I. Introduction

If you plead guilty or were found guilty of a crime you may have to attend what is known as a sentencing hearing. A trial or a guilty plea establishes that you, in fact, committed a crime, but most laws do not have an exact penalty for each crime. Most laws establish a range of punishments where certain factors will increase or decrease the punishment.

Not all charges require a sentencing hearing. The determination if there will be a sentencing hearing depends on if the crime was a felony or a misdemeanor and if the charges were state or federal charges.

During a sentencing hearing, a judge will take account of several factors such as your past criminal record, the circumstances of the crime, and other mitigating factors. At the end of the hearing, a judge will make a decision as to jail time, fines or other punishments.

II. Steps to hearing

There are two ways in which a criminal case can go to a sentencing hearing. The first is a plea deal where you admit that you are guilty of the crime you are convicted of, usually for a lesser amount of fine or time in jail. The other way is through a successful conviction after a criminal trial.

The criminal trial comes to a final verdict of guilty or not guilty, however, if you are found guilty this is not the end of your hearings. A few weeks after the trial, unless the judge rendered a sentence upon the end of the trial, you will most likely have a sentencing hearing. In New York, all felony convictions require a sentencing hearing, so if you are convicted of a felony in criminal court you will have a sentencing hearing scheduled soon after.

If you plead guilty to a crime you may also have to attend a sentencing hearing. Clients that represent themselves and go before a judge to enter into a guilty plea might not know exactly what that entails.

A plea might result in a reduced sentence if it is bargained for with the prosecutor, which will initiate a plea hearing. If there is no settlement of sentence with the plea the judge might order a sentencing hearing where the punishment for the guilty plea will be decided.

III. Sentencing Hearing

A sentencing hearing takes place in court before a judge that will render a verdict as to the level of the punishment. The prosecutor, the defendant, and sometimes the victims attend these hearings and are given a chance to speak to the judge in reference to the level of punishment. Most crimes come with a range of punishments that range in fines and time for incarceration.

During a sentencing hearing there is no longer a discussion of guilt, rather both sides try to persuade the judge why the defendant should get a reduced or increased sentence. To do this the defendant and prosecutor each get a chance to speak directly to the judge regarding factors such as the details of the crime, past criminal history, and the impact to the victim.

Prosecution statements come first during a sentencing hearing. The prosecutor will recommend a sentence to the judge and then lay out all evidence that was introduced in trial to prove that their sentence should be imposed. Usually, the prosecutor will try and get a certain sentence and the defense will argue why the punishment should be less severe.

Defense statements come in two forms during a sentencing hearing, first, the defense counsel gets to speak to the judge and then at the end of the hearing the defendant gets to be the last one to speak to the judge. A good criminal defense attorney is very important because they will lay out all of the evidence in a light favorable to the defendant and try to get the sentence reduced as low as possible.

After the defense counsel speaks the court may give the victim or the victim’s family a chance to speak to the judge and then they will give the defendant a chance to speak to the judge. These two chances to speak to the judge are instrumental because they play a major role in influencing the judge’s sentence. A good criminal defense attorney will help you to prepare what you will say to the judge and help make sure your message is on point to try and move the judge.

IV. The Sentence

The judge may pass a sentence at the end of trial for minor misdemeanors but for most other cases the judge will make a determination at the end of a sentencing hearing. The judge alone gets to determine the sentence, however they usually use some guidance from sentencing guidelines.

Some punishments that may be imposed by a judge include; incarceration; a fine; probation; community service; or restitution. Each crime that you are convicted of will come with its own punishment. That means if you get charged with more than one crime you may have to face multiple sentences and sometimes there can be multiple charges that arise from one action.

It is important during the sentencing hearing to make a good case why your sentence should be reduced, especially because the judge will determine how the sentences are carried out. A judge may determine that the sentence run consecutively or concurrently, which may drastically change the amount of time you will serve.

Consecutive sentences would mean that once you serve your time for one crime the time for any subsequent crime will begin. Concurrent sentences would mean that your time begins to run on all of your crimes at the same time. Concurrent sentences are always the preferred outcome for defendants because if you are charged with two crimes, one with a 5-year sentence and the other with a 3-year sentence you would only serve 5 years for concurrent but you would serve 8 years if they were consecutive.

V. Federal Guidelines – Enhancements and Reductions

Sentencing Enhancements 

In federal land, there are many enhancements that the prosecutor can use to enhance the federal sentencing guidelines, especially when pertaining to a drug case.  

Some of those enhancements include:  

#1. Role Enhancement 

Under a role enhancement, an individual that is a leader organizer manager or supervisor is to receive additional points thereby increasing his or her federal guidelines as being in a leadership role in a drug enterprise is considered to be more culpable than simply aligning soldier or a low-level enterprise participant.  

#2. Maintaining Premises or Location Where Drugs Are Manufactured or Distributed 

Then there can be an enhancement for maintaining premises or a location where drugs are manufactured why distributed. There is also an enhancement for both purchasing and distributing narcotics through the Internet. These are the situations typically involving that dark web as no one sells drugs through eBay or any of these public marketplaces. 

#3. Death or Serious Bodily Injury That Occurs as a Result of the Drug Distribution 

There is also an enhancement that applies if there is a death or serious bodily injury that occurs as a result of the drug distribution. In some instances, the minimum is also increased and so is the maximum because a drug distribution that results in a death or seriously a serious bodily injury is considered to be a very different type of case than just distribution alone. 

#4. Use of a Dangerous Weapon 

 There is also an enhancement for using a dangerous weapon not necessarily a gun but any dangerous weapon in furtherance of drug trafficking.  

