 Next, let's consider plea agreements under the Sentencing Reform Act and the guidelines. Federal Rule of Criminal Procedure 11 authorizes three types of plea agreements, charge agreements, non-binding sentencing recommendations, and binding sentencing agreements. The Sentencing Reform Act and the guidelines don't change anything in Rule 11. However, they can have a substantial impact on the nature and consequences of plea agreements. For example, in a typical charge agreement, the defendant agrees to plead guilty to one or some of the charges in the case, and the government agrees to move for dismissal of the rest at sentencing. Prior to the Sentencing Reform Act, plea agreements calling for dismissal of charges left the sentencing judge with discretion to impose a sentence anywhere from probation to the maximum sentence permissible under the statute governing the offense of conviction unless the statute required a mandatory minimum sentence. The Sentencing Reform Act limits the court's discretion in imposing sentence in charge bargain cases, as it does in all cases, by requiring the court to impose a sentence within the guideline sentencing range in the ordinary case. The court's discretion is also limited by the Sentencing Commission's definition of relevant conduct. That definition requires the court to take into account for particular offenses all acts or omissions of the defendant and others that are part of the same course of conduct or common scheme or plan as the offense of conviction in determining the sentencing range. This means conduct specified in counts dismissed pursuant to a charge bargain will still be included in calculating the sentencing range that applies to the case if it is deemed relevant conduct. Let's take an example. Suppose defendant Smith is indicted on three counts of distribution of cocaine. Each count of the indictment charges her with distributing 200 grams of cocaine in a separate transaction. Smith enters into a charge bargain and pleads guilty to one count of the indictment. The government agrees to move for dismissal of the other two counts at sentencing. Under the guidelines, the base offense level for defendant Smith will be calculated by using the total amount of cocaine she has found to have distributed, 600 grams, if her three drug transactions can be considered part of the same course of conduct and thus considered relevant conduct in determining her guideline range. Governing case law requires that alleged relevant conduct be proven by a preponderance of the evidence before being used at sentencing. As you can see, the application of the relevant conduct rule is one of the most important and sometimes difficult tasks under the guidelines. What happens if the parties enter into plea bargains for reasons that conflict with the goals of the sentencing reform act? For example, what if the government and the defendant enter into a charge bargain that proposes to let the defendant plead guilty to possession of a controlled substance, an offense carrying a statutory maximum of one year, in a case where the defendant was initially charged with distribution of the substance? What if the parties enter into a plea agreement containing sentencing recommendations that are not binding on the court, but the agreement is predicated on stipulations of fact that the court disagrees with? What if the government and the defendant enter into a binding sentencing agreement that specifies a sentence or range below that applicable under the guidelines? The bottom line is you are free to reject plea agreements like these and Rule 11 explicitly authorizes you to do so. In any event, you should review all three types of Rule 11 plea agreements with great care. The Sentencing Commission has not issued guidelines relating specifically to plea agreement practices. They are issued general policy statements concerning acceptance of plea agreements. These policy statements give judges guidance consistent with Rule 11 in the Sentencing Reform Act and facilitate the task of the judge in determining the impact of plea agreements. They're found in Chapter 6 of the manual. Policy statement 6B1.1C advises courts to defer acceptance or rejection of a plea agreement until there has been an opportunity to consider the pre-sentence report. Policy statement 6B1.2 contains criteria for determining whether to accept plea agreements. Essentially, the commission suggests that the court not accept the charge agreement unless it makes two determinations on the record. First, that the remaining charges, that is, the charges pled to adequately reflect the seriousness of the actual offense behavior. And second, that accepting the agreement will not undermine the statutory purposes of sentencing. With respect to recommended sentences and binding agreements regarding sentence guideline application or disputed facts, the commission's policy statement suggests that the court accept these kinds of agreements only when they are within the applicable guideline range or depart from that range for justifiable reasons, that is, reasons that meet the statutory test for departures. Now Judge Polozola will discuss mandatory minimum sentences and how they relate to the guidelines. The Sentencing Reform Act is, of course, only a part of the overall federal sentence and structure. That structure also includes a number of statutes requiring mandatory minimum sentences for specific offenses. In fact, about one-third of all federal sentences are imposed under statutes requiring mandatory minimums. These statutes require imposition of mandatory minimum terms of imprisonment on all applicable offenders without regard to nearly all of the sentence and factors considered under the guidelines. In many drug cases, for example, the length of mandatory minimum imposed results solely from the con in quantity of the drug involved. In cases that may involve the mandatory minimum statute, it is up to the court to make a separate determination for