Federal Criminal Sentencing Clarified by a Dallas Criminal Lawyer

John Helms, Dallas criminal lawyer explains what a PSR is, and how it can  affect your sentence for a federal crime.

Many people who are accused of a federal crime have heard of a “PSR.”  In talking to my clients and their family members, I have noticed that there is a lot of confusion about what it is and what it does.  This post will explain it, says Dallas criminal lawyer John Helms.

PSR stands for Pre-Sentence Report. It is a report that is prepared by a United States Probation Officer for use at a defendant’s sentencing hearing.  A Pre-Sentence Report is prepared for every defendant who has been found guilty in a federal criminal case, which can occur either because the defendant pleads guilty or is found guilty by a jury at a trial.

In many state systems, including Texas, a jury can decide the defendant’s sentence based on testimony by witnesses.  In the federal system, however, a judge is always the one who decides what the sentence will be.  The Pre-Sentence Report gives the judge detailed information about the defendant and the crime that the judge needs to decide what sentence to give.

The judge makes that decision at a hearing in court.  The defendant, the defense lawyer, and the prosecutor are present at that hearing, and each has the opportunity to speak to the judge about the sentence.

Before the sentencing hearing, the judge gets a copy of the Pre-Sentence Report, reads it, and meets with the Probation Officer who wrote it to discuss the report and sentencing options.  It is called a PRE-Sentence Report because it is prepared BEFORE the sentencing hearing to give the judge information for use at the sentencing hearing.

As I will explain in more detail, the defendant and the defendant’s criminal defense lawyer, as well as the prosecutor, get copies of the Pre-Sentence Report well in advance of the sentencing hearing.  They also have the right to make comments on preliminary versions of it and to object to anything in the report with which they do not agree.

What exactly does the Pre-Sentence Report contain?  It has a lot of information about the defendant’s background, including the defendant’s family life when growing up, education, and job history.  It also includes details on the defendant’s criminal history, including arrests and convictions.  These personal details give the judge a sense of what the defendant is really like.  They might tell the judge, for example, that the defendant grew up in a broken home with no role models and that the defendant never had a chance to get a good education.

Another section describes the crime. It tells the judge what role the defendant played, what the defendant did, how many victims there were, if any, and other information that helps the judge to understand the seriousness of the crime and how bad or harmful the defendant’s conduct was.

Another section of the report calculates the defendant’s recommended range of prison time according to the Federal Sentencing Guidelines.  This is a range of months, such as between 57 and 72 months.  The Sentencing Guideline range takes into account the seriousness of the crime and the defendant’s criminal history.  The judge is required to calculate the Sentencing Guideline range at the sentencing hearing.  The judge is not required to sentence the defendant within that range, but the judge must carefully consider that range and explain the reasons if the judge sentences above or below that range.  Most judges will sentence the defendant within the Sentencing Guideline range in most cases.  This makes the calculation of the Guideline range a critical part of the Pre-Sentence Report.

In most federal courts, it takes at least three months between the defendant’s guilty plea or guilty verdict at trial and the sentencing hearing.  During that time, the Pre-Sentence Report is prepared by the Probation Officer and reviewed by the parties.

The process begins shortly after the defendant is found guilty.  A Probation Officer is assigned to write the Pre-Sentence Report, and the Probation Officer schedules interviews with the defendant and the lead law enforcement agent who investigated the case.

During these interviews, the Probation Officer gathers the information for the report.  The defendant’s lawyer should be present during the defendant’s interview.  The Probation Officer may also interview others, like the defendant’s family members, to verify the information.

Once the Probation Officer has finished the first draft of the report, a copy goes to the defendant, the defendant’s defense attorney and the prosecutor.  They review the report to see whether they have any disagreements with anything in it.

Probably the defense lawyer’s most important job at this stage is to review the Sentencing Guidelines calculation to determine if there is any objection that could be made that would lower the recommended range of prison time.  To do this well, the defense lawyer must have a thorough command of the details of the Federal Sentencing Guidelines.

If either the defense or the government disagrees with anything in the initial report, they can make a written objection to it.  The Probation Officer then considers any objections from either side.  If the Probation Officer agrees with an objection, the Probation Officer will prepare a revised report that makes the necessary change.  Again, all sides get a copy of the revised report and have an opportunity to object.

If the Probation Officer disagrees with an objection, the objection is noted, and the judge will rule on the objection at the sentencing hearing.

When all objections have been made and the Probation Officer has made all necessary revisions, the final version of the Pre-Sentence Report is sent to the judge and all parties.

At the sentencing hearing, any facts in the final Pre-Sentence Report for which no objection was made are taken as true.  Any objection that was not made during the revision process usually cannot be raised for the first time at the sentencing hearing.

The final Pre-Sentence Report therefore includes most of the facts and information that the judge will use at the sentencing hearing.  It also contains the Sentencing Guidelines calculation that will apply to the defendant unless there are objections to it that the judge must decide.

Experienced federal criminal defense lawyers know what to do during the pre-sentence process to help their clients get the fairest possible sentence.  That involves knowing not only what objections to make to the PSR, but how to make them persuasively, and how to support the objections with convincing evidence. As a former federal prosecutor who has worked with PSRs from both the prosecution and defense sides, I know that the federal sentencing system is unique.  It is therefore very unwise to put yourself in the hands of a lawyer who does not have substantial FEDERAL criminal experience.

If you, a family member or someone you know has been charged with a federal crime or any other crime in the Dallas area, contact Dallas criminal lawyer John Helms at (214) 666-8010 or fill out the online contact form. You can discuss your case, how the law may apply and your best legal options to protect your rights and freedom.

For additional reading on federal sentence reductions visit: Dallas Drug Lawyer: Plea Bargaining Can Reduce a Sentence in Federal Drug Cases