How Do Judges Figure Out Criminal History and Offense Level?
How does the judge figure out a given convicted defendant’s criminal history and offense level, before using the grid to determine the sentencing range? The answer is: The judge looks at facts. Those facts are presented at a sentencing hearing. Prior to the hearing, the judge reviews a PSR (pre-sentencing report). In the PSR, the prosecution — with help from the probation office — presents evidence. The defense also has the opportunity to counter this evidence if it wishes. However, the defendant may already have conceded some of the facts in his guilty plea. In addition, some of the facts may be impossible to controvert given the jury’s trial verdict. For instance, to give a simple example, in a “felon with a firearm” case, a guilty verdict would preclude the defendant from challenging, at sentencing, whether in fact he had a firearm: The jury already said he did. What kind of other evidence – besides the facts conceded in the plea, or implied by the verdict – might the judge consul