each defendant as to whether the requirements of the stature are met. For example, the court must determine whether the defendant was involved with a sufficient drug quantity to trigger the mandatory minimum. As I mentioned earlier, when sentence and guidelines and statutory provisions conflict, statutes govern. Guideline 5G1.1 explains the interaction between the sentence and guidelines and statutes requiring mandatory minimum terms of imprisonment. It states in part that where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence. So if the applicable guideline range is 41 to 51 months, but the governing statute requires a mandatory minimum sentence of 60 months, the recommended sentence under the guidelines becomes 60 months. A sentence in excess of 60 months would then be considered a departure. Section 3553E of Title 18 gives the court authority to impose a sentence below a mandatory minimum established by stature in one specific situation. That is, when the government files a motion requesting the court to do so in order to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense. When the court agrees with the government that a sentence below the mandatory minimum is justified, Section 3553E requires that such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission. Now let's consider the role of the probation officer in preparing pre-sentence reports. The Sentencing Reform Act and Rule 32 of the Federal Rules of Criminal Procedure require the probation officer to make a pre-sentence investigation of the defendant. The results of that investigation must be reported to the court prior to sentencing. The purpose of the investigation and the report is to provide the court with relevant and reliable information about both the offense and the offender for use in fashioning a sentence. Of course, the parties or the court may dispute information presented and conclusions reached in the report. Nevertheless, a well-prepared pre-sentence report provides invaluable assistance to the court in identifying disputed issues in determining whether or not to accept a plea agreement and in fashioning an appropriate sentence. Rule 32 requires the court to include the probation officer's recommendations as to the appropriate classification for the offense and the defendant under the categories established by the guidelines, the resulting kinds of sentences and sentencing range available under the guidelines, and whether any factors in the case suggest a departure from the guidelines might be appropriate. Rule 32 also requires the probation officer's report to contain information about the history and characteristics of the defendant, any pertinent policy statement issued by the Sentencing Commission, verified information assessing the impact of the offense on the victim, information concerning the nature and extent of non-prison programs and resources available for the defendant, unless the court orders otherwise, and any other information required by the court. In other words, it's the probation officer's job to prepare a pre-sentence report that is in essence a recommended statement of the facts relating to the defendant's background, the facts of the case, and how the guidelines apply to those facts. In most cases, if the officer does that job well, you will be able to use the pre-sentence report to state why you selected a particular guideline range in the sentencing table or selected a sentence that departs from the guidelines. You will also be able to adopt the facts in the pre-sentence report if you wish to do so, and the parties do not object. But keep in mind that it is for the judge to find the facts if they are contested, apply the guidelines to the facts, determine the appropriate sentence, and exercise discretion where appropriate. If there are objections to the pre-sentence report, you should encourage the parties to try to resolve them informally prior to the sentencing hearing. The Sentencing Reform Act and Rule 32 contain disclosure requirements that facilitate such efforts. Let's take a look at them. The Sentencing Reform Act says the pre-sentence report must be submitted to the defendant, counsel for the defendant, and the government at least 10 days prior to sentencing. Rule 32 also requires disclosure of the report at least 10 days before sentencing, except for the final recommendation as to sentence and other information which the court concludes will be harmful to the defendant or others. These disclosure requirements allow the prosecutor, the defendant, and defense counsel an opportunity to raise objections to the report prior to sentencing. And if any of them alleges any factual inaccuracies in the report, the parties have an opportunity to resolve the disputed facts before the sentencing hearing is held. Commission Policy Statement 6A1.2 encourages courts to adopt procedures to provide for the timely disclosure of the pre-sentence report and for the identification, narrowing, and resolution of disputed issues in advance of the sentencing hearing. The Policy Statement does not articulate specific procedures for accomplishing these objectives, but early disclosure will leave the court and the parties with a range of options to employ in resolving disputes. For example, the parties may attempt to resolve disputed issues prior to sentencing by agreeing on written stipulations of fact relevant to sentencing, by submitting written materials to the probation officer or the court, or by meeting with the probation officer to present their views on the disputed issues. You may want to suggest or require that the parties use these options to try to resolve their disputes prior to sentencing. Of course, not all factual disputes will be resolved prior to the sentencing hearing, but to the extent that they are and to the extent the probation officer is able to report the relevant sentencing facts in the case and the defendant's criminal history fairly and impartially, you will save the task of entertaining