When the new administration takes over in January I expect prosecution efforts could be focused on 3 areas, Securities fraud, PPP fraud, and Healthcare fraud. Obviously, efforts will not be solely on these areas, but I feel these 3 will get a lot of attention. With these 3 types of fraud, you are dealing with a financial loss. Loss in securities transactions, fraudulent loans taken, and fraudulent insurance billing. The sentencing guidelines on these crimes will be determined by the dollar amount loss. Expect defendants who are facing sentencing in these types of crimes to have high sentencing guidelines.
With these types of crimes if you don’t have an opportunity to cooperate is it possible to gain a departure from the sentencing guidelines? The answer is yes, but in addition to a good attorney, you must have a strong sentence mitigation plan. Your plan should include the following.
Personal Narrative
You need to give the judge an understanding of who you are apart from your crime. The information he has about you will be limited to what the prosecution tells him, and what he reads in your DOJ press release. Your narrative should include information about your childhood, education, career choices, substance abuse, and how any of these factors influenced your decision in committing the crime. Your narrative should also include an action plan such as recovery, restitution, personal development, or counseling that will show the judge you are doing your best to make sure you never appear before the court again.
Character Reference Letters
Letters to the judge can be powerful. Letters should come from people who know you well, and for a long period of time. The bulk of your letters should not come from family. The letters should detail the remorse and identification of your victims that you have shown to your letter writer. The number of letters should be 8-10, you don’t want to overwhelm the judge. The letters need to stand out with specific examples of character and how the defendant has positively impacted the letter writer. Lastly, the writer should not ask for leniency or a specific sentence of any type and close with tanking the judge for reading the letter.
PSI Prep
When you plead guilty or are found guilty at trial you will have an interview with your probation officer, this is called your pre-sentence interview, or PSI. In this interview, you will provide your probation officer with information about your childhood, education, career, crime, substance abuse. This information is what they will use to make their sentencing recommendation to the judge. If you write a personal narrative it would be a good idea to submit this to your probation officer at your PSI. This will help him to know you apart from your crime and assist him in his decision for his recommendation. In this interview, if you have had a substance abuse issue within 12 months of your indictment you should disclose it to your probation officer. This will help him to know you better and it will also help you qualify for programs in prison such as RDAP- the residential drug and alcohol program. If you are accepted into RDAP you may qualify for up to a 1 year reduction in your sentence and up to 6 months in a halfway house. RDAP is the only program that can assist you in this type of sentence reduction but you must disclose the abuse in your PSI.
If you have been charged with a white-collar crime a proper sentence mitigation plan may be the difference between a long sentence and a departure from the guidelines.
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