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

handle is hein.journals/cjust29 and id is 154 raw text is: I, ~Li!~ BY ALAN ELLIS he federal presentence investigation report (PSR) is crucial for two purposes: First, it is the doc- 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 E LLS is a regular columnist for Criminal Justice magazine and past president of the NACDL. 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 wwwalanellis.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 Fall 2014 48

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