Overview/OutlineI. What is a sentencing memo and why write one?

II. Prep work

III. How to Synthesize the Information You Collected

IV. Formatting- how to format your memo and what to include

V. Putting Pen to Paper- how to write the darned thing

VI. A Few Reminders

* Disclaimer- we will not be discussing pure legal arguments.

I. WHAT IS A SENTENCING MEMO AND WHY WRITE ONE?

•Sentencing Memo Defined:

“The Sentencing Memorandum is written by defense counsel to the judge in an effort to present a more complete picture of the defendant other than the crime itself.” -

Prisonology

•Before writing, ask: do I need to file one in this case?

WHAT IS THE GOAL OF WRITING A SENTENCING MEMO?

II. Prep WorkA. Reviewing discovery and case materials in light of sentencing

B. Using the PSR- the good, the bad, and the in between

C. Interviewing the client

D. Gathering character letters

E. Obtaining expert reports, if needed

F. Checking other resources

A. FACT BUSTING DISCOVERY•Who are the other actors?

•What parts did they play?

•When did the conduct take place?

•Where did the conduct take place?

• How will the government portray the client?

B. FACT BUSTING THE PSR- the good, the bad, and the in between•WHAT TO LOOK FOR:

• Obvious mitigation

• Disparity arguments

• Significant Dates

• TIP - Go through the entire PSR with a couple of highlighters- assign one color for

aggravating and one for mitigating factors. Any information that can be both mitigating

and aggravating, highlight with both colors.

C. INTERVIEWING THE CLIENT- The 2 Big Questions:1. WHY DID YOU DO WHAT YOU DID?

2. HOW DO WE ASSURE THE COURT YOU WON’T DO IT AGAIN IF YOU GET A

BREAK?

INTERVIEWING THE CLIENT- Timelines• How to create a timeline?

• Identify dates from PSR and Discovery review

• Include all dates- births, deaths, criminal history, employment record, etc.

•Why?

• Answer first question- finding patterns

• Answer second question- the plan for avoiding future conduct

• Look for the before and after events

INTERVIEWING THE CLIENT- Areas to explore• Early Childhood & Youth

• Family Dynamics

• Residential History

• Education- Elementary, Middle, High School, College, Post-Grad

• Friends and Group Dynamics

• Substance Abuse History

• Medical and Mental Health History

• Romantic Relationships

• Children and Child Support

• Support for Adult Family

• Employment and Financial History

• Military Background

• Faith /Religion

• Volunteering and Good Works

COUNSELING THE CLIENT

• Go through the timeline and identify patterns with the client

• Ask- what services are we asking for in BOP? Any we can start on now?

• What is the client’s plan to avoid conduct in the future? Any in the PSR?

• If the client is out on release-

• Have them engage in treatment or support groups

• Make sure they work or are going to school.

• If they have restitution, see if they can make a payment at sentencing.

D. Character Letters•Ask the client for contacts

•Reach out to family and friends

•Reach back out if the letters are not effective/appropriate

•Only submit letters that are helpful

E. Expert Reports•When to call in an expert

•How to find an expert

•How to use the expert’s findings

•Whether to file an expert report

•Don’t hesitate to ask for revisions!

F. Other Resources

•FD.org- Sentencing Resources Page

•USSC.gov- Guidelines manuals and statistics

•Berman’s Blog- sentencing.typepad.com

•FAMM.org- News & Media Page

• Your local FPD office- trainings, newsletter, etc.

III. Synthesizing Your MaterialsBefore you start writing, ask these questions:

•What are you requesting?

• If asking for a variance, how significant a variance are you requesting?

•Who is your judge?

• Are there any rules or judicial preferences that will guide what you write?

Check http://www.nced.uscourts.gov/judges/preferences.aspx

Tips for writing a gripping memo• Have a theme that you carry throughout the memo

• Grab the reader from the beginning with a unique opening- steal the government’s thunder about how bad the case is, quote a portion of the client’s letter to the court, include a definition of something involved in the case.

• Include photographs that help to illustrate points you are making about the client.

• Quote expert reports, character letters, or case law that is on point with the theme of your case.

• Assume the court knows the boilerplate sentencing law and just jump into your relevant factors.

