Friday, October 14, 2011


The 6th Circuit attempted to address concurrent sentences verses consecutive sentences in its recent opinion United States v Harris, 11a0709n.06, filed October 12, 2011. 

Defendant Harris was convicted in State court of possession of a firearm during the commission of a felony, and as a habitual offender.  He was there after sentenced to 17 to 27 years.  Fifteen years later Defendant Harris pled guilty to "Corruptly endeavoring to obstruct or impede the due administration of internal revenue laws.  In plain English, Defendant Harris claimed on his tax return a false "bribery" expense to the prosecutor in his state case. 

At sentencing in the Federal Court, Defendant Harris was sentenced to 21 months,(within guidelines), to run consecutive to his state sentence.  Defendant Harris appealed claiming procedural error regarding the consecutive nature of his sentence.

18 USC 3584 addresses the issue of multiple sentences, concurrent or consecutive.   The statute states in part that:

a.   multiple sentences imposed at the same time or a sentence imposed on a defendant currently under sentence may run either concurrently or consecutively; however, multiple sentences imposed at the same time run concurrent unless the court orders otherwise or the statute says otherwise.  A sentence imposed while defendant is on currently serving an undischarged sentence runs consecutive unless the court orders otherwise. 

b.   in determining whether  the sentences are to run concurrently or consecutively the court shall consider the factors of 18 USC 3553(a), as to each sentence.

What does this mean in plain English?  The Court can sentence you whichever way it wants as long as the statute doesn't say differently - but it must state specifically what it is doing and why by addressing those sentencing factors of 3553(a) once again.  It also means that when you are sentenced on more than one count at the same time, there is a preference for concurrent.  And when you are sentenced to a new count while you are currently serving a sentence for anything else, there is a preference of consecutive.

So when is there a sure chance you could be getting consecutive sentences?  Well really there are three:

1.    a conviction for 924(c) and another offense;

2.    a conviction for 929(a) and another offense; or

3.   when your sentencing guideline range exceeds the statutory maximum of the charge you pled to - so you are stacked and packed - 5G1.2(d)!

Yep, you can feel like an airplane waiting to land at the Dallas Airport on a Super Bowel Sunday.  So, your guidelines are 360 to life and you pled to two twenty year felony offenses.  You could then be sentenced to 240 months on count 1 and 240 months on count 2, for a total of 480 months.

In the end, your attorney should evaluate your case for all the above factors in advising you if your sentence(s) will be consecutive:

a.    other sentences your currently serving;

b.    felony statutes that require consecutive;

c.    guidelines that will allow for consecutive; and

d.    and 3553(a) factors that will enhance your chances.

For Defendant Harris, the 6th Circuit United States Court of Appeals held that both the consideration by the sentencing court of the 3553(a) factors and his guideline range supported consecutive sentences. 

Wednesday, August 17, 2011

You Must Be Crazy!

