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Why is my work history an important part of my Pre-Sentence Interview, Pre-Sentence Report and Sentencing Hearing in a North Carolina federal criminal prosecution?
Judges tend to look closely at a defendant’s work history. If a person has a good work history, judges interpret this to mean that the person has been a productive and law abiding citizen. If a person has not been consistently employed, judges often conclude that the person has been engaged in criminal activity instead. Information about your work history is collected in and after the Pre-Sentence Interview. Preparation is essential. Employment history should be complete. Gaps must be explained.
What is 3553(a) in a Raleigh, North Carolina federal criminal case?
18 U.S.C. § 3553(a)
Years ago, judges were legally required to sentence criminal defendants to a sentence within the guideline range of imprisonment. Cases such as Booker, Apprendi, Hughes and others changed that. Now a sentencing judge can consider information outside of the United States Sentencing Guidelines in determining an appropriate sentence. The judge can consider the nature and circumstances of the offense, your personal history, the need to protect the public from you, the need to provide you with vocational or rehabilitative services and other factors. This change in the law provides your lawyer with a great opportunity to show the sentencing judge positive information about you that is not included in the Pre-Sentence Report. Your lawyer can include this information in a Sentencing Memorandum that he or she can prepare and present to the judge in advance of the sentencing hearing.
I am charged with a federal crime in North Carolina? My lawyer has mentioned Acceptance of Responsibity. What is Acceptance of Responsibility?
Acceptance of Responsibility
In federal criminal cases, defendants who plead guilty at an early stage in the criminal process may be eligible reductions in their sentences. The idea is that if you forgo some of your legal rights and save the government from expending resources on a trial or hearing, then you should receive a benefit in exchange. Acceptance of Responsibility provides that benefit. Acceptance of Responsibility generally results in a reduction your offense level, guideline range and sentence of imprisonment. The degree of reduction can be substantial and is an important component of your plea analysis. Conduct that is inconsistent with Acceptance such a failing a drug test, receiving new criminal charges, or attempting to obstruct justice will eliminate the benefits of Acceptance of Responsibility and subject a defendant to additional penalties and longer periods of incarceration.
I was convicted of a federal crime in Raleigh, North Carolina. I was told I would be receiving a Pre-Sentence Report. What is contained in a Pre-Sentence Report?
The Pre-Sentence Report is prepared by the probation office. It is the document that the judge will use to determine your sentence. It will contain information about your offense, your criminal history, a guideline analysis and an advisory guideline range of imprisonment. It will contain basic background information. It will also contain information about your family, medical, educational, employment and financial history.
The guideline range of imprisonment is the most important part of the Pre-Sentence Report. This range is important because the judge will sentence you to a term of imprisonment within this range unless he or she has a reason for deviating from the range. If the judge does deviate from the range, then he or she must explain the reasons for the deviation.
I have been convicted of a federal criminal offense in Charlotte, North Carolina. I have been asked to participate in a pre-sentence interview. What is a pre-sentence interview?
If you plead guilty or are found guilty, you will be sentenced in a separate and subsequent hearing. After a guilty plea at arraignment or a guilty verdict at a trial, the judge will order the probation office to prepare a Pre-Sentence Report. The probation officer will conduct a Pre-Sentence Interview with you before he or she prepares the Pre-Sentence Report. During the Pre-Sentence Interview, the probation officer will ask about your family, medical, educational, employment and financial history.
You do not have to answer questions in the interview, but you may want to do so. Answering questions will provide the probation officer with additional information that he or she will include in the Pre-sentence report. That additional information will give the judge a more complete picture of who you are as a person. If you do answer questions, you must answer truthfully or you will be subject to greater penalties or additional charges.
Typically, your attorney will instruct you not to answer certain questions. He or she may advise you to refrain from answering questions about criminal history or offense conduct. You may or may not want to answer questions about substance abuse history depending on the circumstances. You may or may not want to discuss prior mental health treatment depending on the circumstances. You and your attorney should discuss these issues prior to the interview. You will also be asked to sign releases that will entitle the prosecutor to receive documents that will be used to confirm the information that you have provided in the interview.
I have rejected the government's plea offer in my federal fraud case in North Carolina. I am scheduled for trial. What can I expect?
If you plead not guilty, the judge will set a trial date. Sometimes the trial date is very soon after arraignment and sometimes it is not. The trial will be conducted by a United States District Judge. The facts will be determined by a jury. The trial process includes pre-trial motions, jury selection, opening statements, direct and cross examination of government witness, motions, direct and cross examination of any witness(es) the defense elects to call, closing statements, jury instructions, jury deliberations, verdict and post-trial motions. You and your lawyer should discuss these concepts and how they affect your case before you ever walk into the courtroom for jury selection.
A WORD OF CAUTION: Over the years I have tried cases in front of juries in state and federal court. I have represented corporations and individuals. I have been in big cities and small towns. I have worked with world class criminal defense attorneys including Joe Cheshire, Pete Anderson, Tommy Manning, David Rudolph, Joe Gilbert, Joseph Ross, Debra Graves and others. I have learned most of the information contained in this book from watching and listening to these and other brilliant and talented lawyers.
