Your Allocution. This is your chance to speak directly with the judge, an important moment in your hearing. Judges are “…looking for remorse and insight as to why he did what he did and what he is doing to make sure that it doesn’t happen again.” I hope you find this video helpful.

By now, the judge has already read your Presentence Report and hopefully your Personal Narrative, where you’ve explained how you arrived at this point in your life, standing before the court today. You have the opportunity to show the court that you take responsibility for the harm you’ve caused your victims, that you’re committed to making things right, and that you’re determined never to return to this courtroom. This is your moment to make a strong impression, humanizing yourself to your judge.

SENTENCING MEMORANDUM

Judge Scola notes that sentencing memoranda are the first opportunity for lawyers to make a positive impression on him. “I am very impressed with lawyers who show legal advocacy in their presentence memorandum ondisputed guideline issues. I appreciate lawyers who give me everything I need well in advance of the hearing.”

Your Sentencing Memorandum is written by your attorney and provided to the court approximately 7-10 days before the day of your sentencing hearing and can be provided in written or written and video format. As you have initially read several examples of your attorney’s writing style, you have both agreed on your memorandum’s final message.

Depending on the number of “Character” Reference Letters, the best (3 or less) have been attached, summarizing their common theme in the Memorandum, then noting that there are (for example) another 27 that you have provided to your Probation Officer. They have all been reviewed to ensure that none will come off as insulting to your judge. Also attached is your Personal Narrative, Release Plan, and possibly your Allocution, depending on how nervous you are or will be at the time. If needed, the Allocution can also be in Video format, and if financing is an issue, a smartphone can be used. What Federal Judges Want to Know at Sentencing.

Judges across the country have been interviewed, and here are their thoughts – ‘From the Bench.’

3 JUDICIAL VIEWS FROM THE BENCH

As you read the Judges’ views, you’ll see they prefer to hear from you directly, through your Narrative and Allocution, rather than your Attorney.

Judge Xinis

Judge Xinis has expressed a dislike for sentencing memos that appear to be copy-paste jobs. She believes that simply citing legal precedents without providing relevant information about the defendant does not serve the memo’s purpose. Instead, Judge Xinis prefers that lawyers explain why a variance is justified. She also wants lawyers to start with the offense and the defendant’s details upfront, as she is interested in the facts of the case.

Experienced lawyers provide me with information about the 3553(a) factors and explain why a deviation from the guidelines is warranted. If a case involves excessive punishment, they elaborate on the legislative history or the U.S. Sentencing Commission history behind the guidelines, if such exists. Additionally, they clarify how a guideline sentence could undermine the community’s respect for the law.

Judge Xinis is a dynamic and engaged judge known for her active involvement in the proceedings. She takes pride in asking a lot of questions and welcomes live character witnesses to the court. Judge Xinis is particularly interested in live testimony from mental health professionals and is known to engage them on specific points in their report. She believes that lawyers can significantly impact the sentence by presenting a strong argument in court.

She encourages lawyers to present a compelling argument on why a prison sentence should not be the default sentence and what sentence would be sufficient but not greater than necessary. Judge Xinis is committed to ensuring a fair and just trial, and her passion and dedication to her role is evident in every case she presides over.

Judge Scola Notes

Judge Scola notes that sentencing memoranda are the first opportunity for lawyers to make a positive impression on him.

What makes a positive impression on Judge Scola?

• • “…good legal advocacy in their memorandum, particularly as to disputed guideline issues,”
  • …lawyers who get him everything he needs. in advance of the hearing,
  • …suggesting that you have five or six good character letters, “put in the sentencing memorandum, quote from them, and attach them as Exhibit. A.
  • Put the rest in another exhibit.”

Pet peeves.

• • Lawyers who,
    • …do not submit memorandums or submit them on the eve of or submit poorly prepared ones.
    • …give him boilerplate citations
    • …ask for ridiculously low sentences.
    • …don’t prep the defendant or character witnesses before the hearing;
    • …don’t interrupt their clients who, during allocution, start digging a hole for themselves, and
    • …forget that the court is the audience and put on a useless show for their clients, family, and friends.

