According to government statistics, approximately 94% of all federal criminal defendants plead guilty. Seventy-five percent of the remaining individuals who proceed to trial are convicted. There is therefore a 97% chance that a federal criminal defendant will face a sentencing judge. For most federal defendants "How much time am I going to do?'' and "Where am I going to do it?'' are key concerns. I offer the following tips to help attorneys and their clients obtain the lowest possible sentence to be served at the best possible facility under terms and conditions that will facilitate release at the earliest possible opportunity.

• After Booker, Courts of Appeals rejected numerous below-guideline sentences as "unreasonable" simply because they did not believe that the mitigating circumstances on which the district courts relied were significant enough to support large "variances" from the bottom of the guideline ranges. That is likely to change with the Supreme Court's opinion in Gall v. United States, 552 U.S. __, 2007 WL 4292116 (Dec. 10, 2007). In that case, the Court "reject[ed] an appellate rule that requires 'extraordinary' circumstances to justify a sentence outside the Guidelines range." The Court also "reject[ed] the use of a rigid mathematical formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence." The Court made it clear that Courts of Appeals are not to impose their own judgment on what the appropriate sentence should be in any particular case. So long as the record demonstrates that district court considered the § 3553(a) factors and supported its sentence with a rationale that is supported by the record, the sentence should stand. It is therefore now more important than ever for defense attorneys to provide a rationale to the sentencing court.
  
  The Court also makes clear that any attempt to give special weight to the sentencing guideline is contrary to its holding in Booker, which means the guidelines are advisory. See also, Kimbrough v. United States, 552 U.S. ___, 2007 WL 4292040 (Dec. 10, 2007) (allowing judges to impose lower sentences based on the unfairness of the 100 to 1 crack cocaine ratio). Both cases, decided the same day make it clear that the district courts are only required to give "some weight" to the advisory guidelines, as they are to the other 18 U.S.C. § 3553(a) factors.
  
