What happens after sentencing?

Post-Sentencing in a Federal Criminal Case

Now what?

Now a defendant can feel like they are blowing in the wind without an advocate to guide them through this difficult period. Many prison consultants make a lot of money just telling people what to expect when they get to prison. We do that, too, but more importantly there is a need for somebody to help make the transition from defendant to inmate.

This transition starts well before the sentencing hearing. At sentencing, a defendant’s lawyer asks the judge to recommend a specific prison for “placement” of the defendant within the Bureau of Prisons. If that recommendation is appropriate, the BOP rarely goes against a judicial recommendation. If not, the BOP can send an incoming inmate wherever it wishes. The lawyer’s request is rarely based on a working knowledge of the Bureau of Prisons (BOP) or how the defendant will actually be seen by it. Usually it’s a gut feeling. A prediction that the lawyer has based on prior clients and their criminal history.

More information about recommendations is available at the bottom of this page.

Bad move. The BOP has a dozen different reasons why an inmate will qualify for a security level that is one-higher than (s)he would normally go. It’s a minefield that takes knowledge, practice, patience, and a knack for bureaucratic red-tape to navigate.

That’s us! We can accurately predict the security level a defendant will be classified as, show a list of prisons within the surrounding states which house that security level, and then make an APPROPRIATE recommendation for our client based on proximity, treatment needs, and programs offered. These factors are constantly changing from year to year, which is why this specialty is necessary.

For additional facts about pretrial, see a primer article about it here.

Contact Us for a Free Consultation

Find out how we can help by calling us for a free consultation at (480) 382-9287.

For more ways to contact us, visit our contact us page for contact form and e-mail addresses.

Place of Incarceration

If you take a plea bargain, the main concern of the pre-incarcerated is the location they will spend their time. What institution is better than the rest? Which is closest to home? These questions are the most basic and most frequently asked. Your sentencing judge can make a recommendation to the BOP for your placement. However, many times this recommendation is not followed. Why?

The BOP has its own policy of classifying each inmate to a specific institution and level of security. The problem is that most lawyers and judges make no effort to determine exactly what yours should be. They have a very good idea, but are often wrong.

If your judge recommends you to an institution that does not fit their criteria, the BOP will then assign you to wherever it sees fit, no matter the distance from home. However, according to BOP statistics, if a judge makes a valid recommendation, it is followed over 80% of the time. PCR Consultants can do a BOP compliant work-up on each client, match that work-up with BOP institutions that fit your needs, and give your attorney and sentencing judge the proper institution for you.

Various institutions have programs that can take up to a year off sentence time if completed plus six months to a year in a half-way house. Finding the right institution for you can mean 18-24 less months spent in prison. Up to 2 YEARS off!

Contact PCR Consultants as early as possible to affect as much of this process as you can.

Federal Sentencing: Enhancements and Mitigations

The Pre-Sentence Investigation Report

This document, written by the local Probation Department, is usually abbreviated as the PSI or PSR. Either way you hear it said, it is referring to the same document. We will pick PSI and use that for the purposes of this write-up.

The PSI is always sealed and only available to the Court, the Prosecutor’s office, the Defendant, and the Defendant’s attorney. There are lots of reasons for this, but mainly because the document has VERY personal information including the defendant’s social security number (SSN), current and past addresses, and all family relations.

About halfway through the document, the probation department takes the time to calculate everything that factors into a federal sentence recommendation. Sentence recommendations are just that, advisory. These are based on the Sentencing Guidelines Manual (U.S.S.G) discussed in the primer. Since the famous Booker case, U.S.S.G. recommended sentencing ranges are not binding and can’t be considered mandatory by judges.

In this calculation, the base offense level of the offense is stated first. If more than one conviction is present (either by guilty plea or jury verdict), the base offense levels will be grouped together and only the highest one will be used. They don’t add them together, which is a good thing.

Next the report looks at any factors that the Guidelines Manual specifies regarding base offense level. For example a drug conspiracy charge for 65 kilograms of marijuana will have a base offense level 20. For reference, at 81 kilograms the base offense level would be two points higher: 22.

Enhncements

Now the calculations take a slightly more complicated turn. Enhancements are any element to the specific crime category section that makes things more serious. In our above-drug conspiracy a few examples of this are:

  • If a dangerous weapon was possessed during the commission of the crime, add 2 points;
  • If the defendant used violence or made a credible threat, add 2 points;
  • If the intention of the drug conspiracy was to bring drugs into a jail or prison, add 2 points.

…and so on. A good example of where this can get more complicated is when multiple charges are grouped. In one financial case, a defendant was convicted of (among other things) obstruction of justice for destroying documents that were incriminating. He was still given 2 more points for an obstruction of justice enhancement because the base offense level for other grouped-convicted-counts were higher, and thus obstruction didn’t really factor into his sentence without this enhancement.

Was this legal? It’s dubious, but we’ll find out when his appeal sorts out.

Mitigations

In the same way enhancements are calculated (added points), so are mitigations (subtracted points). There are far fewer of these, but they still exist and are used in most cases.

The most common reasons to subtract points is for pleading guilty (acceptance of responsibility: minus 2 points), pleading guilty quickly (saving government resources: minus 1 point), and having a very minor role in the overall offense scheme in relation to other co-defendants (up to a 4-level reduction).

The Most Good

A good defense attorney knows that well over 90% of defendants in federal criminal cases will plead guilty. Therefore, the sentencing phase is where he can do the most good for his clients. A very thorough investigation of the PSI, elements of criminal conduct, enhancements, and mitigating factors are vitally important.

As a defendant, always double check these sections. Always make sure a defense attorney has reviewed each and every added point, and pursued each and every point-deduction possible. A brief look at the Sentencing Table where the final sentencing range will fall shows that even 2 points one way or another can mean more than a year of a defendant’s life.

In part three of this series, we’ll conclude this tutorial with a discussion of criminal history categories and how that relates to final sentence recommendations.

Go to the the Intro/Primer | Go To Part 1 | Go to Part 3

About PCR Consultants

PCR Consultants started 8 years ago as a small consulting and document preparation firm specializing in federal criminal cases. Specifically, we started helping clients who couldn’t afford, or didn’t want, a private defense attorney to help them apply for early release from federal probation.

Today we help clients in all phases of federal prosecution, from arrest to probation. We even do pardon applications. For a free consultation about federal sentencing questions, e-mail us at info@pcr-consultants.com or give us a call at (480) 382-9287.