litigation with respect to those facts. This will make your sentencing hearings more efficient by enabling everyone concerned to focus on the real disputes between the parties. Given the complexity of the guidelines and the stakes for the defendant, judges should remain alert to the issue of competency of defense counsel during sentencing. A departure, an adjustment, or even a single criminal history point can have a substantial impact on the length of a defendant's sentence. You should therefore expect defense counsel to be well prepared on sentencing issues and to play an active role in the sentencing process. You may, for example, encounter a request from diligent defense counsel to be present when the probation officer interviews his or her client. While there is no Sixth Amendment right to counsel at a pre-sentence interview, some courts of appeals have exercised their supervisory powers to require probation officers to honor such requests. That's because a defendant's statements during the interview can have a significant effect on the guideline range recommended by the officer in the pre-sentence report. For example, a defendant who mischaracterizes his or her criminal record to a probation officer during the interview may receive a two-level increase for obstruction of justice. Or, the probation officer may seek information during the interview regarding alleged criminal conduct the defendant has not been convicted of. Information provided by the defendant about such conduct, if in culpatory, may provide the basis for a significant increase in the applicable guideline range. Counsel may therefore wish to be present at the interview to advise the defendant how to proceed. Defense counsel should also be a strong advocate at the sentencing hearing for both the defendant's version of the facts and the defense version of how the guidelines should be applied to those facts. Indeed, counsel's failure to argue for an available mitigating adjustment at the hearing may render his or her assistance ineffective. Thus, defense counsel's role in the sentencing process is a crucial one and should be carefully monitored by the court. Of course, you have the last word in deciding what the facts of the case are for sentencing purposes. And in doing so, you are not required to accept either the probation officer's version of the facts or the facts stipulated to by the parties. You must, however, work within the framework of Rule 32 in establishing facts relevant to sentencing. Rule 32 gives the court discretion to afford the defendant an opportunity to introduce testimony or other information relating to alleged factual inaccuracies in the pre-sentence report prior to imposing sentence. Rule 32 also requires the court to make a finding resolving each contested issue or a determination that the issue will not be taken into account at sentencing. Ordinarily, these tasks are accomplished at the sentencing hearing. One central purpose of the hearing is to resolve disputed facts relevant to sentencing. Another is to resolve disputes about guideline interpretation. You can use a variety of means to resolve disputed issues. You can resolve them on the basis of pleading submitted by counsel, the affidavits of witnesses, or the testimony of witnesses at the hearing. The circuit courts have held that the burden of proof for most guideline sentencing factors is preponderance of the evidence. The burden is on the government to establish the initial offense level. Thereafter, the burden ordinarily falls on the parties seeking an adjustment to the offense level, the defendant having the burden of persuasion if the adjustment would reduce the sentence, and the government having the burden if the adjustment would enhance the sentence. Rule 32 requires that a written record of the court's findings on unresolved objections to the pre-sentence report be appended to any copy of the report made available to the Bureau of Prisons. It's also important that if you find facts different from those stated in the pre-sentence report, you require that the report itself be physically changed, even if the change is not material to the sentence. For example, the Act directs the Commission to assure that its guidelines reflect the general inappropriateness of considering the defendant's vocational skills in recommending a term of imprisonment. Let's say a defendant challenges certain statements made in the pre-sentence report regarding those skills. You could take the position that since the defendant's vocational skills are not material to the sentence because they're not atypical or extraordinary, even under the defendant's version, you are not required to resolve the issue. But what happens if the facts challenged by the defendant are wrong? As it turns out, the facts about the defendant's vocational skills contained in the pre-sentence report will be taken into account by both the Bureau of Prisons and the defendant's probation officer. The Bureau of Prisons will rely on all of the information contained in the report in making decisions concerning assignments, custody levels, and other aspects of offender management. Probation officers supervising defendants on supervised release will likewise rely on the information contained in the report, all of it, in preparing the defendant's supervision plan. So the danger is that if you do not respond to the defendant's challenge, resolve the factual issues raised by the defendant, and make appropriate changes on the pre-sentence report, the Bureau and the probation officer may wind up making important decisions about the defendant based on erroneous information. At this point, you may be asking what kinds of evidence may be used at the sentencing hearing to meet the burden of proof on contested issues. Under the Sentencing Reform Act, judges are not restricted to information that would be admissible at trial when determining relevant facts at sentencing. The Sentencing Commission's policy statement