Dealing with a criminal client can often be difficult at best; however, dealing with a criminal client that is exhibiting mental illness can be down right impossible.  Further complicating matters, often times a client’s mental illness is masked by substance abuse, physical and/or emotional abuse sustained as a child, or cultural differences making it impossible for his/her attorney to quickly and correctly identify the need for a competency examination.  Sometimes a client ‘s silence can be misinterpreted as “stone cold” while other times it may be interpreted as simply ignorance as to the amount of trouble the client really faces. 
The interpretation of the Insanity Defense Reform Act of 1984 is guided by three principles: (1) Congress’s power to provide for the custody of persons charged with a crime and awaiting trial, (2) limitations on the power of Congress by the fact that the care of insane persons is essentially a function of the state, and (3) assuring commitment proceedings pursuant to statute comport with due process.  United States v Shawar, 865 F.2d 856 (7th Cir. 1989).     
In either event, it is imperative that the attorney motion for a competency examination as fast as possible.  Most Assistant United States Attorneys will not oppose such a motion if you speak with them in advance and explain your need for such exam. 
The attorney should file with the trial court a, unopposed if possible, motion for competency and criminal responsibility, and supporting brief thereof.  The attorney should state why the competency and criminal responsibility examination is needed: that defendant is unable to verbalize; unable to verbalize appropriate answers to questions posed by counsel; unable to identify key personnel in a criminal trial; unable appreciate the charges against them; unable to understand criminal proceedings, even after having appeared in Court with counsel; and unable to understand the possible penalties faced he/she faces.
Typically, after counsel files the request the Federal Court will order that the defendant undergo a psychological evaluation for the determination of competency and criminal responsibility, pursuant to 18 U.S.C. §§ 4241 and 4242.  
The defendant will then be evaluated at a Federal Bureau of Prisons mental health facility.  In preparing the competency report the forensic doctor will reviewed all records, including: court orders; the indictment; criminal complaint; police reports; and other medical/mental health records.  Also, typically both defense counsel and the Assistant United States Attorney will be asked for their input.
Once the evaluations are completed a report relating to the finding of defendant’s competency and criminal responsibility will be filed under seal.  A hearing will then be scheduled where the Court will determine if the defendant is competent to stand trial. 
Assuming the defendant is found not competent to stand trial, an Order will be entered directing that the defendant undergo competency restoration. 
Section 4241(d) provides that if the court finds that the Defendant “is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against her or to assist properly in her defense, the court shall commit the defendant to the custody of the Attorney General.”  See id. 18 U.S.C. § 4241(d). 
During competency restoration, the defendant will again be evaluated.  The doctor, and other members of the forensic team, as well as correctional and medical staff, will have the opportunity to observe the defendant’s behavior.  As part of the restoration process the defendant will attend classes on a weekly basis, as well as other modalities.  Lastly, the staff will determine if the defendant was noted to have put forth adequate effort during the restoration process.  In most cases after four months the doctor will form an opinion as to whether or not the defendant continues to suffer from a mental disease or defect that renders him/her unable to understand the nature and consequences of the proceedings against him/her and to assist properly in his/her own defense.   Further the doctor will give an opinion as to whether additional efforts toward restoration of competency would be unsuccessful on the defendant.
If the defendant is determined competent at this point, the criminal case against the defendant may then proceed.  Often times, counsel for defendant will ask for an independent evaluation at this point to be assured that in fact their client is competent to proceed. 
Alternatively, if it is determined that the defendant may gain competency within a short time period, with additional restoration services, the Assistant United States Attorney will often move that the defendant remain in custody and receive further restoration services. Case law allows for the extension of the four month time limit.
However, if it is determined that the defendant remains incompetent and that no further restoration services will assist the defendant in obtaining competency the Court may ask that an examination regarding the dangerousness of the defendant be made prior to the defendant’s release.  
Section 4241(d) provides that “if, at the end of the time period specified, it is determined that the Defendant’s mental condition has not so improved as to permit the trial to proceed, the Defendant is subject to the provisions of section 4246.”  Section  4246 continues that “if the director of a facility in which a person is hospitalized certifies that a person in the custody of the Bureau of Prisons . . . who has been committed to the custody of the Attorney General pursuant to section 4241(d)  . . . is presently suffering from a mental disease or defect as a result of which her release would create a substantial risk of bodily injury to another, and that suitable arrangements for State custody and care of the person are not available, he shall transmit the certificate to the clerk of the court for the district in which the person is confined.  18 U.S.C.A. §4246(a).  Upon the filing of this certificate, the statute provides that the court “shall order a hearing” to assess the defendant’s dangerousness.  Id.