These experiences have taught me that the lawyer standing beside you can be the difference between spending the rest of your life in prison and walking out the front door. They have also taught me that you can hire the best lawyers, prepare the best defense, put on the best trial and still be found guilty by a jury. At the end of the trial, your lawyer is going home with or without you at his or her side. Be careful about your decision to go to trial. Your objective is not to be tough, or brave, or smart, or cool. Your objective is to be home.
In addition, it is important that your lawyer have federal trial experience. Although most cases are resolved without jury trials, it is your lawyer’s ability to try cases to juries that gives him or her leverage. Leverage is the primary tool used to negotiate favorable plea agreements in federal court. If your lawyer never tries cases, why would the prosecutor ever give you any favorable term? What is your lawyer going to do about it? The ability and willingness to try difficult cases in difficult circumstances is what gives a lawyer the leverage to negotiate the best possible plea agreement with the prosecutor. Once you have the best possible plea agreement, you are in the best possible position to make a decision about whether you should plead or try your case.
After a trial, if you are found “not guilty” by the jury you will probably be free to leave. If you are found “guilty”, you will be sentenced at a sentencing hearing. The judge will set the sentencing hearing a few months after the trial and order to give the probation officer time to prepare a Pre-Sentence Report.
What should I do if I think I may be arrested soon?
If you think you may be arrested, contact us as soon as possible. We will make arrangements to see you immediately. It is vital that you speak with an experienced criminal defense lawyer quickly for several important reasons.
First, we can plan and arrange a peaceful surrender on mutually agreeable terms. This may avoid an embarrassing scene in public or at your home or workplace. Law enforcement officers generally prefer this method because it eliminates common security risks.
Your Right to Remain Silent
Second, we can appear with you and avoid common mistakes people make during arrest. Many people feel pressure to answer questions posed by law enforcement officers. This is always a bad idea. The officer may say, “I just want to get your side of the story.” Your answers may be the most damning evidence in the case against you. One of the most important rights you have under the constitution is the right to remain silent. You should always discuss the matter thoroughly with your attorney before speaking with anyone else.
Your Other Rights
Third, we can help you understand your other rights and know when to use them. Will they ask to search your car? Your home? Will they ask you to submit to a polygraph? Can they do that?
Fourth, we can appear with you before the magistrate. The magistrate will answer several questions in determining an appropriate bond amount. How serious are the charges? What is the risk of your non-appearance? Do you pose a danger to the community? Besides your word, what evidence do you have to show that you will be there for court and that you present no danger to the community between arrest and trial? We can appear with you and speak for you to the magistrate. We may be able to help secure your pre-trial unsecured or lower bond amount.
I was charged with a federal crime. My arraignment is scheduled. What is an arraignment in federal court in North Carolina?
The arraignment is the court appearance in which you will enter a formal plea of “guilty” or “not guilty”. A U.S. Magistrate Judge or a U.S. District judge will conduct the arraignment. This may be the same judge who will conduct a sentencing hearing if that is necessary in your case. The judge will inform you of your rights and ask questions to make sure that you are making informed decisions. The judge will ask you questions to make sure that you and your lawyer have communicated about these issues. If you are adequately prepared, this hearing should be uneventful. You will be prepared if you and your lawyer have discussed these issues and understand the consequences of the decisions that you are making. Again, it is critical that you make these decisions based upon reliable information and thorough analysis.
My lawyer has asked me to provide letters from my family and friends in preparation for my upcoming federal criminal case in Elizabeth City, North Carolina. Why would he do that?
We collect, review and submit character letters in almost every case. These letters contain important information about a person that extends beyond what is contained in the Pre-Sentence Report. For example, a judge may consider information about the support a defendant has from his or her family because people are less likely to reoffend if they have support in the community. A judge may consider circumstances where a parent or child has a particular need for the care that can only be provided by the defendant. This type of information is of information is often contained in character reference letters.
What should I expect in a Sentencing hearing if I am being prosecuted for a federal crime in Raleigh, NC?
If your are convicted of a felony in federal court, a U.S. District Judge will conduct your sentencing hearing. Prior to the hearing the judge will review the final draft of the Pre-Sentence Report. In addition, he or she will review the Sentencing Memorandum, character reference letters, recommendations by the probation officer and other information in order to impose a sentence that is consistent with the U.S. Sentencing Guidelines and the factors identified in 18 U.S.C. § 3553(a).
At sentencing, the judge will ask if you have received a copy of the pre-sentence report. He or she will ask if you have reviewed it with your lawyer. The judge will consider objections to the Pre-Sentence Report. Objections can be made by the defense or by the government. Objections should be in writing and submitted in advance of the sentencing hearing.
The judge will hear arguments and evidence on the objections that your lawyer was not able to resolve with the probation officer. The judge will rule on the objections. The judge’s rulings will establish a guideline range. Your lawyer and the lawyer for the government will have an opportunity to argue for the sentence that each believes is appropriate. You will have the opportunity to make a statement. The judge will consider the information contained in the Pre-Sentence Report, the U.S. Sentencing Guidelines, the factors identified in 18 U.S.C. § 3553(a), the sentencing memorandum, the arguments, your statement, and the character reference letters to determine your sentence.
The importance of preparation cannot be overstated when it comes to a federal sentencing hearing. Different judges have different preferences, procedures and practices. What is important to one judge may be less important to another. You and your lawyer should prepare for this hearing like it is the most important day of you life because it is.