TRIAL PRACTICE
Make the Sentencing Process Work for You

By Tess Lopez

A young East Indian immigrant was arrested and charged with possession of marijuana with intent to distribute. The defendant pled guilty to one count of the superseding indictment, but not before he was again arrested, while on bond, for selling marijuana. Weighing against him, the defendant also had prior convictions for possession of mari-juana and driving while intoxicated. Initially, he faced a mandatory minimum term of ten years in federal prison, but after pleading guilty to the lesser charge, he faced a maximum of five years’ imprisonment with a sentencing guide-line range of 78 to 97 months. In the end, the defendant was sentenced to a five-year term of probation with a period of electronic monitoring. Finding that mitigating factors under 18 U.S.C. § 3553(a) were appropriate and relevant in the final determination of the sentence, the court imposed no prison time.

Prior to sentencing, the services of a qualified sentencing specialist were obtained and a comprehensive back-ground investigation was initiated. It was determined that the defendant was the recipient of a National Merit Schol-arship award, was a business partner of a successful medical research clinic, and had been accepted to several medi-cal schools. Only after an evaluation by a psychologist was it determined that this individual had serious emotional issues brought on by excessive family and cultural expectations. The psychologist submitted an extensive psycho-logical report to the probation officer explaining these issues. Additionally, reports to the probation officer included verified treatment for chronic marijuana dependency, his weekly psychotherapy sessions for treatment of a major depressive disorder, and his ability to attain and maintain successful employment. The submissions to the probation officer clearly explained how such interventions greatly minimized his risk of reoffending. A letter submitted from his girlfriend outlined that he was the sole financial and emotional support for her six-year-old autistic son. Numer-ous letters from business partners and other professionals were also submitted attesting to the positive character of the defendant. As a result, the final presentence report submitted to the court by the probation officer contained all of the relevant factors necessary to achieve the desired results, namely, an appropriate and just sentence by the court.

Beyond the plea agreement. Pre-Booker, defense counsel focused on detailed plea agreements establishing a specific guideline range and proposed sentence. Consequently, minimal emphasis was devoted to the sentencing process. In United States v. Booker (543 U.S. 220 (2005)) the U.S. Supreme Court held that the Federal Sentencing Guidelines are no longer mandatory and are now only one of seven factors that a court is required to consider at sen-tencing. Therefore, it is imperative that federal practitioners be prepared to address all relevant sentencing factors now available under § 3553(a). Post-Booker, not withstanding myriad factors in play under § 3553(a), the U.S. Pro-bation Office continues to do business as usual and does not spend additional time interviewing a client and his or her family members, friends, and business associates to understand the client’s personal history and characteristics. Upon receiving a case, the probation officer is presented with information from the government explaining why the client should get the maximum sentence. This information is presented by the government in a package complete with a letter outlining its version of the case, its guideline calculations, and an invitation to meet with the case agent, who is more than ready to provide additional details (relating to charged or uncharged conduct and, in many cases, notwithstanding a lack of evidence supporting these allegations).

It is incumbent on the defense community to level the playing field. Historically, defense counsel simply called the probation officer to schedule the presentence interview and submitted the completed probation form to the pro-bation officer. To take advantage of the changing law, defense counsel cannot continue doing business as usual. Get-ting the presentence report and, ultimately, the desired recommendation requires a proactive approach. Achieving the desired goal of a sentence that is “sufficient but not greater than necessary” requires ensuring that all sentencing factors are available to the probation officer. It is important that defense counsel be mindful that the information contained in the presentence report will affect program eligibility, classification level, and institutional placement.

Should defense counsel find it time consuming to conduct thorough interviews with the client and others to de-velop and identify mitigating factors, arrange for appropriate evaluations, collect and review character reference letters, and prepare a detailed letter to the probation officer, counsel should consider the assistance of a sentencing specialist to perform these functions.

Five suggestions. To ensure that the presentence process works to the client’s advantage, the following sugges-tions are offered to defense counsel. (1) As early in the process as possible, preferably prior to a plea, spend consid-erable time with the client and family members to gather detailed background information. (2) Determine whether a psychiatric evaluation, substance abuse evaluation, medical evaluation, or other testing would be beneficial in veri-fying the client’s condition, and arrange these evaluations at the onset of the case. (3) Prepare a detailed letter to the probation officer outlining the client’s social history and identify and enumerate all appropriate § 3553(a) factors for consideration. (4) Have the client obtain character reference letters from credible people. The client should also seek written corroboration from those who can verify incidents of childhood abuse, substance abuse, or a history of men-tal health problems. (5) Finally, offer to e-mail the letter to the probation officer so he or she can “cut and paste” the information directly into the presentence report. The letter detailing your client’s social history can also be utilized by the mental health or substance abuse evaluator and/or medical practitioner and acts as an outline for the sentenc-ing memorandum.

One of the most important and often overlooked areas of focus is responding to the draft presentence report. This is counsel’s last chance to get all of the points across to the probation officer. The presentence report is the only document that follows the client through the Bureau of Prisons process, and the information it contains will affect the client’s classification level, eligibility for programs, and designation; it also influences the risk level and level of supervision provided by the probation officer upon the client’s release from custody. Proposed § 3553(a) factors should be identified under Part F of the presentence report. It is imperative that the client is presented in the most positive light and that all potential problem areas are addressed prior to the release of the final presentence report.

Judges continue to rely heavily on probation officers during sentencing, and many judges are significantly influenced by the probation officer’s opinion. By providing relevant mitigating evidence both regarding the offense and the offender to the probation officer early in the process, counsel may be able to make the case that a downward variance is appropriate.

The defense community must utilize every opportunity to provide a more balanced view of the client and meet the obligation to alert the court to all relevant mitigating issues. Defense counsel must be proactive in gathering and identifying post-Booker issues, bringing them to the attention of the probation officer in an effort to convince the probation officer, and ultimately the court, that there are factors warranting a sentence below the Federal Sentencing Guideline range.

FOR MORE INFORMATION ABOUT THE CRIMINAL JUSTICE SECTION
- This article is an abridged and edited version of one that originally appeared on page 58 of Criminal Justice, Winter 2009 (23:4).
- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.
- Website: www.abanet.org/crimjust.
- Periodicals: Criminal Justice, quarterly magazine; Criminal Justice Newsletter, three times per year; Juvenile Justice Newsletter, three times per year (electronic); White Collar Crime Newsletter, three times per year (electronic).
- Books and Other Recent Publications: Trial Tactics; Street Legal; The Citizenship Flowchart; The State of Criminal Justice; Leapholes (fiction); Achieving Justice: Freeing the Innocent, Convicting the Guilty; ABA Standards for Criminal Justice; Annual Survey of Supreme Court Decisions; Asset Forfeiture: Practice and Procedure in State and Federal Courts; Child Witness in Criminal Cases; The Criminal Lawyer’s Guide to Immigration Law: Questions and Answers; Fourth Amendment Handbook, 2d ed.; Juvenile Justice Standards, Annotated; The Shadow of Justice (fiction); A Portable Guide to Federal Conspiracy Law: Tactics and Strategies for Criminal and Civil Cases; Practice Under the Federal Sentencing Guidelines; Restitution for Crime Victims: A National Strategy; Successive Criminal Prosecutions: The Dual Sovereignty Exception to Double Jeopardy in State and Federal Courts.

Tess Lopez is a former federal probation officer for the Northern District of California. She may be reached at . www.sentencingmitigation.com.

Copyright 2009

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