This is where the case may turn from criminal to civil.  If the defendant is determined to be incompetent and a danger under 18 U.S.C. §4246 he/she will be civilly committed, possibly indefinitely.  Section 4246 is “geared toward preventing the release of persons in federal custody who would, if set free, be dangerous to society because of mental illness.”  United States v Volungus, 595 F.3d 1 (1st Cir. 2010).   Section 4246 defines dangerousness as resulting “from a mental disease or defect.”  (See 18 U.S.C. §4246(a)).  The section allows for the indefinite civil commitment of an individual based upon certification from either the Director of the Federal Medical Facility that the individual would pose a substantial risk to a person or property of another, section 4246. 
Under section 4246 if the Director of the Federal Medical Facility certifies that the defendant is dangerous and the Court finds in a subsequent evidentiary hearing, by clear and convincing evidence, that the defendant is dangerous, “the court shall commit the person to the custody of the Attorney General.”  It should be noted that section 4246 only allows the Director of the Federal Medical Facility to make this determination. 
            If the individual is determined not to be a danger, the individual is to be immediately released.  Should the individual be a danger but be released with conditions, section 4243(f) provides for a conditional discharge of an insanity acquittee under a prescribed regimen of medical treatment.  An individual released under section 4246 with conditions must have a certificate filed by the Director of the Federal Medical Facility stating the conditions, and the conditions must be related to the individual’s medical, psychiatric, or psychological care or treatment.  United States v Crape, 603 F.3d 1237 (11th Cir. 2010).  
            The issue really arises when a defendant is determined incompetent and not a danger.  What is to happen to the defendant, or more importantly the criminal case against the defendant?
            In most cases the Assistant United States Attorney argues that the defendant should be placed on “bond,” under § 3142 of the Bail Reform Act, for a short or indefinite time period.  Counsel for defendant argues the criminal case against defendant should be dismissed. 
            The main purpose of the Bail Reform Act is to permit the pre-trial release of an individual charged criminally, while insuring the safety of the community and the future appearance of the individual at all court proceedings.  (See 18 U.S.C. §3142). 
            First, the term “pre-trial release” implies that an individual is, in fact, awaiting trial.  Although Black’s Law Dictionary does not define the term “pre-trial” in itself, it does define the terms, “Pre-trial conference”, “Pre-trial discovery”, “Pre-trial diversion”, and “Pre-trial Order.”  (See Black’s Law Dictionary).  Each of these definitions includes the phrase, “used prior to trial”. 
But if the defendant was determined to be incompetent and not a danger the defendant is not awaiting trial.  Remember, if a defendant is unable to be restored the Court will find that the defendant:
is suffering from a mental disease or defect rendering him/her mentally incompetent to the extent that he/she is unable to understand the nature and consequences of the proceedings filed against him/her or assist properly in his/her own defense, nor is there a substantial probability that his/her competency will be restored in the foreseeable future. 
Second, the safety of the community is not at issue.  Not unlike the Bail Reform Act, section 4246 is “geared toward preventing the release of persons in federal custody who would, if set free, be dangerous to society because of mental illness.”  United States v Volungus, 595 F.3d 1 (1st Cir. 2010).  
Counsel for defendant should argue that United States v Peppi, 2007 WL 674746(D.N.J.) (Feb.28, 2007), is controlling.  In Peppi, the defendant was charged with threatening the President.  Defendant Peppi was sent for a competency examination, determined incompetent, sent for restoration and determined to remain incompetent.  Defendant Peppi was then determined to have a low risk to person or property and the Government thereafter dismissed the indictment against defendant. 
Sometime after defendant Peppi’s release, he committed a new offense.  Defendant Peppi was committed to a psychiatric hospital and a new indictment was brought against defendant Peppi.  Defendant Peppi was once against determined incompetent, sent for restoration and remained incompetent after the restoration attempt.  Defendant Peppi’s risk determination was, once again, determined to be low.  However, on the issue of defendant Peppi’s release, the Government argued that defendant Peppi could only be released under conditions because the Government had not decided to again dismiss the indictment against him.  The Government argued that the Bail Reform Act could be used to set the terms of defendant Peppi’s conditional release. 
The Court in Peppi held that 18 U.S.C. §4246(d) mandates what is to occur if it is determined that the person previously committed is no longer dangerous:  immediately discharge the individual or release the individual under a prescribed regimen of treatment by the Director of the Federal Medical Facility.  The Court further held that the Bail Reform Act does not apply to a defendant for purposes of setting the conditions of release.  The Court reasoned that an individual found not competent to stand trial, even though released, simply does not have the faculties to adhere to any condition or conditions of release. 
The Supreme Court in Jackson v Indiana, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972), held that “indefinite commitment of a criminal defendant solely on account of his incompetence to stand trial does not square with the Fourteenth Amendment’s guarantee of due process.”  The Court reasoned that when a Defendant is found not to be dangerous, and no certificate of dangerousness is filed, the Defendant must be released. 
Peppi Court
stated it best, stating that if a defendant “…cannot be brought to trial now, it seems an impermissible fiction to pretend that one is pending.  If not pending trial, then the Bail Reform Act could not apply.”  United States v Peppi, 2007 WL 674746(D.N.J.)  
In conclusion, counsel for defendant should file a motion for dismissal based on the Speedy Trial Act if the defendant is incompetent, not a danger and the Assistant United States Attorney refuses to dismiss the case.  Although it will not be harder to accumulate the necessary 70 days of delay with the ruling in Tinklenberg, it remains an almost a sure fire way to force the dismissal of your case. 

