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John T. Floyd Law Firm
Houston Criminal Lawyer


"Serious Criminal Defense Throughout Texas"

Experienced Criminal Defense Lawyer
Trials, Sentencings and Appeals
Federal And State Criminal Defense

Phone #  (713) 224-0101
Toll Free 1-866-374-1327
E-mail jfloyd@JohnTFloyd.com

 Top Lawyers for the People - 2008 HTexas

 

Sentencing And Appeals

An individual convicted of a crime has thirty (30) days in Texas and ten (10) days in Federal Court, in which to file a notice of appeal. If you wish to appeal a conviction, it is urgent that you contact an criminal appeals attorney immediately as time is of the essence.

FEDERAL CRIMINAL APPEALS

A criminal defendant facing trial in Federal court has one significant pre-verdict remedy and a number of post-conviction remedies available to him/her.

After the prosecution has presented its evidence, the defendant may file a motion for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure. This motion can present only one ground: the government’s evidence is insufficient to support the criminal offense charge. The district court’s authority is severely limited in deciding such motions. The court must weigh the evidence in a light “most favorable” to the government as mandated by United States Supreme Court precedent.

Following a guilty verdict, a criminal defendant, the defendant is confronted with two remedial options that demand an immediate choice:  defendant can file a notice of appeal pursuant to Rule 4(b) of the Federal Rules of Appellate Procedure within a strict ten-day period, or one of several post-verdict motions.

A defendant can file one of five post-verdict motions:

 

Rule 4(b) of the Federal Rules of Appellate Procedure governs the requirements for filing a notice of appeal. The notice must be filed in the district court within ten (10) days after the entry of either the judgment This ten-day time period is tolled if the defendant files a Rule 29 motion for judgment of acquittal, Rule 33 motion for new trial, or a Rule 34 motion to arrest the judgment. A notice of appeal, however, must be filed within ten days after the district court has disposed of any or all of these motion(s). Upon a finding of excusable neglect or good cause, the district court may, with or without motion, extend the time for filing the notice of appeal for a period not to exceed thirty (30) days.
The filing of a notice of appeal under Rule 4(b) does not divest the district court of jurisdiction to entertain a motion to correct sentence under Rule 35(a) of the Federal Rules of Criminal Procedure. But the filing of a Rule 35(a) motion does not suspend the ten-day time requirement for filing a notice of appeal.
 
Once the district court record, a defendant has forty-five (45) days under Rule 31 of the Federal Rules of Appellate Procedure to file his/her brief. The government has thirty (30) days to file its brief. The defendant then has fourteen (14) days to file a reply brief.

Under Rule 34 of the Federal Rules of Appellate Procedure, oral argument is allowed in all cases except:

 

If the court of appeals denies the appeal, defendant has ninety (90) days in which to file an application for a writ of certiorari to the United States Supreme Court seeking review of the adverse judgment by the appeals court.

TEXAS STATE CRIMINAL APPEALS

A criminal defendant does not enjoy a right to an appeal of his conviction. Article 44.02 of the Texas Code of Criminal Procedure, however, does authorize a general right to an appeal.

Except in death penalty cases, a defendant in a criminal case must file his direct appeal to the appropriate Texas court of appeals. If direct appeal is denied in the court of appeals, the defendant may petition for discretionary review to the Texas Court of Criminal Appeals which has “final appellate and review jurisdiction in criminal cases.” Appeals in capital cases must be taken directly to the Court of Criminal Appeals.

It is critical that a criminal defendant timely preserve issues for appeal in the trial court and properly present them to the appeals court in order to have these issues reviewed at the appellate level. Failure to do so will result in automatic denial of relief on those issues under the rules of appellate procedure.

Following conviction, the first procedural step a defendant should take is to file a motion for a new trial under the guidelines set forth in Rule 30 of the Texas Rules of Appellate Procedure. The motion must be filed prior to or within 30 days after imposition or suspension of sentence, and it must be presented to the court within ten days after its filing. If the court fails to rule on the motion within seventy-five days, it is considered denied as a matter of law.

