July 22nd, 2009
Often times it is not until I am in the midst of writing the mitigation on a criminal matter that I find the most creative and sound legal arguments on particular issues, as was the case recently. Although in 2003, Congress mandated a limited one level downward departure [Title 28 Section 994 (h)] for those designated ‘career criminals’, the Supreme Court’s decision in U.S. v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), AS WEll AS in Gall v. U.S., 128 U.S. 220 (2005), made this a limitation only under the advisory guidelines. There is no statutory provision instructing the court to sentence a career offender at or near the statutory maximum.
So if you have a criminal defendant who has two drug priors or one violent (even domestic violence) and one drug prior, he does not have to be stuck where the probation officer puts him – in the career offender category. Thanks to the articulate and excellent legal argument in U.S. v. Sanchez, 517 F.3d 651 (2d Cir. 2008), the district court can disregard the limitation of a one level downward departure and the defense can make a supportive legal argument for more. Sanchez states: ” In sum, in light of the facts (1) that Section 994(h)’s instruction with reference to sentences at or near the statutory maximum is directed to the Sentencing Commission, (2) that there is no statutory provision instructing the courts to sentence a career offender at or near the maximum, and (3) that Congress consciously rejected a proposal “that would have mandated a sentencing judge” to impose such a sentence, Senate Report at 175, reprinted in 1984 USCCAN at 3358, and instead instructed the Commission to promulgate guidelines to “recommend” high sentences for career offenders, id. at 114, reprinted in 1984 USCCAN at 3297, we conclude that Congress did not intend Section 994(h) to deprive the courts of authority to impose on a career offender a prison term that is not near the statutory maximum.”
I will post all my future successes in mitigating this factor. If you have any yourselves, please share them with me on e-mail.
Tags: Career Criminal, Career criminal category, maximum sentence, two drug priors
Posted in Uncategorized | 343 Comments »
October 21st, 2008
The Supreme Court has agreed to define what proof the federal prosecutors must provide in order to obtain an aggravated sentence for criminal identity theft under a 2004 federal statute. The granted eighth circuit case, Flores-Figueroa v. U.S. (08-108) is one whose facts have split the lower district courts on the issue of whether there must be proof that illegal aliens ‘knowingly’ use phony Social Security cards and phoney alien registration cards whose numbers belong to actual individuals.
Flores pled guilty to two counts of misuse of immigration documents in violation of 18 U.S.C. § 1546(a), and one count of entry without inspection under 8 U.S.C. § 1325(a). He pled not guilty to two counts of aggravated identity theft. At his bench trial, Flores argued that he could not be convicted because the Government did not prove that he knew that the identification he possessed belonged to other people, which he claims is required to convict him under 18 U.S.C. § 1028A(a)(1). After rejecting this argument and finding him guilty of two counts of aggravated identity theft, the district court sentenced Flores to 51 months’ imprisonment for the misuse of immigration documents and entry without inspection offenses and a consecutive 24 months’ imprisonment for the aggravated identity theft offenses, resulting in a total sentence of 75 months’ imprisonment.
The 9th , 1st and D.C. circuits have supported the defendant’s belief that the sentences should not be enhanced 24 months if the defendants did not know the numbers on those phony cards had been assigned to someone else. The eighth circuit has joined with the 4th and 11th circuits in agreeing that these convictions are justified because it makes no difference to the victims whether the defendants knew the identity cards belonged to someone else and because it may be ‘impossible’ for the government to assume the burden of proof.