Tuesday, June 14, 2011


            In McNeill v United States the United States Supreme Court affirmed McNiell’s sentencing and status as an armed career offender.
            McNeill was charged and pled to possession with intent to distribute cocaine base, 21 U.S.C. §841(a)(1) and possession of a firearm by a felon, 18 U.S.C. §922(g)(1).  The question arose regarding McNeill’s prior criminal history: two violent felonies and six drug trafficking convictions.  McNeill argued that although when convicted each of the drug offenses carried a maximum penalty of ten (10) years, North Carolina had subsequently changed the penalties to 30 or 38 months for the same convictions; therefore, his prior drug convictions were not “serious drug offenses” for purposes of the armed career offender sentencing enhancement. 
            The United States Supreme Court affirmed McNeill’s status as an armed career criminal stating an offense is determined for purposes of “serious drug offense” just as a conviction for “violent felony”: at the time of its conviction.    The Court’s reasoning is three fold.
            First, the Court stated that the armed career criminal act is concerned with convictions that have already occurred. 
Second, the Court stated that it’s holding was consistent with its prior holdings regarding “violent felony,” that a conviction is determined by looking at the state statute at the time the conviction occurred.
            Third, the Court stated that to look at a prior conviction under a new state statute could result in a conviction for a crime that no longer exist – thereby ignoring an individuals dangerousness and culpability and the very essence of the purpose of the armed career criminal act: a persons prior criminal history. 
            Interestingly the Court did make one statement and one question to possibly raise in the future.  The Court stated that a sentencing judge must determine if the prior conviction(s) were “serious drug offenses” or “violent felonies” by finding out what the maximum term of imprisonment for the conviction was at the time of the offense.  The sentencing judge must. 
            But the Court also specifically pointed out that when North Carolina changed its sentencing scheme reducing the penalty for the drug conviction from 10 years to 30 or 38 months it specifically stated it did not apply to crimes committed before October 1, 1994.  Question of the day: what if it did apply to crimes committed before October 1, 1994? Would McNeill still be an armed career criminal? Hmmm. 

Monday, June 13, 2011


Most Federal offenses are more serious than crimes charged under the State statutes, and most federal offenses involve far more serious and harsher penalties.  And for many, understanding the Federal Court System is confusing and intimidating.  Below is brief definitions of some of the proceedings and events in a federal criminal case to help you have a surface understanding. 

Pre-Indictment Letter.  If you receive a pre-indictment letter you should seek immediate legal assistance.  As with any sport or a game of chess: the best defense is a great offense.  An attorney can seek investigative reports and speak to and/or arrange for a meeting with the Assistant United States Attorney.  Further, arrangements for self surrender can be made without the need for a custodial arrest in most cases. 

Criminal Complaint.  A criminal complaint is the charge against you without the benefit of an indictment by a Grand Jury.  Because a Grand Jury has not indicted you, you are entitled to a preliminary hearing.  The criminal complaint identifies the charge(s), the nature of the charge and is supported by an affidavit (sworn statement) typically from the investigating agent.  At a preliminary hearing the Assistant United States Attorney must show that there is probable cause to believe that you committed a crime and there is probable cause to believe a crime has been committed.  At a preliminary hearing your attorney has the opportunity to cross examine witnesses and you get an opportunity to hear the evidence against you. 

Indictment.  An indictment is the formal charge(s) filed against you after the United States Government presents its case to a group of 16 to 23 persons from the community – the Grand Jury.  The Grand Jury, after hearing the United States case decides if of crime has occurred and if there is probable cause to believe you committed it.  The Grand Jury meets in secret. 