  Kimbrough goes one step beyond doing away with any special weight appellate courts have attached to the guidelines. It holds that a district court's judgment that a particular sentence is "sufficient, but not greater than necessary" is entitled to great weight, even if the district court's judgment is based on its disagreement with the policies behind the applicable guideline. Of particular note is the Court's holding that the district court in Kimbrough had properly imposed a below-guideline sentence to avoid the unwarranted disparity a guideline sentence would create between the defendant in that case, who was convicted on crack cocaine charges, and defendants convicted of powder cocaine offenses. Kimbrough gives defense attorneys license to think creatively about how guideline sentences themselves create "unwarranted disparities." It is now entirely possible to obtain a lower non-guideline sentence by arguing that a particular guideline sentence would create unwarranted disparities with sentences imposed in similar state cases. For example, the extremely harsh guidelines for simply downloading child pornography from the internet may be particularly vulnerable to attack after Kimbrough.
• Accompany your client to probation officer meetings that are part of the Presentence Investigation Report (PSI) process. Since probation officers are overburdened, obtain in advance the forms and documents they need, and have your client complete and bring them to the initial interview. If you have any cases supporting your guideline position, highlight the relevant portions and bring them with you. Highlighted cases are more helpful to probation officers, who are not lawyers and are sometimes put off by memoranda of law.
• We believe that as a result of Kimbrough and Gall the pendulum has shifted dramatically back to where judges have more discretion than they have ever had since pre-guideline days in fashioning an appropriate sentence in a particular case.
• When you meet with the probation officer, find out his or her "dictation date.'' This is the date by which he or she must dictate the first draft of the PSI. When possible, it is extremely helpful to have the probation officer and the assistant U.S. attorney (AUSA) buy into what you believe is your client's offense behavior, role in the offense, and any grounds for downward departure before the dictation date. "Buying in'' does not mean paying anybody off. It means getting them to agree that your position is not unreasonable. Remember that probation officers often have a psychological investment in their original draft PSI. Since getting them to change a PSI can be difficult, put your effort into trying to get a good initial draft. That way, you won't have to file that many objections.
• Experience suggests that 80% of the time, a judge has a "tentative sentence" in mind even before the sentencing hearing begins. Unless you put on a tremendous dog-and-pony show at sentencing, it is likely that that "tentative sentence" is going to be your client's sentence. The best way to influence the judge's selection of "tentative sentence" is to file a sentencing memorandum approximately seven days before sentencing. If you can present the judge with character letters and a solid presentence memorandum that uses the § 3553(a) factors to demonstrate why a sentence below the guideline range is "sufficient, but not greater than necessary" to achieve the goals of sentencing, you will go a long way towards achieving the sentence you want.
• Prior to Booker, the only way to get a sentence below the guideline range was to use the guideline policy statements to show the court that there was a basis to "depart." Even after Booker, a court must "consider" guideline policy statements prior to imposing sentence. It is therefore still important to show, if you can, how the policy statements in Parts 5H and 5K call for a lower sentence. Even though a single mitigating factor may not warrant a downward departure, a combination of factors might. [i] Remember, a court can now impose a sentence below the guideline range even if there are no factors that would justify a "departure." Present the court with every mitigating factor you can think of. Even if you don't get a sentence below the guideline range, mitigating factors can often help in getting a sentence at the low end of the range. This is particularly important when the offense level and/or the criminal history score render high guidelines.
• Let judges be judges. Booker has altered the ground rules for justifying lower sentences. Be creative. Don't limit yourself to factors that would have supported downward departures under the guidelines. Think of things about your client and the offense that would make a sentence below the guideline range "sufficient" to meet the goals of sentencing, or else would make a sentence within the range "greater than necessary" to meet those goals.
• Even before Booker, departures based on the fact that the guidelines overstate the seriousness of the offense were sometimes recognized. See United States v. Restrepo, 936 F.2d 661 (2d Cir. 1991); United States v. Alba, 933 F.3d 1117 (2d Cir. 1991); and United States v. Lara, 47 F.3d. 60 (2d Cir. 1994). Each of these cases supports the district court's granting of a downward departure beyond the four-level downward adjustment for a minimal role in the offense. Now, such arguments should always be considered.
• If your client is a cooperating witness, accompany him or her to any debriefings. Not only will you be able to clear up any future dispute as to what the client said, your presence will often facilitate the discussions, particularly if you've debriefed and prepped your client in advance.
• Many of me have been in the situation where even though my client has cooperated, the government has refused to file a 5K1.1 motion for downward departure based on substantial assistance. If you are ever faced with this unpleasant situation, either seek a downward departure based on "super/extraordinary acceptance of responsibility," or else argue that even without a 5K motion, the cooperation would make a lower sentence "sufficient," and a higher one "greater than necessary" to meet the goals of sentencing. If you inform the judge of your client's cooperation, you might persuade the judge to grant a downward departure or "variance" (which is what non-guideline sentences are sometimes called) and impose a sentence as low as it would have had the government filed a 5K1.1 motion. Remember, the "government motion requirement" of § 5K1.1 is only a guideline recommendation now. The judge must, of course, "consider" the policy statement that recommends that courts depart based on a defendant's substantial assistance only after the government has filed a 5K motion. For more information on maximizing the benefits of cooperation, take a look at the lead article in the Summer 2007 issues of Federal Sentencing and Postconviction News, our firm's quarterly newsletter, which can be found on the publications page of my website, www.alanellis.com. [ii]
• Seek a "lateral" departure or "variance" that requires your client to serve the same amount of time as called for by the guidelines, but under more favorable conditions. For example, if the guidelines call for a 21-month sentence, ask the judge to depart downward or to grant a variance to a sentence of seven months of incarceration, followed by supervised release with a special condition that the client serve seven months in the correctional component of a community corrections center (CCC), considered the most onerous unit in a halfway house, followed by seven months of supervised release with home confinement and an appropriate amount of community service. Not only does this add up to the same 21 months that the client would normally serve, but it actually requires more time, since the client will not get good conduct time credit for either the community corrections center or home confinement portions of the sentence. While your client will serve the entire 21 months, the conditions of confinement will be better.
• Some judges don't like to recommend particular places of confinement at sentencing. Some believe that because they are not "correctional experts,'' they should not make any recommendation as to where a client should serve the sentence. Others are discouraged by letters they get from the Bureau of Prisons (BOP) advising them that their recommendations cannot be honored in a particular case. When the BOP fails to honor a judge's recommendation it is usually because the judge has recommended a facility incompatible with the defendant's security level. Although judicial recommendations are only recommendations, that does not mean they are not important. Not only does 18 U.S.C. § 3621(b)(4)(B) specifically contemplates these recommendations, but BOP Program Statement 5100.08 says that the Bureau welcomes a sentencing judge's recommendation and will do what it can to accommodate it. Bureau statistics show that in approximately 85% of the cases in which the defendant qualifies for the institution recommended by the judge, the court's recommendation is honored.
• Without a recommendation from the judge, prison overcrowding may prevent your client from being designated to the facility he prefers - even if he qualifies for it, and even if it is close to his home. Should there be only one slot open at a prison such as the Federal Prison Camp in Fairton, New Jersey, for example, and there are two defendants who want that placement, the one with the judicial recommendation is more likely to get it. If your judge is reluctant to make recommendations, it may help to get a copy of the Bureau's Program Statement 5100.08 and show the Court the page that deals with judicial recommendations.
• A year and a day sentence results in an inmate's serving approximately 47 days less than he would serve on a 12-month sentence because the 12-month sentence does not provide for good conduct time. [iii]
• An inmate is generally not entitled to credit for time served on pretrial release under home confinement or even in a halfway house as a condition of bond. [iv]
• Certain considerations, termed Public Safety Factors by the BOP, will preclude camp placement even if an inmate is otherwise qualified for such place­ment. PSFs apply to defendants who are deportable aliens, high level/high volume drug traffickers, sexual offenders (including those convicted of child pornography offenses), defendants convicted of significant frauds that involved the use of a telephone, defendants with histories of juvenile violence, and defendants sen­tenced to terms of imprisonment of more than ten years. The Bureau of Prisons looks to the Presentence In­ves­ti­ga­tion Report to determine the applicability of a par­tic­u­lar Public Safety Factor.
• Generally, non-United States citizens are not eligible for federal prison camp placement. However, if U.S. Immigration and Customs Enforcement (ICE) or the Executive Office for Immigration Review (EOIR) determine that deportation proceedings are unwarranted, the offender may be eligible for Minimum security camp placement if otherwise qualified.
• The BOP's Residential Drug Abuse Program (RDAP).
  
