CRIMINAL JURISDICTION

Criminal Law Blog by Defense Lawyer John Floyd and Mr. Billy Sinclair

February 21, 2009

Defense Lawyers Must Prepare for Federal Sentencing

Filed under: federal Appeals Attorney — Tags: , , , — johntfloyd @ 4:52 pm

Defense Lawyers Must Prepare for Federal Sentencing

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

The United States Supreme Court in 1996 held that federal district court judges had discretion to depart from the recommendations of the U.S. Sentencing Guidelines. See: Koon v. United States, 518 U.S. 91, 98 (1996).

Some of these judges – many of whom were placed on the federal bench during the 12-year presidential reign of Ronald Reagan and George W. Bush because they shared the politically conservative views of judges like Robert Bork and Clarence Thomas – viewed Koon as a judicial license to enhance criminal sentences as part of the Republicans’ “war on crime.” See: United States v. Weisser, 417 F.3d 336, 346 (2nd Cir. 2005) [reversal of a district court judge’s sentence based upon multiple enhancements including a 13-level increase in the offense level and a three-level increase in the criminal history level].

Nine years after Koon – a case involving one of the Los Angeles police officers convicted in the infamous “Rodney King” freeway beating – the Supreme Court handed down United States v. Booker which limited the discretion of federal judges to enhance sentences by ruling that the Guidelines are advisory, not mandatory. See: 543 U.S. 220, 245-46 (2005).

Booker instructed federal judges that in sentencing matters they could only consider facts for enhancement that are: (1) reflected in the jury verdict; (2) admitted by the defendant; (3) contained in the defendant’s guilty plea; or (4) pertain to a prior conviction. Id. Beyond these factors, the jury had to find facts true beyond a reasonable doubt to warrant enhancement. Id.

Two terms later the Supreme Court reinforced Booker with two strong sentencing decisions. First, in Rita v. United States the court held that any sentence imposed consistent with the Booker rule had to be presumed “reasonable” when reviewed on appeal by the federal appellate courts. See: 127 S.Ct. 2456, 2463 (2007). (more…)

October 26, 2008

HEARSAY EVIDENCE, OBJECTIONS

Filed under: federal Appeals Attorney — Tags: , , — johntfloyd @ 2:45 pm

The Critical Need For Timely And Specific Objections During A Criminal Trial

By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

There is rarely a time when a defense attorney does not find the need to object during a criminal trial because the prosecution either attempts to introduce inadmissible evidence or engages in some questionable conduct concerning the proffer of evidence.

Tex. R. Evid. 103(a) (1) requires a timely objection to the admission or exclusion of questionable or irrelevant evidence. The objection must be accompanied by a specific reason for the objection. Id. See also: Tex. R. App. P. 33.1(a) [defendant must make a timely and specific objection each time inadmissible evidence is offered at trial and secure an adverse ruling from the trial court on the objection]; Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003).

Tex. R. Evid. 103(a)(1), however, relieves a defense attorney of the need to object each time the inadmissible evidence is offered if he either (1) requests a running objection or (2) objects to the evidence outside the presence of the jury. See, Geuder, 115 S.W.3d at 13.

These rules governing objections apply especially to hearsay evidence. See: Poindexter v. State, 153 S.W.3d 402, 409 (Tex. Crim. App. 2005). Tex. R. Evid. 802 provides that inadmissible hearsay admitted at a criminal trial without objection by defense counsel does not lose its probative value because it is hearsay. Id.

This brings us to the tale of two cases involving hearsay evidence. Objection to this evidence was properly handled by one defense attorney but horribly mangled by another. We’ll examine the latter case first.

