Local Rule Criminal L.R. 32: Sentencing and Judgment

Criminal L.R. 32. Sentencing and Judgment

(a) Time of Sentencing. The sentencing hearing shall be scheduled no earlier than seventy-five (75) days following entry of a guilty plea or nolo contendere plea or a verdict of guilty, except as otherwise agreed to by the parties or ordered by the Court.

(b) Presentence Report. Prior to sentencing, the United States Probation Office (Probation Office) shall prepare a Presentence Investigation Report (PSR) in compliance with Fed. R. Crim. P. 32. In order to provide adequate time for the Probation Office to prepare the PSR, to disclose the PSR to the parties, to review and respond to the presentence submissions filed by the parties, and to comply with such other and further procedures contemplated by the Sentencing Guidelines and this Criminal Local Rule, the Probation Office and counsel for the parties shall cooperate to complete the following mandatory steps in the sentencing process:

(1) They shall ensure that a copy of any plea agreement, including the government's position with regard to whether the Defendant should receive the benefit of timely acceptance of responsibility, is provided to the Probation Office and the Court no later than the date of the guilty plea;

(2) The PSR, including guideline calculations, shall be completed and posted to CM/ECF for retrieval by the parties at least thirty-five (35) days prior to the scheduled sentencing hearing, unless the period is waived by the Defendant or the Court orders otherwise. It shall be the responsibility of counsel for the parties to contact the Clerk for assistance in obtaining access to CM/ECF should a problem arise in retrieving the PSR. It shall be defense counsel's responsibility to discuss the contents of the PSR with the Defendant prior to filing his or her position with respect to sentencing factors. The PSR shall be disclosed only to defense counsel, for disclosure to the Defendant, and the attorney for the government;

(3) If a party reasonably disputes sentencing factors or facts material to sentencing, or seeks the inclusion of factors or facts material to sentencing in the PSR, it is the obligation of the complaining party to seek administrative resolution of such factors or facts through contact with opposing counsel and the Probation Office prior to filing their positions with respect to sentencing factors. Disputed factors or facts material to sentencing should be resolved, if possible and practicable, through informal procedures, including telephone conferences. A more formal presentence conference, to be attended by both parties and to be coordinated by the Probation Office, is mandatory if disputed factors or facts cannot be resolved informally and, in the opinion of the Probation Office, such a conference is necessary and might be productive in resolving disputed factors or facts;

(4) Fourteen (14) days before the sentencing hearing, counsel for the Defendant and the government shall each file a written pleading entitled, "Position of the (United States) (Defendant) with Respect to Sentencing Factors." This pleading either should state that the party adopts the PSR or should detail the party's position as to any disputed factors or facts, including application of the guidelines or any alleged inaccuracies, and should cite the numbered paragraph(s) in the PSR in which the facts or factors are located. In the event a Defendant challenges one of the factual bases for his or her sentence as set forth in the PSR, the burden to establish the disputed fact remains on the United States, but when any party disputes factors or facts in the PSR, their pleading should state what evidence, including written submission(s) or witness(es), if any, the aggrieved party wishes to present at the sentencing hearing. This pleading must also include a written statement certifying that the party has conferred with opposing counsel and the Probation Office in a good faith effort to resolve any disputed matters;

(5) Counsel for the parties shall confer no later than ten (10) days prior to the scheduled sentencing hearing with respect to the anticipated length of the hearing and the number of witnesses to be called. If either party reasonably anticipates that the sentencing hearing will exceed thirty (30) minutes, that party shall file a notice no later than seven (7) days prior to the sentencing hearing. The notice shall advise the Court of the number of witnesses to be called and the estimated time required for the sentencing hearing;

(6) The Probation Office shall file under seal the PSR, including guideline computations, an addendum indicating any unresolved factual disputes or objections by the parties with respect to the application of the guidelines or alleged inaccuracies in the PSR, and the sentencing recommendation. The Probation Office shall also file under seal any revisions to the PSR and the addendum for retrieval by the parties. This information is to be produced for review by the sentencing Judge no later than seven (7) days before the sentencing hearing; and

(7) The presentation during the sentencing hearing will pertain only to those factors or facts important to the sentencing determination, or pertaining to any alleged inaccuracies in the PSR as set out in the pleading entitled "Position of the (United States) (Defendant) with Respect to Sentencing Factors." Except with regard to any objections made under Local Criminal Rule 32(b)(4) that have not been resolved, the report of the PSR shall be accepted as accurate. The Court, however, for good cause shown, may allow a new objection to be raised at any time before the imposition of sentence.

(c) Motions for Downward Departure. Any motion for downward departure pursuant to U.S.S.G. § 5K1.1 shall be filed no later than twenty-four (24) hours before the sentencing hearing. The motion should state the amount of recommended departure from the guideline range.

(d) Confidentiality of Presentence Reports. Confidential records of this Court maintained by the Probation Office, including presentence investigation reports and probation supervision records, may not be disclosed except upon written petition to the Court establishing with particularity the need for specified information contained in such records. No disclosure shall be made except upon Court order. This Rule must not be construed to deny the subject of any presentence report, and/or the subject's counsel, the right to review such presentence report without consent of the Court.

(e) The contents of a presentence report that must be disclosed pursuant to Fed. R. Crim. P 32(e) shall not include the probation officer's recommendation on the sentence.