What Is A PSR? What Should I Expect To Be Asked In This Interview?

A PSR is a pre-sentence report. It’s a report that is generated by the Probation Department. They send out a probation officer to meet with you, typically with your attorney. Some attorneys will waive their attorney’s presence, but I always like to meet with my clients when they do the interview to advise them about any answers that they shouldn’t be giving and to make sure that they don’t give any answers voluntarily that they shouldn’t be giving. But, it’s a report that is done based on an investigation that the probation officer conducts with you either in custody or out of custody at the probation department or at the US Marshall’s office at the federal courthouse. It’s done after the plea. This means that after you enter your plea in federal court, but before you know what your sentence is going to be.

Your attorney might give you an estimate of what they believe your sentence is going to be, but the calculation I find is often very different when it’s done by the probation department. In my experience, the judge is going to go with the PSR. The judge is going to use the information from the probation’s calculation about your offense level and your criminal history points to make calculations based on where you should be in the sentencing grid. The pre-sentence report is done to determine all of the factors that a judge is going to weigh under 18 USC 3553 [(a)Factors To Be Considered in Imposing a Sentence.—The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—

(1)the nature and circumstances of the offense and the history and characteristics of the defendant;

(2)the need for the sentence imposed—

(A)to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B)to afford adequate deterrence to criminal conduct;

(C)to protect the public from further crimes of the defendant; and

(D)to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3)the kinds of sentences available;

(4)the kinds of sentence and the sentencing range established for—

(A)the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—

(i)issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(ii)that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or

(B)in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28);

(5)any pertinent policy statement—

(A)issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(B)that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.[1]

(6)the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7)the need to provide restitution to any victims of the offense.

(b)Application of Guidelines in Imposing a Sentence.—

(1)In general.—

Except as provided in paragraph (2), the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission.

(2)Child crimes and sexual offenses.—

(A) [2] Sentencing.—In sentencing a defendant convicted of an offense under section 1201 involving a minor victim, an offense under section 1591, or an offense under chapter 71, 109A, 110, or 117, the court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless—

(i)the court finds that there exists an aggravating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence greater than that described;

(ii)the court finds that there exists a mitigating circumstance of a kind or to a degree, that—

(I)has been affirmatively and specifically identified as a permissible ground of downward departure in the sentencing guidelines or policy statements issued under section 994(a) of title 28, taking account of any amendments to such sentencing guidelines or policy statements by Congress;

(II)has not been taken into consideration by the Sentencing Commission in formulating the guidelines; and

(III)should result in a sentence different from that described; or

(iii)the court finds, on motion of the Government, that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense and that this assistance established a mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence lower than that described.

In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission, together with any amendments thereto by act of Congress. In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2). In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission, together with any amendments to such guidelines or policy statements by act of Congress.

(c)Statement of Reasons for Imposing a Sentence.—The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence, and, if the sentence—

(1)is of the kind, and within the range, described in subsection (a)(4), and that range exceeds 24 months, the reason for imposing a sentence at a particular point within the range; or

(2)is not of the kind, or is outside the range, described in subsection (a)(4), the specific reason for the imposition of a sentence different from that described, which reasons must also be stated with specificity in a statement of reasons form issued under section 994(w)(1)(B) of title 28, except to the extent that the court relies upon statements received in camera in accordance with Federal Rule of Criminal Procedure 32. In the event that the court relies upon statements received in camera in accordance with Federal Rule of Criminal Procedure 32 the court shall state that such statements were so received and that it relied upon the content of such statements.

If the court does not order restitution, or orders only partial restitution, the court shall include in the statement the reason therefor. The court shall provide a transcription or other appropriate public record of the court’s statement of reasons, together with the order of judgment and commitment, to the Probation System and to the Sentencing Commission,[3] and, if the sentence includes a term of imprisonment, to the Bureau of Prisons.

