A Fatico hearing is an evidentiary hearing used to resolve disputed facts relevant to federal sentencing. It is not a second trial on the entire indictment. The dispute might concern the defendant’s role, loss amount, drug quantity, conduct, or another fact affecting the sentencing analysis.
Why a factual dispute matters
The presentence investigation gives the judge information about the offense and the defendant’s background. Federal probation officers investigate and verify information before preparing their report and recommendation. The report can therefore contain facts beyond the narrow wording of a guilty plea. [1]
For example, a defendant may agree to guilt while disputing the amount of loss attributed to the offense. If that disputed figure materially affects sentencing, counsel should identify the disagreement and supporting evidence rather than assume the plea automatically resolves it.
What process is required?
Guideline6A1.3 provides an adequate opportunity to present information when an important sentencing factor is reasonably disputed. It permits relevant information beyond trial evidence rules when the information has sufficient indicia of reliability. The court resolves disputes through the sentencing process under Rule 32. [2]
That does not mean every objection requires live witnesses. The appropriate procedure depends on the dispute, the existing record, and the information needed for reliable findings. Written submissions, testimony, exhibits, and cross-examination can have different roles in different cases.
What evidence should address
- The exact factual assertion being challenged.
- Why the fact affects a guideline or sentencing decision.
- The source and reliability of the government’s information.
- Records or testimony supporting the alternative account.
- Any agreed facts and the remaining contested issue.
Section 3661 broadly permits information about background, character, and conduct for sentencing. That broad permission should not be confused with eliminating reliability requirements or the opportunity to address a material dispute. [3]
What the hearing does not decide automatically
A factual finding can change an advisory guideline calculation without dictating the final sentence. Statutory maximums, minimums, constitutional factfinding requirements, and the court’s overall sentencing duties remain separate legal questions. Current rules concerning particular categories of conduct should be checked rather than inferred from older summaries.
Related articles explain firearm mandatory minimums and mandatory restitution. An offense level, a mandatory minimum, and a restitution amount each require their own legal and factual analysis. Preserve objections clearly so the record shows what was contested and how the court resolved it.
Primary sources
- Presentence Investigations
- Guidelines Manual Chapter 6 – Sentencing Procedures, Plea Agreements, and Crime Victims’ Rights – Section 6A1.3
- 18 USC 3661 – Use of Information for Sentencing
Sources checked: October 31, 2026.