Local Rule LCrR 32: PROCEDURE FOR GUIDELINE SENTENCING

LCrR 32 PROCEDURE FOR GUIDELINE SENTENCING The following procedures hereby are established to govern sentencing proceedings in this Court, in addition to the requirements of Fed. R. Crim. P. 32; the Sentencing Reform Act of 1984, 18 U.S.C. § 3551 et seq.; and the advisory United States Sentencing Guidelines ("U.S.S.G."), as promulgated under that Act and by the Sentencing Commission Act, 28 U.S.C. § 991 et seq.

A. Timing of Sentencing. Unless the Court orders otherwise, sentencing proceedings shall be scheduled no earlier than 14 weeks following the entry of a plea of guilty or nolo contendere, or the entry of a verdict of guilty.

B. Presentence Investigation and Report. Counsel is directed to the requirements of Fed. R. Crim. P. 32(c) and Fed. R. Crim. P. 32(d) regarding Presentence Investigations and Reports.

C. Presentence Procedures. No later than 7 weeks prior to the date set for sentencing, the United States Probation Office ("USPO") shall disclose the tentative Presentence Investigation Report ("PSR") to only the defendant, the defendant's attorney, and the attorney for the government. See Fed. R. Crim. P. 32(e)(2) and § 6A1.2(a) of the U.S.S.G.

1. Confidentiality. The PSR is a confidential court document. No copies or dissemination of the PSR shall be made without the express permission or Order of this Court, except that, pursuant to Third Circuit Local Appellate Rule 30.3(c), copies may be made for the United States Court of Appeals in any appeal from the sentence. The unauthorized copying or disclosure of the PSR may be treated as a contempt of court and be punished accordingly.

2. Administrative Resolution. If a party disputes facts or factors material to sentencing contained in the PSR, or seeks the inclusion of additional facts or factors material to sentencing, that party shall have the obligation to pursue the administrative resolution of that matter through informal presentence conferences with opposing counsel and the USPO.

a. The party seeking administrative resolution of such facts and factors shall do so within 2 weeks from the disclosure of the tentative PSR.

b. No later than 2 weeks after the disclosure of the tentative PSR, following any good faith efforts to resolve disputed, or include additional, material facts or factors described above, the USPO shall notify the attorneys for the government and the defendant of those matters that have, or have not, been administratively resolved.

3. Disclosure of PSR to Court. Following the 2 week time period for administrative resolution, and no later than 5 weeks before sentencing, pursuant to Fed. R. Crim. P. 32(g), the USPO shall disclose the PSR, as may be amended, to the Court, the defendant, the attorney for the defendant, and the attorney for the government.

4. Objections; Positions of the Parties. No later than 4 weeks before sentencing, the parties each shall file with the court a pleading entitled "Position of [Defendant or Government, as appropriate] With Respect to Sentencing Factors," pursuant to Fed. R. Crim. P. 32(f) and § 6A1.2(b) of the U.S.S.G. This pleading shall set forth any objections to the PSR and any anticipated grounds for: (a) departure from the advisory guideline sentencing range; or, (b) a sentence outside of the advisory guideline sentencing range, pursuant to the provisions of 18 U.S.C. § 3553(a). The party's Position With Respect to Sentencing shall be accompanied by a written statement certifying that filing counsel has conferred with opposing counsel and with the USPO in a good faith effort to resolve any disputed matters.

5. Responses to Objections and Positions. A party may file a response to the opposing party's Position With Respect to Sentencing Factors no later than 3 weeks prior to the sentencing.

6. Action on Objections; Addendum. After receiving counsel's objections and any responses thereto, the USPO shall conduct such further investigation as appropriate. The USPO may meet or otherwise confer with counsel to discuss unresolved factual or legal issues.

a. No later than 2 weeks before sentencing, the USPO shall serve an addendum which shall set forth any unresolved objections to the PSR, the grounds for those objections, the responses thereto, and the USPO's comments thereon.

b. The USPO shall certify that the PSR, together with any revision thereof and any addendum thereto, have been disclosed to the defendant and all counsel of record, and that the addendum fairly sets forth any remaining objections and responses.

7. Court's Tentative Findings and Rulings. Prior to the sentencing hearing, the Court shall notify the parties and the USPO of the Court's tentative findings and rulings, to the extent practicable, concerning disputed facts or factors. Reasonable opportunity shall be provided to the parties, prior to the imposition of sentence, for the submission of oral or written objections to the Court's tentative findings and rulings.

8. Supplemental Information and Memoranda. No later than 1 week before sentencing, a party may file supplemental information or a memorandum with respect to sentencing of the defendant, and shall serve the same upon the USPO. If counsel for the defendant intends to submit letters to the Court for consideration at sentencing, said letters should be electronically filed at least seven calendar days before sentencing. Opposing counsel may file a response to any supplemental information or memorandum no later than three days before sentencing.

9. Additional Information and Memoranda. For good cause shown, the Court may allow additional information and memoranda, and the responses thereto, to be raised at any time prior to the imposition of sentence.

10. Introducing Evidence. When any fact or factor material to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to introduce evidence and to present information to the Court regarding that fact or factor, in accordance with § 6A1.3(a) of the U.S.S.G.

11. Court Determinations. Except with respect to any objection made pursuant to Fed. R. Crim. P. 32(f) and LCrR 32.C.5, above, the Court may accept as accurate any undisputed portion of the PSR as a finding of fact. However, with respect to disputed portions of the PSR, the Court shall make determinations pursuant to Fed. R. Crim. P. 32(i)(3) and § 6A1.3 of the U.S.S.G.

D. Judicial Modifications. For good cause shown, the time limits set forth in LCrR 32 may be modified by the Court.

E. Pre-Plea Presentence Investigations and Reports. Under appropriate circumstances, and with the written consent of the defendant pursuant to Fed. R. Crim. P. 32(e)(1), the Court may order the USPO to conduct a Presentence Investigation and prepare a PSR for a defendant prior to the entry of a plea of guilty or nolo contendere. The scope of any pre-plea PSR shall be determined by the Court.

F. Revocation of Probation and Supervised Release. In every case where revocation of probation or supervised release is sought, the United States Probation Office shall prepare and disclose to the defendant's attorney and the attorney for the government a Violation Work Sheet outlining the terms and class of the original conviction, the grading of each alleged violation and the advisory guideline range of sanctions for the alleged violation, if applicable.

G. Nondisclosure of Probation Office's Sentencing Recommendation. The specific sentencing recommendation of the United States Probation Office, which is submitted to the Court, shall not be disclosed to the parties or their counsel.