Post Arrest/Pre-Plea or Pre-Trial Assessment
This assistance includes:
- Personal interview of offender
- Review of all pertinent documents
- Identification of sentencing factors for stipulation and/or negotiation
- Rendering of an opinion as to possible and/or probable Sentencing Guideline Applications and Options
Cooperation with the Government should be considered and thoroughly discussed at this stage. Absent, the impact of cooperation, the purpose of this service is to lay out the possibilities, probabilities, or likely scenarios upon adjudication of guilt and sentencing. The impact of a negotiated plea, straight up plea, or trial, and all the possibilities in each instance would be addressed, with the goal of having few or preferably no surprises.
The majority of the cases settled in federal court are by way of a negotiated plea. The signing of the plea agreement and the change of plea hearing starts the presentence investigation process within the United States Probation Office. However, consideration as to the various aspects of each case and the impact of the Presentence Report should begin before the plea is signed. Plea negotiations or a plea agreement that fails to fully illuminate the facts of, or the seriousness of, an offense, loss and/or restitution concerns, anticipate the presence and/or extent of prior criminal history, or contemplate the application of the numerous guideline adjustments, enhancements, or departures, can result in the presentation of sentencing factors to the Court that have not been previously discussed or even considered. It is important to remember the preponderance standard of proof needed to support the conclusions in an offense conduct, which is less than the standard relied upon in the formation of a plea agreement or during the course of a trial. In addition, acquitted conduct, if supported by the preponderance standard, can be relied upon at sentencing in fashioning an applicable guideline sentence. The guideline calculations can over-ride those sentencing enhancements or guideline applications agreed to or anticipated by the parties in the plea agreement because the majority of the plea agreements are non-binding on the Court, with (typically) a waiver of appeal if a sentence is imposed within the applicable guideline range as determined by the Court.
A careful review of all materials, especially criminal history, agent reports, and drug laboratory reports, is essential prior to entering into a plea. Drug quantities or financial losses should be determined prior to entering into a plea and, if possible, stipulated to by all parties. Considerations should be made for quantities or losses attributable to an entire conspiracy, as well as to one particular defendant. Relevant Conduct factors pursuant to USSG § 1B1.3 should be explored completely. All specific offense characteristics of the applicable guideline need to be considered, including the possibility of firearm enhancements, and in drug cases the applicability of safety valve applications pursuant to USSG § 5C1.2 and USSG §2D1.1(b)(9), role adjustments, victim related adjustments, obstruction of justice enhancements, and acceptance of responsibility reductions. A thorough review and understanding of an offender’s prior criminal history and its impact is imperative prior to entering into a plea agreement (i.e. the scoring of criminal convictions, as well as the possibility of Career Offender or Armed Career Criminal enhancements). These are factors that should be known prior to plea negotiations, or at the latest the entry of a plea.
Lastly, as this is the time to get to know the defendant, time should be spent with the defendant and his/her family or friends, in order to begin to identify 18 U.S.C. § 3553 factors or other factors that may warrant a departure outside the guideline range. If this information is obtained in advance, not only will defense counsel know their client better, it will also provide the Government and the Probation Officer a more balanced view of the case and the defendant.