Rule 30(b) lists nine grounds upon which a motion for new trial may be based:

(1) Except in a misdemeanor case when maximum punishment may be by fine only, where the accused is an individual who has been tried in his absence, unless otherwise authorized by law, or has been denied counsel;
(2) Where the court has misdirected the jury as to the law or has committed some other material error calculated to injure the rights of the accused;
(3) Where the verdict has been decided by lot or in any other manner than by a fair expression of opinion by the jurors;
(4) Where a juror has received a bribe to convict or has been guilty of any other corrupt conduct;
(5) Where any material witness of the defendant has by force, threats or fraud been prevented from attending the court, or where any evidence tending to establish the
innocence of the accused has been intentionally destroyed or withheld preventing its production at trial;
(6) Where new evidence favorable to the accused has been discovered since trial;
(7) Where after retiring to deliberate the jury has received other evidence; or where a juror has conversed with any other person in regard to the case; or where a juror became so intoxicated as to render it probable that his verdict was influenced thereby;
(8) Where the court finds the jury has engaged in such misconduct that the accused has not received a fair and impartial trial; and
(9) Where the verdict is contrary to the law and evidence.

In addition to these nine statutory grounds, the trial court may grant the motion based on either ineffective assistance of counsel or in the “interests of justice.”

An out of time motion for a new trial may also be heard at the appellate level. The rules of appellate procedure allow a court of appeals or the criminal court of appeals to suspend, on motion or sua sponte, any of the rules of appellate procedure.
This is a rarely used procedure and will be done by an appeals court only “in the interests of justice” and “judicial economy.”

The third way a defendant may be returned to his pre-sentence status is through a motion in arrest of judgment. This motion will be granted only if the defendant can clearly demonstrate that his conviction was obtained in violation of an applicable law. For example, a defendant must show that the verdict was substantially defective because of an improper indictment or information

If a criminal defendant does not file a motion for new trial or motion in arrest of judgment, he must file a notice of appeal within thirty days after imposition or suspension of sentence (or the date the trial signed an appealable order) in order to invoke the jurisdiction of the court of appeals under Rule 40.2 of the Rules of Appellate Procedure.

If the defendant, however, timely files a motion for new trial, the defendant must file his notice of appeal within ninety days from the imposition or suspension of sentence.



Understanding Booker and Fanfan

On January 12 in a 5-4 decision, the U.S. Supreme Court ruled that the federal sentencing guidelines are in part unconstitutional because they direct judges to increase sentences based on facts not found by a jury.

The court fixed the problem by removing the part of the law that tells judges they must use the guidelines to impose sentences.

The courts must now consider, but are not bound to impose, a sentence according to the guidelines. The sentencing guidelines are now advisory, but mandatory minimum sentences are not affected by this ruling.

The Supreme Court decisions do not affect mandatory minimum sentencing laws, the laws that Congress passes requiring fixed sentences for certain federal offenses, mainly involving drugs and weapons. Judges must still impose those mandatory minimum sentences, which are usually 5, 10, 15, 20 or more years in length, and are usually specified as a mandatory minimum in the defendant or prisoner’s pre-sentence investigation report (PSR).

The Court’s decision only affects federal sentencing guidelines, giving judges increased discretion. Unfortunately, mandatory minimum sentencing laws remain untouched and could become even more attractive to members of Congress who want to rein in judges.

Federal sentencing guidelines are now advisory, allowing judges to tailor sentences to the defendant’s role in the offense. No longer will judges be forced to calculate penalties under the sentencing guidelines grid and deliver a sentence they believe over-punishes the defendant. Instead of punishing by the numbers, the guidelines have become “guidance” for judges to use in considering what sentence is appropriate for each defendant.

