Since the Supreme Court’s landmark 2005 decision in United States v. Booker and United States v. Fanfan, the role of defense counsel in sentencing has expanded dramatically.

From 1987 until 2005, the Federal Sentencing Guidelines controlled the sentence in all cases other ones in which the defendant cooperated with law enforcement. The Guidelines prescribed a mandatory sentencing range based on the nature of the offense and the defendant’s criminal history. A sentencing chart, shown below, determined the sentencing range, which judges were required to follow. On the vertical axis, the offense level is determined by the base offense level applicable to each federal crime. The base offense level is then adjusted for various aggravating or mitigating factors, such as whether or not the defendant pled guilty in a timely fashion, the defendant’s role in the offense, the particular characteristics of the victim, whether or not a gun was used, and how it was used, the harm caused to victims, the intended loss in financial crimes, and the weight of the drugs involved in drug crimes. All of these and other factors are taken into account in determining the adjusted offense level. In basic terms, the Criminal History, on the horizontal axis, is determined by assigning points to prior convictions, depending on the sentence imposed, as well as adding points if the defendant was under supervision at the time of the instant offense. The convergence of the two axes determines the sentencing range.

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In 2005, the Supreme Court held that the Sentencing Guidelines are no longer mandatory. They are only advisory. The sentencing judge is required to consider the Guidelines but not necessarily to follow them. The judge has broad discretion to adjust the sentence based upon the specific characteristics of the defendant and the offense of conviction. Because of this change, lawyers now have much greater latitude in arguing for a lenient sentence based on such factors as the defendant’s good works, his life story, the aberrant nature of the crime, his family circumstances, and other mitigating factors limited only by the lawyer’s imagination in crafting a persuasive argument for a sentence below the Guidelines range. Before the change in the law, lawyers were limited to arguing for downward departures based upon a limited number of factors. Since more than 90% of all indicted federal cases result in a plea of guilty and more than 90% of all cases that go to trial result in a conviction, sentencing advocacy is one of the defense counsel’s most important functions.

The first order of business in sentencing advocacy is to attempt to persuade the prosecutor to permit the defendant to plead guilty to an offense carrying the lowest possible Guidelines range. These arguments often involve convincing the Assistant United States Attorney that the a plea of guilty to a less serious section of the Criminal Code is appropriate or that the loss in a financial crime is lower than he might otherwise believe or that, in drug cases, only a small amount of drugs should be attributable to the defendant. A lawyer with a reputation for honesty and reliability who is known to the U. S. Attorney’s Office is obviously in a better position than others to advocate effectively.

The next order of business is for the defense lawyer to marshal facts along with supporting documentation, frequently including persuasive character letters, in order to convince the judge that the defendant is deserving of a lenient sentence. The experienced defense lawyer will know how character letters should be phrased and what information they ought to contain in order to have the most positive impact. Naturally, the defense lawyer who is known to and respected by the sentencing judge is in a better position to help his client than a lawyer unknown to him. It is, therefore, important for a defendant to try to determine a lawyer’s experience and reputation before making a decision to retain him The choice of a defense lawyer is enormously important and can often have a huge impact on the sentence ultimately imposed.

If you are facing criminal charges in New York City, Manhattan or Brooklyn and looking for expert and personalized legal assistance, please contact the New York City Law Firm of Jonathan Marks, P.C.

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