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Federal Crimes - Sentencing FAQ Continued

 

Q. What is the sentencing guideline range in my case?
 
A. You can estimate your "guideline range" under the sentencing guidelines but not with 100% certainty since you cannot know exactly how the law will apply to the facts of your case. Finding your sentencing range requires computing both an "offense level" and a "criminal history category." Your "offense level" is based on the facts of your case gleaned from investigative reports by law enforcement and your own defense investigation. Your "criminal history category" can be even more uncertain since information about prior criminal activity tends to be incomplete. The official record or "rap sheet" is very often inaccurate or difficult to read, and defendants sometimes forget minor convictions or sentences, for example concurrent sentences, which affect criminal history calculations.
 
Q. What will my sentence be?
 
A. It used to be very likely that a sentence would fall within the sentencing guidelines range. Departures from the guidelines were unusual. In 2005 the United States Supreme Court decided that mandatory guidelines were unconstitutional and federal judges could only look to the guidelines for advise on sentencing. Judges follow the guidelines in most cases, but some depart from guideline recommendations.
 
Q. Can the sentencing judge give me a lower sentence than the mandatory minimum for my crime or lower than predicted by my defense attorney?
 
A. Mandatory minimum sentences passed by Congress are the one certainty in sentencing. Laws mandating minimum sentences exist for most drug, child pornography, and child abuse offenses, and consecutive mandatory sentences are required for crimes like identity theft, the use of a gun during drug trafficking, assault, and bank robbery.

There are two exceptions where a judge can avoid giving you the mandatory minimum sentence required by law. The prosecutor can move the court for a lower sentence if you cooperate in a prosecution or investigation of someone else, or in a drug case only you can qualify as a "safety valve" defendant.

Congress created the "safety valve" in 1994 to address excessive sentences for nonviolent drug offenders. It is very difficult to qualify as a "safety valve" defendant, and thousands of nonviolent drug defendants are still sent to prison for decades under mandatory minimum sentencing laws. But a low-level, nonviolent offender who qualifies for the "safety valve" can be sentenced at the judge's discretion under the sentencing guidelines instead of mandatory minimum laws. You qualify for a "safety valve" only if your "criminal history category" is a Category I under the sentencing guidelines, you did not threaten violence or possess a gun, your offense did not result in death or serious bodily injury; you were not a leader in the offense; and you agree to provide the prosecutor with all the information and evidence you have concerning the offense and related offenses.
 
Q. Do I have to talk to the probation officer who is going to prepare my presentence report?
 
A. Once you are convicted or plead guilty, the judge almost always orders a probation officer to prepare a "presentence report" describing your offense, your prior criminal record, and your personal background information. The sentencing judge will use this information to determine your sentence range under the guidelines.

The probation officer usually gets information about your offense from the prosecutor and from law enforcement investigative reports and about your criminal record from the court records. Input from you about your background can make a difference in lowering your sentence. It is best to provide that information in writing rather than in person. Your defense attorney can help you effectively present yourself and your background in light of the particular probation officer's reputation for impartiality.A good guide for the kind of information a probation officer wants is the presentence interview worksheet, which can be found at.
 
Q. Is there anything I should not share with the probation officer who is preparing the presentence report?
 
A. You should not talk about your criminal record unless your attorney advises otherwise. Prior convictions only increase the sentencing guideline range. For similar reasons, sharing your alias or other name is rarely helpful. Unless you feel remorse and can express it sincerely, talking about the offense or victim is a mistake that might lead enhancements that increase your sentencing guideline range. Avoid discussing your drug use except as part of a genuine discussion of a drug problem and a desire to beat it can be a positive factor. Defendants should remember that it is important to tell the truth about whatever they do talk about; lying to or misleading a probation officer is far more damaging than saying nothing at all.
 