suggests that the court consider information that has sufficient indicia of reliability to support its probable accuracy. And the case law supports this standard. Appellate courts have upheld consideration of reliable hearsay evidence at sentencing. The courts have also held that the Confrontation Clause does not preclude use of hearsay at sentencing so long as the defendant is given the opportunity to rebut any disputed hearsay evidence. In an appropriate case, it may be necessary to take testimony from the probation officer or from persons who provided information contained in the pre-sentence report in determining the reliability of hearsay information. The Ex Post facto Clause of the Constitution may also come into play at sentencing. Under the Sentencing Reform Act, the guidelines are subject to periodic review and revision. The Commission ordinarily submits guideline amendments to Congress on or before May 1 of each year to take effect November 1, absent congressional modification or disapproval. The Act requires the court to apply the guideline that is in effect on the date the defendant is sentenced. But if an amendment to the guidelines that increases the defendant's punishment takes effect between the date an offense is committed and the date of sentencing, the statutory directive is constrained by the Ex Post facto Clause of the Constitution. This means the sentence can't be in excess of what was permitted on the date of the offense. Of course, if the intervening amendment is neutral, clarifying in nature, or favorable to the defendant, no Ex Post facto issues are implicated. The Sentencing Commission has promulgated a policy statement, Section 1B1.11, that details the Commission's view of how the guidelines should be applied if the Ex Post facto Clause requires that the court not use the guidelines in effect at the date of sentencing. The Sentencing Reform Act requires that in all cases, the court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence. Moreover, if the sentence is within the guideline range and that range exceeds 24 months, the court must state its reasons for imposing a sentence at a particular point within that range. And if the court departs from the guidelines, it must state its reasons for departing. The case law and the legislative history of the Sentencing Reform Act make clear that the statement of reasons must include both factual findings and guidelines findings in every case. The statement of reasons serves many purposes. It tells the defendant and the public why the offender has been subjected to a particular guideline sentence. It plays an important role in appellate review of the reasonableness of a sentence. It helps probation officers and prison officials develop programs to meet offender's needs. And it provides important information to the Sentencing Commission, Congress, and others engaged in evaluating the effectiveness of the guidelines in achieving their stated purposes. The statement of reasons is particularly important when the judge departs. Departures by district judges will play a vital part in achieving justice in individual cases, in the evolution of the guidelines, and in the development of a common law of sentencing. So the reasons for departure must be clearly and cogently stated. Providing a comprehensive statement of reasons need not be a burdensome task. In an appropriate case, a judge can incorporate portions of the pre-sentence report into a statement of reasons. The Act allows the use of a transcript for reporting the statement of reasons. In addition, the Judicial Conference Committee on Criminal Law has developed a one-page statement of reasons form. This form is part of the recommended judgment in each case. The form allows the court to adopt the factual and guideline findings recommended in the pre-sentence report. It also allows the court to state its own findings where they are different from those in the report. A last word about the pre-sentence report. Historically, the report has been treated as a confidential document, one not available to the public without the court's permission. But you should be aware of the potential for statements in the report to the public at the sentencing hearing. For example, the reliability of a statement in the report may be disputed, or the attorneys might want to use information in the report to argue about the proper guideline range or the need for a departure. Because of these possibilities for disclosure, you should make sure the report clearly identifies all information that is not to be made available to the public as opposed to the parties. This would include, among other things, statutorily protected information about a defendant's juvenile record or participation in a drug program. If there are disputes about such matters, you may have to resolve them in camera. The Sentencing Reform Act directs that the pre-sentence report be part of the record on appeal. To preserve the report's confidential status on appeal, the court should order it placed under seal. Finally, remember that there are certain mandatory reporting requirements in the Sentencing Reform Act. The Act requires that a transcription of the court's statement of reasons for the sentence be provided to the probation office and, in cases of imprisonment, to the Bureau of Prisons. It also requires the court to provide the sentencing commission a written report of each sentence, including demographic data, information about guideline relevant factors, and such other information as the commission finds appropriate. The clerk of court and the probation office will have the latest information on what is necessary to satisfy these reporting requirements. In this section, we'll discuss release or detention of convicted offenders pending sentencing and pending appeal, revocation of probation or supervised release, and correction or reduction of sentence. Under the Bail Reform Act of 1984, 18 USC, section 3143A, the court must order a convicted