The following rules apply in all cases where presentence
investigations and reports are ordered by a district judge or
magistrate judge:
(a) To assist the court in fulfilling the standards for
acceptance of plea agreements as set forth in the U.S.
Sentencing Guidelines § 6B1.2, the parties shall be responsible
for the following:
1. In Fed. R. Crim. P. 11(c)(1)(A), plea agreements
wherein the agreement includes dismissal of charges or an
agreement not to pursue potential charges, the written plea
agreement shall include a statement, on the basis of the
information then known by the parties, as to why the remaining
charges adequately reflect the seriousness of the actual offense
behavior and why accepting the agreement will not undermine the
statutory purposes of sentencing;
2. In Fed. R. Crim. P. 11(c)(1)(B), plea agreements
wherein the agreement includes a nonbinding sentencing
recommendation, the written plea agreement shall include a
statement, on the basis of the information then known by the
parties, that the recommended sentence is within the applicable
guideline range, or shall set forth justifiable reasons why the
recommended sentence departs from the presumed applicable
guideline range;
3. In Fed. R. Crim. P. 11(c)(1)(C), plea agreements
wherein the agreement includes a specific sentence that is
binding upon the court, the written plea agreement shall include
a statement, on the basis of the information then known by the
parties, that the recommended sentence is within the applicable
guideline range, or shall set forth justifiable reasons why the
recommended sentence departs from the presumed applicable
guideline range.
(b) As part of the plea agreement, it is appropriate for
the parties to stipulate to factors that affect the sentence
computation. Any such stipulation shall be set forth in the
manner prescribed by U.S. Sentencing Guidelines § 6B1.4.
(c) A presentence investigation and report to the court
will be conducted before the imposition of sentence, except as
otherwise permitted by U.S. Sentencing Guidelines § 6A1.1. The
defendant may not waive preparation of a presentence report.
The probation officer shall report the facts disclosed by the
presentence investigation in the presentence report, and the
parties shall not be permitted to stipulate to the elimination
of relevant facts from the report.
(d) The parties shall review the completed presentence
report and offer their respective objections. The probation
officer will then revise the report where appropriate and
attempt to resolve disputed facts. To provide sufficient time
for this process, the sentencing date, except for good cause,
shall be set not less than ninety-eight (98) days following an
adjudication.
(e) No less than thirty-five (35) days prior to the
sentencing date, the probation officer shall provide a copy of
the proposed presentence report to counsel for the government
and to counsel for the defendant. Defense counsel shall be
responsible for disclosing the report to the defendant. The
presentence report shall be deemed to have been provided to
counsel when a copy of the report is physically delivered or one
(1) day after the report's availability is orally communicated
or three (3) days after a copy of the report is mailed.
(f) Within fourteen (14) days after receiving the report,
counsel for the defendant and the government shall file their
sentencing statement(s), which shall include objections, if any,
concerning factual information, sentencing guideline ranges and
policy statements which remain in dispute. A copy shall be
submitted to the Probation Office and served upon all other
counsel. Counsel for the government and counsel for the
defendant shall seek to resolve the controverted issues with
respect to the contents of the report or items omitted
therefrom. Each sentencing statement will also include:
1. All sentencing factors, facts, and other matters
material to sentencing that remain in dispute, including a
statement, and calculation if appropriate, showing how the
dispute affects the calculation of the applicable guidelines
range.
2. Whether an evidentiary hearing is requested and,
if so, an estimate of the time required for such hearing and a
summary of the evidence to be produced.
Upon receipt of any such objections, the probation officer
shall conduct any further investigation and make any revisions
to the presentence report that are deemed necessary.
(g) Not less than fourteen (14) days prior to the
sentencing date, the completed presentence report shall be
submitted to the court and to all parties under seal. This
report shall be accompanied by an addendum containing any
unresolved objections, the grounds for these objections, and the
probation officer’s comments on them. Any earlier proposed
presentence reports furnished to counsel shall be returned to
the probation officer.
(h) At or prior to the sentencing hearing, the court shall
address each controverted matter pursuant to Fed. R. Crim. P. 32
(i)(3)(B), and rule on the dispute or determine that a ruling is
unnecessary because the controverted matter will not affect
sentencing or because the court will not consider the matter in
sentencing. The parties shall be prepared at the sentencing
hearing to proceed with evidence and argument for the resolution
of any remaining disputed matters upon which the court intends
to rely. The court shall provide a reasonable opportunity to
the parties for the submission of oral or written objections to
the court's findings and determinations. For good cause, the
court may continue the sentencing hearing for a reasonable time.
(i) Except as otherwise ordered by the court, all copies of
presentence reports that have been furnished to counsel,
including an recommendation by the probation officer, shall be
returned to the probation officer upon the expiration of the
time within which to appeal. A copy of the completed
presentence report shall be filed under seal. Unless otherwise
ordered by the presiding judge, a copy of the recommendation of
the probation officer prepared for any sentencing hearing,
including sentencing after revocation of probation or supervised
release, shall be filed under seal and shall be made available
solely to counsel for the government and to counsel for the
defendant.
(j) Filings that disclose the contents of the proposed or
completed presentence report, including but not limited to
sentencing statements, are to be filed under seal. Any document
filed under seal pursuant to this rule shall contain the
following notation: “THIS DOCUMENT FILED UNDER SEAL PURSUANT TO
CRIMINAL L.R. 32(j).” Filings that do not disclose the contents
of the proposed or completed presentence report should not be
filed under seal.
(k) In the case of a pro se defendant, reference to counsel
for defendant shall be taken to refer to the pro se defendant.
(l) Except for good cause shown, any motion for a downward
departure pursuant to U.S. Sentencing Guidelines § 5K1.1 or 18
U.S.C. § 3553(e) shall be filed not less than twenty-one (21)
days prior to the scheduled sentencing date. A copy of this
motion, as well as any memorandum, shall be served on the
Probation Office.
(m) Except for good cause shown, any sentencing memorandum
addressing the 18 U.S.C. § 3553(a) sentencing factors or a motion
for downward departure not brought pursuant to U.S. Sentencing
Guidelines § 5K1.1 or 18 U.S.C. § 3553(e) shall be filed not less
than seven (7) days prior to the scheduled sentencing date. A
copy of this memorandum shall be served on the Probation Office.
