Paul Kish is an experienced lawyer in Atlanta who has handled many hundreds of federal sentencing hearings in his 36 years of practicing criminal defense. Sometimes he has represented the client for many years leading up to the sentencing hearing. On other occasions, clients ask Paul to come in at the final stage of a case to see if his involvement can result in a “better” outcome. No matter which method resulted in Paul’s involvement, a federal sentencing hearing is incredibly more complex than the same process in state court criminal cases. Some very accomplished and experienced state-court criminal defense lawyers simply are not properly equipped with the relevant information to do a good job in these important proceedings. Clients should consider consulting with an attorney who handles federal sentencing proceedings as a regular part of his or her practice.
Let’s begin with the basics. In a federal criminal case, there are two sets of laws that impact the potential punishment. First, there are the “statutes”, which many people call the “laws.” Statutes are passed by the United States Congress, and then signed into law by the President. Statutes usually describe the crime and potential punishment. Most federal criminal laws set out a maximum penalty of imprisonment, but a few truly tricky ones also carry a mandatory minimum period of incarceration. The criminal statutes also set out additional punishments, such as a “fine” or “restitution.” To make it trickier still, Congress has this nasty habit of hiding cross-references for sentences in completely different parts of the U.S. Code. The bottom line is that anyone facing a federal criminal case needs an attorney who knows how to read, research and interpret these statutes.
The second set of rules for a federal sentencing hearing are in the Federal Sentencing Guidelines. These rules were passed by Congress in 1984, became law in 1987, and imposed extremely severe punishments for the next two decades. Under the Guidelines, a Judge consults an extremely complicated set of rules that yields a “sentencing range.” From 1987 until 2005, these rules and the “range” were mandatory, and Judges were rarely allowed to “depart” or “vary” from the Guideline range. In the famous Supreme Court case of United States v. Booker, the nation’s highest Court ruled that the Guidelines can only be used in an “advisory” fashion. From that point forward, a Judge must first “consult” and “calculate” the Guideline range, but the Judge now has much more freedom to go above, and more importantly, to go below these harsh sentencing rules.
Ever since this major 2005 decision, federal sentencing hearings have become a new and more refreshing aspect of being a practicing criminal defense lawyer. The accomplished advocate still must make complex and intricate legal arguments about how to calculate the “advisory” sentencing range. Then, the lawyer is allowed to marshal all the facts from a case, and more importantly, everything about the person who is about to be sentenced. The attorney then must calculate how this particular Judge sees similar cases and other similar Defendants. The lawyer then makes a pitch for the best possible sentence, considering all the circumstances. Since this 2005 ruling, a large percentage of Paul’s sentencing hearings have resulted in punishment below that suggested in the “advisory” Sentencing Guidelines. While these prior cases are no guarantee that other cases will yield the same result, it is an important trend.
It is important to also know the process that leads to a successful sentencing hearing. First, the Defendant will be interviewed by a United States Probation Officer who will write up the “presentence report”, sometimes called the ”PSR.” That report is the base line for the sentencing process, so Paul always attends the PSR interview with his clients. Next, the lawyer will receive the initial version of the PSR. The attorney has the opportunity to “object” if he or she feels that the Probation Officer made a mistake in the facts or how the Sentencing Guidelines might apply to the case. Paul makes it a practice to maintain good relationships with the Probation Office and has had good results in getting some of the Officers to change their initial Guidelines recommendations. Even after the PSR is finalized and sent to the Judge about a week before the sentencing hearing, an accomplished criminal defense lawyer has two more opportunities to make an impact. First, Paul files a “Sentencing Memorandum” in almost every case. The PSR will contain biographical background about the Defendant, but it is usually dry, objective and written from the point of view of a government official. Paul likes to file his own document, to give more “flavor” to the client’s life and what led him or her to the situation of being sentenced for a federal crime. Next, the sentencing hearing itself is another place where the truly talented federal criminal defense lawyer can make a difference. The lawyer can call witnesses, present documents, ask the Defendant to speak, and make his own arguments tailored to this specific Judge for this specific case. Many judges have told Paul later that his arguments and presentations caused the Judge to change his or her mind and impose a less harsh sentence. Again, while this does not mean all cases will yield the same result, it is important to know that the accomplished defender can make a difference in some matters.
Federal sentencing hearings should only be handled by criminal defense attorneys with significant experience. Contact Paul Kish if there is such a matter that you would like to discuss.