Sentencing Advocacy

The Honorable C.J. Williams is a United States District Court Judge in Cedar Rapids, Iowa, whose three-decade legal career included criminal defense work and more than two decades as a federal prosecutor.

Table of Contents


Acknowledgments

Preface

1. The Importance of Effective Sentencing Advocacy

2. Principles of Judicial Advocacy

A. Differences in Context

B. The ­Decision-Maker

C. Practical Advice for Effective Judicial Advocacy in Sentencing

3. The Goals of Sentencing

4. Statutory and Guidelines Provisions

A. Indeterminate Sentencing, Determinate Sentencing, and Advisory Guidelines

B. The Interaction Between Statutory and Guidelines Provisions

C. Federal Statutory Sentencing Provisions

D. Federal Sentencing Guidelines Provisions

E. Burdens of Proof in Sentencing

F. Summary

5. Scope of a Criminal Sentence

6. Sentencing Advocacy Before Guilt Determination

A. Prosecution Investigations and Charging Decisions

B. Defense Investigations

C. Pretrial Detention or Release

D. ­Post-Offense, Presentence Conduct

E. Motions Practice

F. Plea Bargaining

G. Organizations

7. Stages in the Sentencing Process

8. Drafting of and Objecting to Presentence Investigation Reports

A. The Probation Officer’s Presentence Investigation

B. Drafting of the Presentence Investigation Report

C. Reviewing the Draft Presentence Report

D. Making Formal Objections to the Draft Presentence Report

E. Reviewing the Final Presentence Report

 9. Sentencing Memoranda

A. Organization

B. Tone and Style

C. Legal Support

D. Requested Relief

E. Personal or Confidential Information

10. Preparing for Sentencing Hearings

A. Basic Preparation

B. Preparation When Offenders Have Pending Charges

C. Preparation for ­Factually-Contested Sentencing Hearings

D. Legal Arguments

E. Working with Crime Victims

11. Conducting Sentencing Hearings

A. Opening of Court and Initial Procedures

B. Presentation of Evidence

C. Resolution of Guidelines Issues

D. Resolution of Fine Issues

E. Resolution of Supervised Release Issues

F. Resolution of Collateral Consequences Issues

G. Victim Impact Statements

H. Resolution of Variance Motions and Final Argument on Disposition

I. Allocution

J. Imposition and Judgment

12. Evidentiary Sentencing Hearings

A. Inapplicability of the Federal Rules of Evidence

B. Applicability of the Confrontation Clause

C. Applicability of the Due Process Clause

D. Presentation of Evidence

E. Engaging in a Conversation with the Sentencing Judge

F. Record on Appeal

13. Departures for Substantial Assistance

A. Statutory and Guidelines Provisions

B. Unsuccessful Attempted Substantial Assistance

C. Secrecy and Security Issues Relating to Substantial Assistance Motions

D. Advocacy and Substantial Assistance

E. Substantial Assistance After Sentencing

14. Other Departures

A. Searching for Departure Grounds

B. Departure Case Law

C. Interplay Between Departures and Variances

D. Marshalling Evidence and Facts to Support or Oppose Departures

E. Effective Advocacy For or Against Departures

F. The Extent of Departure

G. Grounds for Departures

15. Variances

A. Variances and Section 3553(a)

B. Common Grounds for Variances

C. Variances for Other Reasons

D. Preserving Grounds to Appeal on Variance Motions

16. Fines

A. Statutory Fine Provisions

B. Guidelines Fine Provisions

C. Constitutional Constraints on Fines

D. Advocating For or Against Imposition of Fines

17. Forfeiture

A. Constitutional Implications of Forfeiture

B. Statutory Provisions

C. Rules on Criminal Forfeiture

D. Relationship Between Forfeiture, Restitution, and Fines

E. Sentencing Advocacy About Forfeiture

18. Restitution

A. Constitutionality of Restitution Orders

B. Statutory Provisions

C. Guidelines Provisions

D. Sentencing Advocacy About Restitution

19. Supervised Release

A. Statutory Provisions

B. Guidelines Provisions

C. Court Findings When Imposing Conditions of Supervised Release

D. Sentencing Advocacy Relating to Supervised Release

20. Collateral Sentencing Consequences

A. The Nature of Adverse Collateral Sentencing Consequences

B. Consideration of Collateral Consequences Before Sentencing

C. Consideration of Collateral Consequences at Sentencing

21. Argument by Counsel

A. Preparing a Sentencing Argument

B. Content of Sentencing Arguments

C. Style of Sentencing Arguments

22. Victims

A. Victim Rights at Sentencing Hearings

B. Presentation of Victim Impact Statements

C. Court’s Ability to Rely on Unsworn Victim Impact Statements

D. Advocacy in Reference to Victims

23. Allocution

A. Right and Role of Allocution

B. Impact of Allocution

C. The Decision to Allocute

D. Defense Attorneys’ Role

E. Attorney Comments About Allocution

24. Imposition of Sentence and Judgment

A. Attorneys’ Responsibilities to Parties at Pronouncement

B. Listening to Pronouncement of Sentence

C. Comparing the Orally Announced Sentence Against the Written Sentence

25. Challenging Judgment Before Appeal

26. Sentencing Advocacy and the Audience

A. Other Audience Members

B. Tailoring Advocacy to Account for Other Audience Members

27. Sentencing Organizations

A. Statutory Provisions

B. Guidelines Provisions

C. Fining an Organization

D. Forfeiture of Organization Assets

E. Restitution and Organizations

F. Organizations and Probation

G. Advocating Organizational Sentences

28. Advocacy in Supervised Release Revocation Hearings

A. Statutory Provisions

B. Governing Rules

C. Inapplicability of the Federal Rules of Evidence

D. Applicability of Due Process and Confrontation Clauses

E. Application of 18 U.S.C. § 3553(a) Factors in Revocation Hearings

F. The Federal Sentencing Guidelines in Revocation Hearings

G. Right of Allocution in Revocation Hearings

H. Advocacy at Revocation Hearings

29. Advocacy in Probation Revocation Hearings

A. The Law and Rules Governing Probation and Revocation of Probation

B. Advocacy in Probation Revocation Hearings

C. Early Termination of Probation

Conclusion: Final Observations About Sentencing Advocacy

Chapter Notes

Bibliography

Index