Judge Nancy Gertner : ORDER entered. AMD PROCEDURAL ORDER re sentencing hearing(us v booker) as to Rob Mailloux Sentencing set for 10/25/2005 03:00 PM in Courtroom 2 before Nancy Gertner. (Molloy, Maryellen)
Page 1 Case 1:05-cr-10080-NG
Document
Filed 07/27/
Page 1 of
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA,
v.
ROB MAILLOUX
Defendant(s).
)
)
)
)
)
)
CRIMINAL NO. 05-10080-NG
AMENDED PROCEDURAL ORDER
RE: SENTENCING HEARING (In the light of U.S. v.Booker.)
GERTNER, D.J.
A plea of guilty or nolo contendere, or a verdict of guilty, having been entered on
JULY 27, 2005 under the Sentencing Reform Act of 1984, it is hereby ORDERED:
Pre-sentence Investigation
1.
a)
The United States Probation Office shall commence immediately the presentence investigation unless as provided in Fed. R. Crim. Pro. Rule 32(c), the
court finds under Rule 32(b)(1)(A) and (B) that the information in the record
enables it to exercise its sentencing authority meaningfully under 18 U.S.C. §
3553 and the court explains this finding on the record.
b)
The Probation Office shall prepare pre-sentence investigation reports in
the order in which the requests from the court are received.
Statement of Relevant Facts
2.
Not later than seven days after the plea or verdict [or on August 17, 2005] the
attorney for the government shall provide to the United States Probation Office a
statement of relevant facts and any other documents pertinent under Federal
Rules of Criminal Procedure 32(b) (4) and shall simultaneously serve on counsel
for the defendant a copy of everything provided to the Probation Office.
Interview of Defendant
3.
The Probation Office shall provide a reasonable opportunity for defense counsel
to attend any interview of the defendant conducted by a probation officer during
the pre-sentence investigation.Page 2 Case 1:05-cr-10080-NG
Document
Filed 07/27/
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a)
If the case is resolved by a plea, and the Probation Office has timely
notification of the plea, it shall hold an interview with the defendant on the day
of the plea. If an interview cannot be held on the day of the plea, the Probation
Office shall schedule an interview to be held within seven days after the plea or
within such additional time as the court may order.
b)
If the case is resolved by a verdict, the Probation Office shall schedule an
interview with the defendant to be held within seven days after the verdict or
within such additional period of time as the court may order.
c)
If the defendant is in custody, the United States Marshal shall, at the
request of the Probation Office, bring the defendant to the courthouse for an
interview at the earliest feasible time.
Pretrial Services Responsibility
4.
Pretrial Services shall provide to the Probation Office all documents in the
possession of Pretrial Services that may be relevant to the pre-sentence
investigation, including a copy of the Pretrial Report, the defendant’s state, local,
and national criminal record, police reports, copies of convictions, drug test
results, reports of incidents, and other reports and supporting documents.
Date of Sentencing
5.
The sentencing hearing (and sentencing) is scheduled to occur at 3:00 pm on
10/25/05 in courtroom #2, 3RD floor. This date is to be not sooner than ten weeks
after the date of the plea/verdict, in order to permit the following:
a)
Probation Office shall have five weeks after the date of plea/verdict for
the preparation and disclosure of the initial report.
b)
Probation Office shall disclose the initial report to defense counsel and
government counsel no less than five weeks before the sentencing hearing,
unless the defendant expressly waives the minimum five week pre-sentencing
notification period.
c)
The date when disclosure has been effected to each attorney is the date of
the mailing of a copy to that attorney. An attorney may, in lieu of receiving
disclosure by mail, make arrangements with the Probation Office to pick up the
report no later than 3:00 p.m. on the date disclosure is due. It is the responsibility
-2-Page 3 Case 1:05-cr-10080-NG
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Filed 07/27/
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of the defense counsel to disclose the pre-sentence report to the defendant and to
discuss it with and explain it to the defendant.
Objections Procedure
6.
Within fourteen days after disclosure of the report, attorneys for the
government and the defendant shall advise the probation officer and each other
in writing, of any objections they may have as to any material information,
sentencing classifications, sentencing guideline ranges, or policy statements
contained in or omitted from the report.
7.
The probation officer shall conduct any further investigation and make any
revisions to the pre-sentence report that may be necessary. The probation officer
may require counsel for both parties to confer with the probation officer to
identify and attempt to resolve any factual or legal disputes which may require
hearing by the court.
