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…)

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…)

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…)