How do the parties arrive at the point where at the moment of sentence the Judge asks: “What is the Government’s recommendation?”And the answer could be, “ the government recommends the low end of the Guidelines, Your Honor” Now the judge may or may not follow the recommendation. This is in the day-to-day federal case.
Answer:
That is correct in the “day to day” federal case.”
At sentence the judge will turn to the defense attorney and ask if he is ready to proceed, and the defense lawyer will say yes. And the judge will tell him, “I will hear from you and I will hear from your client.” And the defense lawyer then says what he wants to say on behalf of the defendant even suggest a specific sentence well below the guideline. The defendant will then say his piece, and then the judge will turn to the prosecutor and ask if there is anything he wishes to say and the prosecutor will rely on the memo that has been written to the judge advising the judge of the crime, the defendant’s part in it and what the guidelines are. He will say that the guidelines are reasonable and the defendant should be sentenced within the guidelines often at the lower end. In the case of cooperation, the prosecutor will advise the court of the crime, the defendant’s part in it and the nature, quality and quantity of the defendant’s cooperation in what is known as a five k letter named after the guideline provision that provides for this letter. HE WILL NOT MAKE ANY SPECIFIC RECOMMENDATION, at least not in New York federal courts. In other jurisdictions prosecutors do it all the time. Miami is famous or infamous for that. I say infamous because they are so stingy with their reductions. For all the cocaine cowboys and sexy salsa, Miami is a very conservative federal district as is Tampa. Quieren ser mas gringos que gringos. (they want to be more American than Americans.)