Justice Breyer’s opinion cites the principle that punishment should return to the concept, embodied in law by Congress, that a sentence must be “sufficient, but not greater than necessary” to comply with the purposes of sentencing. With advisory guidelines, judges will be better able to breathe life into that principle.

Of course, these advisory guidelines are not ideal. For example, they continue the use of acquitted and uncharged conduct to increase sentence length, and retain relaxed evidentiary rules at sentencing that do not ensure accurate outcomes.

We cannot yet answer your questions about whether the opinion can be applied retroactively, that is to people whose sentences were finalized on appeal before the decision was handed down. We are evaluating the opinion and will post information on our website.

If you are awaiting trial, plea proceeding or sentencing, have been sentenced but not yet appealed, or believe you cannot appeal, Have appealed and the appeal is pending, consult your lawyer.

If your appeal has been decided but you are considering an appeal to the Supreme Court: consult your lawyer.

If you are preparing a petition under 28 U.S.C. sec. 2255 (your first post-conviction petition) and your deadline is approaching, you may have a Booker claim.

If you have already submitted your first post-conviction petition under 28 U.S.C. sec. 2255 and it is still pending, you may wish to supplement your petition with a Booker claim.

If you have filed and lost your 28 U.S.C. sec. 2255 claim, you may have some time to determine whether you can revisit any Booker issues in your case.

From: Families Against Mandatory Minimums, January 13, 2005.


Further Understanding Booker and Fanfan

It is important to understand these cases decided January 12, 2005, Booker and Fanfan, because implicate our constitutional rights, the powers of Congress and the role of the Judiciary.

Sixth Amendment provides,

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. First in the case of Apprendi v. New Jersey (2000) and then again in Blakely v. Washington (2003), an unusual alliance of liberals and conservatives on the U.S. Supreme Court construed the Sixth Amendment to stand for, among other things, this simple proposition:

... any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt. In Apprendi, a jury convicted the defendant of the unlawful possession of a firearm, an offense for which the law provided 5 to 10 years in prison. But following the return of the jury's verdict, the trial judge found the defendant to have been motivated by racial animus and sentenced him to 12 years -- two years more than the law allowed for the firearms offense. The factual basis for this enhanced penalty had not been submitted to the jury for its consideration. The New Supreme Court affirmed.

On appeal the U.S. Supreme Court reversed stating,

... the Sixth Amendment's notice and jury trial guarantees require that any fact other than prior conviction that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proved beyond a reasonable doubt. In Blakely, the defendant pled guilty to kidnapping his estranged wife, an offense for which the law allowed a maximum sentence of 53 months. But the judge concluded the defendant had acted with deliberate cruelty and enhanced the sentence to 90 months. The Washington Court of Appeals affirmed.

Again, on appeal the U.S. Supreme Court reversed because the facts supporting petitioner’s exceptional sentence were neither admitted by the defendant nor found by a jury, the sentence violated his Sixth Amendment right to trial by jury.

In other words, under Apprendi and Blakely, any fact, save for the fact of a prior conviction, used in determining penalty must either be admitted to by the defendant or else submitted to a jury for its consideration.

As three of the Court's liberals and two of its conservatives have noted:

... The Framers would not have thought it too much to demand that, before depriving a man of ... more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to ‘the unanimous suffrage of twelve of his equals and neighbours,’ rather than a lone employee of the state. Apprendi and Blakely involved the sentencing practices of states (New Jersey and Washington, respectively). In the two cases decided 01/12/05, Booker and Fanfan, federal sentencing practices were at issue.

In affixing the penalty for a federal offense, Congress often sets a minimum and maximum prison term and the difference between the two can be dramatic, e.g. not less than 10 years, but not more than life. In bygone days, federal judges were at liberty to exercise their own discretion in imposing a sentence that fell between the statutorily prescribed minimum and maximum.

