BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
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Section 4 - Sentencing

    4.01 Sentencing Procedure (FRCP 32; 18 USC 3553(a))

        4.01.1 Sentencing Procedure: Introductory Note
        4.01.2 Sentencing Procedure: Outline
        4.01.3 Sentencing Procedure: Entry Of Judgment
        4.01.4 Sentencing Procedure: Administrative And Research Documentation
        4.01.5 Sentencing Procedure: Other Sources

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

Following United States v. Booker, 125 S. Ct. 738 (2005), the Sentencing Guidelines are to be treated as advisory rather than mandatory. However, the guidelines must still be "considered" and are one of the factors in 18 USC 3553(a) that must be taken into account when imposing a sentence. In post-Booker sentencing, most circuits have held that the sentencing calculation should begin with an accurate determination, as before, of the applicable sentencing range under the guidelines, and the consideration of any departures consistent with the policy statements and guideline commentary (see 18 USC 3553(a)(4) and (5)). Then the other factors of § 3553(a) should be considered in arriving at the final sentence. This section will continue to reflect sentencing procedure with the guidelines, as well as the changes required by Booker.

Note that any reference in this section to a "departure" means, as before, a departure from the calculated guideline range that is consistent with applicable policy statements and guideline commentary. A "non-guidelines sentence" (sometimes called a "variance") refers to a sentence that is outside of the advisory guideline range based on the application of other § 3553(a) factors, as authorized by Booker.

Introductory Note

Effective December 1, 2002 FRCP 32 was substantially amended. Along with textual additions and revisions, the sections were completely renumbered. For this edition of the Benchbook, the former section numbers appear in brackets following the current designations.

Rule 32(e)(2) [formerly 32(b)(6)(A)] requires that the presentence report be disclosed to the defendant, defense counsel, and the attorney for the government not less than thirty-five days before the sentencing hearing, unless this period is waived by the defendant. [FOOTNOTE 1] The parties then have fourteen days to provide the probation officer with written objections to the presentence report. Many courts have adopted other procedures designed to ensure that disagreements about factual and legal issues material to sentencing are identified in advance of the sentencing hearing. This section of the Benchbook is based on the assumption that such procedures are in place. Note that the sentencing hearing does not have to proceed in a particular order—the following outline is only a guide and need not be followed precisely.

If the defendant had previously consented to plead guilty before a magistrate judge, state on the record that, based on the information provided by the defendant at the plea hearing and contained in the presentence report, you accept the defendant’s guilty plea. See supra section 1.13: Referrals to magistrate judges (criminal matters), at note 1.

FOOTNOTES:

Footnote 1:    Note that the presentence report shall not include any diagnostic opinions that if disclosed may disrupt a program of rehabilitation, sources of information obtained upon a promise of confidentiality, or any other information that may result in harm to the defendant or others if disclosed. FRCP 32(d)(3) [formerly 32(b)(5)]. The probation officer’s final recommendation as to sentence, previously withheld, may now be disclosed pursuant to local rule or at the court’s discretion. FRCP 32(e)(3).

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

1. If you are contemplating a departure from the advisory guideline range on a ground not identified as such either in the presentence report or in a prehearing submission, you must provide "reasonable notice" to the parties and identify the departure grounds. FRCP 32(h). It may be advisable to also provide notice of previously unidentified grounds that may support a non-guidelines sentence. [FOOTNOTE 2]

2. Verify that the defendant and the defendant’s counsel have read and discussed the presentence report, including any revisions that may have been made after the initial disclosure. FRCP 32(i)(1)(A) [formerly 32(c)(3)(A)].

3. If information has been withheld from the report pursuant to FRCP 32(d)(3) [formerly 32(b)(5)], and the written summary required by FRCP 32(i)(1)(B) [formerly 32(c)(3)(A)] has not yet been provided, summarize in camera the withheld information if it will be relied on in determining the sentence. Give the parties a reasonable opportunity to comment on the information.

4. Place in the record under seal any information that was summarized and not disclosed to the defendant and counsel. Specify that counsel are not to be permitted access.

5. Establish what issues are in dispute.

6. If the defendant entered a plea subject to the court’s later decision whether to accept a plea agreement under FRCP 11(c)(1)(A) [formerly 11(e)(1)(A)] (dismissal of other charges) or 11(c)(1)(C) [formerly 11(e)(1)(C)] (binding agreement on sentence), make the decision. In some cases, you may find it necessary to defer this step until disputed issues have been resolved.