Final Pre-sentence Report
8.
Not later than October 19, 2005 (which is a date not less than seven days before
the sentencing hearing), the probation officer shall submit to the court and
disclose to the attorneys the final pre-sentence report, including any addendum,
setting forth the unresolved objections, the grounds for these objections and the
probation officer’s comments on the objections. The probation officer shall
certify that the contents of the report, including any revisions, and the addendum
have been disclosed to the defendant and to counsel for the defendant and the
government, and that the addendum fairly states any remaining unresolved
objections. Except with regard to any unresolved objections, the report of the
pre-sentence investigation may be accepted by the court as accurate. The court,
however, for good cause shown, may allow a new objection to the pre-sentence
report to be raised at any time before the imposition of sentence.
Hearing and Counsel’s obligations
9.
The Court is to hold a sentencing hearing to resolve any disputed issues.
a)
Obligations of Counsel:
Not less than five days before the sentencing
hearing [or such other time as set by the court]
(1)
Notice:
Counsel are to advise the Court:
-3-Page 4 Case 1:05-cr-10080-NG
Document
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Page 4 of
(a)
Whether there are legal issues under United States v. Booker
or under the Sentencing Guidelines which need to be
resolved at sentencing, or
(b)
Whether there are factual issues which the party contend
require an evidentiary hearing.
(2)
Memorandum:
Counsel submit a memorandum outlining the
legal and factual issues implicated in (1) above. Counsel are also
urged to draft memoranda in the form of proposed findings of fact
and conclusions of law relevant to the issues described above.
(3)
A copy of the memorandum and any
Service on Probation:
submissions addressing sentencing issues submitted by counsel
must also be provided to the probation officer five days in advance
of the sentencing hearing.
10.
The schedule set forth in this Order may be modified by the Court for good cause
shown.
11.
Disclosure of the pre-sentence report is made under the provisions of Rule 32,
Fed. R. Criminal Procedures, except that the Probation Office shall not disclose
any recommendation it made to the court as to sentence. Any such
recommendation made to the court by the Probation Office must not contain
factual information not already disclosed to both counsel and to the defendant.
July 27, DATE
cc:
Counsel
Probation Office
Pretrial Services
\s\ Nancy Gertner , U.S.D.J.
N:\MyFiles\FORMS\PROC ORDER SENT AMD MAILLOUX 7-05.wpd
-4-
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Case 1:05-cr-10080-NG
Document 15
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA,
v.
ROB MAILLOUX
Defendant(s).
)
)
)
)
)
)
CRIMINAL NO. 05-10080-NG
AMENDED PROCEDURAL ORDER
RE: SENTENCING HEARING (In the light of U.S. v.Booker.)
GERTNER, D.J.
A plea of guilty or nolo contendere, or a verdict of guilty, having been entered on
JULY 27, 2005 under the Sentencing Reform Act of 1984, it is hereby ORDERED:
Pre-sentence Investigation
1.
a)
The United States Probation Office shall commence immediately the presentence investigation unless as provided in Fed. R. Crim. Pro. Rule 32(c), the
court finds under Rule 32(b)(1)(A) and (B) that the information in the record
enables it to exercise its sentencing authority meaningfully under 18 U.S.C. §
3553 and the court explains this finding on the record.
b)
The Probation Office shall prepare pre-sentence investigation reports in
the order in which the requests from the court are received.
Statement of Relevant Facts
2.
Not later than seven days after the plea or verdict [or on August 17, 2005] the
attorney for the government shall provide to the United States Probation Office a
statement of relevant facts and any other documents pertinent under Federal
Rules of Criminal Procedure 32(b) (4) and shall simultaneously serve on counsel
for the defendant a copy of everything provided to the Probation Office.
Interview of Defendant
3.
The Probation Office shall provide a reasonable opportunity for defense counsel
to attend any interview of the defendant conducted by a probation officer during
the pre-sentence investigation.
PDF Page 3
Case 1:05-cr-10080-NG
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Filed 07/27/2005
Page 2 of 4
a)
If the case is resolved by a plea, and the Probation Office has timely
notification of the plea, it shall hold an interview with the defendant on the day
of the plea. If an interview cannot be held on the day of the plea, the Probation
Office shall schedule an interview to be held within seven days after the plea or
within such additional time as the court may order.
b)
If the case is resolved by a verdict, the Probation Office shall schedule an
interview with the defendant to be held within seven days after the verdict or
within such additional period of time as the court may order.
c)
If the defendant is in custody, the United States Marshal shall, at the
request of the Probation Office, bring the defendant to the courthouse for an
interview at the earliest feasible time.
