Sentencing & Post-Conviction

No. Since Booker (2005), the Guidelines are advisory rather than mandatory. Federal judges must calculate the correct range and consider it, but are free to impose a sentence above or below the range if warranted by the § 3553(a) factors. This advisory nature means skilled sentencing advocacy can have a significant impact.

Supervised release can be terminated early under 18 U.S.C. § 3583(e) if the court is satisfied that early termination is in the interest of justice. A successful petition requires a record of compliance, evidence of rehabilitation, and advocacy demonstrating that continued supervision serves no useful purpose. Adam Fels secured early termination for a client after he served approximately 40% of his five-year term.

In our experience, a thoughtfully constructed sentencing memorandum can be the difference between imprisonment and probation, and between years of difference when prison is unavoidable. Federal judges impose sentences within the Guidelines range in fewer than half of all cases. The § 3553(a) factors, particularly history and characteristics of the defendant, the nature and circumstances of the offense, and the need to avoid unwarranted sentencing disparities, give judges legal tools to depart from the range when advocacy gives them a factual and legal basis to do so. Effective sentencing memoranda present the client as a three-dimensional person, marshal the statistical record of comparable cases to demonstrate that the government's request is an outlier, engage forensic and medical experts where relevant, and challenge every Guidelines enhancement the government seeks. The Patient Care America result (sentence in the 0-6 month range on a government request of 15 months) and the pharmaceutical-misbranding result (probation on a government request of 18 months) were both produced through advocacy developed over months of sentencing preparation.