(a) If the decision is to accept the plea agreement, inform the defendant that the plea agreement is accepted and that the judgment and sentence will be consistent with it. See FRCP 11(c)(4) [formerly 11(e)(3)]. Make any statement for the record that is deemed appropriate about the reasons for accepting the plea agreement. See U.S.S.G. § 6B1.2, p.s.

(b) If the decision is to reject the plea agreement, advise the defendant that the court does not accept the plea agreement and afford the defendant an opportunity to withdraw the plea. Advise the defendant personally that if he or she persists in the guilty plea, the disposition of the case may be less favorable than that contemplated by the plea agreement. This must be done on the record and in open court, or in camera for good cause. See FRCP 11(c)(5) [formerly 11(e)(4)].

7. Receive any exhibits and hear any testimony that may be needed to resolve factual disputes. The decision to hold an evidentiary hearing is in the discretion of the court. See FRCP 32(i)(2) [formerly 32(c)(1)].

8. If counsel or the defendant alleges any factual inaccuracy in the presentence report, the court must "rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing." FRCP 32(i)(3)(B) [formerly 32(c)(1)]. For issues that are not in dispute, the court may accept the presentence report as its findings of fact. FRCP 32(i)(3)(A) [formerly 32(b)(6)(D)]. [FOOTNOTE 3]

Even if controverted matters will not affect sentencing, it is important to resolve the issues and attach findings, because the Bureau of Prisons will base custody decisions on the presentence report. Notations in the margin or excerpts from the reporter’s transcript may be adequate. [FOOTNOTE 4]

9. Rule on any legal issues relevant to the determination of the sentence. In resolving disputes about particular guidelines or statutory factors, the court should refer to the factors described therein and make specific findings on each factor.

10. Announce your conclusions as to the appropriate offense level and criminal history category. Give the lawyers an opportunity to respond (without repeating previously expressed objections). If you have not yet decided whether to accept a plea agreement under FRCP 11(c)(1)(A) [formerly 11(e)(1)(A)] (dismissal of other charges), you may wish to determine the offense level both under the plea agreement and on the assumption that the defendant pleaded to all counts.

11. If the advisory guideline sentence includes a departure [FOOTNOTE 5]

(a) explain the reasons for the departure;

(b) explain the reasons for the extent of the departure; [FOOTNOTE 6] and

(c) ensure that the parties have had reasonable notice and opportunity to be heard.

12. If a request for departure is denied, state that

(a) departure is authorized in this case, but I choose not to depart because I believe departure is not warranted under the circumstances here; or

(b) departure is not authorized under these facts; or

(c) even if departure were authorized under the facts of this case, I would exercise my discretion not to depart.

13. Discuss the court’s consideration of the sentencing factors in 18 USC 3553(a) as they pertain to the sentence to be imposed. If a non-guidelines sentence may be imposed, explain why a sentence outside of the advisory guideline range may be warranted. If either party requested a non-guidelines sentence, explain why you will grant or deny the request and directly address the arguments made by each party.

14. Inform the defendant and counsel if you have received any additional materials concerning sentencing (such as letters of recommendation or requests for departure). Considering motions for downward departure based on substantial assistance to the government sometimes may be more appropriate in chambers.

15. Recognize the defendant’s counsel for remarks on behalf of the defendant. FRCP 32(i)(4)(A)(i) [formerly 32(c)(3)(B)].

16. You must address the defendant personally and give the defendant an opportunity to speak on his or her own behalf. FRCP 32(i)(4)(A)(ii) [formerly 32 (c)(3)(C)].

17. Recognize the attorney for the government for any remarks on behalf of the government. FRCP 32(i)(4)(A)(iii) [formerly 32 (c)(3)(D)].

18. If sentence is to be imposed for a crime that involved any victims, address each victim who is present and determine whether the victim or other authorized person wishes to be "reasonably heard" in relation to the sentence. See also 18 USC 3771(a)(4) (superseding FRCP 32(i)(4)(B) [formerly 32(c)(3)(E)]). [FOOTNOTE 7]

19. If restitution is an issue, determine the appropriate amount and how and when it is to be paid. [FOOTNOTE 8] Resolve any factual or legal disputes and state that you have considered the factors in 18 USC 3664(f)(2) (or § 3664(a)(2) if the defendant’s offense occurred before April 24, 1996). 18 USC 3663–3664; U.S.S.G. § 5E1.1.

