The Jensen Defense

By: Attorney Jeffrey W. Jensen

The prospect of facing sentencing in federal court is distressing-- certainly for the defendant, but sometimes also for defense counsel.  It doesn't have to be. 

Many lawyers believe that, under the Federal Sentencing Guidelines, there is not much room for the defense lawyer to advocate for his client.    These ineffective lawyers approach sentencing in federal court, not as an opportunity to affect the outcome in a positive way for his client; but, rather, as an exercise in arithmetic.  Their approach goes no further than to explain the sentencing guideline calculation to the client.   Nothing could be less helpful to the defendant.

In federal court, the vast majority of criminal cases are resolved with guilty pleas.  Therefore, even though the many criminal defense lawyers that one might find on the web use their web sites to tout their skills as a trial lawyer ("aggressive litigators", and the like), the truth of the matter is that, in federal court at least, the most import skill that a criminal defense lawyer must possess is the ability to effectively advocate at sentencing.  This article will touch on several ways that a competent federal criminal defense lawyer can positively affect the outcome of a criminal case for his client.

Negotiate a Favorable Plea Agreement

Without a doubt, the foundation for any favorable outcome in a federal criminal case is the plea agreement.  Unlike in state court, in federal court all plea agreements must be in writing.  It is the plea agreement that is the starting point for the sentencing guideline calculation.  

Probably the most important aspect of a federal plea agreement-- especially in drug conspiracy cases-- is to negotiate a favorable factual basis for the plea.   That is, many federal statutes, including the drug conspiracy statutes, provide for minimum mandatory sentences if the crime involved a specified amount of drugs, or a certain amount of financial loss.  Case law has established that where such facts could result in a change in penalty, the defendant has the right to a jury trial on the issue; or, if he pleads guilty, he must admit the necessary facts.   In the absence of cooperation by the defendant, or the application of the "Safety Valve" (see below), the minimum mandatory sentence cannot be avoided.  Therefore, the lawyer must educate herself as to the amount of drugs, or amount of loss, and so forth, that the government must prove (or the defendant must admit to) in order to establish the minimum mandatory sentence.   Seek to obtain an agreement from the government that the defendant's involvement in the conspiracy did not reach the amount necessary to invoke the minimum mandatory sentence.

The guidelines also provide for adjustments to the base offense level for such things as obstruction of justice, role in the offense, and the use of a firearm.   Once again, the adjustments to the base offense level should be the subject of negotiation.   An agreement between the defendant and the government that he was a "minor participant" in a drug conspiracy, will go a long way toward persuading the judge to make such a finding at sentencing. 

Other items that are subject to negotiation in a plea agreement are: whether to permit a conditional plea (preserving the right to appeal a ruling on a pretrial motion), whether to proceed with forfeiture of seized property, and whether the government will forego prosecution of other criminal behavior.

The Decision to Cooperate or Not

Let's face it.   The name of the game in federal court is cooperation.   Defendants who proceed to trial, and who are convicted, face sentences that are sometimes ten times longer than the sentences imposed on similarly-situated defendants who cooperate with the government.  

"Cooperation" is simply a euphemism for providing information, and perhaps testimony,  to the government about other individuals. Typically, this involves "debriefings" with federal agents and, in rare cases, testimony against other individuals.  The government, to the extent possible, will keep the identifies of the cooperating defendants secret; however, in the event that one or more the the other defendants (in a conspiracy case) intend to proceed to trial, the government may disclose the identities and the statements of cooperating defendants.

For most defendants, this is an exceedingly touchy subject.   On the one hand, if they cooperate, they may called upon to testify against friends, or even relatives.   "Snitches" are not treated well in prison by other inmates.   And, in the worst case, a cooperating defendant's friends and family may be put in grave danger by those still not in custody once the defendant's cooperation is revealed.

On the other hand, it is not unusual for defendants to receive up to thirty years in prison following a jury trial in a drug conspiracy case.   Therefore, it is easy understand why many defendants decide that cooperation is the way to proceed.