Q. Should my defense attorney attend my presentence interview?
 
A. The defense attorney should almost always be present at the presentence interview to guide the discussion away from harmful factors and toward those factors which could positively affect your presentence report and ultimately your sentence. Your defense attorney has experience in these interviews, knows you and your case, and is on your side. The probation officer is working for the court and has probably just met you. It is an important interview, and you should accept help.
 
Q. Will I have a chance to correct the presentence report with mistakes?
 
A. You will get the presentence report at least five weeks before your sentencing date and you will have two weeks to file objections to the report. This includes both legal objections about the way the presentence report applies the sentencing guidelines and factual objections where the presentence report got the facts wrong. You and your defense attorney should think carefully about whether to make a particular factual objection. Many factual errors do not affect the guidelines and objecting to a fact sometimes just draws more attention to it making it seem more important than it really is. It is important to carefully review your presentence report and discuss all errors with your attorney. Any errors, even if they may not affect your sentence, can affect your security designation in prison.
 
Q. Why is my sentence being increased because of a prior crime I already served my time for?
 
A. Judges have always considered a person's prior record in deciding a prison sentence. A person who has committed more crimes in the past will generally get a longer sentence than a person who has not. The idea, for better or for worse, is that harsher punishments are necessary for people who do not learn a lesson the first time. The guidelines and sentencing judges tend to take the view that misconduct deserves greater punishment when it is repeated.
 
Q. Why does the judge consider dismissed charges when computing my guideline range?
 
A. The sentencing judge must consider all "relevant conduct" for certain offenses, mostly drug, theft, and fraud offenses where the "offense level" is based on quantity. "Relevant conduct" is any conduct that has a common scheme or plan, including charges that were dismissed as part of a plea agreement. For this reason, plea agreements are often less beneficial than they first seem. The government still has to prove that you actually committed the crime dismissed in a prior plea agreement.
 
Q. When the sentencing judge is computing my guideline range why does he or she consider charges where I was found not guilty?
 
A. The sentencing judge must consider all "relevant conduct" for certain offenses, mostly drug, theft, and fraud offenses where the "offense level" is based on quantity. "Relevant conduct" is any conduct that has a common scheme or plan, including charges for which you were "not guilty." When a jury finds you "not guilty," they have only determined that the prosecution has not met its burden of proving you guilty of all elements of the crime beyond a reasonable doubt. The jury has not made the determination that you did not commit the crime. In a subsequent case a sentencing judge need only determine whether it is more likely than not that you engaged in the conduct previously charged against you. Since it seems terribly unfair and is disrespectful of a jury's verdict, some judges in some cases refuse to consider charges for which a person was found not guilty.
 
Q. How much time will I serve on my sentence?
 
A. You will serve almost all of your sentence. There is no such thing as parole in the federal system for all crimes committed after November 1, 1987. If your sentence is longer than one year, you might qualify for a small reduction for "good time" which is earned at the rate of 54 days for every year of the sentence. Although the statute that governs good conduct time, 18 U.S.C. 3624(b), states that prisoners may earn up to 54 days per year, the Bureau of Prisons (BOP) awards a maximum of 47 days for each year of the sentence imposed. The Federal Public Defender disagrees with the BOP's calculation and has challenged this interpretation, but the challenges have not yet succeeded.

In addition, you may spend the last 10 % of your sentence, up to 6 months, in a community corrections center, or "half-way house." The recently passed Second Chance Act requires the BOP to issue regulations allowing prisoners to be placed in community corrections centers for up to twelve months, but the BOP has not yet issued such regulations. Not all inmates are eligible for half-way house. For example, those with immigration or other types of detainers are ineligible, as are sex offenders.
 
Q. Why did my attorney ask the judge to sentence me to a year and a day instead of just a year?
 
A. Because of the "good time" statute, you can actually serve less time on a sentence of a year and a day. You can only earn "good time" or a reduction of approximately 47 days when your original sentence is longer than a year. So a year is 365 days, but a year and a day can be 319.
 
Q. What prior time in custody will be credited against my sentence? Will I get credit for all of the time I was in custody from the time a federal detainer or hold was first placed on me?
 