20. Determine whether to impose a fine and, if so, in what amount. See 18 USC 3572(a); U.S.S.G. § 5E1.2. [FOOTNOTE 9]

21. If forfeiture is an issue, include the final order of forfeiture as part of the sentence. FRCP 32(k)(2) [formerly 32(d)(2)].

22. Explain that you will now state the sentence, but that the attorneys will have a final chance to make legal objections before the sentence is imposed. [FOOTNOTE 10]

23. State the sentence.

24. State the reasons for the sentence.

(a) The statement must include the "specific reason for the imposition of a sentence different from" the advisory guideline range. 18 USC 3553(c)(2). [FOOTNOTE 11]

(b) If the sentence includes a prison term within the guidelines, and the lower and upper limits of the guideline range of imprisonment are more than twenty-four months apart, the statement must include the reasons for selecting a particular point within the guideline range. 18 USC 3553(c)(1).

(c) If restitution is not ordered, or only partial restitution is ordered, the statement must also include the reasons for that decision. 18 USC 3553(c). [FOOTNOTE 12]

25. Ask both counsel whether they know of any reason, other than reasons already argued, why the sentence should not be imposed as stated.

26. Order the sentence imposed as stated, or amend the sentence (and, if necessary, the statement of reasons) and then order it imposed.

27. If the defendant was convicted after a trial:

(a) Advise the defendant of the right to appeal, including any right to appeal the sentence. [FOOTNOTE 13]

(b) After conviction by guilty plea, advise the defendant:

You can appeal your conviction if you believe that your guilty plea was somehow unlawful or involuntary, or if there is some other fundamental defect in the proceedings that was not waived by your guilty plea.

(c) If the defendant has not waived the right to appeal, advise the defendant:

You also have a statutory right to appeal your sentence under certain circumstances, particularly if you think the sentence is contrary to law.]

(d) If there is a waiver of the right to appeal, advise the defendant:

Under some circumstances, a defendant also has the right to appeal the sentence. However, a defendant may waive that right as part of a plea agreement, and you have entered into a plea agreement which waives some or all of your rights to appeal the sentence itself. Such waivers are generally enforceable, but if you believe the waiver itself is not valid, you can present that theory to the appellate court. [FOOTNOTE 14]

In either case, inform the defendant of the right to apply for leave to appeal in forma pauperis and that the clerk of court will prepare and file a notice of appeal upon the defendant’s request. See FRCP 32(j)(1)(C) and (2) [formerly 32(c)(5)]. Also advise the defendant that, with few exceptions, any notice of appeal must be filed within ten days of the entry of judgment. See Fed. R. App. P. 4(b).

28. If the defendant has been sentenced to a term of imprisonment and was at liberty pending sentencing, consider whether the defendant should now be released or detained (see supra section 2.11: Release or detention pending sentence or appeal). Then order the defendant remanded to the custody of the marshal or to report for service of sentence in the future, or order that the defendant be released pending appeal. If the defendant is not immediately taken into custody, remind the defendant that the release conditions previously established continue to apply. Impose any additional conditions that are appropriate. Point out that failure to report for service of sentence is a criminal offense under 18 USC 3146(a)(2).

29. Verify that the parties have copies of the presentence report, or order that they be furnished with an amended copy reflecting corrections and resolutions of disputed issues at the sentencing hearing. Order that a complete, corrected copy be prepared for the Bureau of Prisons and the U.S. Sentencing Commission. Order that any other copies of the presentence report shall remain confidential according to the practice of your court. Direct that, if an appeal is taken, counsel on appeal are to be permitted access to the report. If you accepted sentencing recommendations from the probation office that were not disclosed to counsel, specify that counsel on appeal are not to be permitted access to the recommendation section.

