The Federal Sentencing Hearing

By Elizabeth Franklin-Best, Esq., and Christopher Zoukis, JD, MBA

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What happens at a federal sentencing hearing?

The court confirms the parties have read the presentence report, rules on any unresolved objections, adopts a guideline range, hears from the government and defense counsel, hears from any victims, addresses the defendant personally to allow allocution, states the sentence and its reasons in open court under 18 U.S.C. § 3553(c), and advises the defendant of appeal rights. It then decides whether the defendant self-surrenders or is remanded.

Key takeaways on the federal sentencing hearing

• You have a right to speak, and the court must invite you. Fed. R. Crim. P. 32(i)(4)(A)(ii): the court must “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.”
• The judge must confirm you have read the presentence report. Rule 32(i)(1)(A).
• Disputed facts must be ruled on, or expressly set aside. Rule 32(i)(3)(B).
• The court must state its reasons out loud. 18 U.S.C. § 3553(c) — and with specificity where the sentence is outside the range.
• Victims have a statutory right to be heard. 18 U.S.C. § 3771(a)(4).
• Detention pending sentence is the default in many cases. 18 U.S.C. § 3143(a)(1) requires detention “unless the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger.”
• Two clocks start immediately. Fourteen days from the oral announcement for a Rule 35(a) correction; fourteen days from entry of judgment for a notice of appeal.

The sequence, in order

Practice differs by district and by judge, but the structure is set by Fed. R. Crim. P. 32(i) and by U.S.S.G. § 1B1.1, and it is remarkably consistent.

#	What happens	Authority
1	The case is called; appearances noted; the defendant is brought forward or comes to counsel table	—
2	The court verifies you have read the report. “[T]he court … must verify that the defendant and the defendant’s attorney have read and discussed the presentence report and any addendum to the report”	Rule 32(i)(1)(A)
3	The court addresses any withheld information it will rely on, giving “a written summary of—or summariz[ing] in camera” any material excluded under Rule 32(d)(3), and “a reasonable opportunity to comment”	Rule 32(i)(1)(B)
4	Objections are argued and ruled on. For any disputed portion the court “must … rule on the dispute or determine that a ruling is unnecessary”	Rule 32(i)(3)(B); U.S.S.G. § 6A1.3
5	The court adopts the guideline calculation — offense level, criminal history category, and the resulting range	§ 1B1.1(a), Step One
6	Counsel are heard. The court “must allow the parties’ attorneys to comment on the probation officer’s determinations and other matters relating to an appropriate sentence”	Rule 32(i)(1)(C)
7	Defense counsel speaks, the defendant allocutes, and the government speaks (the rule lists these three opportunities but does not fix their order)	Rule 32(i)(4)(A)
8	Any victim present is heard. “Before imposing sentence, the court must address any victim of the crime who is present at sentencing and must permit the victim to be reasonably heard”	Rule 32(i)(4)(B); 18 U.S.C. § 3771
9	The court states the sentence and its reasons in open court	18 U.S.C. § 3553(c)
10	Supervised release, conditions, restitution, fines and the special assessment are imposed	Chapter Five, Parts D–E
11	Judicial recommendations as to facility and programming, if requested	18 U.S.C. § 3621(b) considerations
12	The court advises of the right to appeal	Rule 32(j)
13	Remand or self-surrender is decided	18 U.S.C. § 3143(a)

Note the order in step 7. In many courtrooms the defendant speaks before the government does. The rule does not require that sequence, but where it is followed, allocution happens before the prosecutor’s argument, so it should not be planned as a response to it.

Before the hearing: what the judge has already read

By the time the hearing starts, the record is closed in every practical sense.

The presentence report and the addendum. The report is disclosed at least 35 days before sentencing under Rule 32(e)(2), objections are due within 14 days of receipt under Rule 32(f)(1), and the probation officer submits the report and an addendum containing “any unresolved objections, the grounds for those objections, and the probation officer’s comments on them” at least 7 days before sentencing under Rule 32(g). See presentence report.

The sentencing memoranda. Both sides usually file one. The defense memorandum is the document that carries the § 3553(a) argument and the exhibits.

The support letters. Filed as exhibits to the memorandum, usually a week or two before the hearing.

The government’s position. Including any § 5K1.1 or § 3553(e) motion and any motion for the third acceptance level under § 3E1.1(b).

A judge who arrives on the bench has read all of it. What happens in the courtroom is argument and impression, not information.