(d)Presentence Procedure for an Order of Notice.—Prior to imposing an order of notice pursuant to section 3555, the court shall give notice to the defendant and the Government that it is considering imposing such an order. Upon motion of the defendant or the Government, or on its own motion, the court shall—

(1)permit the defendant and the Government to submit affidavits and written memoranda addressing matters relevant to the imposition of such an order;

(2)afford counsel an opportunity in open court to address orally the appropriateness of the imposition of such an order; and

(3)include in its statement of reasons pursuant to subsection (c) specific reasons underlying its determinations regarding the nature of such an order.

Upon motion of the defendant or the Government, or on its own motion, the court may in its discretion employ any additional procedures that it concludes will not unduly complicate or prolong the sentencing process.

(e)Limited Authority To Impose a Sentence Below a Statutory Minimum.—

Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code.

(f)Limitation on Applicability of Statutory Minimums in Certain Cases.—Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846), section 1010 or 1013 of the Controlled Substances Import and Export Act (21 U.S.C. 960, 963), or section 70503 or 70506 of title 46, the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that—

(1)the defendant does not have—

(A)more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;

(B)a prior 3-point offense, as determined under the sentencing guidelines; and

(C)a prior 2-point violent offense, as determined under the sentencing guidelines;

(2)the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;

(3)the offense did not result in death or serious bodily injury to any person;

(4)the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and

(5)not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

Information disclosed by a defendant under this subsection may not be used to enhance the sentence of the defendant unless the information relates to a violent offense.

(g)Definition of Violent Offense.—

As used in this section, the term “violent offense” means a crime of violence, as defined in section 16, that is punishable by imprisonment.], which is the sentencing statute that helps determine the sentencing guidelines range. If your attorney did a good interview the first time you met with them, it should be a similar interview, but it oftentimes goes into more depth than any attorney’s interview.

During the PSR, they will talk about your childhood and your relationship with your parents, any health conditions that your parents have, your relationships with your siblings and children, your relationships with your ex-wives, girlfriends, and anyone who is involved in your life. They are going to ask questions about your prior educational history, your prior work history, and any occupational skills that you might have. They are going to be talking with you about your finances, debt, and assets. If you are ultimately released from custody, they are going to be asking questions about who and where you are going to be staying. They are also going to ask for your consent so that they are able to confirm the information in more detail.

Additionally, they are going to be talking to you about your drug history. They are not going to talk to you about your criminal history. They will be running your criminal history on their own and use that as a basis for their calculations. Mostly, they don’t want to hear your explanations on what happened to you. Regarding your drug history, they are going to ask you about specific instances, including marijuana such as, how old were you when you first tried it? What was the frequency when you first used it? When you first used did it decrease or increase? When did you drop it? When did you pick it back up? They are going to be very focused on all of these substances, even substances that are used infrequently by people such as hallucinogens, mushrooms, and LSD. Probation is going to want to hear about those too.

Sometimes, the questions will overlap with a criminal history in terms of drinking and arrests related to drinking. You are going to want to avoid talking about your criminal history while being honest with them at the same time. They are also going to talk about other things like your psychiatric history, or your diagnosed and undiagnosed mental conditions, and your history of treatment for those conditions. One thing that they will want to get into unless you prevent them from doing it, is talking about the instant offense. They will want to talk about your involvement in the offense. This is one of the reasons why your attorney should be there. The presence of an attorney will allow you to sign a statement that allows you to accept responsibility for the offense, and hence get the sentencing reduction that comes along with it.

You don’t want to expose yourself when talking about the case to the probation officer by sharing more relevant conduct than what they are already alleging against you. That can oftentimes be the case; information that they didn’t know about you is not helpful, and it could lead to an increase in your sentence. Therefore, your attorney should have you sign a statement that says, ‘I accept responsibility, but decline to go into the offense further,’ and probation will accept that statement as sufficient. The report, which is generated after the pre-sentence investigation, will be given to your attorney, and your attorney will go over it with you. If you have objections to specific things in it, you can first negotiate with the probation department to see if they are willing to change things.

Often, they do get information wrong, and they are willing to change it. But, if it’s a matter of their interpretation of a statute and they disagree with the way that we interpret it, they may not agree to our requested modifications. At that point, we can file an objection with the court, and the judge will have to rule on that objection before we get to the sentencing portion of the case.

For more information on Pre-Sentencing Report In A Federal Case, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (512) 478-9898 today.