defendant detained while awaiting sentencing unless it finds, by clear and convincing evidence, that the defendant is not likely to flee, not likely to pose a danger to the safety of any other person, and not likely to pose a danger to the community, if released. The burden of persuasion on these three points rests with the defendant. The presumption in favor of detention does not apply to defendants for whom the applicable sentencing guideline does not provide a term of imprisonment. The Bail Statute also provides that a defendant convicted of a crime of violence, an offense with a maximum sentence of life imprisonment or death, or a drug offense carrying a maximum term of imprisonment of 10 years or more must be detained, even if the court finds, by clear and convincing evidence, that the defendant is not likely to flee or pose a danger, unless the court finds there is a substantial likelihood that a motion for a new trial will be granted, or an attorney for the government recommends that no sentence of imprisonment be imposed on the defendant. The Bail Reform Act requires that convicted defendants be detained pending appeal, including the filing of a petition for a writ of certiorari, unless the court makes the following findings. First, as with release pending sentencing, it must find, by clear and convincing evidence, that the defendant is not likely to flee or pose a danger to others or the community, if released. And second, the court must find by a preponderance of the evidence that the appeal is not for the purpose of delay and that it raises a substantial question of law or fact likely to result in reversal and order for a new trial or a sentence that does not require imprisonment of the appellant. The court need not make these findings with respect to defendants filing appeals after being convicted of crimes of violence, offenses carrying a maximum sentence of life imprisonment or death, or drug offenses carrying a maximum term of imprisonment of 10 years or more. Under the statute, these defendants must be detained while their appeals are pending. Next, let's talk about standards governing revocation of probation and supervised release. The Sentencing Reform Act requires the commission to issue guidelines or policy statements applicable to the revocation of probation and supervised release. As of November 1992, the commission has chosen to promulgate policy statements only. Moreover, the commission has elected to develop a single set of policy statements for revocation of both probation and supervised release. These policy statements are found in Chapter 7 of the manual. The commission concluded that the function of a sentence imposed upon revocation of probation and supervised release should be to sanction the violator for failing to abide by conditions of supervision ordered by the court. Thus, the relevant policy statements leave punishment for any new offense associated with the revocation proceeding to the court responsible for imposing sentence for the new offense. At the same time, however, the policy statements provide that sanctions imposed upon revocation be served consecutively to any term of imprisonment imposed for the new criminal conduct on which the revocation is based. The commission's policy statements establish three broad grades of violations which permit proportionally longer prison terms for more serious violations. For example, any violation involving a firearm listed under the National Firearms Act such as a machine gun or a sawed-off shotgun is a Grade A violation. The grade of the violation together with the violator's criminal history category is calculated at the time of initial sentencing in the case. Fix the suggested sentencing range. Absent a departure, the court's sentence upon revocation may be set at any point within the applicable range set forth in the commission's revocation table provided there is no conflict with maximum or minimum terms of imprisonment required to be imposed by statute upon revocation. Rule 35 of the Federal Rules of Criminal Procedure allows the court to correct a sentence that was imposed as a result of arithmetical, technical, or other clear error. The court must make the correction within seven days of imposing sentence. Rule 35 also allows the court to reduce a sentence to reflect the defendant's substantial post-sentence assistance to the government in the investigation or prosecution of another person who committed an offense. The government must first file a motion within one year of imposition of sentence requesting the reduction. The court's authority to reduce a sentence under the rule includes the authority to reduce the sentence to a level below that established by statute or a minimum sentence. Finally, Rule 35 allows the court to consider a government motion to reduce sentence made one year or more after initial imposition of sentence where the defendant's substantial assistance involves information or evidence not known by the defendant until one year or more after imposition of sentence. This program has presented an overview of the Sentencing Reform Act, the Sentencing Guidelines developed by the United States Sentencing Commission pursuant to the Act, and rules and statutes governing other post-trial matters. But there simply isn't time to discuss everything that relates to post-trial matters in this program. For example, your decision making in the areas we've discussed will also be affected by your circuit's case law, your local district court rules, new legislation and guideline amendments. You should make an effort to keep abreast of developments in all of these areas. Let's close with a word of encouragement. Certainly the topics discussed in this program are complex, but don't worry. A thorough grounding in the provisions of the Sentencing Reform Act, the guidelines, relevant federal and local rules, and your circuit's case law will help you master them over time. So too will the workshop that follows. Thank you.