Sentencing Advocacy in Federal White Collar Criminal Cases
Current White Collar Sentencing Data
(Source: U.S. Sentencing Commission, 2020 Sourcebook of Federal Sentencing Statistics)
During fiscal year 2020, approximately 6,000 federal defendants were sentenced for economic crimes. Among these, 43.7% were sentenced within the federal sentencing guidelines range, while 11.9% were sentenced below the guidelines range based on government-sponsored departures (i.e., substantial assistance). Additionally, 3.8% were sentenced below the guidelines range, and 0.5% above the guidelines range, based on non-government sponsored departures. The remaining 40.1% were sentenced below the guidelines range based on downward variances.
Whether a defendant receives a downward variance in federal white collar criminal cases depends critically on the strength of defense counsel’s sentence mitigation advocacy. Discussed below are the most important considerations in formulating a complete and comprehensive sentence mitigation argument in federal white collar criminal cases.
Credibility of the Defense Attorney
The credibility – or lack thereof – of the defense attorney can set the tone for the entire sentencing phase. It’s important that the attorney remember that their audience is an audience of one: the judge. All argument and presentation should be geared toward convincing the judge of the attorney’s viewpoint, and not impressing the client or others watching in the courtroom. So, how does an attorney create credibility and trust with the judge?
First, the defense attorney should not attempt to sanitize the defendant’s crime. While judges appreciate an attorney’s vigorous advocacy, they want candor. Otherwise, the judge may view the attorney as manipulative, and discount other arguments made by the attorney.
Second, the defense attorney should not request a ridiculously low sentence. This is a critical mistake made far too often. While judges welcome an attorney’s sentence recommendation, requesting a too-lenient sentence has the potential to sabotage your entire case by essentially taking yourself out of the conversation. Instead, the attorney should show the court their ability to make well-reasoned, principled, and appropriate recommendations.
Third, the defense attorney should resist the temptation to regurgitate information that is firmly established in the record, and which the judge already knows. Judges are more interested in hearing something about the defendant or the case that they do not already know.
Fourth, the defense attorney should not overload their sentencing memorandum with unhelpful, boilerplate legalese and citations; for example, endless citations to Booker and its lengthy progeny of cases. Judges are more interested in reading something that they don’t already know. Also, judges do not take kindly to a sentencing memorandum that is poorly prepared, filed late, or not filed at all.
Lastly, the defense attorney should not argue rulings favorable to the defense. Although this is an obvious point, it too occurs far more often than it should.
Remorse and Acceptance of Responsibility by the Defendant
Judges want to see that the defendant has thought about what they have done, why they did it, what they have learned, and why they are unlikely to do it again. Further, in white collar cases in particular, judges also want to know how the defendant will make the victim whole. In short, judges want to see that the defendant has seriously taken responsibility and is truly remorseful for their conduct.
Allocution can play a powerful and significant role in this effort, and in some cases be a game-changer. However, an insincere or attorney-scripted statement by the defendant can have the opposite effect. Importantly, a defendant who does exercise their right to allocution, should be prepared to engage with the judge, who often will question the defendant during allocution to learn more about them, why they committed the offense, and their plans after completing their sentence.
The defense lawyer has an important role to play in preparing the defendant for sentencing, humanizing the defendant before the court, and helping the defendant tell a compelling story. Things to consider include telling the judge the positive things that the defendant has done since their arrest, such as rehabilitation efforts, performance of community service, or efforts to pay restitution. Another important issue to bring to life for the court is the financial and emotional support that the defendant provides to dependents or others. However, perhaps contrary to conventional wisdom, it is usually not a good idea to bring young children to court.
Credible Psych Evaluations and Character Letters
Most judges understand that mental illness is pervasive among criminal defendants, and welcome psychological reports to better understand the defendant. However, not surprisingly, judges will only give these reports weight if they are credible. In other words, does the report indicate that mental illness prior to the offense was a contributing factor to the defendant’s conduct? Or is the report merely the opinion of a paid professional who spent a few hours with the defendant while awaiting sentencing? You can guess which type of report will be viewed as credible, and capable of influencing the judge’s decision.
There is a similar, if slightly different, dynamic at play with character letters. First, the quality of the letters is significantly more important than the quantity. A campaign to obtain as many letters as possible is usually a waste of time and of little help. Instead, the letters should inform the judge about the defendant’s life and good deeds that only the writer can know, and was not even shared by defense counsel. Also, inarticulate descriptions of the defendant’s kindness can resonate more powerfully than form letters listing all of the defendant’s supposedly great attributes. It’s also not particularly helpful for the writer to say, in effect, that they can’t believe the defendant would commit such an offense. Conversely, an employer who is aware of the offense, and yet commits to rehire the defendant, can be particularly powerful.
Willingness to Pay Restitution
Judges look to a defendant’s willingness – rather their ability – to pay restitution as an important sentencing factor. Steps taken to pay restitution prior to sentencing, even in small amounts, can go a long way in establishing the sincerity of the defendant’s acceptance of responsibility for the offense and their commitment to rehabilitation.
The impact of this factor will necessarily vary depending on the facts of the offense. For example, in a case where the defendant committed the fraud due to serious financial hardship and extenuating circumstances, and used the proceeds of the offense to meet living expenses or to care for sick relatives, will be viewed far differently than a case in which the defendant used the proceeds of the offense to finance an ostentatious lifestyle. In the former case, any effort to make restitution will be viewed as further evidence of acceptance and remorse. In the latter case, it may merely be viewed as a further fraud attempt by the defendant.
Collateral consequences of a felony conviction are an often-overlooked aspect of a sentence mitigation argument. In white collar cases this can be a particularly relevant topic for discussion. Many white collar defendants hold professional licenses, are members of professional associations, or are employed in government-regulated industries. In such cases, the conviction itself carries a certain punishment by way of collateral consequences that other defendants do not incur. Whether it is the loss of a professional license or the inability to earn a living in a particular industry, these are relevant and important sentencing factors that should be brought to the attention of the court.
As striking as it may sound, many otherwise-competent federal criminal defense attorneys simply “punt” at the sentencing hearing, and do not give judges the information they need to make a fully-informed sentencing decision. Given that 98% of federal criminal defendants will face sentencing, there is no reason for a defense attorney to wait to start thinking about sentencing advocacy. To the contrary, it should begin early on and continue throughout the case, regardless of how the case is ultimately resolved.
If you or a loved one are the target of a federal criminal investigation or federal charges, you need to consider hiring a federal criminal defense attorney. Moreover, in evaluating which is the right attorney, you must also consider the overwhelming likelihood that you will face sentencing at some point. With this in mind, the most important consideration in hiring a federal criminal defense attorney is arguably the attorney’s knowledge and skill in federal sentencing practice and federal sentencing advocacy.