Federal sentencing defense in South Florida

Advisory guidelines after Booker

The U.S. Sentencing Commission, an independent agency in the judicial branch, issues the federal sentencing guidelines, and federal judges are required to calculate and review them in every case.

In United States v. Booker, the Supreme Court made the guidelines effectively advisory. A sentencing court must consider the guidelines range but may tailor the sentence in light of other statutory concerns, and appeals courts review sentences for unreasonableness.

The factors in 18 U.S.C. § 3553(a)

The statute directs the court to impose a sentence sufficient, but not greater than necessary, to serve the purposes of sentencing. The court must consider:

• The offense and the person. The nature and circumstances of the offense and the history and characteristics of the defendant.
• The purposes of sentencing. Just punishment, deterrence, protecting the public and providing needed education, training or medical care.
• Available sentences. The kinds of sentences the law allows.
• The guidelines. The guidelines range and any pertinent policy statements.
• Fairness. The need to avoid unwarranted disparities among defendants with similar records and conduct.
• Restitution. The need to provide restitution to any victims.

The law requires a sentence sufficient, but not greater than necessary.

The presentence report

Under Rule 32, a probation officer usually investigates and prepares a presentence report before sentencing. The report calculates the guidelines offense level and criminal history category, and covers the defendant’s history, finances and the impact on any victims.

The report must be provided at least 35 days before sentencing unless the defendant waives that period. Objections are due in writing within 14 days after receiving it, and the final report with unresolved objections is submitted at least 7 days before sentencing.

From conviction to sentencing

1. Presentence interviewProbation interviews the defendant, ideally with counsel present, and gathers records.
2. Initial reportThe report is disclosed to the defense and the government.
3. ObjectionsEach side files written objections within 14 days.
4. Final reportProbation submits the final report and an addendum on unresolved objections.
5. Sentencing hearingThe court rules on disputes, hears from both sides and gives the defendant the chance to speak.
6. Appeal deadlineA notice of appeal is generally due within 14 days after judgment.

Mandatory minimums

Some statutes set a minimum prison term the judge cannot go below, such as many drug offenses under 21 U.S.C. § 841 and firearm charges under 18 U.S.C. § 924(c). Before accepting a guilty plea, the judge must explain any mandatory minimum.

Two provisions allow a sentence below a minimum. Under section 3553(e), the court may do so on the government’s motion to reflect substantial assistance in investigating or prosecuting another person. Under section 3553(f), the safety valve, certain drug defendants who meet five conditions may be sentenced without regard to the minimum.

What the defense brings to sentencing

• Guidelines objections. Challenges to loss, drug quantity, role and other calculations in the report.
• The person behind the case. Family, work, health, service and other history the court must consider.
• Supporting records. Letters, treatment records and employment plans that give the court a full picture.
• Allocution. Preparation for the defendant’s chance to speak to the judge before sentence is imposed.
• A written memorandum. An argument for a specific sentence grounded in section 3553(a).

How Kaufman Legal Group can help

Jason Kaufman has tried more than 90 cases and is a Criminal Justice Act panel attorney in the Southern District of Florida. He works with Phil Horowitz, who has practiced criminal defense since 1985 and spent decades on the CJA panel in the Southern and Middle Districts of Florida, and Victor E. Rocha, who was admitted to The Florida Bar in 1983, practices in federal courts including the Eleventh Circuit and the Southern District of Florida, and speaks Spanish. Together they bring more than 100 years of combined experience.

The team prepares clients for the presentence interview, reviews the report line by line and presents the court with a full account of the person being sentenced. Every case is different, and no lawyer can promise a particular sentence. The first consultation is free and confidential.