Sentencing Memorandum

What is a Federal Sentencing Memorandum?

A criminal defense lawyer will write a federal sentencing memorandum to try to convince the judge that the lowest-possible sentence would be appropriate at a federal sentencing hearing.

This memorandum, called a "sentencing memo," is designed to present a complete picture of the defendant's circumstances, such as biographical history, hardships, dysfunctional family environment, and other factors that might have caused them to make bad decisions in their life.

Federal Sentencing Memorandum
A federal sentencing memo is prepared by a defense lawyer to get the lowest possible sentence.

The sentencing memo also includes some positive information about their character, along with information about their physical health, mental health, and history of drug or alcohol abuse.

The federal court judge also uses other reports to determine the appropriate sentence, such as the probation department's presentence investigation report (PSR or PSI report) and the prosecutor's sentencing memorandum.

These documents will describe the crime, severity, and case circumstances. The job of the defense attorney's sentencing memo is to present positive aspects of the case and defendant, while the other two reports show the opposite.

Federal court practice almost always involves formal written sentencing from the government and the defendant.  The judge will review the PSR, the memorandums from both parties and any character testimonials for the defendant before sentencing them.

A federal sentencing memorandum from the defense lawyer should be filed with the court within 14 days of receiving the probation department's presentence investigation report. Let's review this topic further below.

What Is the Reason for a Sentencing Memorandum?

Simply put, a federal sentencing memorandum allows the defense lawyer a chance to persuade the judge why a lighter sentence is appropriate. They will argue in the memorandum for a sentence lower than the advisory guidelines.

Suppose the sentencing guidelines call for an advisory 48-month sentence; the defense memorandum might argue why it should be a 24-month sentence instead.

The defense lawyer will typically gather letters of support from family members, friends, and other community members to help show the defendant's moral character and reputation.

Federal judges have a lot of sentencing discretion. Suppose there is a negotiated plea agreement between the prosecutor and the defendant. Still, the judge often has substantial discretion to vary from a guidelines range by increasing or decreasing the punishment.

As noted, the defense attorney and federal prosecutor will submit a sentencing memoranda to the court to support their requested sentence.  They are typically lengthy documents and include arguments about the following:

  • sentencing guidelines,
  • mitigating evidence,
  • character letters, and
  • expert reports,
  • disputes with the presentence report (PSR).

The sentencing memorandum submitted on your behalf could be the most crucial document in your case. An experienced federal criminal defense lawyer will know what information should be included for the federal judge to consider, such as the following:

  • defendant's goals and redeeming qualities,
  • improvements in the defendant's behavior,
  • how the defendant is not a danger to society,
  • request on where the defendant should be sentenced,
  • challenge incorrect claims made by the prosecutor or probation.

What is the Probation Department Presentence Report?

A presentence investigation report (PSR) from the probation department is crucial because federal judges rely on them for sentencing. The PSR describes the following:

  • defendant's background,
  • prior criminal history,
  • personal history,
  • family situation,
  • financial status,
  • the offense for which they were convicted,
  • characteristics that differentiate the defendant from others convicted under the same federal law.

For example, suppose the defendant was convicted of a drug-related case. In that case, the PSR would include the type, quantity, and how many drug sales were made by the defendant.

Federal Probation Department Presentence Report
Federal judges rely heavily on the presentence investigation report (PSR) from the probation department.

Suppose their case was related to fraud. In that case, the PSR would include the following:

  • number of victims,
  • intended loss amount, and
  • the sophistication of the fraud.

The offense characteristics will significantly impact the appropriate calculation of the sentencing range of the defendant's advisory sentencing guidelines.

The PSR will also include a recommended guideline range for sentencing based on the offense, enhancements and reductions, and criminal record, which will help a federal judge impose a fair sentence.

The federal sentencing memorandum by the defense lawyer should address the PSR and challenge inaccurate information or unfair characterizations by the probation department report.

Notably, defendants could refuse to answer questions, provide information, or sign releases for information during the presentence interview, usually based on advice from their federal defense lawyer.

What is the Advisory Guidelines Calculation?

The sentencing memorandum will typically include an advisory guideline calculation preferred by the defense lawyer, which provides for departures and enhancement provisions that a formula can't mechanically apply.

What is the Federal Advisory Guidelines Calculation?
The sentencing memo will include an advisory guideline calculation to provide for departures.

These require a manual assessment of the applicability of the guidelines that are often more friendly and call for a lower total offense level and criminal history category.

For example, challenging the criminal history category calculation in the PSR involves closely reviewing the defendant's prior convictions, some of which occurred many years prior and no longer apply to their current circumstances.

These issues might cause a criminal history category calculation by probation misrepresents the seriousness of the defendant's actual prior history.

The government will also present its own unfavorable guidelines calculation and assessment of the equitable factors' applicability in Title 18 U.S.C. 3553(a). They usually argue against any downward departure or variance from the sentencing guidelines range.

What About Defendant's History and Characteristics?

The sentencing memorandum will also address the equitable 18 U.S.C 3553(a) factors, which require the court to evaluate the defendant's history and characteristics, among other factors. The sentencing under these provisions should accomplish the goals of sentencing, including the following:

  • punishment,
  • rehabilitation, and
  • deterrence to both the defendant and members of the public.

Defense presentation of the defendant's background and history in the memorandum is required, such as letters of support from family members and friends about their character. These letters are typically addressed to the judge for a lenient sentence.

The defendant will sometimes also present a letter to the judge that is often listed in their sentencing memorandum while asking for a lighter sentence.   

This means the sentencing memo has the find a balance between a defendant accepting responsibility for their behavior and seeking leniency, along with challenging excessive punishment requests by the government.

What Do Judges Consider After Reviewing a Federal Sentencing Memo?

As noted, 18 U.S. Code 3553 imposition of a sentence law requires judges to consider certain factors to determine a sentence in a case by saying, “The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth….”

Simply put, when sentencing s defendant is a federal case, a federal judge must consider the following:

  • The nature and circumstances of the crime;
  • The history and characteristics of the defendant;
  • The need for the sentence to reflect the seriousness of the crime;
  • To advocate respect for the law and provide a just punishment;
  • To deter criminal conduct and protect the public;
  • The types of available sentences;
  • The need for warranted sentence disparity among similar defendants;
  • The need to provide victim restitution.

Why Do You Need a Federal Defense Lawyer?

The criminal defense lawyer writes a sentencing memorandum to the judge to present a complete picture of the defendant besides the crime itself. It is often crucial to get the best possible outcome.

Why Do You Need a Federal Defense Lawyer?
Contact our federal defense lawyers for advice.

An influential defense sentencing position will address the presentence report prepared by the probation department, a crucial document in federal sentencing and heavily relied upon by judges.

Our extensive experience shows us how to write an effective federal sentencing memorandum on your behalf.

Suppose you or a family member is facing federal sentencing. In that case, we can help you craft a sentencing memorandum for your case that can challenge the recommended sentence by the probation department.

We offer a free case evaluation by phone or through the contact form. We provide legal representation throughout the United States against federal criminal matters. The Hedding Law Firm is located in Los Angeles, CA.

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