A defendant’s federal sentencing memorandum aims to secure the best sentence possible for the defendant. Its value lies in the opportunity the memo gives criminal defense attorneys to put forth mitigating factors about the defendant’s background, family, social and economic history, and explain and put into context any criminal history, particularly concerning the offense for which they stand convicted.
Here are some of the factual issues that can, and in most instances, should, be presented in a sentencing memo:
- The lack of danger the defendant poses to society;
- Defendant’s positive past behaviors and current mental outlook;
- Equity in sentencing as compared to any co-conspirator(s) and similarly situated defendants;
- The defendant’s redeeming qualities including consistent work history, fulfilling family obligations, participation in self-help programming, and contributions to society; and
- The defendant’s goals including: continuing educational efforts, preparation for a positive financial future, and demonstrable commitment to avoid criminal elements and opportunities.
Here are some of the legal issues that must be presented in a sentencing memo:
- A detailed discussion regarding objections to application of the U.S. Sentencing Guidelines as they relate to the offense of conviction;
- Legal (and factual) mitigating issues surrounding the circumstances of the offense conviction;
- Highlighting any expert reports about the defendant or facts of the case;
- Pointing to any character letters submitted in support of the defendant; and
- Disputing factual or legal inaccuracies in the Presentence Investigation Report (PSR).
Challenges to the PSR are critically importation. This report, prepared for the court by the federal probation services, will contain information about a defendant’s personal background, criminal history, family status, personal history, financial status, applicable sentencing guidelines. The report will recommend a sentencing range and present characteristics that may differentiate the defendant’s conduct from similarly situated individuals. There are often misrepresentations, factual errors, and inappropriate recommendations in PSRs that demand clarification, rebuttal, and requests for removal. The defense lawyer must make proper objections to the PSR and follow through with arguments in the sentencing memo.
The sentencing memo must also include an analysis of the sentencing goals of 18 U.S.C. § 3553(a), which requires the sentencing judge, per instructions by Congress, to impose a sentence sufficient but not greater than necessary to fulfill the following four goals of a federal sentence:
- To reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
- To afford adequate deterrence to criminal conduct;
- To protect the public from further crimes of the defendant; and
- To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
Further, the defendant’s sentencing memo must call the sentencing judge’s attention to the following six factors Congress spelled out in Section 3553(a) as prerequisites for determining a reasonable sentence:
- The nature and circumstances of the offense and the history and characteristics of the defendant 😉
- The kinds of sentences available;
- The kinds of sentence and the sentencing range established by the United States Sentencing Guidelines;
- Any pertinent policy statements issued by the United States Sentencing Commission;
- The need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
- The need to provide restitution to any victims of the offense.
The U.S. Supreme Court has gone to great lengths to reinforce the significance of Section 3553(a) in the federal sentencing scheme. For example, while the sentence must serve the interests of punishment, deterrence, protection, and rehabilitation as spelled out in the Sentencing Guidelines, the Supreme Court in Gall v. United States said the “advisory” guidelines are “not the only consideration” the sentencing judge must consider in determining the appropriate sentence. The court followed up Gall with Kimbrough v. United States, which explicitly held that the Sentencing Guidelines “‘ reflect a rough approximation of sentences that might achieve § 3553(a) ‘s objectives.'”
These cases informed federal district court judges that they cannot presume that the Sentencing Guideline is “reasonable” but “must” make an “individualized assessment based on the facts presented” under the Section 3553(a) sentencing goals. The Kimbrough court instructs explicitly that the final determination of a sentence must reflect those factors in order to “‘ impose a sentence sufficient, but not greater than necessary’ to accomplish the sentencing goals advanced in 3553(a)(2) advanced in 3553(a)(2);” namely, retribution, deterrence, incapacitation, and rehabilitation.
In other words, the sentencing judge has the discretion to disagree with the sentence recommended by the Guidelines and impose a sentence they feel accomplishes the sentencing goals of Section 3553(a). The Supreme Court in 2011 in Pepper v. United States said this discretion includes the freedom to disagree with “policy decisions” of either Congress or the Sentencing Commission contained in the Guidelines. Specifically, the Pepper court stated that “[O]ur post-Booker decisions make clear that a district court may in appropriate cases impose a non-Guidelines sentence based on a disagreement with the Commission’s views …. This is particularly true where … the Commission’s views rest on wholly unconvincing policy rationales not reflected in the sentencing statutes Congress enacted.”
Thus, the sentencing goals of Section 3553(a) offer an opportunity for a lesser sentence than one recommended by the Guidelines—and that is why it is advisable to begin developing the strategy for a compelling sentencing memo before conviction. The memo is due 14 days after the criminal defense attorney receives the PSR—not a lot of time, given all the potential issues that might be raised in a comprehensive, effective sentencing memo.