Pretrial Services Responsibility
4.
Pretrial Services shall provide to the Probation Office all documents in the
possession of Pretrial Services that may be relevant to the pre-sentence
investigation, including a copy of the Pretrial Report, the defendant’s state, local,
and national criminal record, police reports, copies of convictions, drug test
results, reports of incidents, and other reports and supporting documents.
Date of Sentencing
5.
The sentencing hearing (and sentencing) is scheduled to occur at 3:00 pm on
10/25/05 in courtroom #2, 3RD floor. This date is to be not sooner than ten weeks
after the date of the plea/verdict, in order to permit the following:
a)
Probation Office shall have five weeks after the date of plea/verdict for
the preparation and disclosure of the initial report.
b)
Probation Office shall disclose the initial report to defense counsel and
government counsel no less than five weeks before the sentencing hearing,
unless the defendant expressly waives the minimum five week pre-sentencing
notification period.
c)
The date when disclosure has been effected to each attorney is the date of
the mailing of a copy to that attorney. An attorney may, in lieu of receiving
disclosure by mail, make arrangements with the Probation Office to pick up the
report no later than 3:00 p.m. on the date disclosure is due. It is the responsibility
-2-
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of the defense counsel to disclose the pre-sentence report to the defendant and to
discuss it with and explain it to the defendant.
Objections Procedure
6.
Within fourteen days after disclosure of the report, attorneys for the
government and the defendant shall advise the probation officer and each other
in writing, of any objections they may have as to any material information,
sentencing classifications, sentencing guideline ranges, or policy statements
contained in or omitted from the report.
7.
The probation officer shall conduct any further investigation and make any
revisions to the pre-sentence report that may be necessary. The probation officer
may require counsel for both parties to confer with the probation officer to
identify and attempt to resolve any factual or legal disputes which may require
hearing by the court.
Final Pre-sentence Report
8.
Not later than October 19, 2005 (which is a date not less than seven days before
the sentencing hearing), the probation officer shall submit to the court and
disclose to the attorneys the final pre-sentence report, including any addendum,
setting forth the unresolved objections, the grounds for these objections and the
probation officer’s comments on the objections. The probation officer shall
certify that the contents of the report, including any revisions, and the addendum
have been disclosed to the defendant and to counsel for the defendant and the
government, and that the addendum fairly states any remaining unresolved
objections. Except with regard to any unresolved objections, the report of the
pre-sentence investigation may be accepted by the court as accurate. The court,
however, for good cause shown, may allow a new objection to the pre-sentence
report to be raised at any time before the imposition of sentence.
Hearing and Counsel’s obligations
9.
The Court is to hold a sentencing hearing to resolve any disputed issues.
a)
Obligations of Counsel:
Not less than five days before the sentencing
hearing [or such other time as set by the court]
(1)
Notice:
Counsel are to advise the Court:
-3-
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Filed 07/27/2005
Page 4 of 4
(a)
Whether there are legal issues under United States v. Booker
or under the Sentencing Guidelines which need to be
resolved at sentencing, or
(b)
Whether there are factual issues which the party contend
require an evidentiary hearing.
(2)
Memorandum:
Counsel submit a memorandum outlining the
legal and factual issues implicated in (1) above. Counsel are also
urged to draft memoranda in the form of proposed findings of fact
and conclusions of law relevant to the issues described above.
(3)
A copy of the memorandum and any
Service on Probation:
submissions addressing sentencing issues submitted by counsel
must also be provided to the probation officer five days in advance
of the sentencing hearing.
10.
The schedule set forth in this Order may be modified by the Court for good cause
shown.
11.
Disclosure of the pre-sentence report is made under the provisions of Rule 32,
Fed. R. Criminal Procedures, except that the Probation Office shall not disclose
any recommendation it made to the court as to sentence. Any such
recommendation made to the court by the Probation Office must not contain
factual information not already disclosed to both counsel and to the defendant.
July 27, 2005
DATE
cc:
Counsel
Probation Office
Pretrial Services
\s\ Nancy Gertner , U.S.D.J.
N:\MyFiles\FORMS\PROC ORDER SENT AMD MAILLOUX 7-05.wpd
-4-