Sentencing 101 A beginner s guide to sentencing in Federal Courts. March 23, 2016 Michelle Nahon Moulder, Assistant Federal Public Defender

Transcription

1 Sentencing 101 A beginner s guide to sentencing in Federal Courts. March 23, 2016 Michelle Nahon Moulder, Assistant Federal Public Defender

2 Purpose of this presentation: The basics.

3 What you can expect: Tools Facts Guidelines basics Resources Practice pointers Questions.

4 The Tools

5 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHWESTERN DIVISION COUNT 2 (Felon in Possession of Firearm and Ammunition) 18 U.S.C. 922(g)(1) and 924(a)(2) UNITEDSTATES OF AMERICA, No. xx-xxxxx-xx-x-xxx On or about April 24, 2015, in Jasper County, in the Western District of Missouri, the The Indictment v. John Doe Plaintiff, Defendant. THE GRAND JURY CHARGES THAT: I N D I C T M E N T COUNT 1 (Felon in Possession of Firearm and Ammunition) 18 U.S.C. 922(g)(1) and 924(a)(2) COUNT 1 18 U.S.C. 922(g)(1) and 924(a)(2) NMT 10 Years Imprisonment NMT $250,000 Fine NLT 3 Years Supervised Release Class C Felony COUNT 2 18 U.S.C. 922(g)(1) and 924(a)(2) NMT 10 Years Imprisonment NMT $250,000 Fine NLT 3 Years Supervised Release Class C Felony FORFEITURE ALLEGATION 1 18 U.S.C. 924(d)(1) $100 Special Assessment On or about February 3, 2015, in Jasper County, in the Western District of Missouri, the defendant, John Doe, having been convicted of a crime punishable by imprisonment for a term exceeding one year, knowingly possessed, in and affecting interstate commerce, firearms and ammunition, that is, a KHAR CM40.40 caliber handgun, serial number JN9239, with three rounds of.40 caliber defendant, John Doe, having been convicted of a crime punishable by imprisonment for a term exceeding one year, knowingly possessed, in and affecting interstate commerce, firearms and ammunition, that is, a Hi-Point Model C9 9mm firearm with an assigned serial number of P with 8 rounds of Luger 9mm caliber ammunition; all in violation of Title 18, United States Code, Sections 922(g)(1) and 924(a)(2). FORFEITURE ALLEGATION 1 18 U.S.C. 924(d)(1) The allegations contained in Counts 1 and 2, above, are hereby incorporated as though fully set forth herein for the purpose of charging criminal forfeiture to the United States of America pursuant to Title 18, United States Code, Section 924(d)(1). As a result of committing offenses in violation of Title 18, United States Code, Sections 922 and 924, as charged herein, defendant John Doe, shall forfeit to the United States all firearms and ammunition involved in the particular aforesaid offenses as set forth above, including but not limited to, a KHAR CM40.40 caliber handgun, serial number JN9239, with three rounds of.40 caliber ammunition; and a Hi-Point Model C9 9mm firearm with an assigned serial number of P with 8 rounds of Luger 9mm caliber ammunition, all seized from John Doe in Jasper County, Missouri, on or about February 3, 2015, and April 24, A TRUE BILL. /s/ FOREPERSON OF THE GRAND JURY ammunition; all in violation of Title 18, United States Code, Sections 922(g)(1) and 924(a)(2). Dated: 06/17/2013 /s/ AUSA Assistant United States Attorney

6 Applicable Statutes Crime Charged Felon in possession 18 U.S.C. Section 922(g) 18 U.S.C. Section 922(g) (g)it shall be unlawful for any person (1)who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

7 Applicable Statutes -- Penalties Felon in possession Penalties: 18 U.S.C. Section 924(a)(2) Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both. 18 U.S.C. Section 924(a)(2)

8 Applicable Statutes Potential Statutory Enhancements Armed Career Criminal Act (ACCA) 18 U.S.C. 924(e) Armed Career Criminal Act. 18 U.S.C. Section 924(e) (e)(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g). (2)As used in this subsection (A)the term serious drug offense means (i)an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46 for which a maximum term of imprisonment of ten years or more is prescribed by law; or (ii)an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law; (B)the term violent felony means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that (i)has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii)is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another; and (C)the term conviction includes a finding that a person has committed an act of juvenile delinquency involving a violent felony.

9 Applicable Statutes Resource No Cost Resource: Cornell University Law School, Legal Information Institute

10 The United States Sentencing Guidelines

11 The United States Sentencing Guidelines Where to find the Guidelines Book form. $69 products/treatises/federal-sentencing-guidelines-manual ed/p/ Regularly $ on sale for $ Online. FREE!!!

