Federal criminal prosecutions proceed far differently than a state criminal matter. The pace, plea bargaining process and penalties are all much different than in state court. Federal criminal cases in New York City are prosecuted in the Southern and Eastern Districts of New York by the US Attorney’s Office.
One thing in federal court that is radically different from New York state court is the sentencing process. Sentencing in federal court is determined by a rigid structure of factors, any one of which can drastically alter your sentence. While federal judges have more flexibility now than in past years, you still need a lawyer who knows every factor that may reduce your sentence.
A Brief History of Federal Sentencing
The 1987 Sentencing Reforms
Prior to 1987 federal judges around the country sentenced individuals on a case by case basis. This afforded extremely broad discretion to judges who were only constrained with maximum penalties. Under this scheme there was great disparity between sentences for individuals in different locations. To address these differences, in 1984 Congress passed the Sentencing Reform Act, which abolished parole in the federal system and allowed appellate review of judicial sentences. The Act also set up the United States Sentencing Commission to enact a system of standardized sentencing.
On November 1, 1987 the US Sentencing Commission enacted the sentencing guidelines, which set forth uniform sentences for federal crimes. The guidelines fix an individuals sentence based upon the category of the offense charged and the criminal history of the individual.
Post 2005: After United States v. Booker
In 2005 the Supreme Court decided the landmark case United States v. Booker. The Court in Booker announced two major changes to the federal sentencing process: (1) The sentencing guidelines were no longer mandatory, and (2) substantial changes to the standard for appealing a federal sentence.
Although federal judges are no long required to sentence a defendant under the sentencing guidelines, they must consult the guidelines and take them into account when sentencing. Judges vary in their adherence to the guidelines but there are now numerous factors to cause a judge to depart downward from the guidelines. Under Booker a defendant may appeal his sentence, but the appellate court may apply a presumption of reasonableness to a sentence within the guidelines.
The Federal Sentencing Process
The Plea Agreement and Allocution
If an individual pleads guilty it is almost always subject to a plea agreement. The plea agreement is an agreement reached by the prosecutors and the defendant as to exactly what the defendant will plead guilty to, and what the sentencing range will be. A defendant then tells the judge in court what he did in what is called the allocution.
The Pre Sentence Report by Probation
After the allocution or if you have been convicted after a trial, your case will also move towards sentencing. The United States Department of Probation will set up a pre-sentence interview. At that interview, the probation department will get information to write their pre-sentence report or PSR. The defendant will have an opportunity to view and correct the report. Once the defendant has submitted his corrections, the report will go to the judge, and will contain a recommendation on what the sentence should be.
The Sentencing Memorandum by the Defense
The defendant has a chance to submit his own memorandum. This is a chance for the defendant, through his attorney, to show the court who he is as an individual and what led him to commit the crime. A skilled attorney can use this memo to persuade a judge that a defendant deserves a lesser sentence because of who he is and what the circumstances surrounding the crime were.
The attorneys at the Law Offices of Adam Perlmutter have a demonstrated record of success in getting reduced sentences due to our intensive approach to sentencing.
Once the judge has received the pre-sentence report from probation, the prosecutors recommendation, and the sentencing memo from the defendant, the defendant will appear before the judge, and the judge will issue a sentence. Although the judge must consult the guidelines, ever since the Supreme Court’s decision in United States v. Booker, a judge is not bound by the guidelines, and may give a higher or lower sentence based upon the factors put before him.
Our Approach to Federal Sentencing
Sentencing in federal court is a complex matter that involves a strict numerical “guidelines” calculation based on the offense, mitigating and enhancing factors, as well as criminal history. It is then up to the judge to view the entire case and decide whether to stay within the “guidelines range”, “depart upwards” or “depart downwards”: Essentially, the judge considers a sentence recommended by the legislature, but, ultimately, makes the final decision based on what he is right.
The attorneys at the Law Offices of Adam Perlmutter recognize that this is defendants’ opportunity to show the judge a side of themselves that hasn’t been presented. The defendant’s sentencing memorandum is a chance to explain:
- Where did the defendant come from? What is his background?
- Who are the people in the defendant’s life, and what he means to them?
- What led the defendant to commit this crime?
- What are the good acts by the defendant that the court hasn’t heard?
- How has the defendant already been punished by this crime?
- How has the defendant worked to better himself since his arrest?
- Where does the defendant see himself after he is released?
Often times we bring in experts to more fully help us and the court to explain a person and what they did. We work with a number of experts in a variety of disciplines to assess the particular needs of each client. All our our experts are leaders in their respective fields who bring the top level of expertise to their evaluations.
Some lawyers fail to see the benefits of answering these questions to a court, but the attorneys at the Law Offices of Adam Perlmutter have seen the results of providing this information time and time again.
If you are considering a plea deal in federal court, make sure you have an experienced attorney who knows how to represent you in the best light possible at sentencing. Contact us today.
Being prosecuted by the United States government can seem overwhelming. In order to stand a chance against the vast resources of the United States government you need a lawyer with extensive experience practicing in federal court. You need a lawyer that’s fought the United States government and won.
The Law Offices of Adam Perlmutter has defended a wide range of criminal defendants in both the Southern and Eastern Districts, including, drug crimes, gun charges, fraud, embezzlement, homicide, racketeering In United States v. Gioeli, the Law Offices of Adam Perlmutter successfully defended against six murder charges.