It is critical that a federal defense attorney discuss cooperation with the defendant at the earliest possible opportunity.  It is, quite literally, a race to U.S. Attorney's office.  Those defendants who are first to cooperate receive the most consideration.  After that, much of the information that can be provided is redundant, and is not as valued by the government.  It is not unusual for a number of alleged coconspirators to be housed together in the same jail.   Word will be passed that, if we all keep our mouths shut, the government will not be able to convict us.    If there ever has been a conspiracy case where all the defendants kept their mouths shut, I am not aware of it.   Usually, the defendant who is most adamant about not cooperating with the government, is the one who made it to the prosecutor's office first.

If the defendant decides to cooperate, here is what he can expect.  At some point, the government will propose a plea agreement that, no doubt, will stun and infuriate the defendant because it will appear that the government is not giving the defendant anything for his cooperation.   This is because the consideration for cooperation comes shortly before sentencing in the form of a 5K1.1 U.S.S.G. motion for a downward departure for substantial assistance.  The government will typically recommend a 10% to 40% downward departure from the guideline range.  Depending on the level of cooperation, there may also be a motion pursuant to 18 U.S.C. 3553(e) to waive the minimum mandatory sentence.   Once a 5K1.1 motion is made, the defendant may argue that his cooperation is entitled to greater consideration.

Carefully Review the Presentence Investigation Report and Make Objections

Following a guilty plea, the court will order that a presentence investigation be conducted by Federal Probation and Pretrial Services.  This investigation will result in a written presentence investigation report ("PSR") being filed with the court.    It is important to understand that pretrial services are a branch of the judiciary, and are not bound by any plea agreement reached between the defendant and the government.   Therefore, from time-to-time, the PSR may recommend things that are contrary to agreements reached with the government in the plea agreement.  For example, the government and the defendant might agree to recommend that the defendant was a "minor participant" in the conspiracy.   The PSR, though, might recommend that the court find that the defendant is a "manager or a supervisor" of the conspiracy.   When this occurs, it is critical for the defense lawyer to file a factual objection with the court because, in doing so, the court will be compelled to conduct a fact-finding hearing into the issue.  At such a hearing, the government is contractually obligated to argue to the court that the defendant was a minor participant.   If the defendant files no objection to the PSR, the court is free to simply accept the recommendations contained in the PSR.

Another items in the PSR that defense counsel should pay close attention to is the calculation of the defendant's criminal history.  Many times, the PSR will contain "convictions" that are not properly attributable to the defendant.  Also, there are times when the PSR will "count" a conviction, even though it should not be counted, for one of the numerous reasons listed in the U.S.S.G.

Finally, consider whether the defendant is eligible for the so-called "Safety Valve" under the U.S.S.G.   The safety valve permits the court to sentence below the statutory minimum mandatory sentence when the defendant's criminal history category is one, and where the defendant gives the government a "full accounting" of his offense conduct.   This safety valve interview is different from a debriefing in the sense that the defendant need only account for his own behavior, rather than telling about the behavior of others.

Don't Underestimate the Value of Written and Oral Advocacy

Finally, do not be the lawyer who walks into court on the day of sentencing, throws up his hands, and requests that the court impose the guideline sentence-- as though there is nothing more that can be done.   The United States Sentencing Guidelines have been advisory-- rather than mandatory-- for about five years now.   When the guidelines were mandatory, most federal judges hated it.   They hated it because it took away their sentencing discretion.  With the passage of the mandatory U,.S.S.G., Congress treated the federal judiciary as though they were a bunch of simpletons who were easily misled by clever defense attorneys.   

Now that the guidelines are merely advisory, judges want to exercise proper discretion.   And many times, there are compelling reasons for sentencing under the guideline range.   If you do nothing else as defense counsel, you should discover what those reasons are, and effectively communicate them to the judge.