Federal sentencing
How a Federal Judge Decides a Sentence
In federal court, the number is set at the sentencing hearing — and the work that shapes it starts weeks before.
Written by Brandon Sample · Updated
If someone you love is about to be sentenced by a federal judge, the sentencing hearing is usually the most important day in the case. More than 9 in 10 federal cases end in a guilty plea (U.S. Sentencing Commission, fiscal year 2024), so for most families the real fight is over the number of months, not guilt or innocence.
Two things drive that number. The Sentencing Guidelines give the judge a starting range in months. Then 18 U.S.C. § 3553(a), the federal sentencing law, tells the judge to look past that range at the whole person.
What happens before the hearing
A probation officer interviews your family member and writes a presentence report (PSR). The PSR tells the story of the case and scores it under the Guidelines. Under Federal Rule of Criminal Procedure 32, the defense gets the draft at least 35 days before sentencing and has 14 days to object in writing (Rule 32). A wrong point in the score can add years, so those two weeks matter.
The guides on this site
- The Guidelines. How the range is scored: the offense level, the criminal history category and the chart. If the range is wrong, everything built on it is wrong too.
- The § 3553(a) factors. The seven things the judge must weigh, and the rule that a sentence should be long enough but no longer than it needs to be.
- Mitigation. The sentencing memorandum: a written brief that tells the judge who your family member is, beyond the crime.
- The First Step Act. A 2018 federal law. Section 404 lets courts lower some older crack cocaine sentences. Other parts changed stacked § 924(c) gun counts and widened the "safety valve," which lets some drug defendants get under a mandatory minimum.
- Sentence reductions. The short list of ways a court can lower a federal prison sentence after it is final, including later Guidelines changes and compassionate release.
This site covers federal sentencing. For help with a 2255 motion, see 2255motion.com. For help asking the President for clemency, see clemency.com.
Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.
Common questions
What happens at a federal sentencing hearing?
The judge confirms that the defendant and the lawyer have read and discussed the presentence report, rules on any disputes about it, and then hears from the defense lawyer, the defendant and the prosecutor (Fed. R. Crim. P. 32(i)). Any victim also has a right to be heard (18 U.S.C. § 3771(a)(4)). The judge then announces the sentence and must state the reasons for it in open court (18 U.S.C. § 3553(c)).
How long after a guilty plea is sentencing?
There is no fixed date, but it is usually weeks or months, not days. The court must sentence "without unnecessary delay," but the probation office first has to write a presentence report and give it to the defense at least 35 days before the hearing (Fed. R. Crim. P. 32(b)(1), (e)(2)). The judge can change these time limits for good cause (Fed. R. Crim. P. 32(b)(2)).
Can family members speak at a federal sentencing?
Only if the judge allows it. The rules give the defense lawyer, the defendant, the prosecutor and any victim a chance to speak, but not family members (Fed. R. Crim. P. 32(i)(4)). Family members are usually heard through letters the defense lawyer gives the judge before the hearing, and the lawyer can ask the judge to let a family member speak.
Does a federal judge have to follow the Sentencing Guidelines?
No. The Guidelines are advisory, so a judge can sentence above or below the range (United States v. Booker, 543 U.S. 220 (2005)). But the judge must calculate the range correctly first, use it as the starting point, and explain any sentence outside it (Gall v. United States, 552 U.S. 38 (2007)).
Do letters to the judge help at sentencing?
They can. Federal law puts no limit on the information about a defendant's background, character and conduct that a judge may consider at sentencing (18 U.S.C. § 3661), and the judge must consider the person's "history and characteristics" (18 U.S.C. § 3553(a)(1)). Letters from people who know the person well are a common way that information reaches the judge.