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American Bar Association - Defending Liberty, Pursuing Justice

SUMMER 2010

Vol. 6, No. 4

LITIGATION

 

Pre-Sentencing Tips: Little Things that Can Make a Big Difference

By Meredith Auten, Marcos Hasbun, and Adrian Mebane

Accompany Your Client to the Interview With the Probation Officer Who Will Prepare Your Client’s Pre-Sentence Report (PSR)
Your client’s interview with the probation officer who will prepare the PSR is an often underestimated component of the sentencing process. In fact, some defense counsel question whether they should even accompany their client to the interview. Defense counsel should not only accompany their clients to the interview, but should prepare their client in advance of the interview. Having a well-prepared client can have a substantial positive impact on the sentencing outcome. Here’s why:

· Judges continue to rely heavily at sentencing on the recommendation of probation officers.
· The probation officer makes a number of critical decisions from whether to apply enhancements to recommendations on disputed issues of fact such as the amount of loss.
· Inaccurate information provided in the PSR can adversely affect the length and location of any period of incarceration.

What you should do before the interview:

· Obtain the documents and forms needed by the probation officer and have your client complete them in advance of the interview.
· Present your view of the case in a letter to the probation officer, including any cases supporting your position—remember, the government often lays out its version of the case and its guidelines calculation, along with victim impact statements, for the probation officer so you want to ensure the officer gets a balanced view.
· Do your homework on your client—gather and provide the probation officer any background information on your client, such as social or family history.
· Provide your client’s statement of the offense to the probation officer (your client can do this at the interview, but it is often preferable to set it forth in writing so as not to admit to more serious conduct than charged).
· Prepare your client for the questions and issues that will be addressed at the interview.

What you should do at the interview:

· Ensure your client provides accurate and truthful information.
· Ensure your client is respectful to the probation officer.
· Advance the positions set forth in your letter in person on the offense conduct, your client’s role in the offense and any grounds for variance.
· Ask for the dictation date—make sure you get all the information to the probation officer well before that date.

After the Interview, Follow-up With the Probation Officer Before He/She Completes the PSR
Although the sentencing guidelines are now “advisory,” the PSR remains a critical component of the sentencing process. Indeed, when crafting a sentence most judges give great weight to the PSR. In light of this, defense counsel should attempt to shape and mold the content of the PSR as much as possible before the probation officer begins preparing the PSR.

In one particular case, a prosecutor advised defense counsel that he intended to seek a sophisticated means and abuse of skill enhancement at sentencing. The potential impact on the ultimate sentence if both of these enhancements applied was significant because it would have resulted in an advisory guidelines range that included a potential term of imprisonment. By contrast, the possibility of a sentence of probation increased exponentially if only one, but not both, of the enhancements were found to apply.

Instead of waiting for the probation officer to circulate the PSR so that objections could be made, defense counsel spoke with the probation officer before he started drafting the PSR to explain why neither enhancement applied. Although the probation officer expressed his belief that both enhancements applied, defense counsel nonetheless followed up with a detailed letter reiterating his position and included legal authority to support that position.

When the probation officer circulated the PSR to the prosecutor and to defense counsel, the PSR made no reference to a sophisticated means enhancement. Once the prosecutor learned this, he decided not to press for the sophisticated means enhancement at sentencing, which he most certainly would have done had it been recommended in the PSR. And all defense counsel know that with some judges it can be exceptionally difficult to argue against application of an enhancement against your client when both the PSR and the prosecutor press for that enhancement. Thus, from a strategic standpoint, it makes more sense to try to keep unfavorable information from being included in the PSR in the first place instead of arguing to a judge why you are right, and both the prosecutor and the PSR are wrong.

Never Underestimate the Importance of Letters of Support
The Booker decision has reinvigorated judicial discretion and defense attorneys must utilize every measure to augment their client’s prospects for a favorable sentence. In this climate, character letters of support now take on added significance and are an absolute must in providing the court personal insights that are difficult to glean from the limited perspective afforded in a court appearance. Defense counsel must take the necessary steps to ensure that the letters are drafted properly in order to achieve the desired result.

Here are some ideas you might want to consider when pursuing this endeavor:

· Have your client identify a diverse mix of people, including family, friends, current and past coworkers and the broader community (e.g., neighbors).
· Send a letter to those individuals asking each to express their personal view of the client and to request lenient treatment at sentencing.
· Be sure to explain the current judicial process and the type of letter that would be most helpful to the client. A letter expressing resentment and anger might be improperly attributed to the client at sentencing.
· The letters of support should attempt to persuade a court that substantial incarceration would serve no useful purpose and if the circumstances call for it, could imperil your client’s ability to support and provide for the welfare of his or her family.
· Letter writers should reflect on events and exchanges that reveal the true nature of the client and attempt to concisely capture those thoughts in the letter. In doing so, the writer should briefly describe the nature and duration of the relationship with the client. There is no page limit, but the court may receive multiple letters, so recommend a page limit of one to three pages.
· Have the letter writers send their drafts to you before sending to the court so that you will be able to suggest any appropriate revisions.
· Once in final form, assemble all of the letters and provide them to the court en masse with your other sentencing materials.

Do not underestimate the value of letters of support. It has been our experience that courts and probation officers do read and consider these letters, as they are a vital part of the sentencing process. If the letters are well-drafted and heartfelt, your client may derive a meaningful benefit.

Always Confirm Whether Your Client Is Potentially Eligible for the BOP’s Residential Drug Abuse Program (RDAP)
Another avenue to explore with a client is whether he or she would be eligible for the Federal Bureau of Prisons Residential Drug Abuse Treatment Program (RDAP). RDAP is a specialized program that can benefit offenders with substance abuse problems while also offering the added incentive of a potential reduction in their sentences beyond earning good time credit.

The treatment is an intense 500-hour, six-to-twelve-month program, and eligible graduates may qualify for an extended halfway house placement and a sentence reduction of up to one year.1 The program is voluntary, and candidates must have a documented substance abuse problem, usually verified by the PSR. Also, the candidate must have 36 months or less remaining on his or her sentence.

Verify that your client does not fall into one of the categories of inmates who are not eligible for the sentence reduction, such as INS detainees, having a prior conviction of certain violent offenses, or having a current offense involving violence or the possession of a dangerous weapon.2

Obviously, defense counsel’s primary objective will always be to avoid or reduce a prison sentence, and the RDAP program can be a means to ease a client’s passage through the prison system.

Endnotes
1. See 18 USC § 3621 (e)(2).
2. The policies and procedures of the RDAP program are set forth in BOP Program Statement 5330.10, Drug Abuse Programs Manual, Inmate, available at http://www.bop.gov/policy/progstat/5330_010.pdf.

Pre-Sentencing Tips: Little Things That Can Make a Big Difference, by Meredith Auten, Marcos Hasbun, and Adrian Mebane, 2009, Criminal Justice Section Newsletter , Winter 2009, pp. 6–7, 12. ©2009 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Meredith Auten is with the Morgan, Lewis & Bockius LLP; Marcos Hasbun is with Zuckerman Spaeder LLP; and Adrian Mebane is with Crowell & Moring LLP. They are Co-Chairs of the ABA CJS White Collar Crime Committee’s Young Lawyers Subcommittee.

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