Local Criminal Rule 32

LOCAL CRIMINAL RULE 32 - SENTENCE AND JUDGMENT

LCrR32.1E & M  Sentencing
LCrR32.1.1E  Submission of Motions or Letters Requesting Departure from Sentencing Guidelines
LCrR32.1.2E  Submission of Motions or Documents Connected with Sentencing
LCrR32.1W Sentencing
LCrR32.2M Presentencing Memoranda
LCrR32.2W Presentencing Memoranda

LCrR32.1E & M Sentencing

A. In accordance with the provisions of Federal Rule of Criminal Procedure 32, when a presentence investigation is ordered, defendant's counsel, upon request, is entitled to notice and a reasonable opportunity to attend any interview of the defendant by a probation officer in the course of a presentence investigation.

B. Not less than 35 days prior to the date set for sentencing, unless the defendant waives this minimum period, the probation officer shall disclose the presentence investigation report to the defendant, counsel for the defendant and the Government. Within 14 days thereafter, counsel shall communicate in writing to the probation officer and each other any objections they may have as to any material information, sentencing classifications, sentencing guideline ranges, and policy statements contained in or omitted from the report.

C. After receiving counsel's objections, the probation officer shall conduct any further investigation and make any revision to the presentence report that may be necessary. The officer may require counsel for both parties to meet with the officer to discuss unresolved factual and legal issues.

D. Not later than seven days prior to the date of the sentencing hearing, the probation officer shall submit the presentence report to the sentencing judge. The report shall be accompanied by an addendum setting forth any objections counsel may have made that have not been resolved, together with the officer's comments thereon. At the same time, the probation officer must furnish the revisions of the presentence report and the addendum to the defendant, the defendant's counsel, and the attorney for the Government.

E. Except with regard to any objection made under subdivision B that has not been resolved, the report of the presentence investigation may be accepted by the court as accurate. The court, however, for good cause shown, may allow a new objection to be raised at any time before the imposition of sentence. In resolving disputed issues of fact, the court may consider any reliable information presented by the probation officer, the defendant, or the Government.

F. The times set forth in this rule may be modified by the court for good cause shown, except that the 14 day period set forth in subdivision B may be diminished only with the consent of the defendant.

G. Nothing in this rule requires the disclosure of any portions of the presentence report that are not disclosable under Rule 32 of the Federal Rules of Criminal Procedure. As permitted by Rule 32, the probation officer's recommendation on the sentence shall not be disclosed.

H. The presentence report shall be deemed to have been disclosed:

                 1.    when a copy of the report is physically delivered,
                 2.    one day after the report's availability for inspection is orally communicated, or
                 3.    three days after a copy of the report or notice of its availability is mailed. [Amended June 28, 2002]

LCrR32.1.1E Submission of Motions or Letters Requesting Departure from Sentencing Guidelines

Any motion or letter requesting a departure from the Sentencing Guidelines must be delivered to the sentencing judge's chambers by no later than 4:30 p.m. on the third working day prior to the date of the sentencing hearing (i.e., if the sentencing hearing is set for Wednesday, the request must be delivered by 4:30 p.m. on Friday; if the sentencing hearing is set for Thursday, it must be delivered by 4:30 p.m. on Monday). Any motions or letters requesting a departure from the Sentencing Guidelines not timely submitted shall be deemed waived unless good cause is shown.

LCrR32.1.2E Submission of Other Motions or Documents Connected with Sentencing

All submissions, other than those referred to in LCrR32.1.1E, must be filed no later than five working days before sentencing and all responses must be filed no later than three working days before sentencing. [Adopted March 26, 2001]

LCrR32.1W Sentencing

A. Not less that 35 days prior to the date set for sentencing, the probation officer shall disclose the presentence investigation report, excluding any sentencing recommendation, to the defendant and to counsel for the defendant and the Government. Within 14 days thereafter, counsel shall communicate to the probation officer any objections they may have as to any material information, sentencing classifications, sentencing guideline ranges, and policy statements contained in or omitted from the report. Such communication must be written, but the probation officer may allow oral objection which must be promptly confirmed in writing.

B. After receiving counsel's objections, the probation officer shall conduct any further investigation and make any revision to the presentence report that may be necessary. The officer may require counsel for both parties to meet with the officer to discuss unresolved factual and legal issues.

C. No later than seven (7) days prior to the date of the sentencing hearing, the probation officer shall submit the presentence report to the sentencing judge. The report shall be accompanied by an addendum setting forth any objections counsel may have made that have not been resolved, together with the officer's comments thereon. The probation officer shall certify that the contents of the report, including any revisions thereof, but excluding any sentencing recommendations, have been disclosed to the defendant and to counsel for the defendant and the Government, that the content of the addendum has been communicated to counsel, and that the addendum fairly states any remaining objections.

D. Except with regard to any objection made under subdivision A that has not been resolved, the report of the presentence investigation may be accepted by the court as accurate. The court, however, for good cause shown, may allow a new objection to be raised at any time before the imposition of sentence. In resolving disputed issues of fact, the court may consider any reliable information presented by the probation officer, the defendant, or the Government.

E. The times set forth in this rule may be modified by the court for good cause shown, except that any period may be diminished only with the consent of the defendant.

F. As authorized by Federal Rules of Criminal Procedure 32, this court directs that the probation officer not disclose the probation officer's recommendation of sentence to the defendant, the defendant's counsel, or the attorney for the Government.

G. The presentence report shall be deemed to have been disclosed

H. This rule shall only apply in instances where "Guideline Sentencing" is applicable.

LCrR32.2M Presentencing Memoranda

A party may submit a sentencing memorandum addressing any factor taken into account for sentencing purposes. The memorandum may contain, but is not limited to, sentencing factors for upward or downward departure including those considered pursuant to USSG §5K1.1; argument on unresolved objections to the presentence report; and any information concerning the background, character, and conduct of the defendant, in accordance with 18 U.S.C. §3661. All such sentencing memoranda shall be submitted directly to the sentencing judge at least seven calendar days prior to the date of sentencing with simultaneous, confidential copies to all parties, including the probation office. Where an appeal is taken, the probation office shall forward the sentencing memoranda, presentence report, and addendum to the clerk of court for confidential submission to the court of appeals. The submission of a sentencing memorandum does not relieve the parties from the obligation of providing the probation officer with written objections to the presentence report within 14 days from the day of disclosure in accordance with Fed.R.Cr.P. 32(b)(6)(A). [Adopted June 28, 2002]

LCrR32.2W Presentencing Memoranda

All presentencing memoranda shall be filed under seal at least ten (10) days prior to the date of sentence.