Protecting the Record at Sentencing

Dinsmore partner and former federal prosecutor Lindsay Gerdes was selected from a national pool of prosecutors to co-author an article for the September issue of the Department of Justice’s Journal of Federal Law and Practice along with her former colleague Andrey Spektor. In the article, Gerdes and Spektor offer advice on preserving appellate issues at sentencings. They use their experience leading sentencings and appeals to demonstrate avoidable mistakes made by prosecutors that resulted in adverse rulings. An excerpt is below.

By the time parties arrive at a sentencing hearing, often so much has been argued, and so much has been decided, that the prosecutor may think there is little left she can do to protect the record. That assumption is, just as often, wrong. Before a sentencing hearing, it is generally true that the probation department compiles a detailed presentence investigation report (PSR), the parties submit objections to that PSR and sentencing memoranda, judges resolve those objections and hold evidentiary hearings, and the parties brief the legal issues that could affect a defendant’s exposure. But a prosecutors’ job to ensure that there is no procedural or substantive infirmity continues through, and indeed may be most critical at, the sentencing hearing.

This article aims at giving prosecutors practical advice—based largely on examples of adverse appellate rulings—about potential missteps that could result in a remand and resentencing. The article contains three substantive sections. First, it discusses the issues and arguments that prosecutors must raise at the district court level and on appeal to obtain full appellate review. Second, it discusses notice requirements that prosecutors should ensure are provided by judges before sentencing. And third, it discusses the need to ensure that a judge makes an adequate record for the imposed sentence.

Download the PDF above to read the full article.