But in 1984, alarmed by the disparity in sentencing from one federal judge to the next for defendants who were similarly situated, Congress enacted the Sentencing Reform Act. (18 U.S.C § 3551.) The Act created the United States Sentencing Commission, an independent agency of the federal judiciary. This Commission is tasked with promulgating the Federal Sentencing Guidelines, the purpose of which is to ... provide certainty and fairness in meeting the purposes of sentencing by avoiding unwarranted disparity among offenders with similar characteristics convicted of similar criminal conduct, while permitting sufficient judicial flexibility to take into account relevant aggravating and mitigating factors. Importantly, Congress made compliance with the Guidelines mandatory.

In one of the cases decided Wednesday, United States v. Booker,

... the defendant was charged with possession with intent to distribute at least 50 grams of cocaine base (crack). Having heard evidence that he had 92.5 grams in his duffel bag, the jury found him guilty of violating 21 U. S. C. § 841(a)(1). That statute prescribes a minimum sentence of 10 years in prison and a maximum sentence of life for that offense. § 841(b)(1)(A)(iii).
Based upon Booker’s criminal history and the quantity of drugs found by the jury, the [Federal] Sentencing Guidelines required the District Court Judge to select a “base sentence of not less than 210 nor more than 262 months in prison. [citation omitted]
The judge, however, held a post-trial sentencing proceeding and concluded by a preponderance of the evidence1 that Booker had possessed an additional 566 grams of crack and that he was guilty of obstructing justice. [emphasis added] Those findings mandated that the judge select a sentence between 360 months and life imprisonment; the judge imposed a sentence at the low end of the range. Thus, instead of the sentence of 21 years and 10 months that the judge could have imposed on the basis of the facts proved to the jury beyond a reasonable doubt, Booker received a 30-year sentence.

In the opinion, written by the liberal Justice John Paul Stevens and joined by the conservative Justices Antonin Scalia and Clarence Thomas, the Court reaffirmed the principle set forth Apprendi and Blakely:

 

Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.
Having held, rightly, that mandatory upward departures from the Guidelines were unconstitutional in cases where the facts had not been proved to a jury, the Court -- with the help of voting-switching Justice Ruth Bader Ginsburg -- then engaged in a jaw-dropping break from logic and invalidated the mandatory feature of the Guidelines as a whole.

From the New York Times:

The Supreme Court on Wednesday transformed federal criminal sentencing by restoring to judges much of the discretion that Congress took away 21 years ago when it put sentencing guidelines in place and told judges to follow them.
The guidelines, intended to make sentences more uniform, should be treated as merely advisory to cure a constitutional deficiency in the system, the court held in an unusual two-part decision produced by two coalitions of justices. In the first part, five justices declared that the current guidelines system violated defendants' rights to trial by jury by giving judges the power to make factual findings that increased sentences beyond the maximum that the jury's findings alone would support.
That portion of the opinion had been widely anticipated, growing directly out of a similar conclusion the same five justices - John Paul Stevens, Antonin Scalia, David H. Souter, Clarence Thomas and Ruth Bader Ginsburg - reached last June in invalidating the sentencing guidelines system in the state of Washington.
The real question hanging over the case, which the court granted on an expedited basis over the summer and heard in October on the opening day of its new term, was how the justices would solve the problem.
So it was the second part of the decision - the remedy - that was the surprise and that will shape the continuing debate over sentencing policy. With Justice Ginsburg joining the four justices who dissented from the first part - Stephen G. Breyer, Sandra Day O'Connor, Anthony M. Kennedy and Chief Justice William H. Rehnquist - a separate coalition said the problem could be fixed if the guidelines were treated as discretionary rather than mandatory.

In the "remedial opinion," written by the liberal Justice Stephen Breyer, the Court concludes:

We answer the question of remedy by finding the provision of the federal sentencing statute that makes the Guidelines mandatory incompatible with today's constitutional holding. We conclude that this provision must be severed and excised, as must one other statutory section, which depends upon the Guidelines' mandatory nature. So modified, the Federal Sentencing Act makes the Guidelines effectively advisory. [citations omitted] From: The Right Side of the Rainbow, January 14, 2005

 

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