1.Sentencing Framework and Adoption of Guidelines Recommendation

THE COURT: Good morning. We are convened for the imposition of sentence on Dzhokhar Tsarnaev upon his conviction of the crimes alleged in the indictment and upon the jury's sentencing determination. Let me begin by outlining how we will proceed this morning.

The jury's sentencing decision pertains only to the capital counts of conviction; that is, those counts as to which the death penalty is potentially applicable. There are also a number of non-capital counts of conviction. As to those counts, sentence is imposed by the Court in accordance with usual procedures.

The relevant criminal statutes themselves set both upper and lower limits on the range of sentences authorized for particular offenses. In this case, the statutes require that some sentences be imposed consecutively rather than concurrently. In addition, before deciding on an appropriate sentence as to counts where the Court has a range of judgment under statutory provisions, the Court must consult the United States Sentencing Guidelines to determine what recommendation the Guidelines make with respect to sentencing options.

The Guidelines' recommendation is not binding on the Court, but advisory, but the Court must consider it along with other factors that may be pertinent. Accordingly, we'll first determine what the Guidelines recommendation is for the counts at issue.

After that, in accordance with statutory provisions regarding victims' rights, a number of victims of the defendant's crimes will address the Court. Following the victim statements, I will invite the parties to make whatever presentations they intend to make concerning issues related to the sentence. And finally, I will then impose sentence both as to the capital counts as determined by the jury and as to the non-capital counts determined by me on the basis of the requirement and the considerations that I have outlined.

Turning to the question of the Guidelines: Typically in a criminal case our probation office will prepare a presentence report in accordance with the federal rule of criminal procedure 32. As to capital counts, no presentence report is prepared because the sentencing decision is made by the jury. Here, as I have noted, there are also non-capital counts as to which the Court must determine the sentence. I directed the probation office to prepare a limited presentence report for aid in determining the sentence for these counts. The probation office has done that and the parties have received that report. An updated report adding recent information was served on the parties on Monday.

Let me ask, pursuant to Rule 32(i)(1)(A) for the defense to confirm that the defendant and counsel have received and discussed this presentence report.

THE COURT: Thank you.

As I say, the presentence report sets forth a proposed application of the sentencing guidelines. It happens that in this case principally because of statutory prescriptions that the determination of the guideline offense level is rather straightforward. As set forth in the PSR at Paragraphs 18 through 31, the total offense level is 43. There are no criminal history points, but because the crimes involved a federal crime of terrorism, the criminal history category is deemed to be VI pursuant to Guideline Section 3A1.4(b). According to the guideline sentencing table, the recommended range of sentence is a total offense level of 43 and a criminal history category of six. At those levels the recommended range of sentence is a life sentence.

Neither party has formally objected to the proposed calculation or the determination of the life sentence recommendation for the controlling non-capital counts. I've reviewed the PSR's determination of the Guidelines recommendation and concur with it, and I therefore adopt it as set forth in the PSR.

Let me just add a couple of comments. First, the PSR notes the applicability of some enhancements to the offense level. I agree that the proposed enhancements are applicable, but as the PSR recognizes, they have no effect on the total offense level because at level 43, it is as high as it can get without -- whether with or without any enhancements. It is also the case that the guideline recommendation at Offense Level 43, which life imprisonment, is the same whether the criminal history category is I, based on actual criminal history points, or VI, based on the terrorism enhancement.

Second, the terrorism-related enhancement is one the strict application of which I have previously criticized in another case. Every case is different and a much stronger argument can be made in this case than in the prior one for the strict application of the terrorism enhancement. Nonetheless, as I have noted, the guideline sentencing recommendation of life imprisonment would result even if the terrorism enhancement were to be ignored.

Any victim of the defendant's crimes has the right to present a statement before sentence is imposed. Some victims have submitted written statements, copies of which have been provided to the parties. I have read those victim statements and they will be filed in the docket of the case.

A number of victims have chosen to make oral statements at this hearing. The government has organized their presentations, and I invite the government now to ask the presenters to come forward one by one, or in small groups, and to make their statements. The speakers will address the Court from the podium located near the government counsel table.

Ms. Pellegrini?