When the hearing is contested: how facts get resolved

Most federal sentencings are uncontested in the sense that the guideline calculation is agreed. Where it is not, the hearing becomes an evidentiary proceeding, and it has its own rules.

U.S.S.G. § 6A1.3 governs:

“(a) When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor. In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy. (b) The court shall resolve disputed sentencing factors at a sentencing hearing in accordance with Rule 32(i), Fed. R. Crim. P.”

Four rules follow from the guideline and its commentary.

The rules of evidence do not apply, but reliability does. “Any information may be considered, so long as it has sufficient indicia of reliability to support its probable accuracy.” And: “Unreliable allegations shall not be considered.” Reliable hearsay is admissible; an unsourced assertion in a report is not automatically reliable simply because it is in the report.

The standard of proof is a preponderance. “The Commission believes that use of a preponderance of the evidence standard is appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts of a case.”

Written submissions are often enough — but sometimes they are not. The commentary: “Although lengthy sentencing hearings seldom should be necessary, disputes about sentencing factors must be resolved with care. … Written statements of counsel or affidavits of witnesses may be adequate under many circumstances. … An evidentiary hearing may sometimes be the only reliable way to resolve disputed issues.” The Commission cites decisions finding error where a district court denied an evidentiary hearing on an affidavit of questionable reliability, and where a court failed to hold a hearing on a contested drug quantity or make the required findings.

Acquitted conduct is now outside the range. Since November 1, 2024, the § 6A1.3 commentary adds: “Acquitted conduct, however, is not relevant conduct for purposes of determining the guideline range. See §1B1.3(c) (Relevant Conduct). Nonetheless, nothing in the Guidelines Manual abrogates a court’s authority under 18 U.S.C. § 3661.”

What a contested hearing looks like. Witnesses — often a case agent — are called and cross-examined. Exhibits are received. The court makes findings on the record. It takes longer, sometimes much longer, and it is scheduled accordingly. If your case involves a genuinely disputed quantity, loss figure, weapon, or role, expect the hearing to be a hearing, and expect counsel to have subpoenaed what is needed weeks in advance. See presentence report.

Co-defendants and disparity

In a multi-defendant case, sentencings are usually separate and often staggered over weeks or months. That has two practical consequences.

Order matters. Defendants sentenced later have the earlier sentences available to them; defendants sentenced first do not. There is nothing improper about asking for a continuance where a co-defendant’s sentencing will produce a relevant comparison — although a court is not obliged to grant one.

Disparity is a statutory factor, but a narrow one. 18 U.S.C. § 3553(a)(6) directs the court to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” Note both qualifiers: unwarranted, and similar records and similar conduct. A co-defendant who cooperated, who had a different criminal history, or who pleaded to a different count is not a like case, and arguing otherwise invites the court to explain the difference in terms nobody wanted on the record.

Where a disparity argument works, it works on data: co-defendant judgments in the same case, and the Commission’s published statistics for the same guideline and criminal history category. It is developed on the variance page.

Allocution: your right to speak

This is the part of the day that belongs to the defendant, and it is the part most often wasted.

The rule is short. Fed. R. Crim. P. 32(i)(4)(A) provides that before imposing sentence, the court must:

“(i) provide the defendant’s attorney an opportunity to speak on the defendant’s behalf; (ii) address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence; and (iii) provide an attorney for the government an opportunity to speak equivalent to that of the defendant’s attorney.”

Three features of that text matter.

It is a personal address. The court must speak to the defendant, not to counsel. In practice the judge will say something like “Is there anything you would like to say before I impose sentence?”

It is an opportunity, not an obligation. A defendant may decline. Most do not, and most should not.

It is broad. “[S]peak or present any information to mitigate the sentence.” It is not confined to remorse.

What a good allocution does

It is short. Two to four minutes is normal. Judges have read the file; the point of allocution is not to summarize it.

It accepts responsibility in plain words. Not “mistakes were made.” Something a person would actually say.

It speaks to the harm. If there are identifiable victims, address them — directly if they are present, and without qualification or excuse.

It says something specific and true about what has changed. Treatment entered, work done, a relationship repaired, a habit stopped. Specifics are credible; generalities are not.

It is delivered by the defendant, in the defendant’s own language. A statement written by counsel and read aloud is audible as such from the bench.

It ends. A closing sentence, and then silence.

What a good allocution does not do

It does not re-argue the case. The facts were settled by the plea or the verdict. Contesting them now risks the acceptance of responsibility adjustment at the last possible moment.

