From the time the Presentence report is received by defense counsel, there are approximately 14 days to review the report. At this stage of the sentencing process, time is of the essence.
The purpose of this service is to review the entire Presentence Report, for inaccuracies and missing information. Both prosecutors and defense counsel tend to skip to the chase when it comes to Presentence Reports–only looking at the bottom line, certain guideline applications, and the ultimate guideline range. A careful review of the entire report is imperative.
- Part A of the report deals with charges, convictions, offense conduct, victim impact (loss), custody status, acceptance of responsibility, and obstruction of justice, with special attention given to how the information impacts, and more importantly supports, the recommended guideline applications associated with determining the total offense level. It is important to determine if the correct Sentencing Guidelines Manual was used, one that is most beneficial to the defendant, and one that does not pose any ex-post facto issues. All offense level related guideline applications will be reviewed.
- Part B, Criminal History, will be reviewed for accuracy in scoring, necessity of inclusion, and, if necessary, the collection of Court records. The impact of such things as Career Offender or Armed Career Criminal enhancements, pending charges, release dates, current supervision terms, or any undischarged terms of imprisonment and USSG § 5G1.3, on the sentence and BOP designation will be addressed.
- Part C, Personal Characteristics, is an often neglected section of the Presentence Report. This section includes family information; physical health history (including current and future medications and medical needs); mental health history, treatment, and medication; substance abuse history and treatment; education; employment; and financial information. This section of the report assists the Court in knowing the person before him or her, sometimes shedding light as to why the person is there, and it is often the part of the report that also enlightens the prosecution and defense counsel, who have rarely asked questions in regard to these areas. Part C information, can be relevant at sentencing in arguing for departures or variances, and is always important beyond the sentencing phase for BOP designation, release planning, and supervision purposes. This is the only supporting documentation received by the BOP about the defendant.
- The financial section in Part C is significant in cases involving continued criminal conduct, financial gain by the defendant, loss to victims, and where restitution is an issue. It is important that this information is accurate, as it is the basis for determining the defendant’s ability to pay restitution or a fine. Financial obligation payments must be set by the Court at the time of sentencing.
- Part D, Sentencing Options will be reviewed for accuracy. This portion of the report details both statutory terms and guideline terms and should be carefully reviewed, especially when one may trump the other.
- Parts E and F, Departures and Variances, should identify all factors that the Court may consider. The failure to include this information in the body of the Presentence Report can be detrimental. Technically, in order for them to be considered at sentencing, they should be identified therein. Waiting to provide this information in a lengthy sentencing memorandum to the Court is not recommended
- Lastly, the Presentence review service identifies matters that need to be addressed/stated by defense counsel at sentencing such as where within a particular range a sentence should be imposed and why (justification for sentence), requests for recommendations for BOP designation, identifying separate issues in the case of cooperators, surrender/reporting matters, payment of Court ordered financial obligations, special conditions of supervision, and for those sentences of incarceration within a range that exceeds 24 months, if not stated by the Court, a request for a statement of reasons from the Court establishing why a particular term of imprisonment is imposed.