What Are Federal Sentencing Memos?
Sentencing memos often focus on who the convicted defendant is, and not the crime committed. A sentencing memorandum should be detailed and tell the client’s story and highlight the factors, called Section 3553 factors, that a judge must consider in imposing a sentence. These “sentencing factors” include the following:
- The nature and circumstances of the offense
- The history and characteristics of the defendant
- The need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment for the offense, to afford adequate deterrence to criminal conduct, to protect the public from further crimes of the defendant; and to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner
- The kinds of sentences available
- The need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct
- The need to provide restitution to any victims of the offense.
In addition, there is no parole (aka early release) in the federal criminal justice system. Once convicted of a federal offense, defendants will typically serve at least 85 percent of their prison sentences.
A good sentencing memo could persuade a judge to issue a reduced sentence. This is because the federal sentencing guidelines are advisory, rather than mandatory, and highly complex.
In 2007 the United States Supreme Court issued two decisions, Gall v. United States and Kimbrough v. United States, in which the Court made it clear that sentences outside of the normal guidelines range are not presumptively unreasonable and that sentencing courts are free to disagree with the guidelines’ policy statements.
Federal courts are still required to first calculate the appropriate guidelines range. The sentencing court is then allowed to grant a downward departure under the sentencing guidelines or a Booker downward variance, based on non-guidelines’ factors set out in federal statutes.
Why Are Michael Cohen’s Sentencing Memos Significant?
On December 7, 2018, special counsel Robert Mueller and federal prosecutors in New York have each submitted sentencing memos for Michael Cohen, President Trump’s former personal attorney, after Cohen pleaded guilty in two different cases related to his work for Trump and the Trump Organization.
The crimes include “willful tax evasion, making false statements to a financial institution, illegal campaign contributions, and making false statements to Congress.”
However, the special counsel’s sentencing memo, along with court documents from Cohen’s guilty plea last week, also lay out a time line that point to President Trump’s knowledge of Cohen’s engagement with Russian individuals and officials to benefit Trump’s business interests. For example, the special counsel’s memo states that Cohen continued to talk to “Individual 1” (Donald Trump) about Trump Tower Moscow “well into the campaign.”
Mueller writes that Cohen “has gone to significant lengths to assist the Special Counsel’s investigation.” This included seven meetings with the special counsel’s office — some of which were “lengthy.” Such cooperation may help Cohen secure a reduced sentence.
What do you think? Should a criminal defendant’s personal history be a basis for a reduced sentence, or should only the crime matter?