It does not blame anyone else — not co-defendants, not the government, not counsel.

It does not minimize. “I only played a small part” is a role argument, and role arguments belong in a written objection, not in allocution. See minor role reduction.

It does not promise. “You will never see me again” is what every judge hears.

It does not ask for a number. That is counsel’s job.

It does not go on. The single most common error is length.

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: The firm prepares allocution the way it prepares testimony — written out, read aloud, timed, and then reduced. What is being tested is not eloquence; it is whether the person in front of the court sounds like someone who understands what happened and has thought about it. The two things that most often damage an allocution are length and hedging. A defendant who speaks for ninety seconds, accepts responsibility without qualification, and stops is far more persuasive than one who speaks for ten minutes and explains.

Victim statements

Victims have a statutory right to be present and to be heard, and in cases with identifiable victims their statements are usually the most difficult part of the hearing for a defendant’s family to sit through.

Fed. R. Crim. P. 32(i)(4)(B): “Before imposing sentence, the court must address any victim of the crime who is present at sentencing and must permit the victim to be reasonably heard.”

18 U.S.C. § 3771(a) — the Crime Victims’ Rights Act — enumerates ten rights, including:

• “(2) The right to reasonable, accurate, and timely notice of any public court proceeding …”
• “(3) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.”
• “(4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.”
• “(6) The right to full and timely restitution as provided in law.”
• “(8) The right to be treated with fairness and with respect for the victim’s dignity and privacy.”

A “crime victim” is “a person directly and proximately harmed as a result of the commission of a Federal offense,” and where a victim is a minor, incompetent, incapacitated or deceased, “the legal guardians of the crime victim or the representatives of the crime victim’s estate, family members, or any other persons appointed as suitable by the court, may assume the crime victim’s rights.”

The Guidelines Manual reinforces the obligation at U.S.S.G. § 6A1.5: “In any case involving the sentencing of a defendant for an offense against a crime victim, the court shall ensure that the crime victim is afforded the rights described in 18 U.S.C. § 3771.”

For a defendant. Listen. Do not react, do not shake your head, do not confer with counsel while a victim is speaking. The bench is watching.

The court’s obligation to explain

This is the requirement that makes appellate review possible, and it is worth knowing because it is the moment the sentence becomes reviewable.

18 U.S.C. § 3553(c):

“The court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence, and, if the sentence— (1) is of the kind, and within the range, described in subsection (a)(4), and that range exceeds 24 months, the reason for imposing a sentence at a particular point within the range; or (2) is not of the kind, or is outside the range, described in subsection (a)(4), the specific reason for the imposition of a sentence different from that described, which reasons must also be stated with specificity in a statement of reasons form issued under section 994(w)(1)(B) of title 28 …”

Three consequences.

A within-range sentence in a range wider than 24 months requires a reason for the particular point chosen.

A sentence outside the range requires a specific reason, stated twice — orally, and in the written statement of reasons.

The standard of explanation is functional. Rita v. United States, 551 U.S. 338 (2007): “The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.”

A failure to explain adequately is procedural error — Gall v. United States, 552 U.S. 38 (2007), lists “failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range” among the significant procedural errors an appellate court must check for. Preserving that objection means saying so at the hearing. See preserving error for appeal and standards of review.

One thing the judge may not say. Nelson v. United States, 555 U.S. 350 (2009) (per curiam): “The Guidelines are not only not mandatory on sentencing courts; they are also not to be presumed reasonable.” A statement from the bench that a within-range sentence is presumptively appropriate is legal error.

After the sentence is announced

Supervised release and conditions. Imposed as part of the sentence. The conditions are worth listening to closely — they govern years of life after custody, and objections to a condition are preserved by making them then.

Restitution, fines, forfeiture and the special assessment. Imposed and stated.

Judicial recommendations. A sentencing court may recommend a facility and a program. Recommendations are not binding on the Bureau of Prisons, which makes designation decisions, but they are recorded on the judgment and they are read. The two most commonly requested are placement at a specific institution — usually to allow family visiting — and participation in the Residential Drug Abuse Program. Both should be asked for on the record, supported by the documentation already in the file. See RDAP and preparing for prison.

Advice of appeal rights. Under Fed. R. Crim. P. 32(j) the court must advise the defendant of the right to appeal and, where applicable, of the right to appeal in forma pauperis, and must inform the defendant that if requested the clerk will immediately prepare and file a notice of appeal on the defendant’s behalf.

And then the two clocks start.

