In order to ensure that the relevant facts are brought to the attention of the sentencing court fully and accurately, the attorney for the government should:

1. 1. Cooperate with the Probation Service in its preparation of the presentence investigation report;
2. 2. Review the presentence investigation report;
3. 3. Highlight critical facts and sentencing considerations in a way that accurately and compellingly supports the government’s recommended sentence;
4. 4. Make a factual presentation to the court when:
   1. a. Sentence is imposed without a presentence investigation and report;
   2. b. It is necessary to supplement or correct the presentence investigation report;
   3. c. It is necessary in light of the defense presentation to the court; or
   4. d. It is requested by the court;
5. 5. Be prepared to substantiate significant factual allegations disputed by the defense; and
6. 6. Provide an opportunity for victim allocution.

Comment.

1. 1. Cooperation with Probation Service. The prosecutor should cooperate with the Probation Service in its preparation of the presentence report for the court. Under Rule 32 of the Federal Rules of Criminal Procedure, the report should contain information about the history and characteristics of the defendant, including any prior criminal record, financial condition, and any circumstances affecting the defendant's behavior that may be helpful in imposing sentence or in the correctional treatment of the defendant. While much of this information may be available to the Probation Service from sources other than the government, some of it may be obtainable only from prosecutorial or investigative files to which probation officers do not have access. For this reason, it is important that the attorney for the government respond promptly to Probation Service requests by providing the requested information whenever possible. The attorney for the government should also recognize the occasional desirability of volunteering information to the Probation Service especially in a district where the Probation Office is overburdened. Doing so may be the best way to ensure that important facts about the defendant come to its attention. In addition, the prosecutor should be particularly alert to the need to volunteer relevant information to the Probation Service in complex cases, since it cannot be expected that probation officers will obtain a full understanding of the facts of such cases simply by questioning the prosecutor or examining his/her files.
   The relevant information can be communicated orally, or by making portions of the case file available to the probation officer, or by submitting a sentencing memorandum or other written presentation for inclusion in the presentence report. Whatever method he/she uses, however, the attorney for the government should bear in mind that since the report will be shown to the defendant and defense counsel, care should be taken to prevent disclosures that might be harmful to law enforcement interests.
2. 2. Review of Presentence Report. Before the sentencing hearing, the prosecutor should always review the presentence report, which is prepared pursuant to Rule 32 of the Federal Rules of Criminal Procedure. Not only must the prosecutor be satisfied that the report is factually accurate, he or she must also pay attention to the initial determination of the base offense level. Further, the prosecutor must also consider all adjustments reflected in the report, as well as any recommendations for departure made by the probation office. These adjustments and potential departures can have a profound effect on the defendant's sentence. As advocates for the United States, prosecutors should be prepared to argue concerning those adjustments (and, if necessary, departures allowed by the guidelines) in order to arrive at a final result which adequately and accurately describes the defendant's conduct of offense, criminal history, and other factors related to sentencing.
3. 3. Emphasize Critical Facts and Arguments. The attorney for the government should apply relevant sentencing factors to the facts in a way that most accurately and convincingly supports the government’s recommended sentence. Judges are often presented with a substantial amount of information at sentencing. Justice is best served when prosecutors distill that information to its most salient points and provide judges with a persuasive framework through which to understand the significance of the case, the impact on the victims, the importance of general and specific deterrence, and the need for the requested punishment and rehabilitation plan to achieve a just result.
4. 4. Factual Presentation to Court. In addition to assisting the Probation Service with its presentence investigation, the attorney for the government may find it necessary to make a factual presentation directly to the court. Such a presentation is authorized by Rule 32(i) of the Federal Rules of Criminal Procedure, which requires the court to "allow the parties' attorneys to comment on the probation officer's determinations and other matters relating to an appropriate sentence."
   Ordinarily, the need to address the court concerning the facts relevant to sentencing may arise in four situations: (a) when sentence is imposed without a presentence investigation and report; (b) when necessary to correct, supplement, or highlight portions of the presentence report; (c) when necessary in light of the defense presentation to the court; and (d) when requested by the court.
   1. a. Furnishing Information in Absence of Presentence Report. Rule 32(c) of the Federal Rules of Criminal Procedure authorizes the imposition of sentence without a presentence investigation and report, if the court finds that the record contains sufficient information to permit the meaningful exercise of sentencing authority under 18 U.S.C. § 3553. Imposition of sentence pursuant to this provision usually occurs when the defendant has been found guilty by the court after a non-jury trial, when the case is relatively simple and straightforward, when the defendant has taken the stand and has been cross-examined, and when it is the court's intention not to impose a prison sentence. In such cases, and any others in which sentence is to be imposed without benefit of a presentence investigation and report (such as when a report on the defendant has recently been prepared in connection with another case), it may be particularly important that the attorney for the government take advantage of the opportunity afforded by Rule 32(i) of the Federal Rules of Criminal Procedure, to address the court, since there will be no later opportunity to correct or supplement the record. Moreover, even if government counsel is satisfied that all facts relevant to the sentencing decision are already before the court, he/she may wish to make a factual presentation for the record that makes clear the government's view of the defendant, the offense, or both.
   2. b. Correcting, Supplementing, or Highlighting Portions of the Presentence Report. The attorney for the government should bring any significant inaccuracies or omissions to the Court's attention at the sentencing hearing, together with the correct or complete information. The attorney may also wish to highlight certain factual findings in making a sentencing recommendation to the court.
   3. c. Responding to Defense Assertions. Having read the presentence report before the sentencing hearing, the defendant or his/her attorney may dispute specific factual statements made therein. More likely, without directly challenging the accuracy of the report, the defense presentation at the hearing may omit reference to the derogatory information in the report while stressing any favorable information and drawing all inferences beneficial to the defendant. Some degree of selectivity in the defense presentation can reasonably be expected, and will be recognized by the court. There may be instances, however, in which the defense presentation, if not challenged, will leave the court with a mistaken view of the defendant or of the offense, because it is significantly different from that appearing in the presentence report. If this happens, the attorney for the government may respond by correcting factual errors in the defense presentation, pointing out facts and inferences ignored by the defense, and generally reinforcing the objective view of the defendant and his/her offense as expressed in the presentence report.
   4. d. Responding to Court's Requests. The court will request specific information from government counsel at the sentencing hearing. When this occurs, the attorney for the government should, of course, furnish the requested information if it is readily available and no prejudice to law enforcement interests will result from its disclosure.
5. 5. Substantiation of Disputed Facts. In addition to providing the court with relevant factual material at the sentencing hearing, the attorney for the government should be prepared to substantiate significant factual allegations disputed by the defense. This can be done by making the source of the information available for cross examination or if there is good cause for nondisclosure of his/her identity, by presenting the information as hearsay and providing other guarantees of its reliability, such as corroborating testimony by others. See United States v. Fatico, 579 F.2d 707, 713 (2d Cir. 1978).
6. 6. Provide an Opportunity for Victim Allocution. Pursuant to the Crime Victims’ Rights Act of 2004, 18 U.S.C. § 3771(a)(4), a victim is entitled to address the court at sentencing regarding the impact of the crime on the victim. Prosecutors should notify victims of this opportunity in advance of sentencing with sufficient time for the victim to prepare a statement, and should notify the court of any victims wishing to make a statement.

[updated February 2018]