29 Crim. Just. 48 (2014-2015)
Federal Presentence Investigation Report

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BY ALAN ELLIS


      he federal presentence investigation report (PSR)
      is crucial for two purposes: First, it is the doc-
   L  ument most heavily relied on by the judge in
imposing sentence-particularly in those cases where
a guilty plea has been entered and the court knows little
about the defendant. Had the defendant gone to trial,
the court would have more information about the indi-
vidual-or at least his or her offense conduct. Second,
and equally important, it is the document that the Fed-
eral Bureau of Prisons relies on in making designations
and placements and many other decisions throughout
an inmate's period of incarceration, including, but not
limited to, whether to grant early release through half-
way house and, if so, for how much time.
   After verdict by either trial or guilty plea, the court
will order the preparation of a PSR. In most US dis-
trict courts, the procedures are the same.
   The initial step is a meeting with the US Probation
Office shortly after sentencing, during which counsel
and the defendant will be scheduled for an interview
with a US probation officer (USPO) who will prepare
the report. Typically, in most probation offices there are
two divisions: PSR preparers and those officers who
supervise people on probation or supervised release.
Often, to facilitate the USPO's task, counsel will be
provided with a worksheet to be filled out and given
to the USPO at or before the meeting. It is strongly
advised that counsel meet with the client, fill out the
report, and have it neatly typed and ready to present to
the USPO along with the documents identified in the
instructions on the worksheet (birth certificate, finan-
cial statements, income tax returns, etc.). This makes
the USPO's job easier.
   Practice tip. By the time of the interview, the assis-
tant US attorney or federal prosecutor assigned to the
case will have provided to the USPO a prosecuto-
rial memo outlining the government's version of the
offense. In most cases, this memo is neither flattering
nor helpful to the client. Accordingly, our office pre-
pares our own memo for the USPO that we submit

              PLAN ELLS is a regular columnist
              for Criminal Justice magazine and past
              president of the NA CDL. He practices in the
              areas offederal sentencing, prison matters,
              postconviction remedies, and international
              criminal law, with offices in San Francisco
              and New York. Contact him at AELawl@
alanellis.com or go to www.alanellis.com.


along with the completed worksheet and the required
documents. In addition to the memo, we provide the
USPO with any favorable mental health reports and
character letters. We also advise interested individu-
als how to prepare letters that reflect favorably on a
defendant's character.
   The PSR worksheet will also have a section called
Acceptance of Responsibility or Defendant's Ver-
sion of the Offense. It is our practice to leave that
blank and submit our written version to the USPO at
the interview or shortly thereafter.
   In many cases, in order to qualify for a downward
adjustment for acceptance of responsibility under the
US Sentencing Guidelines (USSG), all that is required
is an acknowledgement of guilt. The USPO is best able
to advise during the interview what will be needed
to satisfy this requirement. Often, the memo we sub-
mit along with the worksheet will provide our client's
acceptance of responsibility/version of the offense.
   During the course of the interview, the defendant
will be asked little other than to confirm or clarify what
is on the worksheet. In short, the interview is mostly
a demographic interview as opposed to interrogating
the defendant as to the offense.
   Federal Rule of Criminal Procedure 32(e)(2) requires
that the probation officer must give the presentence
report to the defendant, the defendant's attorney, and
an attorney for the government at least 35 days before
sentencing unless the defendant waives this minimum
period. In some districts, the draft report will contain a
sentencing recommendation by the USPO to the court.
In some jurisdictions, the sentencing recommendation
is left for the final PSR that is presented to the court
and the parties. Please note that the draft report is not
submitted to the court. In other districts, probation offi-
cers either do not make sentencing recommendations
or, if they do, they are not made available to the parties.


The PSR will start with the face sheet identifying the
sentencing judge, prosecutor, defense counsel, sentenc-
ing date, offense counts in the indictment/information,
arrest date, release status (identifying how much time,
if any, the defendant has spent in custody), detainers,
codefendants, any related cases, and date the draft
report was prepared.
   It will also contain the defendant's identifying
data such as his or her name, date of birth, age, race,
national origin, sex, Social Security number, FBI
number, and US Marshal number (this will become
the Bureau of Prisons' register number assigned to the
defendant should he or she be incarcerated). It will
also list any education, dependents, and citizenship
(important because only a US citizen can be desig-
nated to a minimum security federal prison camp).
If the defendant is a naturalized US citizen, that fact
must be noted as verified along with, if possible, the


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