Clock	Length	Runs from
Rule 35(a) correction of clear error	14 days	The oral announcement of the sentence (Rule 35(c))
Notice of appeal	14 days	Entry of the judgment (Fed. R. App. P. 4(b)(1)(A))

Because the written judgment is entered after the hearing, the Rule 35(a) window usually closes first. Write down the date of the hearing.

The record the hearing creates

A sentencing hearing produces three documents, and each of them does work long afterwards.

The transcript. The authoritative record of what the judge said — including the exact terms imposed, whether counts run concurrently or consecutively, the conditions of supervised release as pronounced, and any judicial recommendation. Where the written judgment and the oral pronouncement differ in substance, the oral pronouncement generally controls, which is why the transcript matters. Order it. If cost is an issue, a defendant proceeding in forma pauperis on appeal is entitled to a transcript at government expense.

The judgment. Entered after the hearing, sometimes days later. It is the document the Bureau of Prisons acts on. Compare it line by line against the transcript or against contemporaneous notes: term on each count, concurrent or consecutive, supervised release term and conditions, restitution, fines, the special assessment, credit for time served, and any recommendation. A discrepancy is either a Rule 35(a) issue on a fourteen-day clock or a Fed. R. Crim. P. 36 clerical-correction issue with no deadline.

The statement of reasons. A separate form, required by 18 U.S.C. § 3553(c)(2) where the sentence is outside the range and by 28 U.S.C. § 994(w)(1)(B) generally. It records the guideline findings and the court’s reasons, it is transmitted to the Sentencing Commission, and it travels with the judgment. It is also the document a court will consult years later in deciding a § 3582(c)(2) motion — because the question there is what role the guideline range played in the sentence actually imposed.

The practical instruction is unglamorous and it is the one families most often skip: get all three documents, read them against each other, and keep a copy outside the case file. Two years later, when a retroactive amendment or a compassionate release question arises, they are what the analysis is built from.

Remand or self-surrender

For a defendant who has been on release, this is the question the whole day has been about, and it is decided at the end.

18 U.S.C. § 3143(a)(1) sets a presumption of detention:

“Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and who is awaiting imposition or execution of sentence, other than a person for whom the applicable guideline promulgated pursuant to 28 U.S.C. 994 does not recommend a term of imprisonment, be detained, unless the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c). If the judicial officer makes such a finding, such judicial officer shall order the release of the person in accordance with section 3142(b) or (c).”

For certain categories of offense the standard is higher still. § 3143(a)(2) requires detention of a person found guilty of an offense described in § 3142(f)(1)(A), (B) or (C) unless the court finds “a substantial likelihood that a motion for acquittal or new trial will be granted” or “an attorney for the Government has recommended that no sentence of imprisonment be imposed,” and finds by clear and convincing evidence no risk of flight or danger.

In practice. A defendant who has complied with conditions of release throughout the case, and whose offense is not in the § 3143(a)(2) categories, is frequently permitted to self-surrender to a designated institution on a date set by the Bureau of Prisons — typically several weeks later. A defendant in one of those categories, or with a history of violations, should expect to be taken into custody in the courtroom.

Ask before the hearing, not during it. Whether self-surrender will be sought, whether the government opposes it, and what the judge’s usual practice is are all knowable in advance. So is what to do with a phone, a wallet, and car keys if the answer turns out to be remand.

Release pending appeal is a separate question under § 3143(b) with a different standard; see our page on appeal bond and release pending appeal.

For the family: what the day is actually like

This section is for the people who will be sitting in the gallery. Almost nothing written about federal sentencing addresses them.

Arrive early and expect security. Federal courthouses screen everyone. Phones are frequently prohibited entirely or must be surrendered; in some districts they may not be brought into the building at all. Check the district court’s website the week before.

Dress as you would for a funeral or a job interview. No slogans, no hats.

Expect to wait. Sentencings are often scheduled in blocks. A hearing set for 10:00 may start at 11:15.

It will be shorter than you expect. An uncontested sentencing frequently takes twenty to forty minutes. A contested one with witnesses can take half a day.

You will not be able to speak unless you are a victim under 18 U.S.C. § 3771 or have been called as a witness. Your contribution was the letter you wrote and the records you helped gather. Both were read.

Where to sit. Behind defense counsel, on the side of the courtroom nearest the defendant. Judges notice who came.

What not to do. No audible reactions. No gestures to the defendant. No approaching counsel table. If a victim speaks, listen in silence.

Bring someone with you. People do not remember these hearings clearly afterwards, and two sets of notes are better than none.