Initial Appearance.  This is the first appearance by an individual in Federal Court.  You will be told the charge(s) against you, the penalty of those charges and the issue of bond will be explored. 

Arraignment.  An arraignment is a court hearing at which time you will be told the charge(s) against you and the penalty if found guilty of those charges.  The Court will also review with you your constitutional rights.  You have:
  • The right to an attorney at every stage;
  • The right not to incriminate yourself;
  • The right to have the charges against you review by a Grand Jury;
  • The right to a speedy and public trial; and
  • The right to plead not guilty, guilty or with the permission of the court no contest with the consent of the court.
You will then be asked to enter a plea of guilty or not guilty. PLEAD NOT GUILTY!

Pretrial.  The pretrial takes place at the same time as the arraignment.  At the pretrial the court will review the pretrial statement submitted by the Assistant United States Attorney.  The initial pretrial conference summary statement submitted by the Government will review what discovery is available for review, the length of any expected trial and any policy regarding plea negotiations.  Specifically, the Government will disclose, per Federal Criminal Procedural Rule 16:
  • Any oral, written or recorded statements made by you;
  • Your prior criminal record;
  • Any documents and/or tangible objects in the Governments possession; and
  • Any reports of examinations and/or test conducted on drugs, handwriting, fingerprints, DNA, firearms, or computer.

Bond/Detention Hearing.  Under the Bail Reform Act, pretrial detention is to be the exception, not the norm.  The purpose of the Bail Reform Act is to
    • Assure community safety; and
    • Assure the appearance of an individual charged with a crime. 

In determine what bond, if any, is appropriate for you the Court will consider all of the following factors that apply:
Ø      The nature and circumstances of the offense charged;
Ø      The weight of the evidence against you; and
Ø      Your history and characteristics as it relates to physical and mental health, family ties, employment, residence in the community, community ties, criminal history, and use of substances, illegal drugs, and/or alcohol.

Any information you can provide regarding, your employment, physical and emotional health, mortgage/residence, passport, loans and debts, as well as assets and family will help secure your release during the pendency of your federal criminal case.

Scheduling Order.  During or shortly after the initial pretrial the Court will provide a scheduling order.  A scheduling order states when motions, jury instructions and voir dire are due from the attorneys to the Court, and when the final pretrial and trial are to take place. 

Motions.Motions may be filed before trial for a variety of reasons. Motions may ask the Court to dismiss a case, find that a constitutional right had been violated, find that evidence not be used a trial or order that evidence be turned over to the defense for inspection.  Some motions will require that a hearing be held before the Judge and witnesses be called.  Other motions may only require that the Judge make a decision regarding the request based on the motion made.  Some example motions may include:
  • Motion for Severance: a motion to separate your trial from the trial of your co-defendants.
  • Motion to Suppress: a motion suppress, or not let physical evidence, statements, identification, criminal history or other evidence into the trial. 
  • Motion for Ends of Justice: a motion for adjournment.
  • Brady Motion: a motion that specifically request certain evidence and/or information relating to exculpatory material, and evidence that may be used to impeach the credibility of a witness for the government, be disclosed.
  • Motion to Dismiss Statute of Limitation: a motion to dismiss because more than five years, in a non-capital case, has past since the offense was committed.
  • Motion to Strike: a motion to exclude immaterial and/or irrelevant allegations at trial.

Final Pretrial.  Shortly before trial the Court will schedule a final pretrial.  At the final pretrial the attorneys and the Court will discuss numerous issues relating to the case and trial.  The attorneys may file trial briefs and proposed voir dire questions for the jury.  Motions may also be heard that were previously filed and not addressed prior to the final pretrial.  Lastly, the Court may want to address the status of any plea negotiations, jury selection procedures, the number of witnesses, any issues relating to the admissibility of exhibits and the jury instructions.  Typically, if you have not pled to the charges are plea offer by this time you will no longer be eligible for a one point reduction from the sentencing guideline offense variable. 

