what if government refused to file 5k cooperation

Approximately 94 percent of all federal criminal defendants plead guilty. Lxx-v percent of the remaining individuals who proceed to trial are convicted. There is, therefore, a 97 percent hazard that a person charged with a federal crime volition ultimately face a judge for purposes of sentencing. For well-nigh individuals "How much time am I going to practise?" and "Where am I going to do it?" are central concerns. We offer the following tips to help attorneys and their clients obtain the lowest possible sentence nether terms and atmospheric condition that will facilitate release at the earliest possible opportunity.

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Federal Sentencing Tips

• While the federal Bureau of Prisons (BOP) will not credit an inmate's sentence for fourth dimension served on pretrial release under dwelling confinement or in a halfway house if that placement was every bit a condition of bond, as opposed to an alternative custody arrangement (see Reno v. Koray, 515 U.South. l (1995)), courts are nonetheless gratuitous to account for such time as a ground for a variance. Gall provides useful language concerning the punitive nature of home detention, depending on the nature and scope of courtroom-ordered weather condition.
• Studies suggest that eighty percent of the fourth dimension, a judge has a "tentative sentence" in heed, even before the sentencing hearing begins. Appropriately, the best way to influence the judge's selection of "tentative judgement" is to file a sentencing memorandum, which fully sets forth the facts and arguments supporting for the requested disposition, approximately seven days before sentencing (unless otherwise required past local dominion). If you nowadays the approximate a solid memorandum that uses the §3553(a) factors to demonstrate why a sentence beneath the guideline range is "sufficient, only not greater than necessary" to achieve the goals of sentencing, including character letters from people willing to offer insight into a client'south true nature notwithstanding their awareness of the offense(due south) of conviction, you will go a long way toward achieving the sentence you want. Waiting until the actual hearing to make your sentencing case, as has been a historic practice in state courts, makes it far less probable that the court will give appropriate weight to your position.
• Certificate, certificate, document. Don't just assert the existence of mitigating factors; provide as much supporting evidence every bit possible. For instance, if your customer has a physical or mental impairment, or drug or alcohol dependcy issues, corrobate the event with a doctor's letter and/or report and with medical/handling records (under seal, preferrably via the Probation Office so that the information is appended to the PSR and given to the BOP). Similarly, if your customer has a military service record or a history of good works, provide advisable documents or testimonials. Call up that judges won't necessarily take your client's word on annihilation – he is, after all, a bedevilled felon – and that even if the court does accept his word, evidentiary documents will flesh out and add together weight to the sentencing presentation.
• There is a prevailing feeling in the defence force community since Booker that applications for a sentence below the guideline range should be couched as requests for variances or for non-Guidelines sentences; that the days of motioning for a "downard departure" have passed. While this position has potent facial appeal, the fact remains that even after Booker, a courtroom must "consider" guideline policy statements prior to imposing judgement. Non to mention many judges still adopt to appoint in departure analysis. Information technology is therefore important to testify, if you can, how the policy statements in Parts 5H and 5K call for a lower sentence. Even though a single mitigating factor may not warrant a downward deviation, a combination of factors might (come across USSG §5K2.0 Commentary). Present the court with every credible mitigating factor that the case presents, both in terms of "departure" and in terms of "variance" and/or "non-Guidelines sentence." Even if you don't get a judgement below the guideline range, mitigating factors can often help in getting a judgement at the depression cease of the range, which is especially important when the offense level and/or the criminal history score render loftier guidelines.
• The U.South. Sentencing Commission revised the policy argument to Guideline Department 5H1.3 to providethat "[m]ental and emotional conditions may be relevant in determining whether a divergence is warranted," especially "[i]due north sure cases … to attain a specific treatment purpose." (Emphasis added). Prior to the amendment (Better. 739), mental and emotional conditions were not considered "normally relevant."Counsel than thus now argue under a defendant's "history and characteristics," 18 UsC. §3553(a)(i), that a specific "treatment purpose" is that the BOP will non likely treat a particular area requiring accommodation and, therefore, that a variance is warranted. The cost of treating a customer's condition(s) further supports a toll-related mitigation argument (meet higher up), particularly in calorie-free of the BOP budgetary issues and abiding overcrowding.
• If your client is a cooperating witness, accompany him or her to any debriefings. Not only will you be able to clear up any time to come dispute equally to what the client said, your presence will often facilitate the discussions, particularly if you accept debriefed and prepped your client in advance.