Once again the government’s argument is related more to being lazy and not conducting a due diligence to sustain their burden of proof. Just as plea agreements have preempted the need for prosecutors to diligently determine loss and resitution amounts in fraud cases, so is their willingness to ignore specifics and refuse to consider individual facts that would support such an aggravation as this.
http://www.scotusblog.com/wp/?s=Flores-Figueroa
Posted in Aggravated Sentence, Burden of Proof, Criminal Identity Theft, Federal Crime, Federal Prosecutors, Imprisonment, Misuse of Immigration Docs, Plea Agreements, Uncategorized | 185 Comments »
December 30th, 2007
The U.S. Sentencing Commission modifies a 2006 guideline, U.S.S.G. Section 1B1.13, Reduction in Term of Imprisonment as a Result of Motion by Director of Buereau of Prisons (Policy Statement) by providing examples of extraordinary and compelling reasons. http://www.ussc.gov/2007guid/may2007rf.pdf
The guideline implements Title 28 U.S.C. Section 994(t), a section of the law that allows the Sentencing Commission, under general policy, to provide a means to reduce a sentence of an inmate, upon motion of the Director of the Bureau of Prisons under Title 18 U.S.C. Section 3582(c)(1)(A). The court may reduce a term of imprionsment, if after considering the factors set forth in 18 U.S.C. Section 3553(a) the court determines that either 1) extraordinary and compelling reasons warrant the reduction, or 2) the inmate is at least 70 years old and has served at least 30 years in prison; AND the inmate is not a danger to the safety of any other person or the community and the reduction is consistent with the policy statement.
Keep posted for more particulars on what is compelling and extraordinary!
Tags: crack guideline, crack sentence
Posted in BOP, sentence reduction | 112 Comments »
December 29th, 2007
The U. S. Sentencing Commission reduced the crack cocaine guideline by two levels and ruled it retroactive. Now 5 grams of cocaine base are assigned a base offense level of 24 (51-63 months at Criminal History Category I – which takes into account the 5 yr. MM statutory sentence.) A U.S.S.G. base offense level score of 30 is assigned to an offense with 50 grams of cocaine base. The Sentencing Commission’s prison impact model predicts that this change in the advisory guideline will affect 69.7% of the crack cocaine offenses sentenced under Section 2D1.1 and will result in an average decrease of 15months. All those sentenced under the minimum mandatory statue will not be affected by this change. The best way to determine this on an individual basis is to go back and read the Judgement and Commitment Order. http://www.ussc.gov/PRESS/rel121107.htm
Tags: crack cocaine sentence, crack guideline
Posted in crack cocaine sentence, crack guideline | 256 Comments »
December 16th, 2007
Strength training really does work! Federal criminal defense practitioners who have been bold enough to demand Booker (U.S. v. Booker, 543 U.S. 220 (2005)) sentencing recommendations under advisory guidelines for the past 2+ years, are getting some new enhanced muscle power at sentencing with the Supreme Court’s Gall v. U.S. opinion. Under Gall, and within the context of 18 U.S.C. 3553 ( a), the district courts should witness a substantial growth of mitigation strategies brought forth by the criminal defense practitioners on behalf of criminal defendants. United States District Court Judges no longer have to be concerned with their decisions being overturned for “substantive reasonableness”. The standard for review of sentences under the highly deferential standard adopted by the Court in Gall will result in more constitutional sentences.
Nothing has changed for those tireless criminal defense professionals, like me, who have creatively worked with and around the U.S. Sentencing Guidelines since their birth 20 years ago. Perhaps now however, more criminal defense attorneys will utilize the services of federal sentencing and mitigation experts who can prepare well written, case referenced briefs that offer district courts more sentencing options. Sentencing briefs are the only way district courts can consider all the factors in mitigation prior to sentencing. Along with the Kimbrough opinion, almost every defendant will now benefit from a defense filed mitigation brief.
In addition, Gall makes it possible to bring back ‘bargaining’ in the plea process. Imagine if the defense bar was wholly prepared and briefed regarding all the mitigation present in the defendant’s case PRIOR TO PLEA NEGOTION! In many cases it would mean more informed and better bargaining power for the defense. There is more to sentencing strategy than cooperation. Advising attorneys on circuit approved departures and downward adjustments is both valuable and necessary in obtaining the best plea for criminal defendants.
Here is a pdf of the ruling. Gall v U.S. Opinion.
Tags: defense mitigation, sentencing guidelines, supreme court
Posted in Criminal Defense Practitioners, sentencing guidelines, supreme court | 183 Comments »