Criminal Defense Attorneys Must File Objections to Pre-Sentence Report in Federal Criminal Cases to Protect Appellate Rights
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
The United States Congress, with the Sentencing Reform Act of 1984, established the U.S. Sentencing Guidelines. These “Guidelines” not only guide but require U.S. District Court judges to consider all the sentencing factors Congress set forth in 18 U.S.C. § 3553(a) before imposing sentence in criminal cases. The U.S. Supreme Court in a series of cases has made it abundantly clear that the Guidelines are not mandatory but rather advisory in nature—a guide for the judge to utilize in crafting the appropriate sentence.
Prior to sentencing, Rule 32(c) (1) (A) of the Federal Rules of Criminal Procedure requires that a probation officer investigate the defendant and file a presentence investigation report (“PSR”) with the court. The defendant may not waive the report even with permission of the court. The PSR must contain the following information:
- The history and characteristics of the defendant, including his/her criminal record, financial condition, and any other factors about defendant’s past behavior that may help the court fashion the appropriate sentence.
- The offense level determined by the probation officer and criminal history category as determined by the Guidelines.
- Impact of the crime on the victim.
- The kinds of non-custodial programs available if appropriate for offense charged.
- Defendant pays restitution where the law requires.
- Any recommendations based upon a court-ordered study of the defendant.
- Any other required information including § 3553(a) factors.
Rule 32(e) (1) prohibits the PSR from being disclosed prior to a determination of guilt following a trial or guilty plea. The PSR under Rule 32(e) (2) must be served upon all parties involved in the case at least thirty-five days before the sentencing hearing. Rule 32(f) requires the court to permit the defendant (and the Government) an opportunity to comment upon or object to the PSR, The defendant’s comments/objections must be timely filed. Rule 32(h) requires the court to notify the parties if it is considering departing from the Guidelines sentencing recommendation for reasons not identified in the PSR.