Francisco Vasquez was tried and convicted in June 2005 for the murder of Eduardo Cantu in 2004. The jury assessed punishment at 99 years in the Texas Department of Criminal Justice. See: Vasquez v. State, ___ S.W.3d ____, 2008 Tex.App. LEXIS 2952 (Tex.App.-Corpus Christi April 24, 2008). (more…)

October 25, 2008

THE JUDICIAL WARS INVOKED BY CRACK SENTENCING

Filed under: Drug Defense Attorney, federal Appeals Attorney — Tags: , , , , — johntfloyd @ 5:24 am

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…)

August 28, 2008

FEDERAL SENTENCING: DISCRETION MAKES A COMBACK

Filed under: Federal Crimes Lawyer, federal Appeals Attorney — Tags: , , , — admin @ 2:43 pm

Following Booker, Kimbrough, Rita and Gall; District Courts Exercising Power to Sentence as Deemed Appropriate, Considering Case-Specific Factors, § 3553(a)

By: Houston Criminal Defense Lawyer John Floyd and Senior Paralegal Billy Sinclair

Before 1984, criminal sentencing in federal courts was heavily criticized because of the disparate sentences imposed for similar conduct and because of the uncertainty as to the length of time offenders would actually serve in prison. But Congress changed all that with the Sentencing Reform Act of 1984. The Act was designed to produce a more even-handed determinate sentencing scheme. To accomplish this legislative objective, the Act imposed an absolute duty on federal district court judges to consider each of the seven sentencing factors set forth in 18 U.S.C. § 3553(a), required federal judges to accept the U.S. Sentencing Guidelines as mandatory, and abolished the federal parole system as well. The end result of the Act, however, quickly proved to be even more draconian than hodgepodge sentencing practices it had replaced. Federal prison sentences grew longer because of the mandatory Guidelines, and because of the abolition of parole, longer stays in federal prison became the order of the day.

Three years ago the United States Supreme Court created a hope of relief when it declared unconstitutional the determinate sentencing provisions of the Act. See: United States v. Booker, 543 U.S. 220, 245 (2005). The court remedied the constitutional dilemma created by the mandatory nature of the U.S. Sentencing Guidelines by holding that the Guidelines are only one factor federal judges must consider in sentencing. The court concluded the Guidelines are advisory and, therefore, federal judges have the discretion to impose a sentence more appropriate than one mandated by the Guidelines. Id., at 245-46.

Booker also ushered in a change in the way sentences are reviewed on appeal. It limited appellate review to a determination of whether a sentence is “reasonable” under the strict “abuse-of discretion” standard. Id., at 261. In cases involving sentences departing either up or down from the Guidelines, the appeal courts’ review the district court’s explanation for the departure is confined to a determination of whether the sentence is “reasonable” under a strict “abuse-of-discretion” standard. While an appeal courts may consider the “variance” and “extent” of departure, it cannot require that “extraordinary” circumstances exist to justify the departure or that district courts employ a rigid “mathematical formula” using a departure’s percentage as justification for a specific sentence. Applying these approaches, the Supreme Court said, would create an impermissible “presumption of unreasonableness.” Id. The court, therefore, concluded that the “abuse-of-discretion” standard should apply to all sentences, regardless of whether they are inside or outside the range of the Guidelines. Id.

In its last term, the Supreme Court handed down three significant decisions in its continuing effort to provide guidance through the labyrinth of the federal sentencing process. Those decisions are summarized below.

  • Kimbrough v. United States, 125 S.Ct. 558 (2007) – The court rejected the longstanding premise that federal district courts had to apply provisions of the Guidelines that effectively made one gram of crack cocaine the equivalent of 100 grams of powder cocaine in sentencing determinations and instead held that those provisions are just one factor the sentencing court should consider as it attempts to fashion the appropriate sentence pursuant to § 3553(a). Id., at 575.
  • Rita v. United States, 127 S.Ct. 2456 (2007) – The Court held that in cases involving sentences imposed within the range of the Guidelines, the appeals court may establish a “presumption of reasonableness” for those sentences and review them under the deferential “abuse-of-discretion” standard. Id., at 2465.
  • Gall v. United States, 128 S.Ct. 586 (U.S. 2007) – The Court held that sentencing decisions must be reviewed on appeal strictly under the deferential “abuse-of-discretion” standard, even when the appeals court determines that a different sentence is more appropriate. Id., at 597. (more…)

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