Judge Mehta

Most judges, including Judge Mehta, consider the failure to submit a sentencing memorandum as a missed opportunity for legal advocacy. This document is of utmost importance as it provides an opportunity to explain why the defendant committed the crime and demonstrate that they have undergone a positive transformation since the offense. It is also a chance to showcase the steps taken toward rehabilitation and assure the judge that the defendant is less likely to re-offend. For instance, individuals who have successfully overcome substance abuse addiction demonstrate to Judge Mehta that they possess genuine strength of character and are less likely to commit crimes again.

Live testimony is an essential aspect of a case, particularly when it comes from mental health experts. Judge Mehta finds it helpful because it allows him to question the witnesses directly. He also prefers character witnesses to speak in person rather than sending a letter. Notification to Judge Mehta’s chambers several days in advance is all that is required to request live testimony. Judges agree that when evaluating cases, both live testimony and data and statistics from similar cases, including those related to mental health, are crucial.

Chief Judge, Beryl Howell

It is highly advisable, particularly in complex cases, to submit sentencing memoranda and letters early on, according to Chief Judge Beryl Howell of the U.S. District Court for the District of Columbia in Washington. To ensure a thorough review, it is recommended that these documents be submitted several weeks before the sentencing date.

Judge Charles R. Breyer of the U.S. District Court for the Northern District of California in San Francisco, who is also the vice chair of the Sentencing Commission, expressed concern about lawyers who fail to realize that they can request a recess to speak with their clients if they begin to play the victim or blame others during allocation.

Sentencing the White Collar Offender: A View From the Bench, July 9, 2015, Alan Ellis

When preparing a sentencing memorandum, it is important to minimize the use of citations. Refraining from quoting or citing Booker, Kimbrough, Gall, or the 3553 factors is recommended. Rather, an effective alternative is to create a sentencing video. This approach can save time and compellingly showcase the defendant’s regret and personal connections through well-spoken character witnesses. It is also crucial to own up to the offense and express sincere remorse, emphasizing that the defendant is typically a responsible and productive member of society who made an uncharacteristic error.

Point out instances of disparity by showing what sentences other judges in the same district are imposing on similarly situated offenders in similar cases. Use data from the Sentencing Commission, including national data and statistics, i.e., Interactive Data Analyzer (IDA). Judges are more likely to follow the sentencing patterns of their peers in the same district, state, and circuit. Finally, consider starting a restitution program. Even a small amount is better than nothing.

Call 240.888.7778 for a personal one-on-one call
to discuss your current issue or that of a loved one.

-Marc Blatstein

Take Ownership of Your Defense – What Happens When You Don’t

I wanted to do this podcast regarding a phone call that I had earlier this morning. Someone who has a disease and is on medication., and yet his attorney had not prepared all his medical records – or any of his medical records for his PSR and sentencing hearing.

Speaking with him this morning, I was taken aback to learn that he had already been sentenced. Here I was trying to ask questions and learn how it was he was sentenced with an incomplete pre-sentence report. – That didn’t make any sense.

But, if the information I learned was accurate, his presentence report was incomplete.

The person’s main concern was that his medication did not appear available on the BOP online Formulary. Initially, I must give credit to this gentleman and his wife (who is in school to be a nurse practitioner). They recognized that the medication was not on the formulary, which is not easy to figure out – it is a complicated table.

As he was to surrender in the next 45-60 days, my recommendations were to meet with his treating physician to:

·        Get copies of “all” his records

·        Copies of his prescriptions

·        Review the BOP Formulary with his physician to see if there were any acceptable medications to substitute.

·        If Yes, he needs to get a copy of this new notification regarding a medication change, due to the BOP Formulary

• Get a hard copy of the prescription and fill it.

·        If No, and this is a Continuity of Care and/or life-threatening issue, then appearing in court at the Sentencing Hearing is preferred, as Judges would usually like to question the Specialist. The challenge – he has already been sentenced, so I suppose he will call me back…

While I hope this Case Is rare, it points out that every defendant must take ownership of all aspects of their defense once they’re indicted.

Then, Be honest with yourself (and your attorney) regarding the case’s facts, and start interviewing attorneys.

·        Ask for referrals to speak to some happy clients, then.

·        Ask to read some of their sentencing memorandums in cases like yours.

·        The goal is to see if they’re the same or if each is individualized – In the same Criminal defense space.

