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.

(more…)

December 12, 2008

PROBATION ELIGIBILITY: NEW LIMITATIONS

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 4:13 am

Texas Juries Can No Longer Recommend Community Supervision When Victim is Child Under 15, Elderly or Disabled

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

Community supervision, or probation as most people know it, has been defined by federal courts as an “imprisonment substitute” because the criminal sentence is not served in a penal institution. See: United States v. Elkins, 176 F.3d 1016, 1020 (7th Cir. 1999).

In the State of Texas community supervision is a privilege, not a right. See: Flores v. State, 904 S.W.2d 129, 130 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 1050 (1996). It is a punishment alternative that must either be agreed to between the state and defendant, ordered by a judge or recommended by a jury.

The Flores court specifically stated that “there is no fundamental right to receive probation [community supervision]; it is within the discretion of the trial court to determine whether an individual is entitled to probation.” Id.

In Texas, community supervision can be granted either by the trial judge or assessed by the jury. See: Tex. Code Crim. Proc. art. 42.12(3)(a); (4)(d).

While there is no fundamental right to community supervision, § 42.12(3)(a) requires that the judge impose community supervision “in the best interest of justice, the public, and the defendant” – all three of which are legitimate government purposes. Flores, 904 S.W.2d at 131.

Similarly, in federal court a district judge may depart from the U.S. Sentencing Guidelines’ prison recommendation and impose probation but only after he/she has considered all the sentencing factors listed in 18 U.S.C. § 3353. See: United States v. Toohey, 448 F.3d 542, 546-47 (2d Cir. 2006).

The discretion of the trial judge in Texas to grant, and the jury’s authority to assess, community supervision are likewise limited by statute. For example, Subsection 3g(a) of § 42.12(3) prohibits the trial judge from granting community supervision: (more…)

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