If you pled out, you’re agonizingly more nervous than ever, having accepted your date with destiny but anxious to learn the full extent of the damage.  Fear of losing your liberty, losing total control of your life, is gut wrenching.  Like a deer caught in headlights.  There’s absolutely no way to relate unless and until you walk in those shoes.  Unfortunately, though, you don’t have the luxury of indulging in self-pity because there are still a number of things you and your attorney must do to improve your chances. 

If you lost at trial, you have a tough decision to make, ‘do I defiantly continue to profess my innocence, or should I admit guilt and express remorse?’  The thing is, you can still get 3 levels of credit under the Sentencing Guidelines for accepting responsibility and expressing remorse at the Sentencing Hearing.  However, merely saying the words won’t do, your judge has to believe it.  Especially after you adamantly maintained your innocence throughout trial.  That option, however, is mostly off the table if you plan on appealing the verdict.  How can you possibly be remorseful if you still maintain you haven’t done anything wrong?  So, your Sentencing Hearing strategy heavily depends upon this essential point.       

Next Steps

The next two steps then run in tandem, regardless of whether you pled out or went to trial.  The first is the Pre-Sentencing Investigation, commonly referred to as the PSI, which delves into your history to create a story of your life, presented to the Judge.  The second is a Sentencing Memorandum prepared by your attorney, raising  all the reasons you should be sentenced to the shortest time she or he  can reasonably argue, plus other points which might affect your security level, which I discuss further below.

Presentencing Interview and Report

The PSI is done by a Probation Officer (PO) who comes to interview you within 30 days, or so, after the end of your trial or the signing of your Plea Agreement.  I cannot emphasize enough how critical this process is.  Your lawyer won’t give it nearly enough time or attention because she or he doesn’t fully understand its importance – having not been to prison.  Read the rest of this section carefully because it will have a major impact on your entire time in prison. 

During the interview with the PO, she or he  will ask a number of background questions ranging from family history, past criminal history, your lifetime of prior employment, drug and alcohol use, medical history and your intended release address once you‘re done with prison.  Then, depending on the laziness of the PO, she or he will follow up with calls and interviews to confirm your story and get additional background information from family members.  Mine, frankly, just took my word for everything, while others have their lives picked over with a fine-tooth comb. 

It’s vital that you include all family and medical information during your PO interview for numerous reasons.  Something as simple as not including a close relative can make it more difficult to get her or him on your visitation list.  The impact is considerably greater when it comes to your healthcare, though, because medical services in prison are atrocious enough to begin with.  Allow me to emphasize, you won’t be treated nor given medication for anything not mentioned in your PSI interview (unless and until you’re subsequently diagnosed at the prison, and that is a long, drawn out process).  Things to consider are asthma, diabetes, blood pressure, past cancers, past surgeries, gastric acid issues, and whatever else you can think of.  Include everything.  Ross M. forgot to mention his skin cancer and it took over a year and a half to get any treatment as it continued to grow.  It’s that bad and worse.  Moreover, you’re not allowed to bring medicine in with you,[1] but should start receiving what you need within a few days of arrival, earlier if you’re lucky.  You just never know. 

On the other hand, there are certain “ailments” and issues that can make life easier in prison, so many people build them into their PSI for just that reason.  Tinnitus, vertigo and back problems are tough to disprove and get you a “bottom bunk pass,” a torn Achilles heel and knee issues can lead to a “soft shoe pass” allowing you to wear sneakers instead of rigid institutional boots, and being of a certain age or having weight or hernia issues can get passes of “no standing for prolonged periods” and “no lifting over 15 pounds,” helping you escape some of the crappier work assignments.  “Medical idles,” that get you out of everything, are also available, either short or long term, for various ongoing ailments (ranging from a bad hip to PTSD).   

Finally, of course, you need to include your history of past drug and alcohol use.  Many lawyers will ignorantly tell you to say nothing, thinking it will look bad in front of the judge.  They have no idea what they’re talking about – judges don’t care.  Moreover, that bad advice will screw you out of RDAP (the Residential Drug Abuse Program) which can take up to a year off your sentence.  Illicit drug use or the abuse of alcohol or prescribed drugs within one year of your sentence is all that’s necessary.  Moreover, plenty of people keep “their addiction hidden” from loved ones, so simply acknowledging your addiction in the PSI will suffice.  Give that serious consideration.  Finally, the release address you provide should get you designated to a prison within 500 miles of there.  That can be important for visits, although there are no guarantees. 

The PO will also review your entire history,[2] the information from your Plea Agreement or trial transcript, and all allegations made by the prosecution, in order to calculate a final Sentencing Guideline Level for you.  Perhaps you’ve already done this exercise with your attorney but until this point that’s all it was, an exercise.  Now it’s set in stone providing clear parameters and consequences for your sentence. 

The PO will include all prior bad acts.  Everything and anything is fair game; a past arrest for minor possession, some silly assault charge when you were out drunk with friends.  Jim H. had two misdemeanor DUIs that tacked on an additional four years to his sentence.  Plus, this includes everything going back a full 15 years.  Shockingly enough, your PSI can also add on levels for things you were never even convicted of (have you beaten a DUI? Gotten arrested for a domestic dispute with the charges dropped later?), including current charges for which you were just acquitted.  These factors impact both your guideline sentencing levels and security designation for prison.

The PO then completes the report which is now known as a Pre-Sentencing Report (or PSR).  Both your attorney and AUSA will get a chance to review, comment and suggest revisions, which the PO may or may not agree to.  The PSR then gets sent to the judge for ultimate consideration as part of your sentencing.

Sentencing Memorandum

While all this is going on, your attorney is preparing your Sentencing Memorandum.  This presents law and a narrative of the facts putting you in the most favorable light and includes a sentence request for a fixed amount of time (i.e. 36 months).  It might also include a request for Alternative Sentencing (like an intensive treatment program) or for the sentence to be served in Home Confinement, but those are rarely granted, so don’t get your hopes up.  It will also address objectionable issues in the PSR because while the PO may not have agreed with you, the judge still gets the final say.  You can also write a letter to the judge, as part of the process, which I highly recommend, and add letters of support from friends and family.  It’s not so much that doing so will make a difference (although, on occasion, it can), but not doing so will reflect badly.  Some things are simply done for the sake of damage control.  Your attorney can also request RDAP, a specific prison, and a Treaty Transfer, which, if approved by the judge, are still only recommendations.  The BOP has the final say on the first two and the International Prisoner Transfer Unit of the DOJ on the third.  However, I suppose, a judge’s recommendation certainly can’t hurt.

Prosecutors, in the meanwhile, are working on their own memo.  They’ll typically ask for a sentence at the high range of the PO’s calculations of the Sentencing Guidelines, perhaps even beyond, unless you were a comprehensive cooperator.  My bunkie Cristian worked at a clinic for four years as the Rehabilitation Director, providing services the government acknowledged he performed.  The government also acknowledged that he made no money from the conspiracy (other than regular salary).  However, since he’d been approving invoices (he had no reason to believe weren’t legitimate), he was painted with the same broad brush used against those who made millions.  He lost at trial and prosecutors recommended a sentence of 25 years.[3]     

[1] Actually, it depends on who’s doing intake when you arrive.  81-year-old Mel K. was allowed to bring in prescriptions matching items on the BOP’s approved list, most others had their meds shipped home.

[2] Why you committed the federal crime(s) that you did, your side of the story related to the criminal offense, prior criminal history, education, family, general health, career, finances, etc.

[3] He was sentenced to 12.