There is probably at no point in the life of a federal criminal case that an incompetent lawyer can do more harm to his client than during the time preceding sentencing. Overzealous prosecutors and overbroad Federal Probation and Pretrial Services investigations can quickly turn a favorable plea agreement into an unlivable sentence of incarceration in the absence of effective sentencing advocacy by your attorney. Acutely aware of this risk, the federal defense lawyers at the Law Offices of Jeffrey Lichtman remain relentless advocates for our clients both before and after the plea agreement to ensure what was bargained for by our client in agreeing to plead guilty is ultimately received at sentencing: the lowest possible term of incarceration at a federal corrections facility providing the greatest opportunity for their early release.
But without zealous and vigorous advocacy by your attorney during the period leading up to and at the final sentencing hearing, obtaining a positive outcome is unlikely. Federal judges are not bound by the terms of your plea agreement and can, with the assistance of what is known as a presentence investigation report (“PSR”), impose a sentence which includes relevant conduct that has either gone uncharged or dropped by the Government in your federal criminal case. Along with mandatory minimum sentence provisions of incarceration for many federal offenses – this is especially important in the negotiating of pleas to federal narcotics and child pornography offenses – and generally high sentencing ranges under the Federal Sentencing Guidelines, it starts to become clear the gravity of what is at stake during the period leading up to sentencing.
Understandably distressed by the possibility of spending a substantial portion of their life in a federal prison, many clients come to the Law Offices of Jeffrey Lichtman specifically to be represented by our top federal criminal defense lawyers for their sentencing proceedings and for good reason. With over 30 cumulative years of criminal defense practice, our defense attorneys have a proven track record as effective sentencing advocates for our clients in a federal criminal case.
The first step of any effective sentencing advocacy is not advocacy at all but is to educate the client on the rules and procedures that influence the sentencing court’s decision of final sentence.
The Federal Sentencing Guidelines
No experienced New York federal defense attorney can be properly educate their client on the likelihood of any particular sentence, under the specific circumstances of a federal criminal case, without first helping them to understand the Federal Sentencing Guidelines (“Guidelines”). The Guidelines contain rules and policy set by an independent body of lawyers and politicians appointed by Congress – the United States Sentencing Commission (“Commission”) – with a stated goal of establishing uniformity of sentences between similarly situated defendants convicted of the same or similar offense throughout federal courts in America.
The Guidelines Calculation
To further its stated goal of uniformity of federal sentences, Congress gave the Guidelines the effect of law and usurped the historic duty of judges – to determine what kind of sentence fairly reflects the severity of a defendant’s offense – to the Commission. Under the Guidelines, a federal sentencing then becomes an exercise of arithmetic: base offense level of the particular offense plus mandatory upward adjustments minus discretionary departures equals a range of months to which the judge can sentence a defendant within.
This equation has come to be known as the “sentencing guidelines calculation” and has been loathed by both federal judges and defense attorneys alike since the Guidelines were implemented – albeit for different reasons. Judges hated it because it usurped their sentencing discretion and placed it in the hands of federal prosecutors who, by recommending or not recommending certain guideline factors be applied, could directly dictate a defendant’s final sentence. Defense attorneys hated it because under the factors set out in the Guidelines, the typical final guidelines range for many defendants – especially those convicted of non-violent federal drug offenses – resulted in grossly unjust sentences and limited their ability to advocate for their clients at sentencing except in extraordinary circumstances.
Revival of Meaningful Sentencing Advocacy, Post-Booker
In 2005, the Supreme Court declared the Guidelines partially unconstitutional. Today, the Guidelines are only advisory in nature and allow a judge to impose a lower (or higher) sentence than what the Guidelines call for, via downward (or upward) variances. And now defense lawyers become hugely important again at the sentencing phase because their advocacy can make the difference between years in prison and a probationary sentence.
The sentencing advocates of the Law Offices of Jeffrey Lichtman have been handling the defense of federal criminal cases since 1991. The quality of the representation we provide to our clients never waivers, whether at trial or at sentencing. Our past results are a testament to the advocacy and resources we bring to bear when representing clients during their federal sentencing proceedings. For decades we have won countless dozens of sentencing motions which permitted clients to receive sentences far below their bargained-for Guidelines range, even when the Guidelines were mandatory.
While there are too many sentencing success stories to list them all here, a few cases are truly representative of our track-record of success at federal sentencing:
- In United States v. Russo, 00 CR 1289 (E.D.N.Y. 2004) a client convicted of possession with intent to distribute heroin received a probationary sentence despite facing a Guidelines range of 78-97 months due to an argument based on extraordinary family circumstances.
- In United States v. Abrams, 97 CR 998 (S.D.N.Y. 1997), our motion for a downward departure from the Guidelines range was granted – and a probationary sentence given – for a tax evader again due to family circumstances. Before announcing its decision, the Court described Mr. Lichtman’s submission as “a model of an effective sentencing memorandum.”
- In United States v. Fazio, 00 CR 1183 (S.D.N.Y. 2003), a defendant convicted of laundering $2.5 million of proceeds of illegal gambling operation received a large downward departure at sentencing to probation on grounds that he suffered significantly reduced mental capacity during the commission of the crime due to a pathological gambling disorder. This sentence was extraordinary in that an amended sentencing guideline prohibiting such departure was due to go into effect the next day.
What is worth noting in all of these cases, the Sentencing Guidelines were mandatory at the time, thereby illustrating how the best sentencing lawyers obtain results, no matter the circumstances of the case.
Contact the Law Offices of Jeffrey Lichtman at (212)-581-1001 and schedule a consultation today to discuss how may be able help you at your federal sentencing hearing.