  Pursuant to 18 U.S.C. § 3621(e) the Bureau of Prisons has im­ple­ment­ed a nine month Residential Drug Abuse Program (RDAP) that can help an inmate receive up to a 12-month reduction in sentence and a six-month halfway house place­ment.
  
  Enrollment in RDAP is con­di­tioned upon a diagnosis of substance abuse and independent verification in the prisoner's central file (usually the Presentence Investigation Report) that the inmate had a drug or alcohol prob­lem within the year preceding con­fine­ment. [v] A prisoner without such ver­i­fi­ca­tion is generally ineligible to participate.
  
  To be eligible for early release, a defendant must have been convicted of a non-violent offense. [vi] The following categories of inmates are not eligible for early release, even if they successfully com­ple­te the drug treatment program: [vii]

(i) INS detainees;

(ii) Pretrial inmates;

(iii) Contractual boarders (for example, D.C., State, or military
in­mates);

(iv) Inmates who have a prior felony or mis­de­mean­or conviction for homicide, forcible rape, robbery, aggravated assault, or child sexual abuse offenses;

(v) Inmates who are not eligible for participation in a community-based program as determined by the warden on the basis of his or her professional discretion;

(vi) Inmates whose current offense is a felony:

(A) that has an element, the actual, at­tempt­ed, or threat­ened use of physical force against the person or property of another, or

(B) that involved the carrying, possession, or use of a firearm or other dangerous weapon or explosive (in­clud­ing any ex­plo­sive material or explosive device), or

(C) that by its nature or conduct, presents a serious potential risk of physical force against the person or property of another, or

(D) that by its nature or conduct involves sexual abuse offenses committed upon children.