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IV. Formatting- Rules?• Traditional: Intro, Statement of Facts, Optional Procedural History, Argument,

Conclusion

• Intro paragraph, short numbered paragraphs, conclusion

• Intro paragraph, a long story told in the client’s voice, and conclusion

• Intro paragraph with roadmap of a few arguments, argument section fleshing

out the specific arguments, and conclusion

Variances: Intro & Cases• Guidelines - Pre-Booker

• Resurrecting 18 U.S.C. § 3553(a)

• Landmark SCOTUS Cases:

• United States v. Booker, 543 U.S. 220 (2004)

• Rita v. United States, 551 U.S. 338 (2007)

• Kimbrough v. United States, 552 U.S. 85, 101 (2007)

• Gall v. United States, 128 S. Ct. 586 (2007)

• Nelson v. United States, 555 U.S. 350 (2009)

• Sufficient but not greater than necessary.

Variances:18 U.S.C. § 3553(a)

• History and characteristics of the defendant

• Nature and circumstances of the offense

• The need for the sentence to:

• Reflect the seriousness of the offense, promote respect for the law, and provide just

punishment

• Afford adequate deterrence to criminal conduct

• Protect the public from further crimes by the defendant

• Provide the defendant with needed educational or vocational training, medical care, or other

correctional treatment

18 U.S.C. § 3553(a) (con’t)• The kinds of sentences available• Statutory minimum?• Don’t be discouraged by the USSC table zones!

•Guidelines policy statements

• The need to avoid unwarranted sentencing disparities• Research other cases with similar facts• See how other defendants were treated

• The need to provide restitution to any victims of the offense

Departures•5H- Specific Offender Characteristics

• “May be relevant”

•“Not ordinarily relevant”

•5K- Other Grounds for Departures – circumstances not adequately taken into account.

•2L1.2 n. 7- Cultural Assimilation

V. Putting Pen to PaperA. Choose a theme

B. Regardless of your format- it must be like a story if it’s for mitigation

C. Start with the facts

D. Organize your argument

E. Craft your conclusion

A. Choosing a Theme•What’s a theme?

•Newspaper heading

•Using archetypes

•Literary themes

•Logical and resonates with the judge

•Pity alone does not qualify as a theme.

B. Storytelling

•Beginning, middle and end

•Characters- Protagonists, antagonists, etc.

•Conflict and resolution

•Setting

•Shape and direction

Storytelling in Sentencing Memos

C. Start with the FACTS

• Facts are the key ingredients to a good memo.

•After fact-busting, list out all relevant facts.

•Try using all of the compelling facts- good and bad- that support your theme.

•No need to focus too much on the offense conduct.

•Describe, don’t conclude.

USING FACTS TO PAINT A PICTURE

What to do with Aggravating Factors?

•Do not minimize the aggravating factors in your case if you’re

going to raise them.

•Put them in context- use case comparisons or spectrum

arguments

•Steal some thunder and own it!

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D. Organizing your Argument•Why?

•To guide your reader through your thought process

• It demonstrates your credibility as a writer

•Tips: Don’t throw in the kitchen sink

•Place in order of most to least persuasive

•Use roadmaps with descriptive headings and subheadings that match

•Be strategic - leave yourself something to say at the hearing.

E. Your conclusion•Keep it brief.

•Carry your theme through to the end.

•Ask: have you answered the 2 questions?

•Recap the main points that support your request.

•Restate the requested sentence and make sure it matches your introduction.

VI. Reminders Before you File• Are you filing under seal? See Local Criminal Rule 55.2.

• Required if discussing cooperation. CM/ECF Policy Manual V.G.1. (f) and Standing Order No. 09-SO-2. No motion

needed.

• When else? Sensitive information, etc.

• Check judge’s preferences- do you need a motion? If so- how detailed must it be?

• Make sure your case caption and COS reflect filing under seal.

• Any exhibits or attachments?

• Character letters- can be attachments but may need redaction or filing under seal

• Expert reports

• Diplomas or other mitigation documents

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For the Next Memos

•Evaluate the effectiveness of prior sentencing memos

•Keep track of which arguments resonate with which judge

•Try not to over-use arguments, resources, or experts

•Maintain a list of cases with good results that you can cite to later

Thanks!Vidalia Patterson, Research and Writing Attorney

Federal Public Defender, Eastern District of North Carolina

919-856-4236

Vidalia_Patterson@fd.org