Following a guilty plea or a trial that ends in a guilty verdict, the court holds a sentencing hearing. Before that occurs, the U.S. Probation and Pretrial Services Office prepares a pre-sentence report.

A probation officer interviews the defendant to obtain information about the defendant’s background, including his or her work history, family history, places of residence, criminal record, drug or alcohol use, medical problems, and other information that might be relevant to sentencing. The probation officer will obtain records to confirm the information provided by the defendant and might also interview other people who know the defendant.

The probation officer will review the prosecutor’s file and will prepare a description of the offense that is based on police reports. The pre-sentence report will also include a calculation of the applicable sentencing guideline.

The defense attorney will prepare the defendant for the interview before it takes place. Saying the wrong thing at the pre-sentence interview can result in a longer sentence. Sometimes it is best to say nothing about uncharged offenses that might be considered as relevant conduct.

Preparing For a Sentencing Hearing

Before sentencing, the defendant and the defendant’s attorney will have a chance to review the pre-sentence report. If it contains errors, the defense attorney may attempt to resolve them informally. If no agreement can be reached as to the error, the defense attorney can file an objection to the pre-sentence report. Objections often pertain to untrue facts that are asserted in the report or to the Probation Officer’s calculation of the applicable sentencing guideline.

What to Expect

At the sentencing hearing, the judge will rule on objections. In some cases, evidence will be pre-sentenced at the sentencing hearing concerning factual objections. The judge will rule on the objections before determining the applicable sentencing guideline.

The judge will eventually announce the sentencing guideline that he or she believes to be correct. The judge will then give the defendant a chance to speak. If the defendant entered a guilty plea, the defendant’s statement to the court (called “allocution”) usually involves an expression of remorse, an acknowledgment of guilt, and an assurance that the defendant has learned a lesson.

It is often wise for the defendant to outline a plan (such as participation in drug treatment or vocational training) to turn his or her life around. Before the defendant says anything to the judge, however, it is important to discuss the statement with the defendant’s attorney. Saying the wrong thing can result in a longer sentence.

The prosecutor and the defense attorney will both argue in favor of the sentences they are recommending. Both prior to and during the sentencing hearing, the defense attorney will provide mitigating information to the court in order to persuade the judge to impose the most lenient sentence that is possible under the circumstances.

Reaching a Sentence

After considering the evidence, the arguments of the lawyers, the defendant’s allocution, and the information in the pre-sentence report, the judge will pronounce a sentence. The judge must consider the applicable sentencing guideline but is not bound by it. The judge is bound only by the minimum and maximum sentences for the offense. As a practical matter, however, most judges in most cases will impose a sentence that falls within the guideline range.

Sentences usually include a combination of fines, costs, imprisonment, and supervised release. It is unusual in a drug case for a court to impose probation, but that does happen in some cases.

The judge does not sentence the defendant to a particular prison. At some point within a few weeks after the defendant is sentenced, the Bureau of Prisons will select a prison where the sentence will begin.

That prison (which could be a United States Penitentiary, a Federal Correctional Institution, or a Federal Prison Camp) might or might not be in the same state where the defendant lives, depending on the length of the sentence and the availability of space in nearby prisons. Depending on the length of the sentence, the defendant might eventually be transferred to a less secure prison or to a camp before the sentence is completed.