An inmate must be eligible for community based program placement in order to fulfill the six-month halfway house (CCC) component of the RDAP. Otherwise, the inmate will not be able to obtain the up to 12-month reduction in sentence. The following inmates are ineligible for com­mu­ni­ty-based program placement:

(i) Deportable aliens;

(ii) Inmates who require medical or psychiatric services;

(iii) Inmates who refuse to participate in the BOP Inmate Fi­nan­cial Responsibility Program;

(iv) Inmates expelled from the required drug abuse education course;

(v) Inmates with unresolved detainers or pend­ing charges;

(vi) Inmates serving sentences of six months or less;

(vii) Inmates who pose a significant threat to the community as de­ter­mined by the inmate's public safety factor, history of escape, repeated and serious institution rule violations, history of vi­o­lence. NOTE: The BOP may consider the un­der­ly­ing conduct of prior convictions as described in the PSI, whether or not there was a conviction.

In addition to the requirements discussed above, inmates must also meet the following criteria:

(1) the inmate must have been sentenced pursuant to Title 18 U.S.C. Chapter 227, Subchapter D, under the Sentencing Reform Act (SRA), or under the "new law;"

(2) the inmate's prior adult criminal record in­cludes no con­vic­tions which disqualify him/her for early release, based on the Director's Dis­cre­tion; and

(3) the inmate has successfully completed all parts of the Bureau's residential drug abuse treatment program.

The possibility of the time reduction under § 3621(e) is an important factor in plea negotiations and sentencing. Charge bargaining can result in a better chance at RDAP eligibility (for example, by ensuring that the defendant is not convicted of a crime-such as a violent felony -which would preclude sentence reduction). Contesting a "gun bump," USSG § 2D1.1(b)(1), or the existence of a prior conviction for certain offenses can also increase a defendant's chances of receiving a sentence reduction for participating in RDAP. The Supreme Court has approved the BOP's exercise of discretion to deny early release to defendants with prior convictions for certain offenses, as well as to defendants who received an enhancement for possessing a gun. [viii]

Judicial recommendations for RDAP and documentation of substance abuse in the Presentence Report help establish eligibility for treatment. The BOP requires that the inmate's substance abuse problem (including alcoholism) be substantiated in the presentence report to make him eligible to participate in residential treatment. A clear indication of a substance abuse problem in the presentence report which existed within one year of the defendant's incarceration and a sentencing court's recommendation that the defendant participate in residential treatment will help avoid problems of eligibility for early release.

The BOP's website at http://www.bop.gov offers updated lists of in­sti­tu­tions offering residential drug abuse programs. For further in­for­ma­tion, also see Program Statement 5330.10.