30. "[A] transcription or other appropriate public record of the court’s statement of reasons, together with the order of judgment and commitment," must be provided to the probation office, to the Sentencing Commission, and, if the sentence includes a prison term, to the Bureau of Prisons. 18 USC 3553(c). [FOOTNOTE  15] Under 28 USC 994(w)(1), as amended March 9, 2006, courts must send to the Sentencing Commission a report containing several documents, including AO Form 245B (Judgment in a Criminal Case), which includes the statement of reasons and satisfies the requirements of § 3553(c). If there was a departure or other non-guidelines sentence, include in the written order of judgment and commitment the specific reasons for sentencing outside of the advisory guideline range. [FOOTNOTE 16]

FOOTNOTES:

Footnote 2:    The circuits are split on whether Rule 32(h) requires notice that a court is considering a post-Booker non-guidelines sentence. Compare United States v. Mejia-Huerta, 480 F.3d 713, 722 (5th Cir. 2007) (notice is not required), United States v. Irizarry, 458 F.3d 1208, 1212 (11th Cir. 2006) (same), United States v. Vampire Nation, 451 F.3d 189, 195–97 (3d Cir. 2006) (same), United States v. Walker, 447 F.3d 999, 1006–07 (7th Cir. 2006) (same), and United States v. Long Soldier, 431 F.3d 1120, 1122 (8th Cir. 2005) (same), with United States v. Atencio, 476 F.3d 1099, 1104 (10th Cir. 2007) (notice is required), United States v. Cousins, 469 F.3d 572, 579–80 (6th Cir. 2006) (same), United States v. Anati, 457 F.3d 233, 236–38 (2d Cir. 2006) (same), United States v. Evans-Martinez, 448 F.3d 1163, 1167–68 (9th Cir. 2006) (same), and United States v. Davenport, 445 F.3d 366, 371 (4th Cir. 2006) (same).

Footnote 3:    Note that Rule 32(i)(3)(A) and (B) make it clear that courts should not adopt the conclusions in the presentence report with regard to disputed issues, as some circuits have allowed. Courts should resolve disputed issues of fact and guideline application by making specific findings independent of the conclusions of the presentence report. When a guideline adjustment depends on the resolution of disputed underlying facts, courts should make findings on those facts rather than simply find that the adjustment applies.

Footnote 4:    But see United States v. Cortez, 841 F.2d 456 (2d Cir.) (transcript of hearing must be appended), cert. denied, 486 U.S. 1058 (1988).

Footnote 5:    Courts are advised to provide detailed reasons for any departure, with specific references to guidelines or statutory provisions that authorize departure. Note that in the written order of judgment, the reasons must be “stated with specificity” pursuant to amended 18 USC 3553(c) (effective April 30, 2003). See also Oct. 27, 2003, amendments to the United States Sentencing Guidelines at USSG § 5K2.0(e), p.s. (“If the court departs from the applicable guideline range, it shall state, pursuant to 18 USC 3553(c), its specific reasons for departure in open court at the time of sentencing and . . . shall state those reasons with specificity in the written judgment and commitment order.”); USSG § 4A1.3(c), p.s. (requiring “written specification of basis for departure” based on criminal history); USSG § 6B1.2(b)(2) and (c)(2), p.s. (court should only accept recommended or specified sentence in plea agreement that includes a departure if the reasons for the departure “are specifically set forth in writing in the statement of reasons or the judgment and commitment order”).

Footnote 6:    Some circuits have merely required that the extent of departure be “reasonable”; others have required more detailed calculations that analogize to guidelines factors. In any event, courts should first clearly establish the offense level and criminal history category from which a departure will be made.

Footnote 7:    If the offense involved a crime of violence or sexual abuse, Rule 32(i)(4)(B) requires that the court “permit the victim to speak or submit any information about the sentence.” Although the rule appears to be effectively superseded by § 3771(a)(4), it is possible that it could be interpreted as providing different or stronger rights for a victim than the statute provides.

Footnote 8:    Note that some circuits have held that restitution must be determined at the time of sentencing, not at a later date. See, e.g., United States v. Porter, 41 F.3d 68 (2d Cir. 1994); United States v. Ramilo, 986 F.2d 333 (9th Cir. 1993); United States v. Prendergast, 979 F.2d 1289 (8th Cir. 1992); United States v. Sasnett, 925 F.2d 392 (11th Cir. 1991). Several circuits have also held that the district court may not delegate to a probation officer the authority to set the specific terms of payment, including the ultimate amount of restitution and the size and schedule of any installment payments. The probation officer may make recommendations, but the court must make the final decision. See, e.g., United States v. Graham, 72 F.3d 352 (3d Cir. 1995), cert. denied, 116 S. Ct. 1286 (1996); United States v. Mohammad, 53 F.3d 1426 (7th Cir. 1995); United States v. Johnson, 48 F.3d 806 (4th Cir. 1995); United States v. Porter, 41 F.3d 68 (2d Cir. 1994); United States v. Albro, 32 F.3d 173 (5th Cir. 1994). Effective April 24, 1996, 18 USC 3572(d)(2) states that “the length of time over which scheduled [restitution] payments will be made shall be set by the court.”