A. Time calculation is complicated. You will generally receive credit for every day you spend in "official detention" after the offense for which you were convicted as long as those days were not credited toward another sentence. Unfortunately, the definition of "official detention" is not always clear. For example, time in a halfway house or in home confinement is not counted. The basic rule is in section 3585(b) of title 18 of the United States Code, but this is an important issue to discuss with your defense attorney because it is so complicated. In some instances, an attorney may be able to persuade a court to adjust the federal sentence to account for any potential discrepancies between the credits that the Bureau of Prisons will count, on the one hand, and the time the judge thinks should count on the other.

If you were in state custody and were brought into federal custody pursuant to a "writ of habeas corpus ad prosequendum," the federal Bureau of Prisons (BOP) will generally only give you credits against your federal sentence if you did not receive state custody credits. But if you were in state custody and the state dropped charges in favor of a federal prosecution, you will probably receive credits against your federal sentence even for the time you spent in state custody before the federal charges were filed as long as that time in custody occurred after the offense for which you were convicted federally and as long as you did not receive credit in the state against another state sentence.

Time spent in immigration custody may or may not be considered "official detention." It is important to discuss this issue with your individual attorney so he or she may attempt to work out a resolution that will result in the time being credited.

The initial appearance in magistrate court is not, ultimately, determinative of how your time is counted. What is important is the question whether you were in "official detention."
 
Q. Will I at least get credit for all of the time I've spent in federal custody since being brought to federal court to face the federal charge?
 
A. Usually you will get credit for all of the time you have been in custody while facing a federal charge. There is an exception when you are serving another sentence either in state or federal prison. For example, if you were in state custody and were brought into federal custody pursuant to a "writ of habeas corpus ad prosequendum," then the federal Bureau of Prisons (BOP) will generally only give you credits against your federal sentence if you did not receive state custody credits. But if you were in state custody and the state dropped charges in favor of a federal prosecution, you will probably receive credits against your federal sentence even for the time you spent in state custody before the federal charges were filed as long as that time in custody occurred after the offense for which you were convicted federally and you did not receive credit in the state against another state sentence. Because this issue is so complicated, it is important to discuss any possible credits issues with your attorney before you are sentenced. In some instances, an attorney may be able to persuade a court to adjust the federal sentence to account for any potential discrepancies between the credits that the Bureau of Prisons will count, on the one hand, and the time the judge thinks should count on the other.
 
Q. When do I start getting credit against my new sentence if I am serving another sentence when I am brought to federal custody to face a new federal charge?
 
A. The new sentence will begin to run either at the time it is imposed or at the time the sentence you are already serving ends. The judge imposing the new sentence can order that it run concurrently with the sentence you are already serving. But if the judge does not specifically order the new sentence to run concurrently, the Bureau of Prisons will assume it runs consecutively and your new sentence will begin after you have served the sentence you are already serving.
 
Q. Can I speak with a Deputy Federal Public Defender to get a second opinion on my defense attorney's advice?
 
A. It is a bad idea and a very dangerous thing to discuss your case with anybody outside of your attorney's defense team. Nobody else has access to the amount of information your present defense attorney has, and it is not realistically possible for you to summarize everything for us in a complete and objective way. Facing something as frightening as a criminal conviction and possible prison time can make you lose perspective. You may be desperate to hear good news or, occasionally, pessimistically expecting bad news. It is common for criminal defendants to "hear what they want to hear." You may be incorrectly interpret what we your defense attorney has told you or what we might tell you. As a result, we almost always decline to give second opinions to people who are represented by other attorneys. In fact, attorneys are barred by the rules of ethics to give opinions to people who are already represented by other attorneys.
 
Q. How can I get my federal conviction expunged from my record?
 
A. Unfortunately, it is not possible to get a federal conviction expunged. The last federal expungement statute - the Federal Youth Corrections Act - was repealed in 1984, and even that statute applied only to offenders under the age of 26 if the judge chose to sentence them under the Act. The only way a federal ex-offender can get a post-1984 conviction removed from his record is by getting a pardon from the president. That process is discussed further below.
 