Trial.  At trial the United States Government will attempt to prove the offense via testimony and evidence.  At trial the Unite States Attorney presents it’s case first.  This means that after the jury is selected and opening remarks by each attorney are made, the United States Attorney will call their first witness.  Your attorney will then have the opportunity to cross-examine and question the governments witness as well.  
            Your attorney will have an opportunity to call your witnesses after the United States Government has presented their case.  Based on what you and your attorney have decided you may or may testify at your trial.
            After you present your case, the United States Government may present rebuttal evidence and witnesses in response to your presentation of the case.  Thereafter both attorneys will have an opportunity to present closing remarks to the jury.  
            Trials typically last from till daily.  The government bears the burden of proving guilt “beyond a reasonable doubt.”  This is a heavier burden of proof then the proof in a civil case.  In a criminal case the jury decides whether the United States Government has proven its case against you. 

Guilty Pleas.  Quite often the United States Government will offer a Plea Bargain.  A plea bargain is the opportunity for you to plead guilty to an offense with concessions made by the United States Government: lesser offense(s), not write other offenses, and/or recommendations for lower sentences via departures and/or variances.  
Plea agreements may be in writing and filed with the Federal Court. Plea agreements may include your obligation to cooperate with the United States Government and law enforcement regarding other criminal activity.  Any and all promises made to you and all agreements must be included in the plea agreement or the issue(s) are not preserved. 
            The majority of cases in the Western District of Michigan are resolved by a guilty plea, 87% to 93%.  Guilty pleas in Federal Court are extremely detailed and in-depth.  A guilty plea to a felony may be conducted before a District Judge, or with your consent, a Magistrate Judge.  The Judge is not a party to the plea agreement and is not bond by the plea agreement.

Presentence Report (PSR).  Once you have either been found guilty or you plead guilty you and your attorney must begin preparing for sentencing.  Prior to the actual sentencing there is much work to be done. 
            First, you and your attorney must complete authorization forms for the presentence investigative reporter – the United States Probation Officer.  These forms will include: prior tax returns filed with the IRS; prior school records; prior criminal court case files; a credit report; medical and/or psychological records; substance abuse and/or rehabilitation records; and employment records. 
            Second, you and your attorney must complete a presentence report packet.  The packet ask for information relating to: your current charge (offense, co-defendants, bond status, and restitution); your immediate family members;  your marriage status and children; your education; your work history; your substance use and history; your physical health; and your mental health.  Lastly, the packet includes a section regarding your “Acceptance of Responsibility.” 
            Third, you and your attorney will meet with the United States Probation Officer assigned to your case and a presentence investigation interview will take place.  You should not attend this meeting without your attorney! You should come to this meeting prepared: a completed presentence report, by you and your attorney; know what to discuss, and what not to discuss (are you protected?); and be prepared to give your “acceptance of responsibility” orally. 

After you meet for the presentence investigation interview the United States Probation Officer will prepare a presentence report.  This report will contain information relating to:
  • Your charge(s) and conviction(s);
  • Offense Conduct;
  • Victim Impact;
  • Adjustment of Obstruction of Justice;
  • Adjustment for Acceptance of Responsibility;
  • Offense Level Computations;
  • Criminal History;
  • Physical condition;
  • Mental and Emotional Health;
  • Substance Abuse;
  • Education and Vocational Skills;
  • Employment Record;
  • Financial Condition;
  • Custody;
  • Impact of Plea Agreement;
  • Supervised Release;
  • Probation;
  • Fines;
  • Restitution;
  • Denial of Federal Benefits;
  • Factors that may warrant departure;  and
  • Factors that may warrant a sentencing outside the advisory guideline system.

Your Attorney will be provided a copy of the completed PSR (presentence report), as will the United States Government.  It is imperative that you and your attorney review every word, every line and every part of the PSR together.  Thereafter, your Attorney will provide written notice of any additions, corrections, and/or objections to the content of the PSR.  If you do not objection, correct and/or make the addition now, IT WILL BE WAIVE!  The United States Government also has the opportunity to submit any additions, corrections, and/or objections to the content of the PSR. 

Your Attorney and the United States Government will thereafter meet with the United States Probation Officer to discuss the submitted additions, corrections, and/or objections to the content of the PSR made by you, your attorney and the United States Government. 
Any objections not resolved at this meeting will be determined by the Judge at the sentencing.  Thereafter a final PSR will be submitted to you, your attorney, the United States Government and the sentencing Judge. 

