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Federal Criminal Defense Lawyers and the Presentence Investigation Report

Kish Law LLC

Readers (the 4 of you know who you are) are aware that I am a criminal defense lawyer in Atlanta who’s specializes in federal cases and criminal appeals.  My cases in federal court are often in Georgia, but also take me to other parts of the country.  Today, I am meeting with a client in Atlanta to go over the Presentence Investigation Report (or “PSR”) for her case in federal court in Texas.  So, let’s talk about the PSR.

A PSR is the document that is sort of the beginning and the end of a federal criminal sentencing process.  If a Defendant is found guilty, by pleading or through a jury verdict, the sentencing hearing does not happen right away.  Instead, federal sentencing hearings happen 2-3 months after the plea or verdict.  During this intervening period, a United States Probation Officer (often called the “PO”) has to prepare the PSR, which is a lengthy document designed to tell the Judge more about the Defendant as a person and how the federal sentencing guidelines might apply to that person and his or her crime.  See more on the sentencing process here.

The start of the PSR is when the PO wants to interview the Defendant.  Here is often Mistake #1 made by inexperienced or substandard lawyers.  To being with, it is close to malpractice for the lawyer to NOT attend this session with the PO, although I have seen lots of lawyers allow their clients to do so, often with disastrous results for the client down the road.  The PO is basically an arm of the court and works for the Judge, so this is mostly the first time for the accused person to make an impression, good or bad.  Also, there are pesky rules and court cases holding that a false or even misleading statement to the PO can qualify as “obstruction of justice”, so the lawyer damn well should be present to make sure that his or her client does not lie or otherwise screw up this first impression on the Judge’s PO!

The PSR, as mentioned, is lengthy.  It has a large section in which the PO makes his or her own recommendations as to how the Guidelines might apply in the case.  This is a second mistake some attorneys make.  The lawyer should be prepared, well before this interview, to alert the PO to any potential Guideline or factual disputes, and how defense counsel sees the issue.  I try to keep in contact with various PO’s, mostly to make sure they understand my position.  I have found that I get better results for my clients through a good reputation with the probation department as being an attorney who knows the law and takes reasonable positions regarding the sentencing guidelines.

After 6-8 weeks, the first version of the PSR is sent to the federal criminal defense lawyer. The rules generally give the lawyer around two weeks to file a response to the initial PSR, which must include any “objections” to the facts or the methods used by the PO in making recommendations concerning the sentencing guidelines.    Like I am about to do in a few minutes, it is imperative that defense counsel go over the report with her or her client BEFORE the objections are due.  Again, inexperienced lawyers miss this opportunity to make sure that the client knows exactly what is going on in the case.

Last, there are the objections to the initial PSR.  This is a complex subject, probably more so that I am prepared to discuss this morning.  However, this is often the place where the federal criminal defense lawyer can have the largest impact on the overall sentencing process.  The objections set the table, so to speak, for the issues to be discussed at the sentencing hearing in front of the Judge.

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