Q. If I am convicted, where will I serve my time?
 
A. If you are convicted, and sentenced to a term of imprisonment, you will serve your sentence in a federal detention facility either operated by, or under contract to, the United States Bureau of Prisons (BOP).

There are five different security levels--minimum, low, medium, high, or administrative--and you will be designated based on a variety of factors, including your personal and criminal history, the details of your offense, and the length of your sentence. The Bureau of Prisons relies heavily on your presentence report in determining what security level you will be designated. Therefore, it is important that you carefully review your presentence report and discuss with your attorney any errors, even if they may not affect your sentence, because it could affect your security designation.

Although one of the factors the Bureau of Prisons considers in designating you to a specific facility is the location where you will be released at the end of your term, prison facilities in California are overcrowded. Therefore, even when all of your family ties are in California, there is a chance that you could be sent out of state. Although the judge cannot guarantee a local placement, it is a good idea to ask your sentencing judge to recommend that the Bureau of Prisons designate you to a local facility.
 
Q. How much time will I serve on my sentence?
 
A. You will serve almost all of your sentence. There is no such thing as parole in the federal system for all crimes committed after November 1, 1987. If your sentence is longer than one year, you might qualify for a small reduction for "good time" which is earned at the rate of 54 days for every year of the sentence. Although the statute that governs good conduct time, 18 U.S.C. 3624(b), states that prisoners may earn up to 54 days per year, the Bureau of Prisons (BOP) awards a maximum of 47 days for each year of the sentence imposed. The Federal Public Defender disagrees with the BOP's calculation and has challenged this interpretation, but the challenges have not yet succeeded.

In addition, you may spend the last 10 % of your sentence, up to 6 months, in a community corrections center, or "half-way house." The recently passed Second Chance Act requires the BOP to issue regulations allowing prisoners to be placed in community corrections centers for up to twelve months, but the BOP has not yet issued such regulations. Not all inmates are eligible for half-way house. For example, those with immigration or other types of detainers are ineligible, as are sex offenders.
 
Q. How is my time calculated? Does it start the time the federal detainer hold is placed on me in state custody/ICE or when I'm physically transferred to the Marshal Service or when I make my initial appearance in magistrate court?
 
A. Time calculation is complicated. You will generally receive credit for every day you spend in "official detention" after the offense for which you were convicted as long as those days were not credited toward another sentence. Unfortunately, the definition of "official detention" is not always clear. Time in a halfway house or in home confinement is not counted. The basic rule is in section 3585(b) of title 18 of the United States Code, but this is an important issue to discuss with your defense attorney.

If you are in state custody, and you are brought into federal custody pursuant to a writ of habeas corpus ad prosequendum, whether you receive federal custody credits for the time you are in federal custody will generally depend on whether you received state custody credits for that period of time. Thus, if you were serving a state sentence, and you continue to receive credit against your state sentence, the federal Bureau of Prisons will generally not give you credits against your federal sentence. But, if you were in state custody and the state dropped charges in favor of a federal prosecution, you will probably receive credits against your federal sentence, even for time you spent in state custody before the federal charges were filed, as long as that time in custody occurred after the offense for which you were convicted federally, and you did not receive credit against your state sentence. Because this issue is so complicated, it is important to discuss any possible credits issues with your attorney beffore you are sentenced. In some instances, an attorney may be able to persuade a court to adjust the federal sentence to account for any potential discrepancies between the credits that the Bureau of Prisons will count, on the one hand, and the time the judge thinks should count, on the other.

Time spent in immigration custody may or may not be considered "official detention." It is important to discuss this issue with your individual attorney so he or she may attempt to work out a resolution that will result in the time being credited. The initial appearance in magistrate court is not, ultimately, determinative of how your time is counted. What is important is the question whether you were in "official detention."
 
   
   
   
 
 





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