The following procedures are hereby established to govern sentencing proceedings for all criminal proceedings subject to the Sentencing Reform Act of 1984, 18 U.S.C. § 3551, et seq.:

 

(a)      Plea Agreement and Sentencing Stipulations.  At the time of a plea or the offer of a plea agreement, counsel for the defendant and counsel for the government will submit a written plea agreement and statement of facts.  This written submission shall include the maximum potential penalties for the charged offenses, all terms of the plea agreement, and, to the extent possible, stipulations of fact which address the essential elements of the offense and the relevant sentencing guidelines.  Prior to entry of a guilty plea, counsel for the defendant and counsel for the government shall make every effort to resolve all material disputes in order to minimize the necessity of an evidentiary hearing at the time of sentencing.  The parties' resolution remains subject to Court review and acceptance.

 

(b)      Preliminary Presentence Report.  The probation office shall exercise due diligence in conducting the presentence investigation and preparing a Preliminary Presentence Report. Within the reasonable constraints of ongoing investigations and proceedings, counsel for the government shall exercise due diligence in providing materials to the probation office for purposes of preparing a Preliminary Presentence Report. On request, defendant’s counsel is entitled to notice and reasonable opportunity to attend any interview of the defendant by the probation officer, in the course of the presentence investigation. The Preliminary Presentence Report shall be deemed to have been disclosed the day it is issued and sent to counsel for the parties.

 

(c)      Objections to the Preliminary Presentence Report.  If a party objects to the guideline calculations and/or the facts underlying the guideline calculation set forth in the Preliminary Presentence Report, within 14 days of disclosure of the Preliminary Presentence Report to the parties, counsel shall deliver to the probation officer and opposing counsel written correspondence objecting to the Preliminary Presentence Report identifying all such objections. A party shall include material information and/or legal support for any such objections as well as any minor amendments and/or corrections that do not affect the guideline calculations.

 

  Untimely submissions by counsel may not be accepted by the probation office absent approval of the presiding Judge.

 

(d)      Final Presentence Report and Addendum.  The probation officer shall make any revisions to the presentence report deemed proper based on the parties' submissions. The probation officer shall also prepare an Addendum addressing the parties' objections to the Preliminary Presentence Report.

 

The probation office shall transmit the Final Presentence Report and Addendum to the presiding Judge and to counsel for the parties. The Final Presentence Report shall be deemed to have been disclosed the day it is issued and sent to the parties.

 

The probation office shall also submit a confidential sentencing recommendation to the presiding Judge. This sentencing recommendation shall not be further disclosed without a specific directive by the Court.

 

(e)      Position Regarding Sentencing. Within 14 days of disclosure of the Final Presentence Report, counsel for the defendant and counsel for the government shall each file a pleading entitled "Position Regarding Sentencing." The pleading shall set forth the party's position regarding the applicable Sentencing Guidelines as well as the party's position regarding any relevant sentencing factors set forth in Title 18, United States Code, Section 3553(a). If any issues are in dispute, the Position Regarding Sentencing shall identify such issues, the extent to which the Court can rely on the Final Presentence Report to resolve any such objections, and any issues or objections that will be subject to an evidentiary hearing.

 

This pleading shall be filed with the Clerk of Court, with one copy served upon the probation office and one copy served upon opposing counsel. Counsel shall also provide two courtesy copies of the submission to the presiding Judge.

 

(f)       Request for Evidentiary Hearing.  The parties must indicate in their Position Regarding Sentencing whether an evidentiary hearing is required to resolve any of the issues in dispute. If either party believes a hearing is necessary, the party bearing the burden of proof must file a separate motion requesting an evidentiary hearing contemporaneous with submission of the Position Regarding Sentencing. The motion shall set forth to the extent practicable, the unresolved issues and an estimate of the time required for the hearing. At least 7 days prior to any evidentiary hearing, the parties shall each provide the presiding Judge, opposing counsel and the probation officer with a witness list and exhibit list.

 

(g)       Reply to Position Regarding Sentencing. No later than 7 days prior to sentencing, counsel for the defendant and counsel for the government may each file a response to the opposing party’s “Position Regarding Sentencing.” This pleading shall be filed with the Clerk of Court, with one copy served upon the probation office and one copy served upon opposing counsel. Counsel shall also provide two courtesy copies of the submission to the presiding Judge.

 

If the government is to file a downward departure motion made under Section 5K1.1 and/or Title 18, United States Code, Section 3553(e), it shall do so no later than 7 days prior to sentencing. If filed, this pleading shall be filed under seal with the Clerk of Court, with one copy served upon the probation office and one copy served upon opposing counsel. Counsel shall also provide two courtesy copies of the submission to the presiding Judge.

 

(h)      Complex Cases.  To the extent a party deems appropriate given the complexity or particular nature of a case, a party or parties may seek leave from the presiding Judge to deviate from the sentencing procedures or dates set forth herein.

 

(i)       Resolution of Disputes.  If sentencing facts or factors are the subject of reasonable dispute, the Court will afford an opportunity for parties to present relevant information after which the Court shall resolve disputes in accordance with Rule 32(a)(1) of the Federal Rules of Criminal Procedure.

 

(j)       Court's Authority.  Nothing in this rule shall restrict the Court's authority to accept or to reject plea agreements or to accept or to reject stipulations of fact.

 

(k)      Non-Disclosure.  Nothing in this rule shall require the disclosure of any portions of the Presentence Report that are not discoverable under Fed. R. Crim. P. 32.

 

[Adopted effective February 1, 1991; amended November 1, 1996; amended May 17, 2004; amended September 24, 2009]

 

1991 Advisory Committee's Note to LR 83.10

 

LR 83.10 supersedes the Court's Revised Order Re Sentencing Procedures Under the Sentencing Reform Act of 1984, dated October 30, 1989.

 

The purpose of LR 83.10 is to provide adequate time for preparation of the presentence report by the United States Probation Office, for disclosure of the presentence report to the parties, for the filing of presentence submissions by the parties, and to otherwise facilitate administration of the sentencing guidelines.

 

[The table provided in the 1991 Advisory Committee Notes has been removed so as to avoid any confusion with the changes in the rule that occurred in 2009. Please refer to the 2009 Advisory Committee Notes for a table illustrating timelines in LR 83.10.]

 

1991 Advisory Committee's Note to LR 83.10

 

The following table illustrates the time lines described in LR 83.10:

 

	Complex Case
Day 0	Preliminary PSI issued and sent
Day 14	Objections to Preliminary PSI
Day 0	Final PSI/Addendum issued and sent
Day 14	Postions Regarding Sentencing filed/Request for Evidentiary Hearing filed (if requested)
	Sentencing Scheduled by presiding Judge
7 days prior to Sentencing	Optional: Reply to Positions Regarding Sentencing filed Any Government Downward Deprature Motion filed