CRIMINAL JURISDICTION

Supreme Court: Federal Judges Have Discretion at Sentencing

By Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

Under the Sentencing Reform Act of 1984, a federal district court judge must consider each of the factors prescribed in 18 U.S.C. § 3553(a) when imposing an appropriate criminal sentence. The § 3553 factors are:

• “Nature and circumstances of the offense” and defendant’s “history and characteristics.” Id., at (a)(1). Under U.S. Supreme Court jurisprudence the sentencing judge is limited to those facts (1) “reflected in the jury verdict,” (2) admitted by the defendant, (3) contained in defendant’s guilty plea, or (4) reflect prior convictions. See: Blakely v. Washington, 542 U.S. 296, 303 (2004) [facts affecting sentence must be found by a jury].
• The general purpose of the Sentencing Reform Act. Id., at (a)(2). The purposes of this Act are to have a sentence “(A) reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (d) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner …”
• The types of sentences available. Id., at (a)(3).
• The policy statements of the U.S. Sentencing Commission. Id., at (a)(5).
• The need to avoid sentencing disparities between defendants convicted of similar conduct. Id., at (a)(6).
• The need to provide restitution to victims. Id., at (a)(7).
• The applicable sentence range recommended by the U.S. Sentencing Guidelines. Id., at (a)(4).

Three years ago the United States Supreme Court held that the Guidelines are advisory and federal district courts were not required to impose the precise sentence recommended by the Guidelines. See: United States v. Booker, 549 U.S. 220, 245-46 (2005). Two years later the Supreme Court overruled the longstanding legal premise that district courts had to apply a provision of the Guidelines that made one gram of crack cocaine the equivalent of 100 grams of powder cocaine for sentencing purposes. See: Kimbrough v. United States, 128 S.Ct. 558, 575 (2007).

In the wake of Booker, the Honorable Linda R. Reade of the United States District Court for the Northern District of Iowa on November 21, 2005 sentenced James Eric Moore to a term of 188 months in confinement and six years of supervised release following a conviction for possession with intent to distribute crack cocaine. Moore had asked Judge Reade to impose a below-Guidelines sentence in light of the recent Booker decision. The judge replied: (more…)

By: Houston Criminal Attorney John T. Floyd and Mr. Billy Sinclair

Fabens, Texas is located thirty miles southeast of El Paso just across the Rio Grande from Mexico. 95 percent of the people living in the town of 8,000 are poor and Hispanic. It’s a young town – the median age is 24 years compared to the median Texas age of 32. The average household income is $18,000 annually compared to $43,000 for the rest of Texas. In a nutshell, it’s a “dusty, little Border town” that stands as open invitation for major Mexican drug traffickers like Oswaldo Aldrete-Davila.

So it was that on February 17, 2005 Aldrete-Davila illegally crossed the border into the United States to transport drugs awaiting him. Drug running was Aldrete-Davila’s chosen career occupation. He reached a van parked in a remote area near Fabens. The van was loaded with 743 lbs of marijuana with a street value of more than $1 million. The keys were in the ignition. Aldrete-Davila hopped in the van and pointed it toward Fabens.

But Border Patrol Agent Jose Compean, who had been patrolling the area where Aldrete-Davila crossed the border, was alerted to the illegal crossing by a surveillance sensor. Compean reported on his police radio that the van leaving the area. Borden Patrol Agent Oscar Juarez was the first agent to spot the van.

Realizing he had been made “by the cops,’ Aldrete-Davila turned the van back toward Mexico – a criminal decision that triggered a high-speed pursuit by Border Patrol agents, including Ignacio Ramos who assumed the lead in the chase. All the agents involved in the pursuit were in direct communication with each other. The local Border Patrol station either did not receive or record these communications. (more…)

Houston Criminal Attorney John Floyd Discusses Perjury, Obstruction of Justice and the Barry Bonds Case

Barry Bonds was 21 years of age when he joined the Pittsburgh Pirates in 1986. He was lean, mean, and fast – and certainly not considered a fearsome home run slugger. During his first seven years in the majors, he averaged 25 home runs a year. Then in 1998 St. Louis Cardinals first baseman Mark McGuire eclipsed Roger Maris’ record of 61 home runs in a season by pumping out 70 home runs. The following year Bonds showed up for spring training with the San Francisco Giants with a “bulked up” upper body. In 102 games that year, he still managed to hit 39 home runs. In 2000, Bonds appeared in 143 games and the new “Giant slugger” hammered out 49 home runs. The following year Bonds’ “ballooned up” upper body looked awkward in what appeared to be match-stick legs but it was enough for him to easily breezed by McGuire’s record with 73 home runs. During his last seven full playing seasons (not including 2005 in which he played only 14 games and hit a meager 5 home runs), Bonds averaged 44 home runs.

Most home run kings hit more home runs during the early years of their careers than in the final years. For example, major league home run king Hank Aaron averaged 31 home runs a season during his first seven years in the majors while averaging 28 a season during his final seven years; and Willie Mays averaged 35 home runs during his first seven years while averaging only 18 during his final seven years.

With home run power displays becoming a fixture in major league baseball,  beginning in 1998 with the Mark McGuire and Sammy Sosa’s chase to break the Babe Ruth/Roger Maris 60-61 home run records and culminating with Bonds’ 73 home run performance in 2001, rumors began to swirl inside and outside of Major League Baseball that rampant performance enhancing drug use was corrupting the cherished sport.

In 2003 the federal government was investigating what became known as the “Balco steroids ring” – the Bay Area Laboratory Co-Operative in San Francisco which was owned and operated by Victor Conte. In September of that year federal agents conducted a raid on Conte’s lab and seized documents that, according to the San Francisco Chronicle, included the “doping calendars,”  “drug regime,” and “payment records” for performance enhancement drugs used by Barry Bonds. The documents also included “positive” tests results for steroid use against Bonds in 2000, the year before he hit his record-breaking 73 home runs. (more…)