How to Choose a Lawyer for Federal Sentencing: 5 Tips

A sentencing advocate is the person who shows the judge who you really are before the judge decides your sentence. Usually that is your lawyer. Choosing the right one matters, because the judge will see you largely through what that person presents.

What TV leaves out

Crime shows, courtroom dramas, and thrillers tend to show the bad guy as just that: a "bad guy." There is not much more to him.

Take Law & Order. How does almost every episode end? With a jury verdict. Guilty or not guilty, then the credits. We learn very little about the sentencing, and very little about the "bad guy," except that he is, well, bad. Unless, of course, he has a good sentencing advocate.

Real life is different. If you plead guilty or are found guilty, the sentencing hearing decides how many years you will actually serve.

Seeing a whole person

The stories we tell ourselves often (not always, but often) cast the criminal in terms of good and bad, us and them. The bad guy is not someone we can relate to. He is someone to be defeated, and his circumstances do not deserve much of our concern.

The same idea shows up in our elections. Some politicians try to gain an advantage by playing on fear of criminals, immigrants, or minorities, casting some people as the "other," the "bad," the "not us." In our view, that appeals to the worst part of human nature.

The better view recognizes that we are all human. Splitting people into "good" and "bad" is not realistic, because we all have the capacity for both. People are more than the worst thing they have done. Some of us make mistakes; some make terrible, life-changing ones. Everyone facing sentencing deserves to have the judge understand their full story, in three dimensions, instead of being written off as the "bad guy."

The law agrees. Under 18 U.S.C. § 3553(a), the judge must consider your "history and characteristics," not just the crime.

What a sentencing advocate does

A sentencing advocate makes sure the judge, the prosecutor, and the probation officer see all of you: your childhood, health, family, work, and what led you to this point.

You still have to accept punishment for what you did. The advocate's job is to make sure the punishment fits, based on all the facts, including the path that brought you before the court.

In practice, that work includes reviewing the presentence report (PSR), the probation officer's report on the crime, your background, and the guideline range. It also means objecting to errors in that report on time, gathering records and letters, and writing a sentencing memorandum that ties your story to the law. Under Fed. R. Crim. P. 32(f)(1), objections to the PSR are due 14 days after it is received, so the advocate needs to be involved well before the hearing.

If you have been convicted and need someone to help tell the story of your life to a sentencing court, here are five things to look for.

5 tips for choosing a sentencing advocate

Tip 1: Look for someone who cares about the outcome

Before you ask whether a lawyer is skilled, ask whether they care. A good advocate wants a sentence that fits both the crime and the person, and wants to tell your story in a way that puts the crime in context.

Tip 2: Ask about sentencing experience

As with any serious job, you want someone who has done it before. You would not hand your heart surgery to just anyone with a knife. There are a lot of criminal defense lawyers, but not all of them do much sentencing work. Ask how many federal sentencings the lawyer has handled, how well they know the Federal Sentencing Guidelines, and whether they have worked in the court where your case is.

Tip 3: Look for realism

A judge will not take seriously a lawyer who asks for probation in a murder case. A good advocate sees the big picture, understands what the judge and prosecutor care about, and can "read the courtroom." They tell your story in the context of the offense and make requests the judge can actually grant, based on your life and not just the guideline number.

Tip 4: Find someone you can talk to

Good rapport makes the lawyer-client relationship much easier. You will share hard things with this person. A good advocate explains the law in words you understand. If you cannot talk to them, it will be hard for them to tell your story.

Tip 5: Trust your gut

"Go with your gut" is an old saying for a reason. You can usually tell whether a working relationship will work, so listen to your instincts. The advocate's job is to get to know you and the people in your life, then present your story, in all its dimensions, to the court. You need to trust the person doing it.

What to do next

Brandon Sample is licensed in Vermont and practices federal criminal law nationwide, with years of hands-on experience in federal courts, and you can read more about him at brandonsample.com.

Facing a federal sentence? Book a consultation to talk it through with Brandon Sample.