CRIMINAL JURISDICTION

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

July 24, 2010

PSR OBJECTIONS OVER PLAIN ERROR DOCTRINE

Filed under: federal Appeals Attorney — Tags: , , , , , — johntfloyd @ 1:48 am

Criminal Defense Attorneys Must File Objections to Pre-Sentence Report in Federal Criminal Cases to Protect Appellate Rights

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The United States Congress, with the Sentencing Reform Act of 1984, established the U.S. Sentencing Guidelines. These “Guidelines” not only guide but require U.S. District Court judges to consider all the sentencing factors Congress set forth in 18 U.S.C. § 3553(a) before imposing sentence in criminal cases. The U.S. Supreme Court in a series of cases has made it abundantly clear that the Guidelines are not mandatory but rather advisory in nature—a guide for the judge to utilize in crafting the appropriate sentence.

Prior to sentencing, Rule 32(c) (1) (A) of the Federal Rules of Criminal Procedure requires that a probation officer investigate the defendant and file a presentence investigation report (“PSR”) with the court. The defendant may not waive the report even with permission of the court. The PSR must contain the following information:

  • The history and characteristics of the defendant, including his/her criminal record, financial condition, and any other factors about defendant’s past behavior that may help the court fashion the appropriate sentence.
  • The offense level determined by the probation officer and criminal history category as determined by the Guidelines.
  • Impact of the crime on the victim.
  • The kinds of non-custodial programs available if appropriate for offense charged.
  • Defendant pays restitution where the law requires.
  • Any recommendations based upon a court-ordered study of the defendant.
  • Any other required information including § 3553(a) factors.

Rule 32(e) (1) prohibits the PSR from being disclosed prior to a determination of guilt following a trial or guilty plea. The PSR under Rule 32(e) (2) must be served upon all parties involved in the case at least thirty-five days before the sentencing hearing. Rule 32(f) requires the court to permit the defendant (and the Government) an opportunity to comment upon or object to the PSR, The defendant’s comments/objections must be timely filed. Rule 32(h) requires the court to notify the parties if it is considering departing from the Guidelines sentencing recommendation for reasons not identified in the PSR.

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July 13, 2010

WHEN NOT GUILTY DOES NOT MEAN INNOCENCE

Filed under: federal Appeals Attorney — Tags: , , , — johntfloyd @ 5:34 am

Monetary Damages Under § 2513, for Unjust Conviction and Imprisonment, Requires Showing of ‘Truly Innocent,’ Even After Acquittal

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Robert E. Graham, a West Virginia native, was indicted by a Federal grand jury for 39 criminal offenses. It is not uncommon for the United States Government, armed with an arsenal of prosecutorial resources through the U.S. Justice Department, to overcharge criminal defendants. It is a tactic designed to force criminal defendants into unwanted guilty pleas or to overwhelm juries with so much documentary evidence that jurors will almost automatically vote “guilty” on the flimsy premise that the defendant must have done something wrong to face so many charges involving so much “evidence,” even if there is no factual basis for the evidence.

But Graham was not intimidated by the Government’s arsenal of weapons. He refused to plead guilty, waived his right to a jury trial, and forced the Government into a position of proving his guilt beyond a reasonable doubt at a “bench trial” before a judge. The decision to indict and prosecute Graham was questionable at best—only prosecutors possessed with the power of arrogance would have sought and secured the indictment against him, especially on so many different charges involving essentially one criminal episode.

Graham was the executive director of two related non-profit groups: the Council on Aging, Inc. and All Care Home and Community Services, Inc. The two groups provided services to the elderly and infirm, and received more than $10,000 annually in federal funding. He had served as executive director of these two corporations for more than 20 years. His salary was $125,000 a year when hired in 1975. In 2001 his salary increased by the companies’ Board of Directors to $185,000. He did not have a written employment contract until his salary was raised in 2001.

In 2002, the Council on Aging agreed to assume administrative control of Graham’s contract, and, in fact, entered into an amended contract with him that provided a “sick leave” provision which allowed Graham to earn 16 hours of sick leave each month beginning with the date of his original employment and ending with termination of employment. The accumulated sick leave benefits could be converted into compensation if used for either illness or termination of the contract.

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May 25, 2010

SUPREME COURT ADDRESSES LIFE WITHOUT PAROLE FOR JUVENILES

Filed under: federal Appeals Attorney — Tags: , , , , — johntfloyd @ 3:07 am

Are Life Sentences Appropriate for Juvenile Offenders?

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The United States Supreme Court finally addressed for the first time a long debated issue: whether juveniles can be sentenced to life without parole (“LWOP”), a sentence normally reserved for the very worst offenders. In its decision finding that LWOP for juvenile offenders was unconstitutional, the Court pointed out that only six states in this country do not have LWOP for juveniles. Fortunately, the State of Texas is one of those states. The Legislature last year eliminated the penalty provision from its sentencing practices.

But thirty-seven other states and the District of Columbia permit juveniles to be sentenced to LWOP for non-homicide offenses under specific circumstances. Seven other states allow LWOP for juveniles but only for homicide crimes. Federal law permits juveniles as young as 13 to be sentenced to LWOP while a child as young as 5 years of age can be sentenced to LWOP in Florida, according to the Supreme Court.

The court’s recent decision addressed only those juveniles sentenced to LWOP for non-homicide offenses—a penalty available in only twelve states as pointed out by the court. Therefore life sentences, with possibility of parole are still permissible.

The court was independently able to identify a total of 129 juveniles serving LWOP in those twelve states with 77 of them being in the State of Florida.

The case before the court originated from Florida. It involved the LWOP imposed on Terrance Jamar Graham. The court outlined Graham’s troubled personal and criminal history. You can be the judge of whether you think a LWOP was the appropriate sentence. More to the point, you can decide whether you think the State of Florida—or any of the other eleven states that have LWOP for juveniles committing non-homicide offenses—can keep juvenile offenders like Terrance Graham locked up for the rest of their lives because the Supreme Court held that life imprisonment per se is not “cruel and unusual punishment.” The court pointedly noted that an offender sentenced to life imprisonment as a juvenile has a right to parole eligibility but not to parole release itself, thus the potential for “natural life” incarceration. You be the judge.

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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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