#5. Threats of Credible Violence 

There is also an enhancement for threats of credible violence that are associated West drug trafficking.   

#6. Type of Substance Distributed 

There is also an enhancement that can apply based on the type of the substance that is distributed.  For example, amphetamines and methamphetamines are subject to an enhancement solely because of the type of substance that is being distributed. 

“Sentencing Reductions” 

In some situations, and federal cases and also in state cases you are able to get credit or a reduction for giving up information and helping the government in a substantial manner.  

#1. 5K1 Credit

In federal court, this is called receiving a 5K1 credit. That is because the section of the federal sentencing guidelines that allow for this credit is section 5K1.1.  

In New York State, there is a law on drug cases that is called providing substantial assistance and cooperation to the government. What 5K one allows a federal judge to do is to go below the mandatory minimum if there is one on a federal drug case and two also go below the sentencing guidelines in order to give someone a substantial benefit for coming forward and cooperating with authorities. 

In New York State, by giving substantial assistance on a drug case upon the motion of the prosecutor the judge is also able to disregard the minimum on a drug case (if there is one) and to sentence someone to a conditional discharge or a probationary term even when the minimum is jail time. 

#2. Being a “Minor Participant”

Another common reduction in federal drug cases is a reduction for being a minor participant in the drug enterprise. That is typically two points off the reasoning behind this minor participant reduction is that someone who has a very limited role an acts like a low-level runner or a low-level distributor is not culpable in the same way as someone who has been making a substantial profit or being more involved in the management and organization of the enterprise.  

Even without this minor participant reduction, an individual with limited Contacts with the criminal justice system is able to qualify for what is called a safety valve.  

What is “Safety Valve?” 

safety valve is a statutory provision that allows an individual to come in to meet with the government and talk about his or her involvement in the drug enterprise.  

If the individual gives truthful information about his or her own involvement rather than involvement of others and also meets certain statutory requirements the government is able to make a motion to go below any mandatory minimum on a drug case. 

This is very beneficial in cases where the mandatory minimum is 5 or more years and the only way for the judge to give anything other than the minimum is the safety valve. 

The statutory requirements for qualifying for safety valve: 

(1) No significant criminal history; 

(2) No leadership role in the enterprise; 

(3) No possession of weapons or any other criminal threats associated with enterprise 

(4) The offense has not resulted in death or serious injury and five the individual came in and truthfully shared with the government all the information that she knows but the offense and any related misconduct. 

VI. Federal v State

New York and the Federal Government both have their own distinct rules for sentencing hearings. So if your case is held on a state or federal level you might have some differences in a post-conviction sentencing hearing. There is a large disparity throughout the United States with sentencing, where some people charged with the same crime get significantly worse punishments depending on the court.

Judges in a federal case will always consult the U.S. Federal Sentencing Guidelines before making a final determination. Following the guidelines used to be mandatory, but now they act as an advisory to determine a sentence. The guidelines follow a formula that takes account of the past criminal history and the severity of the crime.

Now in a federal case when the judge does not follow the recommended guideline it is considered a departure. One of the best results a defendant can get in a sentencing hearing is a downward departure, which means that they got less than what the sentencing guidelines laid out as a punishment.

New York has their own sentencing guidelines that are distinct from the federal guidelines. Usually, in a federal case, the defendant is more likely to get a longer sentence than in New York for the same crime. There are also several nuances in New York that lead to different results such as the youthful offender classification. A youthful offender status offers leniency to anyone under the age of 19 who is convicted of a serious crime, instead of serving the normal sentence they will serve a term from 1 ⅓ years to 4 years and they will not have any permanent criminal record.

VII. Appeals

When a judges decides on a sentence you still have the opportunity to file an appeal on the conviction and appeal on the sentence. An appeal of a conviction would mean that you try and have the conviction itself overturned because there is some problem. An appeal of a sentence would be an appeal that the sentence was too harsh.

Appeals of a sentence are possible but they rarely ever succeed. If you are sentenced to a term that exceeds the sentencing guidelines in a federal or state case there is a chance you may be able to appeal that harsh sentence. These cases are usually won by showing the judge was prejudicial or biased in their sentence. A successful appeal of a sentence means that you will have another sentencing determination from another judge.

VIII. Recent Cases

In April 26, 2018, Bill Cosby was found guilty on three counts of assault and five months later he was handed down a sentence of 3 to 10 years in state prison. Cosby faced after being found guilty up to 30 years in prison for his 3 assault convictions.

During the sentencing hearing, Cosby’s lawyer argued that due to his old age and the fact that he is partially blind that he does not pose a risk and that no new allegations arose since 2004. At the end of the hearing, the Judge decided that Cosby would serve his three counts of assault concurrently instead of consecutively.

The sentence of 3 to 10 years that he will now face also will be determined by a parole board that will decide if he should be released at the minimum or if he will serve up to 10 years. In addition to his jail time, Cosby will now also be a registered sex offender and the judge ordered Cosby to see a therapist.

Call Us Now

The judge in a sentencing hearing has pretty wide discretion to determine how long your sentence will be, so it is important to have representation that will help you to mitigate any punishment. It is important during a sentencing hearing to have an attorney with experience in how to best defend against harsh sentences.

It is important to have an attorney throughout your plea deals or criminal trial because what you are convicted of will determine the range of punishments. Once you are found guilty or plea guilty it is important to work on a strategy with your attorney to put forward your best case so if you have multiple charges they are served concurrently and for a downward departure from the sentencing guideline.

Call us now at (212) 736-3900.