If you have a pea agreement it should list an amount of drugs for which your attorney and the AUSA agree you are responsible for (or pleading to). I don't know why you would plead without a plea agreement. If there is a disputed fact in the PSI report, your attorney will file an objection and argue at sentencing that the amount is incorrect. The government will have the burden to prove the weight.
Claiborne H. Ferguson, Esq. is * Certified as a Specialist in Criminal Trial Advocacy by the National Board of Trial Advocacy. * Certified as a Specialist in Criminal Trial Advocacy by the Tennessee Commission on Continuing Legal Education and Specialization.
The drug quantification in your PSR (USSG Section 2D1.1), your acceptance of responsibility (USSG Section 3E1.1) and your substantial cooperation in the investigation and prosecution of another individual (USSG Section 5K1.1/18 USC Section 3553(e)) obviously are all relevant to the ultimate determination of your advisory Guidelines range and sentence, but each are separate matters that must be addressed and determined individually. It seems that you disagree with the probation officer and the Government's drug quantification in your Presentence Investigation Report, but rather than objecting to that quantification, you are depending on the Government to help you overcome the erroneously inflated total offense level by recommending an exceptional downward departure or variance from the advisory Guidelines range based on your acceptance of responsibility and cooperation. That approach is often disappointing ultimately, because the Government's evaluation of your efforts are often less enthusiastic than your own. Furthermore, federal law requires the District Court to give your advisory Guidelines range real and serious consideration even though it is advisory (the lower your advisory Guidelines range is, the more "reasonable" - a legal term in this context - a lower non-Guidelines sentence will be). Nonetheless, if you make a frivolous objection to drug quantity, you risk losing the adjustment for acceptance of responsibility. These are issues that normally are discussed and tentatively resolved prior to your entering a plea; however, that is not to suggest that the plea was not in your best interest if the discussion was not had. You should discuss these issues with your attorney, and you and he or she should decide the most effective strategy to achieve the lowest sentence without jeopardizing any of the consideration for accepting responsibility and cooperation.
Joshua Sabert Lowther, Esq.
NATIONAL FEDERAL DEFENSE GROUP
You are in a precarious position because you have pleaded guilty and hope to receive a 5K1.1 motion by the government for a sentence reduction. Presumably, you have made a clean breast of your criminal conduct and the government ultimately believes you have been both truthful and helpful. You need to discuss possible objections to the PSR with your counsel and to review the risks and benefits of challenging the PSR calculations. Often, your lawyer can feel out the prosecutor to see if agreement can be reached.
Hard to tell what the PSI will recommend. Have you lawyer review it and he can object to preserve you rights. if you would like to talk with a lawyer about the problem. Give us a call at 402-455-1711 to set up a time to talk. We have been in business for almost 25 years and are happy to fight for you.