Criminal Law Blog by Defense Lawyer John Floyd and Mr. Billy Sinclair
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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Court Describes Federal Sentencing Disparities as “A Picture of Injustice”
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
In 1984 the United States Congress enacted the Sentencing Reform Act (“SRA”), and as part of the Act, Congress created the United States Sentencing Commission (“Commission”) to “establish sentencing policies and practices for the Federal criminal justice system.” 1/ The Commission was charged with the responsibility of creating U.S. Sentencing Guidelines (“Guidelines”) that would assist Federal judges in the sentencing process to fulfill Congress’ five purposes for imposing criminal sentences. 2/
Title 18, United States Code, Section 3553(a)(2) lists the five congressionally-mandated purposes for sentencing:
- To reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
- To afford adequate deterrence to criminal conduct;
- To protect the public from further crimes of the defendant; and
- To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.
While the Guidelines and the § 3553(a) factors were intended to eliminate the gross disparities in federal sentencing practices before the SRA, they have failed miserably in many significant respects, particularly in child pornography cases. Since the enactment of the SRA, Congress has repeatedly created new offenses, increased penalties, and issued directives to the Commission concerning child pornography offenses. 3/ The following is a list of many of the laws enacted by Congress over the last three decades regarding child pornography-related offenses:
- Protection of Children Against Exploitation Act of 1978;
- Child Protection Act of 1984;
- Child Sexual Abuse and Pornography Act of 1986;
- Child Abuse Victims’ Rights Act of 1986;
- Child Protection Restoration and Penalties Enhancement Act of 1990;
- Sex Crimes Against Children Prevention Act of 1995;
- Protection of Children from Sexual Predators Act of 1998;
- Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003;
- PROTECT Our Children Act of 2008;
- Providing Resources, Officers, and Technology to Eradicate Cyber Threats to Our Children Act of 2008;
- Keep the Internet Devoid of Sexual Predators Act of 2008; and
- Effective Child Pornography Prosecution Act of 2008.
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Texas Takes Small First Step Towards Humane Treatment, Punishment for Youthful Offenders
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
The Texas Criminal Defense Lawyers Association (TCDLA) releases every two years after each session of the Texas Legislature a summary of new or amended laws enacted during the legislative session. This year Kristin Etter (TCDLA’s Voice of the Defense) has provided this continuing education service from TCDLA to criminal defense attorneys throughout the state. It is not only a continuing education service but an invaluable research tool as well. This blog over the next couple months will feature in depth articles about the most significant pieces of legislation that emanated out of the 2009 Texas Legislature and their potential impact on the state’s criminal justice system with special appreciation to the TCDLA.
For example, one of the most significant changes in our laws was the Legislature decision to eliminate life without parole for juvenile offenders who are certified as adults under Texas Penal Code § 54.02 and tried for capital murder under Texas Penal Code § 12.31. The Legislature amended the Texas Government Code § 504.145 to allow for parole eligibility for juveniles tried as adults after a period of 40 years.
This legislation is significant because the U.S. Supreme Court in two consolidated Florida cases, Terrance Jamar Graham and Joseph Sullivan, both of whom received life sentences without the benefit of parole, has decided this term to decide the issue of whether life without parole for juveniles tried as adults is unconstitutional as being cruel and unusual punishment under the Eighth Amendment. At age 16, Graham was convicted of being an accomplice to an armed burglary and attempted armed robbery—the only criminal offenses he had ever committed in his life—and sentenced to life without parole. At age 13, Joe Sullivan was convicted of a rape committed following a house burglary and sentenced to life without parole with there being serious doubts about whether Sullivan was the actual rapist.
As of July 2009, the Washington, D.C.-based The Sentencing Project (Nellis, Ashley and King, Ryan S. No Exit: The Expanding Use of Life Sentences in America) reported that there are 140,610 individuals serving a life sentence in the nation’s prison system (one in every 11 prisoners). Of those lifers, 6,807 of them are juveniles tried as adults with 1,755 (or 25.8%) of them being juvenile life sentences without parole (JLWOP). (more…)
Prosecutors and Law Enforcement Officials Manipulate Investigations, Defendants Receive Greater Sentences
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
What is sentencing entrapment?
In a syndicated column that appeared in the Houston Chronicle (July 23, 2009), Larry Frankel, the legislative counsel for the ACLU in Washington, D.C., called sentencing entrapment “a little-known phenomenon in our criminal justice system” and it occurs “when the government through its agents or informants makes a person, who may have a predisposition to engage in one sort of criminal activity, to engage in more serious criminal activity that exposes that person to harsher punishment.”
Frankel illustrated this institutionalized form of governmental misconduct with a series of cases, including the highly-publicized case of Willie M. Aikens. This former major league baseball player recently testified before Congress about his fall from social grace through a debilitating crack cocaine habit. Aikens told the lawmakers he was contacted by an undercover police officer who asked him to “score” some drugs for her. The undercover officer encouraged Aikens several times to cook powder cocaine down into crack cocaine which provides a far more intense “high.”
Aikens’ original criminal predisposition was to provide the undercover officer with “powder” cocaine. The officer, however, kept urging the former World Series hero to cook the cocaine powder down into crack cocaine which ultimately caused him to be charged and convicted of possessing crack cocaine rather than powder cocaine. Under the United States Sentencing Guidelines in place at the time, possession of crack cocaine was considered 100 times more serious than possession of powder cocaine..
In May 2007 the U.S. Sentencing Commission sent a report to Congress recommending that the 100:1 sentencing ratio in crack/powder cocaine cases be reduced to a 20:1 ratio. The 100:1 ratio required federal judges to treat one gram of crack cocaine as the equivalent of 100 grams of powder cocaine. This disparate sentencing scheme created thousands of horrendous miscarriages of justice in the federal sentencing process with serious racial implications. Black crack cocaine offenders, like Aikens, were routinely punished 100 times more severely than white powder cocaine offenders. (more…)
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