ONCE UPON A TIME . . . .

            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. 

MAPPING THE FEDERAL CRIMINAL CASE

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 8:30 a.m. till 3:00 p.m. 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.