• Many of us take been in the situation where even though our client has cooperated, the government has refused to file a 5K1.1 motility for downward difference based on substantial assistance. If you are always faced with this unpleasant situation, either seek a downward difference based on "super/extraordinary acceptance of responsibleness" or, since the "government motion requirement" of §5K1.ane is now just a guideline policy to be considered, contend that even without a 5K motion, the cooperation would make a lower sentence "sufficient," and a higher one "greater than necessary" to meet the goals of sentencing. Every Circuit to accept considered the consequence has ruled that a sentencing court may consider a defendant's cooperation as part of its § 3553(a) analysis, and grant a variance on that basis, even in the absence of a Government motion. For more than information on maximizing the benefits of cooperation, accept a look at the lead article in the Summertime 2007 bug of Federal Sentencing and Post-conviction News, our house'due south quarterly newsletter. Finally, even where the government files a substantial assistance motion, unless otherwise precluded by the plea understanding, you are permitted to argue for a more than generous reduction, and the court volition be free to grant a greater reduction. While a substantial aid reduction cannot be based on non-cooperation grounds, experience shows that judges unwilling to grant a relief for non 5K1.1 reasons ofttimes grant a more than generous 5K1.ane reduction than recommended by the government when presented a compelling mitigation case, especially since such an arroyo insulates them from appellate review.
• Seek a "lateral" difference or "variance" that requires your client to serve the aforementioned amount of fourth dimension the Guidelines call for but under more than favorable conditions. For example, if the Guidelines phone call for a 21-calendar month sentence, enquire the judge to impose a sentence of vii months of incarceration, followed by supervised release with a special condition that the customer serve seven months in Residential Corrections Center (RRC or halfway house) so followed by seven months of supervised release with home confinement and an advisable amount of community service. This adds up to the same 21 months that the client would normally serve. Withal, it actually requires more time since the client volition non become good conduct time credit for either the halfway firm or habitation confinement portions of the sentence. While your client volition serve the entire 21 months, the weather condition of confinement volition exist meliorate, and the opportunities for your customer to work and support a family will exist greater.
• Accompany your client to probation officeholder meetings that are part of the Presentence Investigation Report (PSI) process. Since probation officers are overburdened, obtain in advance the forms and documents they need, and take your client complete and bring them to the initial interview (subject to your prior review). If you instance police force or other materials supporting your sentencing position, bring copies with you, highlighting the relevant portions. Probation officers, most of whom are not lawyers, often prefer highlighted cases to memoranda of police force, which they find off putting.
• When y'all meet with the probation officer, find out the "dictation engagement,"the appointment by which the outset draft of the PSI must be dictated. When possible, information technology is extremely helpful to have the probation officeholder and the Assistant U.South. Attorney (AUSA) buy into your customer's position regarding law-breaking behavior, part in the offense, and whatsoever grounds for relief from the Guidelines before the dictation date. "Ownership in" does not hateful paying anybody off. It means getting them to hold that your position is not unreasonable. Remember that probation officers often have a psychological investment in their original draft PSI, which can make getting them to change a PSI difficult. Past putting your endeavour into trying to get a skilful initial draft, you volition non have to file that many objections.
• Read "Within Baseball game: An Interview with Onetime Federal Probation Officer" by Alan Ellis and Tess Lopez that appears in this book. It is valuable advice by a former U.S. Probation Officer who is at present a mitigation specialist on how to best approach a probation officer. In short, it encourages educating the probation officer about your clients before the prosecutor has had an opportunity to poison the well. 1 manner to do so is by providing the probation officer with favorable character letters. An example of a grapheme instructional letter of the alphabet that we send to clients is in this book.
• Beneath guideline variance sentences are on the rise while sentences within the guidelines continue to decrease. Co-ordinate to the statistics compiled by the U.S. Sentencing Committee since Booker, not-government-sponsored (e.g., non-§5K1.one departures) below guideline sentences have increased from 12% of all sentences imposed in 2006 to 17.4% in 2011. Conversely, inside guideline sentences take decreased from 61.7% of all sentences imposed in 2006 to 54.5% in 2011. The increase in below guideline sentences is even more dramatic when looking at particular offense categories. For instance, non-government-sponsored below guideline sentences for child pornography offenses-perhaps the well-nigh controversial of all types of guideline sentences-accept more than doubled from but xx.8% of all such sentences imposed in 2006 to 44.8% in 2011. The chart beneath shows the trends for non-regime-sponsored below guidelines sentences in the superlative five offense categories equally well equally the tendency for sentences overall.
• The foregoing tendency makes reinforces the importance of using a sentencing specialist able to assistance humanize your client, preferably someone familiar with the federal system's many nuances. If your client cannot afford this service, ask for funds under the Criminal Justice Human activity, noting that such providers typically bill at below the CJA charge per unit, meaning that the courtroom receives information pertinent to the disposition process that attorneys are not typically trained to elicit at a price savings. Sentencing advocates, who are akin to capital letter mitigation specialists (though their case work-ups are not equally intensive), are oftentimes social workers, old U.South. probation officers, or criminologists. Their training makes their interviewing technique more effective than that of most lawyers, and often allows them to obtain information a lawyer cannot. For example, a forensic social worker with a background in psychiatric social work is improve able to recognize when a customer has a mental illness, which may provide a ground for macerated capacity-type relief. These advocates are likewise meliorate able to identify and develop information concerning unique family circumstances. . The National Alliance of Sentencing Advocates & Mitigation Specialists (NASAMS) , has listings for advocates around the land. Judges e'er desire to know why the defendant committed the offense. A sentencing presentation that can help you and the court respond the "why" question goes a long way toward securing lowest possible judgement.