Have a plan for both outcomes. If self-surrender is granted, there will be a date and paperwork. If there is a remand, the defendant will be taken through a side door and you will not be able to speak to them that day. Know in advance who is driving home, who has the car keys, and who will handle the phone calls.

Afterwards, write down the date. Not the date on any document — the date the judge said the sentence out loud. It is the date two legal clocks run from, and families are routinely the only people who record it accurately.

Applied Insight — Christopher Zoukis, JD, MBA, Managing Director: The most useful thing a family can do in the two weeks after sentencing has nothing to do with the courtroom. Designation happens next, and it happens on paper. Getting the judicial recommendation, the judgment, and the supporting medical or programming documentation to the right people early is what makes a difference to where a person is placed and what they can enroll in. Families frequently spend those weeks waiting for news; the people who spend them assembling records get better outcomes. See preparing for prison.

Sentencing memoranda and support letters

Two documents do most of the persuasive work, and both are filed before anyone walks into the courtroom.

The sentencing memorandum. Organized around the § 3553(a) factors, not around sympathy. It should concede what is conceded, contest only what is genuinely contestable, attach the evidence for every factual claim, and ask for a specific sentence with a stated reason why that sentence is sufficient. Since November 1, 2025, it should be framed as a variance argument rather than a departure argument — the departure provisions were removed from the Guidelines Manual by Amendment 836.

Support letters. The most common own-goal in federal sentencing is a stack of letters that all say the same thing.

What works: a letter that identifies the writer, states how they know the defendant and for how long, describes specific conduct with dates, acknowledges the seriousness of the offense, and — if the writer is offering something concrete, such as employment or housing — says exactly what.

What does not work: letters that argue the defendant is innocent; letters that criticize the prosecution or the court; letters that describe the offense as a misunderstanding; identical letters; letters from people who plainly do not know what happened; and letters longer than a page.

Volume is not the objective. Six specific letters are worth more than thirty general ones.

Where this leads next on sentencing preparation

• The document that produced the range the court will adopt: presentence report
• How that range was calculated: federal sentencing guidelines
• The argument for a sentence below it: downward departure
• The adjustment most at risk at the podium: acceptance of responsibility 3e1.1
• What a statutory floor does to the whole hearing: mandatory minimum sentence
• The fourteen days that start when the judge stops speaking: rule 35 motion
• What remains available years later: federal sentence reduction
• The full stage map: federal sentence mitigation attorney

Why work with Elizabeth Franklin-Best, P.C.

Elizabeth Franklin-Best, P.C. is a boutique federal criminal defense and appellate firm founded in 2019 and practicing nationwide on an intentionally small caseload. Elizabeth Franklin-Best has more than twenty years of federal and appellate criminal defense experience, has handled more than 330 federal proceedings, over 100 of them appeals, with sixteen published decisions as counsel of record, and is admitted to the U.S. Supreme Court and twelve of the thirteen U.S. Courts of Appeals — every regional circuit (1st–11th) plus the D.C. Circuit. She is recognized by Best Lawyers in America 2026 for Appellate Practice and by Chambers USA 2026 for Litigation: White-Collar Crime & Government Investigations, and was named South Carolina Public Defender of the Year in 2010.

Christopher Zoukis, JD, MBA, the firm’s Managing Director, leads the firm’s federal prison consulting practice — Bureau of Prisons designation, sentence computation, First Step Act time credits, RDAP, and reentry planning — and is the author of the Federal Prison Handbook, Directory of Federal Prisons, Prison Education Guide, and College for Convicts. He earned his J.D. at the University of California, Davis School of Law after serving roughly a decade in the federal Bureau of Prisons, where he became an award-winning incarcerated journalist.

That combination is unusual and it matters on the day of a sentencing hearing, because the questions a family asks afterwards — where will he go, when, what can he sign up for, when can we visit — are questions the firm answers itself rather than referring out.

Talk to a federal sentencing lawyer

If a sentencing date is set, the work that matters is already in progress: the presentence report objections, the memorandum, the exhibits, the letters, and the preparation for allocution.

Schedule a confidential consultation or call (843) 620-1100. Columbia office: 3710 Landmark Dr #113, Columbia, SC 29204; the firm also maintains an office in Mount Pleasant, South Carolina, and represents clients nationwide.

Frequently Asked Questions About the Sentencing Hearing

Reviewed for legal accuracy by Elizabeth Franklin-Best, Esq., Principal Attorney·September 2026