Sentencing Guidelines.  The federal sentencing guidelines are rules that set out uniform sentencing for individual convicted of felonies and class A misdemeanors.  To determine an individuals sentencing guidelines please consult an attorney.  However, the guidelines determine sentences based primarily on two factors:
  • The conduct associated with the offense; and
  • The defendant’s criminal history.
The theory of guideline sentencing was to minimize unwarranted disparities between sentencing given to individuals who commit the same, or similar, offenses with similar criminal histories.  Numerous factors, including adjustments, relevant conduct variances and departures are taken into consideration in arriving at the applicable sentencing guidelines. 
            Finally, although your attorney and the United States Government may calculate your sentencing guidelines it is important to remember only the Court will make the final determination.  With the aid of the United States Probation Officer the  sentencing Judge will what your final sentencing guidelines and sentence is for you. 

Acceptance of Responsibility.  “Acceptance of Responsibility” is important if you wish to receive a two (2) point reduction per 3E1.1.  In order to receive the two point reduction you must plead guilty and either verbally or in writing admit to your wrongful conduct to the probation officer and your total sentencing offense variable must be a level 16 or more.  Specifically, the statute states that in order to receive the two point deduction the following may be taken into consideration:
a. truthfully admit the conduct comprising the offense of conviction.
b. voluntary termination or withdrawal from criminal conduct;
c. voluntary payment of restitution; 
d. voluntary surrender;
e. voluntary assistance to the United States Government; and
f. post-offense rehabilitative efforts.
You may not get the two point reduction to the offense level if you receive an additional enhancement for obstructing justice. 

Career Offender.  A term used to distinguish a higher guideline range for an individual who has an extensive criminal history, 4B1.1.  The criminal history must consist of at least two prior crimes of violence and/or controlled substance offenses. 
The individuals criminal history for purposes of calculating the sentencing guideline range automatically becomes a level VI. 

Armed Career Criminal.  A term used to define an individual convicted of certain firearm offenses when the individual has three or more previous convictions: violent felony and/or controlled substances offenses.   A sentence of an armed career criminal can be from ten years (10) to life. 

Sentencing. At the sentencing hearing typically you, your attorney, the United States Attorney, the case agent will appear and the United States Probation Officer will appear before the Court.  The Court will first inquire as to whether or not you and your attorney have had an opportunity to review the PSR.  The Court will then make the PSR part of the record for sentencing purposes.  The Court will ask both your attorney and the United States Attorney if you have any objections to the content of the PSR, the scoring of the guidelines or any other matter. 

If there are objections to the PSR the Court will address the objections.  Either your attorney or the United States Attorney will have the opportunity to argue the objection as well as call any witness regarding the objection.  The Court, after hearing all arguments and witnesses will make the final determination as to the objection.  Thereafter the Court will summarize and calculate the offense variable points and criminal history points.  The Court will then state the guideline range. 

Your attorney, you and the United States Attorney will then have an opportunity for allocation.  The Court will thereafter pronounce the sentence. 

Supervised Release.  Supervised release is the duration after you serve your prison term.  Supervised Release can be stressful, overwhelming and difficult.  You may be expected to seek, maintain and provide proof of employment.  Attend substance abuse counseling and testing.  Meet weekly with your United States Probation Officer.  Refrain from drugs, alcohol and contact with known felons, including family members.  You may have a curfew and restrictions on where you may visit. It is imperative that you understand and obey the conditions of your supervised release or negotiate terms that both you and your United States District Judge can agree on for your future success. 

Sunday, May 22, 2011

The 6th Circuit Legal Beagle: Supervised Release Violation Sentencing

The 6th Circuit Legal Beagle: Supervised Release Violation Sentencing: "Supervised Release Sentencing : United States v Brown, 10-1410;10-1411 Facts: Mr. Brown pled guilty to armed robbery of a federally insu..."

The 6th Circuit Legal Beagle: Acceptance of Responsibility

The 6th Circuit Legal Beagle: Acceptance of Responsibility: "Acceptance of Responsibility: United States v Genschow No. 09-1946 Facts: Mr. Genschow, ..."