·        If the attorney says this is private information, which is understandable, agree and then request that they block out all personal information.

Then you just can’t assume that the attorney is going to do everything right – which is why I am doing this podcast.

• This must be a partnership with your attorney.

 So, what does that mean? This partnership extends into preparation for the pre-sentence interview. Which will impact your future.
The short version is that the probation officer’s responsibility is to Interview you., Investigate, and then draft the Presentence Report (PSR).

• They then provide your PSR to the judge and their recommendations for your sentence and placement.

Part I) So, how do you take Ownership?

First. Your attorney reaches out to learn who your probation officer is, and then contact them.

Assume that the probation officer has Googled you &/or spoken to the prosecutor. Because if they have, then they may already have a bias Against you,

Why, because the Justice Department has already released all the information about you that makes you look horrible.

1st           So this first step by your attorney reaching out to the PO, Sets the Tone 

• For Your Defense, it allows them to hear from
• you first before they’ve been 
• tainted by others’ perceptions of who you are. 

This allows them to make their case regarding their defense strategy, on the record – to the PO. This is followed by a very organized, detailed letter that details this strategy.

They will also Ask the probation officer:

• what documents they will need at the time of the interview.
• What date is best for them to do the pre-sentence interview?
• And what is their final dictation Deadline date to have their official pre-sentence report due to their supervisor?

2nd          Review with your legal team that all the information you have collected, to ensure all your background information is available and accurate

3rd         The PO has scored your Public Safety Factors (PSF), Management Variables, Criminal History Score, Offense Level (current charges), 

• Be prepared, so should you and your attorneys

4th          RDAP Eligible, Then INCLUDE It. I didn’t, and I stayed a bit longer inside…

5th          Don’t try for a CARE LEVEL III or IV unless it is required because it houses both violent and non-violent offenders
Part II) So how do you take Ownership?
You, as the defendant has jobs. 

1st           You must collect All of your biographical background information.

Copies of all your medical and mental healthcare records and your physician’s contact information (name, Phone number, address, e-mail.)

Copies of all surgery reports, medication prescriptions, and medical devices. 

·        If you’ve had any hospitalizations, copies of those records.

·        If you’ve had any sort of laboratory blood test, copies of those, or X-rays, CT scans, MRI scans, PET scans, or ultrasounds, all of those will have reports associated with them. You need to get copies of everything. 

• You should also get them on CDs. 

·        While you’re doing this, it’s been my impression that most people don’t have a copy of their medical records. Therefore, it would be simpler if you asked for two copies of everything from each provider of all these documents. 

Next, you will have to get copies of your birth certificate, driver’s license, Social Security card, and passport.

Also, the highest level of education that you’ve achieved, if you’ve been in the military, what’s the highest rank you had, and what type of discharge? Any certificates – include them.

Character reference letters. 

Those writing character reference letters (or references about your character) must include that they know you’re facing a criminal charge. 

• They should reference good deeds that they have seen you do, tutoring, and volunteering. 
• It also could be letters from former employers who say they know you are willing to rehire you. A VERY BIG DEAL

 2nd          Your Personal Narrative – takes work, and starts with writing your life story, the good, the bad, and the ugly. 

• If it starts a book, great, it will be re-written, multiple times and distilled until it represents 

·        You- YOUR REMORSE TO THE VICTIMS – HOW YOU GOT TO THIS POINT = NOT TO BE REPEATED

3rd          Reentry Planning: Starts now, extending through the prison, RRC, and supervised release

When I was sentenced – I WAS UNPREPARED

This is why I was concerned during this conversation, and my recommendations were simple:

·        Meet with your doctor and let them review the BOP Formulary Drug List for a substitution

• Get copies of all of his medical records, lab tests, surgery reports, physician contact information, and all of the X-Rays, CTs, MRIs, Ultrasounds, and any other scans both in a report form and on CDs
• Put them in a big envelope, labeled legal mail for his surrender

·        Don’t forget about Your Personal Narrative and Allocution

This is why it’s important to participate in your defense – I sympathize with those who like me, are “The deer in Headlights.” But the “Symbolic Act” of participating in your defense, that “taking back Control” will begin to slowly build the Confidence back that made you the success that you are

REMEMBER – THIS IS TEMPORARY
Dr. Blatstein
240.888.7778