S:\Cleland\LISA\Criminal\Sentencing Forms\sentprocedures.10.wpd

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v. Case No. 09-20001

MATTHEW MERCER-KINSER,

Defendant.

___________________________________/

 ORDER SETTING SENTENCING AND DEADLINE DATES 

AND IMPOSING OTHER RESPONSIBILITIES

The Defendant having been convicted and referred to the Probation Department for

the preparation of a Presentence Report (PSR), IT IS ORDERED as follows:

1) Sentence will be imposed on June 16, 2009 at 2:00 pm.

2) On or before April 28, 2009 the PSR must be submitted to counsel by the Probation

Officer for review and possible objections.

3) On or before May 12, 2009, any PSR objection must be stated to the Probation

Officer (but cannot be filed on the docket). In stating an objection, counsel must use

a format substantially similar to the attached Addendum. A purported PSR objection

originating in a letter, an e-mail, a “sentencing memorandum,” etc., will be rejected

by the Probation Officer and returned to the party who provided it.

4) On or before May 26, 2009, the proposed final form of the PSR must be delivered to

the court by the Probation Department.

5) Not later than June 2, 2009, any request by either party for a departure or variance

from the Guidelines range must be presented in the form of a motion with a

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1 The court is obligated at sentencing to state reasons setting forth “enough to

satisfy the appellate court that [it] has considered the parties' arguments and has a

reasoned basis for exercising [its] own legal decision making authority. Rita v. U.S. 127

S.Ct. 2456, 2468 (2007). Therefore, if either party in this case intends to “present[ ]

nonfrivolous reasons for imposing a different sentence” from that predicted by the

correctly-calculated Guideline range, the court intends to “explain why [it] has rejected

those arguments,” Id., if it does, indeed, reject them. In order to permit such

consideration and explanation, the presentation of reasons must be done in advance.

2 A sentencing memorandum is often superfluous in light of a motion for variance,

and more important in the absence of such a motion. Memoranda are ordinarily

reviewed by the court in the few days leading to sentencing. Do not use a sentencing

memorandum as a substitute for a motion for a USSG departure or 18 USC

§3553(a)(2) variance in sentence.

S:\Cleland\LISA\Criminal\Sentencing Forms\sentprocedures.10.wpd

supporting brief.1

6) Not later than SEVEN DAYS before sentencing, any opposition to the other party’s

motion for departure or variance motion must be filed.

7) A Sentencing Memorandum is optional,2 but due SEVEN DAYS before

sentencing.

8) Counsel must provide a copy of any motion, opposition or memorandum to

the Probation Officer. 

9) Allocution at sentencing will ordinarily not exceed five minutes for Defendant’s

counsel, five minutes for Defendant and five minutes for government counsel.

Date: February 18, 2009

s/Robert H. Cleland

ROBERT H. CLELAND

United States District Judge

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S:\Cleland\LISA\Criminal\Sentencing Forms\sentprocedures.10.wpd

SAMPLE

PRESENTENCE REPORT ADDENDUM

Defendant’s name:

Docket #:

Date:

Objection #:

Page #:

Paragraph #:

Line(s) #:

Section I: Defendant’s/Government’s objection:

_____________________________

Attorney’s signature (or)

_____________________________

Defendant’s signature (or both)

Section II: Probation officer’s comments:

Instructions for counsel

(not to be replicated on the Addendum to be submitted)

1) Provide objections directly to the Probation Officer. Do not file them with the Clerk.

2) Any objection and any claim that a guideline or application note has been incorrectly

applied or omitted must be accompanied by a clear explanation. Saying that “the defendant

disputes” a fact, without providing an alternate explanation or reference to specific evidence

in the record or discovery, is generally unavailing. Saying that “the defendant states”

something without pointing to evidence in the record is a similar gesture.

3) Do not use the Addendum format or the formal “objection” process merely to claim a minor

factual error, i.e., one that has no effect on guideline calculations nor forms the basis for a

departure (such factual claims may be presented to the Probation Officer by letter or

memorandum), to point out a mechanical result or an alternate guideline calculation that

depends on the resolution of a challenged factual item, or to“object” to required PSR

comments such as factors for possible departure. Such matters may be presented to the

court in the form of a sentencing memorandum. Always provide a copy to the Probation

Officer. 

3) When a party has presented a material objection that has not been accepted by the

Probation Officer and remains for resolution by the court, any opposition must expressed in

writing whether or not the court specifically orders a response. Always provide a copy to the

Probation Officer. Responses should correspond to the numbering of the objection(s) and

clearly explain the party’s position on the facts and the law.

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