The sentencing hearing in federal court is often the place where an accomplished criminal defense attorney can make the biggest difference. In order to make a difference, the lawyer needs to know the facts and the law. Getting a good result also requires knowledge about the judge and his or her probation officer. Sentencing for federal crimes depends on two sets of law: the statutes enacted by Congress that are found in the United States Code, and the Federal Sentencing Guidelines. Statutes set out the maximum punishment for any particular crime, and sometimes include a mandatory minimum period of jail time. The complicated Sentencing Guidelines provide a "range" somewhere between any minimum and the maximum period of incarceration.
For many years, the Sentencing Guidelines were mandatory, and defendants rarely could get a shorter sentence. In 2005, the United States Supreme Court issued an opinion that found that the Guidelines are unconstitutional. However, the same case "rescued" the Guidelines by holding that judges still must use these rules, but only in an "advisory" fashion.
Over the past seven years, we have seen a resurgence of arguments that had been “off limits” under the Sentencing Guidelines prior to the 2005 decision by the United States Supreme Court. These arguments range from looking at how much the defendant’s family will be impacted by a long jail sentence, to whether the defendant paid off any victims before the case was charged. No two cases are alike, and we look for the specific set of arguments that will have the best chance of winning in a particular case. More and more, we find ourselves tailoring the argument to the case and the judge, something that was very difficult when the Sentencing Guidelines were mandatory and federal judges had little or no discretion to depart from those difficult rules.
We also have had good results when appealing our client’s sentences under the new method of federal sentencing after the major 2005 Supreme Court ruling. Sometimes, it is the prosecutor who is unhappy when we convince the sentencing judge to impose a far more lenient sentence than what the rules otherwise call for. We have also had success in these type of cases when we go the Court of Appeals to defend the sentence that the judge gave to our client.
Experienced criminal defense attorneys in federal court now feel as if they have more freedom to try and get a better and more fair sentence for their client. But the attorney still needs to be a specialist in the Sentencing Guidelines, for these rules still are the starting point in any federal criminal sentencing hearing. Furthermore, there are many traps for the unwary in federal sentencing hearings, such as the use of drugs while on bond, the commission of new crimes and other issues that can prevent the client from getting a fair sentence.
Paul Kish and Carl Lietz have handled hundreds and hundreds of federal sentencing hearings, for all crimes, large and small. If you would like to speak with attorneys who can make a difference, feel free to call (404) 588-3991, or contact us online.