Presentence reports are prepared by the probation officer assigned to the federal judge’s courtroom. The judge looks to the report in making sentencing decisions and defendants’ attorneys can object or supplement the presentence report. Here are some considerations on how to help yourself if you are being sentenced in a federal criminal court.
What I do, and suggest you insist be done for you, is have the defense attorney prepare an entire PSR, just like the probation officer’s finished product, and send it to the probation officer before he/she files their own PSR. You know that you have fourteen days to object to the officer’s PSR, but objections have to go to an error in fact, not that the presentation of the facts, which can be very damning and negative. Your lawyer’s “suggested” PSR is often used, or parts of it is used, by the probation officer in his/her final and completed PSR.
When I submit my own memorandum, I am mindful that I cannot change facts, but you can change focus. There may be no doubt that my client has a prior conviction for a drug offense, but it may not be that simple. Some of my clients were assisting law enforcement after their initial arrest and that fact can and is a legal reason for the federal sentencing judge to depart from the sentencing guidelines and impose a sentence below the guidelines range. Often, I have a client whose drug conviction occurred before an extensive and successful course of treatment for substance abuse. Although there is a prior conviction, the successful completion of a drug program may be reason to present in the PSR that the defendant no longer is a danger to the community, or has assumed responsibility for past bad acts. Again, the assumption of responsibility and the fact that a defendant is no longer a danger to the community is and are legal reasons for a judge to impose a sentence that is a variance in that it is less than the guidelines suggested sentence.
The thing to remember is that sentencing guidelines are not mandatory and are only advisory. Also know that when a judge imposes a sentence that is below the suggested guidelines sentence, he or she must state that the sentence is a variance from the guidelines. A variance must be supported by findings by the Court and if your PSR contains legally sufficient reasons for a sentencing judge to make a finding that the sentence imposed is a variance the judge will always and only look to the PSR for facts to support a variance.
Take a moment to re-read what you have learned about the federal sentencing system – what the guidelines are, how they are used, what findings a judge must make before imposing a sentence that is greater than or less than the recommended sentence under the guidelines. Writing your own PSR for the probation officer can and is often rewarded by finding your own words in the final PSR that the judge reads and relies upon in making sentencing decisions.