Archive for the ‘Uncategorized’ Category

Sentences Below Career Criminal Category

Wednesday, 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.   

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Posted in Uncategorized | 3 Comments »

Federal Criminal Identity Theft by Illegal Aliens

Tuesday, 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 | 3 Comments »