The attorney for the government should make sentencing recommendations based on an individualized assessment of the nature and circumstances of the offense and the history and characteristics of the defendant, without improper consideration of the defendant’s race, religion, gender, ethnicity, national origin, sexual orientation, or political association, activities, or beliefs.

When making a sentencing recommendation, the attorney for the government should seek a sentence that is sufficient, but not greater than necessary, to:

1. 1. Reflect the seriousness of the offense;

2. 2. Promote respect for the law;

3. 3. Provide just punishment;

4. 4. Afford deterrence to future criminal conduct by the defendant and others;

5. 5. Protect the public from further crimes of the defendant;

6. 6. Avoid unwarranted sentencing disparities among offenders with similar records who have been found guilty of similar conduct;

7. 7. Offer the defendant an opportunity for effective rehabilitation and provide the defendent with needed correctional treatment; and

8. 8. Take into account the need for the defendant to provide restitution to any victims of the offense.

In many cases, the appropriate balance among these factors will lead to a recommendation for a sentence within the advisory range resulting from application of the Sentencing Guidelines, and prosecutors should generally continue to advocate for a sentence within that range. Prosecutors should consider whether the departure provisions under the guidelines are appropriate, and, if so, should advocate for their application accordingly. When advocating at sentencing, prosecutors must fully and accurately alert the court to all known relevant facts and criminal history and explain why the interests of justice warrant their sentencing recommendations. Before recommending a sentence that reflects an upward departure or variance from the advisory guideline range, the attorney for the government must obtain supervisory approval.

Comment. Congress has identified the factors courts must consider when imposing sentence. These factors are set forth in 18 U.S.C. § 3553, and are listed above. Absent a specific provision in a plea agreement, the attorney for the government is not legally obligated to make a recommendation at sentencing. However, the interests of justice and the public interest often will be best served if the prosecutor handling the matter makes a recommendation as to an appropriate sentence.

1. Sentences Above or Below the Guidelines. Although consistent application of the guidelines encourages uniformity throughout the federal system, it is appropriate for prosecutors to consider whether the penalty yielded by the advisory guideline range is proportional to the seriousness of the defendant’s conduct and would achieve the purposes of criminal sentencing articulated in § 3553(a). Based on an individualized assessment of the facts and circumstances of a particular case, a prosecutor may conclude that a sentence request for a departure or variance above or below the advisory guidelines is warranted. All prosecutorial recommendations for departures or variances—upward or downward—must be supported by specific and articulable factors and documented in the case file. Recommendations for upward departures and variances should also be approved by a supervisor.

2. Balancing Sentencing Factors. The attorney for the government should recognize that not all of the factors set forth in § 3553 may be relevant or of equal importance in every case and that, for a particular offense committed by a particular offender, one of the purposes, or a combination of purposes, may be of overriding importance.

3. Conveying Sentencing Recommendations to the Court. The attorney for the government should be guided by the practice of the court concerning the manner and form in which sentencing recommendations are made. If the government’s position with respect to the sentence to be imposed is related to a plea agreement, that position must be made known to the court at the time the plea is entered. In other situations, the government’s position might be conveyed to the probation officer during the presentence investigation; to the court in the form of a sentencing memorandum filed in advance of the sentencing hearing; or to the court orally at the time of the hearing. Courts often find it helpful when federal prosecutors, in addition to their oral advocacy at the sentencing hearing, file with the court in advance of sentencing a memorandum setting forth the recommended sentence with supporting reasons.

4. Recommendations Required by Plea Agreements. As set forth in JM 9-27.400, prosecutors may enter into plea agreements that require the government to make – or not make – particular recommendations at sentencing. If the prosecutor has entered into a plea agreement calling for the government to take a certain position with respect to the sentence to be imposed, and the defendant has entered a guilty plea in accordance with the terms of the agreement, the prosecutor must perform his/her part of the bargain or risk having the plea invalidated. Machibroda v. United States, 368 U.S. 487, 493 (1962); Santobello v. United States, 404 U.S. 257, 262 (1971).

5. Substantial Assistance. When making a sentencing recommendation, the attorney for the government may consider whether, and to what extent, the defendant has provided substantial assistance in the investigation or prosecution of others. The attorney for the government must obtain supervisory approval before filing any substantial assistance motion pursuant to section 5K.1.1 of the Sentencing Guidelines or Federal Rule of Criminal Procedure 35. This requirement is addressed in JM 9-27.400.

[updated June 2023]