CRIMINAL JURISDICTION

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

August 31, 2011

WHAT IS THE PURPOSE OF FEDERAL SENTENCING?

Filed under: Federal Crimes Lawyer — Tags: , , , — johntfloyd @ 5:16 pm

Tapia v. U.S.: Need for Rehabilitation not Proper Factor in Determining Sentence

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

The concept of penal rehabilitation began at the end of the 19th century in this country. Historically criminal sentences in America have been imposed for four reasons: deterrence, retribution, incapacitation, and rehabilitation. Although rehabilitation has been a subject of controversy as a reason for punishment, the State of Texas adopted it as a reason to punish through criminal sentencing. The U.S. Congress, however, has long dispensed with rehabilitation as a basis for criminal sentencing in federal courts. This was evidenced by a recent U.S. Supreme Court decision, Tapia v. United States, which declared that a federal district court judge abused his discretion by lengthening a defendant’s sentence in order to fulfill rehabilitation objectives.

The Tapia decision is indeed significant as is the court’s examination of the history of federal criminal sentencing. The background facts of the case are fairly simple: Alejandra Tapia was convicted of smuggling illegal aliens into the United States. At her sentencing hearing, the judge determined that the U.S. Sentencing Guidelines called for a sentence of 41 to 51 months. The judge elected to impose the high end 51-month term because he felt the defendant had a drug problem and he wanted her to spend enough time in the federal prison system to complete a 500 hour drug treatment program called Residential Drug Abuse Program (RDAP).At Tapia’s sentencing hearing, the judge specifically stated:

“The sentence has to be sufficient to provide needed correctional treatment, and here I think the needed correctional treatment is the 500 Hour Drug Program … Here I have to say that one of the factors that—I am going to impose a 51-month sentence … and one of the factors that affects this is the need to provide treatment. In other words, so she is in long enough to get the 500 Hour Drug Program, number one.”

While the judge said he was imposing the maximum recommended term “to deter her from committing other criminal offenses,” he strongly recommended to the U.S. Bureau of Prisons that Tapia “participate in [RDAP] and that she serve her sentence at” the Federal Correctional Institution in Dublin, California where “they have the appropriate tools to help her, to start to make a recovery.”

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July 26, 2011

SUPREME COURT CLARIFIES CRACK-POWDER COCAINES 713 AMENDMENT

Filed under: Drug Defense Attorney — Tags: , , , — johntfloyd @ 6:22 pm

Federal Crack Sentence Reductions: Defendants Sentenced Pursuant to 11(c)(1)(C) Agreements Eligible for 3582(c)(2) Relief

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In 2007 the U.S. Sentencing Commission issued a retroactive amendment, Amendment 713, to the Sentencing Guidelines designed to eliminate the sentencing disparities in crack cocaine and powder cocaine cases. The amendment became effective in March 2008, and promptly triggered an outbreak of conflicting appellate court decisions, prompting the U.S. Supreme Court to intervene on several occasions and to restore judicial order (here and here). This past term the Court was once again was forced to confront another issue spun off by Amendment 713: whether the amendment could be retroactively applied in cases where a defendant entered into a plea agreement with the Government for a specific sentence. The Court, in Freeman v. United States, answered that question in the affirmative, although in a plurality decision.

Federal district courts, under 18 U.S.C. § 3582(c), generally do not have the authority to “modify a term of imprisonment once it has been imposed.” This is especially true where the defendant has entered into a plea agreement for a specific sentence endorsed by the sentencing judge. Subsection (c)(2), however, provides the following stipulation: “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or upon its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.”

In 2005 William Freeman was indicted for a litany of crimes, including possession with intent to distribute cocaine base and possession of a firearm. Pursuant to Federal Rules of Criminal Procedure, Rule 11(c)(1)(C), he entered into a plea agreement with the Government calling for him to plead guilty to all the charges in exchange for a recommended 106-month sentence. The plea agreement specifically stated “[b]oth parties have independently reviewed the Sentencing Guidelines applicable in this case” and that Freeman agreed “to have his sentence determined pursuant to the Sentencing Guidelines.” The recommended 106-month sentence was the minimum sentence recommended on the drug count while a mandatory consecutive sentence was required on the gun count by 18 U.S.C. § 924(c)(1)(A). The trial court accepted the agreement after which it sentenced Freeman to 106 months on the drug count and the minimum 60-month term under Sec. 924.

Shortly after the Sentencing Commission adopted Amendment 713, Freeman filed a motion to reduce his 106-month cocaine sentence pursuant to Sec. 3582(c))(2). Under the amendment, Freeman would face a minimum sentence of 37 to 46 months. The district court denied the Sec. 3582(c)(2) motion and the Sixth Circuit, citing its holding in United States v. Goins, upheld the trial court’s ruling. Both courts essentially held that defendants sentenced pursuant to a plea agreement calling for a specific sentence are ineligible for Sec. 3582(c)(2) relief. This prompted the Supreme Court to intervene and decide the issue—hopefully once and for all. Too many lower courts, at both the district court and appellate court level, have resisted the spirit, if not the intent, of Amendment 713.

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February 21, 2009

SENTENCING DEPARTURES SINCE BOOKER

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…)

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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