• 18 U.S.C. § 3624(c) directs the BOP to ensure that prisoners spend "a reasonable part, not to exceed six months of the last 10-percent[]" of his sentence in community place­ment, i.e., halfway house or home confinement. Inmate eligibility for community-based program placement has already been discussed in the Practice Tip concerning the BOP's Res­i­den­tial Drug Abuse Program (RDAP). Eligibility criteria for the six-month CCC component of the RDAP was also discussed in that Tip.
• Inmates can lose substantial credit towards their federal sentences because of the BOP's narrow interpretation of 18 U.S.C. § 3585(b), which governs credit for prior custody. The BOP interprets the statute to prohibit "double credit" in many instances for time served on a sentence imposed by different jurisdictions. For example, under BOP policy, any time credited toward another sentence (whether state or federal) prior to the imposition of the current federal sentence cannot be credited toward the new federal sentence, even if the earlier sentence resulted from related conduct, and even if the judge, whether state or federal, ordered the sentences to run concurrently. [ix] The BOP's interpretation of § 3585(b) sometimes converts a concurrent sentence into a partially consecutive sentence regardless of the Judgment and Commitment Order, because the defendant will not begin getting federal credit until the court imposes the federal sentence. [x] There are ways to get around this, such as downward departures, adjustments under 5G1.3(b)(1), and the discretion courts have after Booker.
• Below guideline sentences are slowly on the rise. Unfortunately, so are above-guideline sentences. According to the statistics compiled by the U.S. Sentencing Commission since Booker, below guideline sentences have increased by over 7%, while above guideline sentences have increased by about 1%. This makes it important to hire a mitigation specialist if your client can afford it. Mitigation specialists are often social workers, former U.S. probation officers, or criminologists. Their training makes their interviewing technique more effective than that of most lawyers, and often allows them to obtain information a lawyer might not be able to get. For example, a forensic social worker with a background in psychiatric social work is better able than most lawyers to recognize when a client has a mental illness which may provide a ground for a downward departure based on diminished capacity. Mitigation specialists are also better able to identify unique family circumstances which may provide grounds for departure based on "extraordinary family circumstances." If you need a referral to a mitigation specialist, contact the author at 495 Miller Avenue, Suite 201, Mill Valley, California 94941 (Tel: 415 877 1023; Fax: 415 877 1023; Email: aelaw4@aol.com), or the National Association of Sentencing Advocates (202-628-2820), which has a listing of over 200 Mitigation Specialists throughout the country. Judges always want to know why the defendant committed the offense. Since mitigation specialists can help you answer the "why" question, they can often help you get the lowest possible sentence. I utilize the services of two mitigation specialists: Lianne C. Scherr, LCSW, a forensic psychiatric social worker, and Tess Lopez, a former federal probation officer. An interview with Ms. Lopez that was previously published in Criminal Justice, the journal of the Criminal Justice Section of the American Bar Association, is included at the back of this Guidebook. An interview with Ms Scherr that was published in the Champion, the journal of the National Association of Criminal Defense Lawyers, can be found on my website, www.alanells.com, under Criminal Justice Professional Profiles. [xi]
• Remember the "safety valve." [xii] A defendant who qualifies for the safety valve may receive a sentence below the mandatory minimum even if the government does not file a § 3553(e) motion. Qualifying defendants with offense levels of 26 or greater also receive an additional two-level decrease. [xiii]
• Be creative. Don't limit yourself to thinking about downward departures -- but don't forget about them either. First think about the departures identified in the guidelines themselves. Then think of things that make your case unusual. If there are things that are unusual about your client or the offense -- things that take the case outside the "heartland" of the guidelines, these can be good grounds for a departure. But don't stop there. After Booker, almost anything about your client, the offense, and the sentences that similarly situated defendants have received can support an argument that a sentence below the bottom of the guideline range is "sufficient, but not greater than necessary" to meet the goals of sentencing .
• The addition of one criminal history point may not change a defendant's Criminal History Category ("CHC"). But it can still be important to object to these seemingly harmless additions, and then to appeal if the district court denies the objection. Normally, a criminal history point that does not affect the sentencing range is "harmless error." But not always. In United States v. Vargas, 230 F.3d 328 (7^th Cir. 2000), the Seventh Circuit remanded for resentencing based on a seemingly inconsequential criminal history point. The Court reasoned that the error was not "harmless," because it "might have affected" the district court's denial of the defendant's motion for downward departure based on the defendant's contention that his criminal history category significantly overrepresented the seriousness of his criminal history. [xiv] A single point might also affect prison designation, since the BOP now uses criminal history points to calculate an individual's security level. [xv] Criminal History Points can affect the type of facility to which the offender may be assigned even if the judge sentences outside the guideline range after Booker.

[i] See USSG § 5K2.0 Commentary.

[ii] http://www.alanellis.com/CM/Publications/newsletter-2007-summer.pdf.

[iii] 18 U.S.C. § 3624(b)(1).

[iv] Reno v. Koray, 515 U.S. 50 (1995).

[v] Program Statement 5330.10.

[vi] The requirements an inmate must meet for early release are found in Program Statement 5330.10, Chapter 6. The term "non-violent offense" is defined in Program Statement 5162.04.

[vii] See BOP Program Statement 5330.10, Chapter 6, page 1.

[viii] Lopez v. Davis, 531 U.S. 230 (2001).

[ix] BOP Program State­ment 5880.28.

[x] Defendants held in custody prior to sentencing generally get credit for their time in custody prior to sentencing. But not if that prior custody was "credited against another sentence." 18 U.S.C. § 3585(b)

[xi] http://www.alanellis.com/CM/Publications/interview-with-lianne-scherr.asp.

[xii] 18 U.S.C. § 3553(f) and U.S.S.G. 5C1.2.

[xiii] USSG § 2D1.1(b)(4).

[xiv] See USSG § 4A1.3 (p.s.).

[xv] See Program Statement 5100.08.