Acceptance of Responsibility

Acceptance of Responsibility:  United States v Genschow
                                                No. 09-1946

Mr. Genschow, Sr. was charged and convicted after a bench trial of destroying trees on the Ontonagon Reservation in violation of 18 U.S.C. § 1853, and stealing tribal property for his own use in violation of 18 U.S.C. § 1163. 

One of the issues on appeal was that Mr. Genschow did not receive acceptance of responsibility.  Prior to sentencing a sentencing memorandum was submitted on Mr. Genschow’s behalf.  And Mr. Genschow himself wrote an “acceptance letter” to the United States Probation Department.  In part, Mr. Genschow wrote:

I, Robert Genschow, do hereby accept responsibility for my actions. It was my decision to undertake to have the land cleared on the Ontonagon Reservation; and I, alone, am responsiblie for any and all consequences.  However, these actions were taken by me a Chief of the Ontonagon Band of Lake Superior Chippewa Indians and were being undertaken for what I believed was the benfit of that Ontonagon Band . . . . I am very sorry for the trouble and difficulties I have caused everyone –  . . . .”

At sentencing the Federal Court District Judge determined that Mr. Genschow did not possess the requisite acceptance of responsibility per the United States Sentencing Guidelines Manual § 3E1.1(a).

What is enough to receive acceptance of responsibility per United States Sentencing Guidelines Manual § 3E1.1(a)?

To receive acceptance of responsibility you must not only admit to what you did, but also, that you intended the action and/or end result. 

The Federal Sentencing Guidelines 3E1.1(a) provides for a two (2) level reduction to the offense variable total if a Defendant “clearly demonstrates acceptance of responsibility for his/her offense.”  U.S.S.G. 3E1.1(a).  The Defendant has the burden of proving by a preponderance of the evidence that he/she merits the reduction. 

Factors the Court may consider in deciding whether the Defendant has shown he/she merits the reduction include:
  • Whether the defendant truthfully admitted the conduct comprising the offense of conviction; and
  • Whether the defendant truthfully admitted, or  did not falsely deny any additional relevant conduct for which the defendant is accountable;
  • The voluntary termination or withdrawal of the defendant from criminal conduct or associations; and the timeliness of the defendant’s conduct in manifesting the acceptance of responsibility. 
U.S.S.G. § 3E1.1. app. note 1(a), (b), and (h). 

“Regret alone does not warrant a reduction.”  To receive the two (2) point reduction for of acceptance responsibility you must admit your wrongdoing in full at the time you are put on notice that the behavior/action was wrong.  This does not normally include the pre-indictment phase; however, but may include the time after arrest, search warrant, post indictment time or the time after a guilty plea is entered.

Thursday, May 19, 2011

Supervised Release Violation Sentencing

Supervised Release Sentencing: United States v Brown, 10-1410;10-1411

Facts: Mr. Brown pled guilty to armed robbery of a federally insured bank.  He was thereafter sentenced to 78 months.  Upon release Mr. Brown was placed in a half way house.  He subsequently walked away from the half way house.  Mr. Brown was subsequently charged with a supervised release violation (armed robbery) and a new criminal charge (escape).  Mr. Brown received a sentence of 46 months incarceration, consecutive to the armed robbery, and three years supervised release, concurrent to the armed robbery supervised release, on the escape conviction.  In 2009 Mr. Brown once again began supervised release; however, three months later he was again charged with supervision release violations.  Mr. Brown pled guilty to two of the violations and was sentenced to: seven (7) months incarceration with no supervised release to follow on the armed robbery; and, eight (8) months incarceration with three years supervised release on the escape. 

Issue: Did the trial court improperly calculate the term of Defendant’s supervised release (three (3) years) when sentencing Defendant to eight months incarceration?

Holding: Yes

Reasoning:  18 U.S.C. § 3583(h) states:
“the length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release. 

Per statute, Mr. Brown could not be sentenced to more than 28 months supervised release on the escape term: supervised release authorized by statute for the charge of escape was 36 months, minus the 8 months of incarceration for the violation, leaves a maximum permissible term of supervised release of 28 months. 

Sentence vacated and remanded for resentencing.