it’s finalized. The probation officer will also make a sentence recommendation.  The judge will consider the recommended sentence prior to imposing his or her own sentence. Note, though, that the judge does not have to follow the probation officer’s recommendation. It is ultimately the judge who decides what the final sentence should be – not a probation officer or a prosecutor.

2. What is the sentencing hearing?

The sentencing hearing is where the judge in the case determines and announces his or her sentence. The main parties present at the hearing include the:

• Defendant,
• Defendant’s attorney,
• Prosecutor,
• Probation Officer, and
• Judge.

A judge hears from many sides during the hearing. The prosecutor and defense attorney will present oral arguments as to what they believe the most appropriate sentence should look like. The defendant is also given the chance to speak before a final sentence is imposed. The same is usually true for the defendant’s family members and friends.

Prior to the sentencing hearing, both the government and the defense have an opportunity to submit written materials to the judge.  These materials typically include memoranda about the relevant sentencing factors, as well as relevant exhibits.  The defense will typically submit letters of support for the defendant.

The judge will announce his or her final sentence after hearing from all relevant persons. If a prison sentence is imposed, the defendant does not always go directly into custody. For example, if a defendant had been released on bail prior to the hearing, then the judge may allow “voluntary surrender.” This is where the defendant “surrenders” to authorities after a certain amount of time – often 30 or 60 days.

3. What factors will the Court consider in imposing sentence?

If a defendant is found guilty of a federal offense, then the federal court hearing the case determines the defendant’s sentence. Judges in federal criminal cases determine sentences by applying all of the factors set forth in Title 18, United States Code, Section 3553(a).  The statute requires that the court consider many factors when imposing sentence, including:

• the nature and circumstances of the offense,
• the history and characteristics of the defendant,
• the federal sentencing guidelines, and
• the need to impose a sentence sufficient, but not greater than necessary to:

• reflect the seriousness of the offense,
  • promote respect for the law,
  • provide just punishment for the offense,
  • afford adequate deterrence to criminal conduct, and
  • protect the public from further crimes of the defendant.

4. What are the Federal Sentencing Guidelines?

The Federal Sentencing Guidelines are essentially rules a judge may follow to help provide for more uniform sentencing procedures. The rules went into effect in 1987 and recommend the length of a federal prison sentence.  While the guidelines are not mandatory, meaning that the court is not required to impose a sentence within the range established by the guidelines, they are an extremely important part of the sentencing calculation.

The Guidelines determine federal sentences based primarily on two factors. These are:

1. The conduct associated with an offense (also referred to as “the offense conduct”); and,
2. The defendant’s criminal history.

There is a specific table, the Sentencing Table, within the Guidelines that uses these two factors to specify a sentencing range. The range is given in terms of months. For example, consider a person found guilty of a federal firearm offense. The Sentencing Table, based upon the level of this offense, and the defendant’s category of criminal history, might indicate that the defendant should be sentenced to 41-51 months in federal prison. If, however, the defendant has an extensive criminal history, the table will recommend a harsher sentence, possibly 84-105 months.

Federal judges can make departures from the Sentencing Guidelines. This means they can increase a recommended sentence (i.e., make a sentence more severe) or decrease a recommended sentence (i.e., make a sentence less severe). Judges can make departures based upon:

• The specific facts of a case;
• Any aggravating factors; and,
• Any mitigating factors.

For example, a federal judge can increase a recommended sentence if any of the following are true:

• The defendant caused a death or significant physical injury in the commission of the crime; or,
• A person was abducted, taken hostage, or unlawfully restrained during the commission of the offense.

In a similar way, a federal judge may decrease a recommended sentence if any of the following are true:

• The defendant committed the offense because he was forced to do so (e.g., by means of blackmail or coercion); or,
• The defendant committed the offense while suffering from a reduced mental capacity.

5. What is time credit?

Time credit refers to the situation where:

• a defendant receives a federal prison term, and
• was in federal custody prior to the date of sentencing.

In these events, the defendant will receive credit for any time spent in custody prior to sentencing. Consider, for example, an accused that is awaiting a sentence for a federal drug charge. He is awaiting his sentence while in custody.  On the day of his sentence, the defendant has served 90 days in custody. At the sentencing hearing, a judge sentences him to 180 days in federal prison. But because of time credit, he only has to serve 90 days. He gets 30 days of credit for the time spent in confinement.  The Bureau of Prisons will make the exact calculations after the sentencing hearing, which can get complicated in certain cases, such as where a defendant may be facing multiple charges in different jurisdictions.

There is also “good time credit” for federal sentences. This means a defendant will receive credit if he does not cause any disciplinary problems while in prison. But note that this credit is not available for sentences of one year or less. Further, for sentences greater than one year, good time credit is allowed, but only for up to 15 percent of the sentence. This means that for a 10-year sentence, a person with good time credit could cut his time in custody to eight and one-half years, or 15 percent of his sentence.

6. What is an early release drug treatment program?

Early release drug treatment, known as the Residential Drug Treatment Program (“RDAP”) is an intensive 500-hour drug treatment program. It is available for persons that have:

1. Received a prison sentence; and,
2. Have a documented history of substance abuse.

If a defendant successfully completes the program, he or she can receive up to a one-year reduction in his sentence. The program is available no matter if a person committed a violent crime or a non-violent crime. But note that for people who have been convicted for, or have a history of, violent crimes, while they can participate in the program they cannot receive any sentence reduction.

7. What about home confinement?

Home confinement can be imposed as a punishment component of a person’s sentence.  It is not technically part of a prison sentence; rather, it is imposed as either a condition of probation or supervised release (which is the term used to describe probation that follows a prison sentence).  Home confinement requires people to spend most non-working hours at home, although people are allowed to leave their residences to attend weekly religious services and to go grocery shopping. A probation officer may also approve other “outings” on a case-by-case basis.

Further Questions?

Contact Black Law now if you or someone who know has been convicted of a federal crime. Our Seattle based federal defense attorneys know the law and they have the experience that matters. Call Black Law today to get the quality legal representation you deserve and to ensure your freedoms and rights are protected.