From there it’s all a waiting game until the day you’re sentenced. This is a torturous time of reflection as you drown in the “what ifs” of your future, playing out every scenario, stressfully wondering what fate has in store. Then comes the day of reckoning. You arrive in the courtroom and meet with counsel as you watch Team AUSA in its own huddle, while everyone waits on the judge.
The Sentencing Hearing is basically time to hit the highlights from the Sentencing Memorandum. What’s most likely to move the judge? For that reason, it’s hugely helpful to have a well-prepared attorney who can think on her or his feet. Mine was not and I’m sure it cost me years of my life. Then again, judges sometimes have their mind made up even before entering the courtroom, the rest is all purely theater.
Proceedings begin with a review of the PSR. This is when both your counsel and the AUSA seek to clarify various points, if any, and get the judge to rule on changes. Things your attorney might object to include your role in the crime (being designated a ringleader adds years, for example, while playing a minor role can take some away), the claimed dollar or drug amount of the crime, the number of purported victims and/or any past prior convictions or acts that have elevated your guideline sentencing level, among numerous others. If you’re there subject to a plea, the judge will ask if you’ve agreed to plead guilty and whether anyone pressured you into, or promised you something for, signing the Plea Agreement. This part’s pretty comical, in a dark sort of way. After all, you’ve been brow-beaten into signing the Plea by the system, terrified of losing at trial – but now’s hardly the time for that kind of commentary.
Separately, your attorney will want to highlight mitigating factors such as (i) serious physical or mental health issues, (ii) if you were forced into the crime due to fear or threat, (iii) cooperation, and (iv) numerous other factors, which can lead to reductions. I won’t bother with the legal minutiae because Busted by the Feds lays this all out very well. Just please note the vital importance of these issues for both sentencing and assessment of your security level for incarceration, which can range from home confinement to Supermax. That designation is made based on the length of your sentence, your age (the older the better) and prior bad acts. While I doubt anyone reading this is heading to Supermax, let me assure you that you’d much prefer to be in a Camp than a Medium security prison. The lower your security level designation the better, so stay on top of your attorney. Little things can mean more than you realize.
Finally, you’ll have a chance to make one final statement before the judge. It will cover material generally addressed in your letter, either admitting great sorrow and deep remorse for your actions or strongly proclaiming your innocence. I’m not exactly sure what it takes, but I do believe that given the right set of circumstances, judges can be moved by a deep show of genuine and sincere emotion. My co-defendant was bawling his eyes out and got less than 5 years. I was on a mixture of Celexa and Trazadone, unable to muster a single tear, getting a sentence more than twice as long.
After all’s said and done, it’s time for the final decision. You’ll be told to rise as your heart leaps into your throat. The judge begins with a speech rationalizing why she or he reached the final sentence, intended as protection against appeal, and the sentence is then announced out loud, in months. As a general rule, it’s a good sign if you can quickly calculate that number into years. If not, then your sentence is longer and scarier than you hoped for.
If you received a relatively low sentence then it’s because your judge looked favorably upon you and that leaves you in the position to make one more request, which might come in handy. You see, there are certain quirks in the system pursuant to which a slightly longer sentence can actually lead to less time served.
- A year-and-a-day is better than a year because it triggers a 54-day reduction for good behavior.
2. In order to qualify for 6 months off your sentence for RDAP you need at least 24 months (though, some RDAP coordinators, will use discretion and allow slightly less), putting any sentence from 19-23 months in play.
3. Similarly, a sentence of 31 months gets you 9 months off for RDAP instead of 6 months receive on a 30-month sentence.
4. Finally, the same principle applies to a 37-month sentence that leads to 12 months off for RDAP instead of the 9 months available at 36.
Judges will often oblige these last-minute requests and make immediate minor modifications if you’ve found favor in her or his eyes.
I know today you’re mostly focused on the sentence (I certainly was) but there are a few other items the judge will now also rule on. Everyone gets Supervised Release, which sort of works like the old parole system. Parole, however, entitled you to early release. Nowadays, though, thanks to those Federal Sentencing Guidelines, sentences are not only brutally longer but also have automatic parole tacked on at the end. Supervised Release can be anywhere from a few months to LIFE, at your judge’s discretion, with the average at around three. You may additionally be assessed a fine, ordered to pay restitution and/or have a judgment of criminal forfeiture issued against you with respect to specific assets. The restitution amount will have been calculated in the PSR and the forfeiture judgment might already be included as part of your plea. In any event, these obligations are technically with you for the rest of your life. Oftentimes it leads to extreme results, like my Eric B., ordered to pay $660 million, even though his head trader had just lost all of Eric’s money (as well as that of all the clients) behind Eric’s back. We’ll discuss the implications of Restitution in Chapters 9 and 10.
The writer Lawrence Hartman is the author of (i) GUILTY TILL PROVEN INNOCENT: A Shocking Inside View Into America’s Failing Justice System, (ii) BLIND GREED: From Ivy League to International Fugitive, and (ii) BLIND JUSTICE: The Consequences of Greed. He has also been featured in articles on Forbes.com, including “The Life of a White-Collar Fugitive Not All That It’s Cracked Up To Be” and “A Voice From Prison Weighs In On Drug Addiction And A Solution.”