Top 10 Frequently Asked Questions
- What is federal prison like?
- How does the court determine the length of a defendant’s sentence?
- Are there different types of prisons for different offenders?
- Am I in danger of being physically or sexual assaulted in federal prison?
- What is a plea bargain?
- What is a 5K1.1 letter?
- Why is it important to seek the protection of 1B1.8 before any proffer?
- After plea-bargaining or trial is there any way to reduce a defendant’s sentence?
- What affect can the “Booker / Fanfan” decision have on my case?
- What can a consultant do to aid my defense efforts?
Federal prison is a microcosm of our society (both good and bad) – for the most part, the federal inmate population lives a healthier lifestyle – no smoking, no drinking, daily exercise, most try and better themselves physically, mentally and spiritually during their period of incarceration. Those defendants who are educated and prepared for the road ahead seamlessly transition their way in and out in as little time as necessary, successfully avoiding the pitfalls that others seem to encounter.
The court may now consider a number of factors when determining a defendant’s sentence – however, the primary tool still used to formulate a sentence is the United States Sentencing Guidelines. The Guidelines and applicable sentencing range will be one of the first matters that a defendant discusses with their counselor - every decision should be based on the potential ramifications of the guideline range in which a defendant would fall if convicted or when a plea agreement is reached. Additionally, the court may elect to depart from the guidelines based on certain relevant factors.
Yes – the Bureau of Prisons administers various institutions (United States Penitentiaries, Federal Correction Institutions, Federal Prison Camps, Federal Detention Centers, and Bureau of Prisons Administrative and Medical facilities - additionally, through contract, halfway house and community correction programs) and endeavors to maintain like type offenders together. During the presentence investigation phase a defendant’s security level is determined. Contributing factors include: the nature of the instant offense, the severity of the instant offense, the anticipated sentence for the instant offense, a defendant’s past criminal history and the level at which a defendant cooperated with the federal government. Those inmates fortunate enough to be designated to Federal Prison Camps are spared the anxiety of being housed with known violent offenders.
Though modern media would make you think otherwise - rarely do these types of activities occur. The vast majority of all conflicts in federal prison are handled verbally due to the fear and ramifications of a violent incident – all parties involved may face additional charges, time and internal sanctions including higher custody classification. Recent Federal and State combined statistics show less than 4.5% of all inmates encounter one of these situations during their period of incarceration. The likelihood of these occurrences drops dramatically for inmates housed in Federal Prison Camps – where known violent offenders are omitted entry. By educating yourself prior to incarceration you can avoid becoming a victim.
A plea bargain is an agreement between a defendant and the United States District Attorney’s office. In return for a guilty plea and avoiding a costly jury trial, the Assistant United States Attorney (AUSA) agrees to limit the scope of the charges (i.e. – number of counts) being brought against the defendant. Additionally, the AUSA will normally recommend a particular sentence to the courts and in certain instances (i.e. – substantial cooperation) agree to recommend that the minimum recommended sentence for the instant offense be waived.
5K1.1 letters are letters that the Assistant United States Attorney (AUSA) writes to a judge, which explains to the court that a defendant has cooperated with the federal government in some important or substantial manner. This procedure is described in Section 5K1.1 of the United States Sentencing Guidelines – sometimes, a 5K1.1 letter is an actual letter from the prosecutor to a judge, but more often it is a formal motion made by the AUSA in open court. The less formal letter or off the record verbal 5K1.1 is normally reserved for cases where the government considers a defendant’s cooperation extremely valuable and may be concerned about keeping this fact a secret. “Downward” departures are normally reserved for those individuals who cooperate with the United States Attorney General’s office.
Proffers also referred to as “debriefs” or “free-talks” are meetings between a defendant and the Assistant United States Attorneys or applicable law enforcement agents. The proffer is a means by which a defendant may obtain a 5K1.1 letter by offering the prosecutor information about the instant offense, in addition to agreeing to testify in open court against another. Practically speaking, only about 10% of all defendants receive a 5K1.1 letter by doing so – the other 90% of defendants give vital information to the government with nothing in return and, by doing so, possibly expose themselves to further prosecution and/or weakened defense.
Experienced attorneys do their best to protect the interests of their clients by insisting that Section 1B1.8 of the guidelines go into effect during any debriefing.
Section 1B1.8 states:
1B1.8 Use of Certain Information
(a) Where a defendant agrees to cooperate with the government by providing information concerning unlawful activities of others, and as part of that cooperation agreement the government agrees that self-incriminating information provided pursuant to the agreement will not be used against the defendant, then such information shall not be used in determining the applicable guideline range, except to the extent provided in the agreement.
Yes – there are several ways that a defendant can reduce their sentencing exposure post-verdict / post-plea. The completion of the Bureau of Prison’s 500-Hour Residential Drug Abuse Program (RDAP) is one example of how a defendant can reduce their actual time served by as much as 18 months!
After the Supreme Court’s decision on January 12, 2005 in United States v. Booker, District Courts are no longer bound to give a sentence within the range prescribed by the Federal Sentencing Guidelines. Despite the fact that the Guidelines are now advisory (NOT mandatory) they are still given the presumption of reasonableness and, for the most part, continue to be adhered to. Recent statistics show that sentences have changed very little since the Booker ruling. While the Booker ruling has given Federal Judges significant latitude to consider a multitude of relevant mitigating factors prior to sentencing. Defendants must differentiate themselves from their peers in some dramatic way if they are to expect to receive a departure from the same Federal Judges who have followed these guidelines for over 20 years.
After gaining a thorough understanding of the circumstances surrounding your indictment, personal / family characteristics and future expectations – we will provide both you and your counselor with written reports targeted and designed specifically to achieve results (i.e. – plea agreement and pre-sentencing report review and consulting, trial preparation, sentencing / alternative sentencing strategies, downward departure issues, judicial recommendation assistance and strategies, BOP designation and re-designation assistance and strategies, etc.).Contact Patrick today and he will explain exactly how he can benefit your defense efforts.