Footnote 9:    8 USC 3572(d)(2), noted above, also applies to fines.

Footnote 10:    FRCP 35 no longer authorizes the court to correct an illegal sentence or to reduce a sentence as a matter of discretion. Once a sentence is imposed, changing it appears to be beyond the sentencing court’s power, except that the court has seven days in which to correct obvious technical errors under Rule 35(a) [formerly 35(c)]. The procedure recommended here is intended to ensure that the sentencing court hears every possible objection before losing jurisdiction to change the sentence.
    However, under some circumstances, such as a lengthy sentence imposed on a defendant who has demonstrated violent tendencies, the court may prefer to wait until all arguments have been heard and it has explained its reasons before announcing the final sentence.

Footnote 11:    Because the language of the statute requires an explanation for any sentence outside of the range calculated under the Sentencing Guidelines, it appears to cover both guideline departures and non-guidelines sentences. Be sure to distinguish between departures and non-guidelines sentences (or “variances”) to facilitate appellate review and data collection.

Footnote 12:    Note that, effective Sept. 13, 1994, restitution is mandatory under 18 USC 2248 and 2259 for some sexual abuse offenses, and under §§ 2264 and 2327 for domestic violence and telemarketing fraud, unless the court specifically finds that the defendant cannot pay any amount. Effective April 24, 1996, restitution is also mandatory under § 3663A for specified violent and other crimes.

Footnote 13:    In misdemeanor and petty offense trials, magistrate judges must notify defendants of their right to appeal. FRCP 58(c)(4). Note also that an appeal from a judgment of conviction or sentence by a magistrate judge is to the district court. FRCP 58(g)(2)(B).

Footnote 14:    The specific terms of the waiver should have been reviewed with the defendant during the plea colloquy. If they were not, review them here to ensure that the defendant’s waiver is knowing and voluntary. Even if there was a thorough discussion at the plea hearing, it may be advisable to quickly summarize the relevant terms of the agreement and confirm that the defendant is being sentenced in accordance with those terms.

Footnote 15: As you did with the statement of reasons, be sure to distinguish in the written order between departures and non-guidelines sentences (or “variances”) to facilitate appellate review and data collection.

Footnote 16:    18 USC 3553(c)(2), as amended April 30, 2003, by the PROTECT Act. The Judicial Conference of the United States has designated the statement of reasons as “the mechanism by which courts comply with the requirements of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 or ‘PROTECT Act’ to report reasons for sentences to the United States Sentencing Commission.” (See “Preliminary Report, Judicial Conference Actions” Sept. 23, 2003.)

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

A judgment of the conviction should promptly be prepared on the form required by the Sentencing Commission and issued by the Judicial Conference of the United States, Form AO 245B, "Judgment in a Criminal Case" (as amended June 2005) Include a copy of the final order of forfeiture, if any.

FOOTNOTES:

Footnote 17:    Pursuant to the authority granted in 28 USC 994(w)(1), on May 15, 2006, the Sentencing Commission approved Form AO 245B (or 245C for an amended judgment) as the format courts must use to submit sentencing information. As amended March 9, 2006, § 994(w)(1) states:

The Chief Judge of each district shall ensure that, within 30 days following entry of judgment in every criminal case, the sentencing court submits to the Commission, in a format approved and required by the Commission, a written report of the sentence, the offense for which it is imposed, the age, race, sex of the offender, and information regarding factors made relevant by the guidelines. The report shall also include—

(A) the judgment and commitment order;
(B) the written statement of reasons for the sentence imposed (which shall include the reason for any departure from the otherwise applicable guideline range and which shall be stated on the written statement of reasons form issued by the Judicial Conference and approved by the United States Sentencing Commission);
(C) any plea agreement;
(D) the indictment or other charging document;
(E) the presentence report; and
(F) any other information as the Commission finds appropriate.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

Order that copies of the charging documents, plea agreement (if any), written proffer or stipulation of facts or law, presentence report, and judgment of conviction (with statement of reasons), and any other information required under 28 USC 994(w)(1) be sent to the U.S. Sentencing Commission.

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

Guideline Sentencing: An Outline of Appellate Case Law on Selected Issues (2002)

James B. Eaglin, Sentencing Federal Offenders for Crimes Committed Before November 1, 1987 (1991)