• Be creative. Don't limit yourself to thinking virtually downward departures-but don't forget about them either. Kickoff recollect about the departures identified in the guidelines themselves. Then retrieve of things that make your case unusual. If at that place are things that are unusual nearly your client or the offense-things that take the case outside the "heartland" of the guidelines-these can be skillful grounds for a departure. But don't terminate there. After Booker, almost anything about your client, the offense, and the sentences that similarly situated defendants have received tin back up an argument that a judgement below the lesser of the guideline range is "sufficient, but not greater than necessary" to meet the goals of sentencing.
• Let judges be judges. Booker altered the ground rules for justifying lower sentences. Exist artistic. Don't limit yourself to factors that would have supported downward departures under the Guidelines. Think of unique aspects about your client and/or the law-breaking that make a sentence below the guideline range "sufficient" to meet the goals of sentencing, that is, why a sentence within the range is "greater than necessary" to meet those goals. As a contempo example, there has been a growing trend given recent economic realities to debate that the cost of incarceration should be factored into whether a sentence is "greater than necessary." Such an argument carries greater force when the court understands what the customer would be doing if not incarcerated (i.e., working, supporting a family, paying taxes).
• For older clients or those facing meaning sentences, brand the court aware of the customer'south life expectancy. Data on life expectancy is readily available online through the Centers for Disease Control and Prevention, among many other places. In the absence of studies measuring the impact of incarceration on life expectancy meaning anecdotal evidence supports the contention that extended incarceration significantly reduces life expectancy. Data from any life expectancy charts should be augmented by arguments specific to your client and/or where your customer will serve fourth dimension. Some facilities are more than onerous than others and difficult time doesn't help life expectancy. This argument meshes well with arguments regarding susceptibility to corruption in prison depending on the characteristics of the offender and/or the nature of the offense and/or the likely designated prison.
• Traditionally, federal courts did not consider whatsoever disparity betwixt the punishments meted out by state courts vis-à-vis federal courts for the same or like comport. Afterward Booker, that has changed. Meet, e.g., United states v. Clark, 434 F.3d 684, 687 (4th Cir. 2007) ( "the consideration of state sentencing practices is not necessarily impermissible per se"). Depending on your jurisdiction, the statutory maximum penalties for sure state law offenses often can exist dramatically less than their federal counterparts. Also, good-time credits and other opportunities for early release (due east.grand., parole) tin be far more generous at state levels than at the federal level, significant that a state offender not merely will receive a far less onerous judgement for the aforementioned or similar behave as his federal counterpart, but may also serve far less time, every bit an overall percentage, of sentence imposed. Such comparisons both go to arguments regarding unwarranted disparity and, more than importantly, serve as a measure of the disproportionate result that the federalization of criminal offence and the guidelines have on the particular offense.
• Sentencing judges and appellate courts are often concerned with unwarranted disparity with other defendants and cases. To bolster whatever predilection the courtroom may take to exercise leniency in your instance-both when because how the disposition might be received in the Court of Appeals or the court of public stance-emphasize what sentences other judges have imposed in similar cases, in the sentencing district, in neighboring jurisdictions, in other districts in the circuit, and effectually the country.
• The addition of one criminal history point may not change a defendant'due south Criminal History Category ("CHC"). Just it tin can still exist important to object to these seemingly harmless additions, and then to appeal if the district court denies the objection. Commonly, a criminal history indicate that does not affect the sentencing range is "harmless mistake." Merely not always. In United States v. Vargas, 230 F.3d 328 (seventh Cir. 2000), the Seventh Excursion remanded for re-sentencing based on a seemingly inconsequential criminal history point. The Court reasoned that the mistake was not "harmless," considering it "might have affected" the commune court'southward denial of the defendant'southward motion for downward departure based on the defendant's contention that his criminal history category significantly overrepresented the seriousness of his criminal history (see USSG §4A1.3 (p.southward.)). As discussed in the Prison Tips section below, criminal history points can besides affect prison placement.

Meet also Federal Sentencing Tips here.

About Alan Ellis

Alan Ellis is a criminal defense lawyer with offices in San Francisco and New York, with 50 years of experience as a practicing lawyer, police professor and federal police clerk. He is a nationally recognized authority in the fields of federal plea bargaining, sentencing, prison matters, appeals, habeas corpus 2255 motions and international criminal police force.

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Source: https://alanellis.com/sentencing-tips/

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