12 United States Sentencing Guidelines Guidelines Worksheets

13 United States Sentencing Guidelines Sentencing Table

14 Model Jury Instructions Available at the Eighth Circuit website:

15 Model Jury Instructions -- Elements

16 Model Jury Instructions -- Elements

17 The Facts Where to find the facts you need to calculate the potential sentence.

18 Sources Information The Facts Client interview Government s Discovery Investigation Criminal history Health/mental health Employment School Family

19 Calculating the Potential Sentence

20 The Statute Controls Example: Felon in Possession Penalties: 18 U.S.C. Section 924(a)(2) Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both Armed Career Criminal Act. 18 U.S.C. Section 924(e) (e)(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).

21 Calculating the Guidelines

22 Find the Applicable Guideline Appendix A Statutory Index 18 U.S.C. Section 922(g) Guideline Section 2K2.1

23 Calculating the Offense Level 2K2.1

24 Calculating the Offense Level (cont.)

25 Calculating the Offense Level (cont.)

26 Calculating the Offense Level (cont.)

27 Calculating the Offense Level (cont.) Chapter Three Adjustments CHAPTER THREE Adjustments Part A-Victim-Related Adjustments Part B-Role in the Offense Part C-Obstruction and Related Adjustments Part D-Multiple Counts Part E-Acceptance of Responsibility

28 Calculating the Offense Level (cont.) Part D Multiple Counts Determine whether the counts should be grouped (3D1.2). Offenses covered by Section 2K2.1 are to be grouped.

29 Calculating the Offense Level (cont.) 3E1.1. Acceptance of Responsibility (a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels. (b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.

30 Calculating the Offense Level (cont.)

31 Calculating Criminal History Chapter 4. Determining the Criminal History

32 Calculating Criminal History (cont.)

33 Criminal History Points for offenses committed at 18 or older: Calculating Criminal History Points Summary 3 >13 months. Must be within 15 years of prior sentence imposition or release days. Must be within 10 years of prior sentence imposition. 1 All others * Must be within 10 years of prior sentence imposition. * Maximum of 4. If offense committed before 18, 2 points if within 5 years of prior imposition or release and 1 point within 5 years of imposition.

34 Calculating Criminal History (cont.) Criminal History

35 Criminal History Resources The Client Government s Discovery Pretrial Services Report PACER CaseNet Prior Presentence Investigation Reports Obtain Copies

36 Summary: Why it is important to know your client s criminal history. Statutory Penalties: 18 U.S.C. Section 924(a)(2) Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both. Armed Career Criminal Act. 18 U.S.C. Section 924(e) (e)(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, Determining the Offense Level

37 Summary: Why it is important to know your client s criminal history Chapter 4 Career Offender and Criminal Livelihood. Career Offender At least eighteen years old at the time he committed the instant offense of conviction. The instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense. At least two prior felony convictions of either a crime of violence or a controlled substance offense. Armed Career Criminal A defendant who is subject to an enhanced sentence under the provisions of 18 U.S.C. 924(e) is an armed career criminal. Three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another.

38 Determine the Sentence Chapter 5

39 Determine the Sentence (cont.)

40 Determine the Sentence (cont.)

41 Determine the Sentence (cont.)

42 Determine the Sentence (cont.)

43 Determine the Sentence (cont.)

44 Determine the Sentence (cont.)

45 Determine the Sentence (cont.) Other Chapter 5 considerations 5G1.3 Imposition of a Sentence on a Defendant Subject to an Undischarged Term of Imprisonment or Anticipated State Term of Imprisonment.

46 Determine the Sentence (cont.)

47 Determine the Sentence (cont.)

48 Determine the Sentence (cont.)

49 Determine the Sentence (cont.) Other Chapter 5 considerations Part H Specific Offender Characteristics List of characteristics and whether they are relevant for determining whether a departure is warranted. Part K Departures 5K1.1 Substantial Assistance 5K2.0 through 5K2.24 Other Grounds

50 18 U.S.C. Section 3553(a) 18 U.S.C. Section 3553(a) factors give the court wide discretion within the statutory minimum and maximum. Felon in Possession maximum ten (10) years. ACC -- minimum fifteen (15) years, maximum life.

51 Sentencing factors. 18 U.S.C. Section 3553(a). (a)factors TO BE CONSIDERED IN IMPOSING A SENTENCE. The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider (1)the nature and circumstances of the offense and the history and characteristics of the defendant; (2)the need for the sentence imposed Applicable -- Sentencing Factors 18 U.S.C. Section 3553(a) (3)the kinds of sentences available; (A)to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B)to afford adequate deterrence to criminal conduct; (C)to protect the public from further crimes of the defendant; and (D)to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective (4)the kinds of sentence and the sentencing range established for A)the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines (i)issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and (ii)that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or manner; (B)in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); (5)any pertinent policy statement (A)issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and (B)that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.[1] (6)the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7)the need to provide restitution to any victims of the offense.

52 Important Considerations

53 Plea Agreements The Impact on Sentencing Appeal waiver. The Factual basis. Agreed upon Guidelines.

54 The PSI Interview Determine whether your client should interview. Prepare your client. Do NOT allow your client to attend without you.

55 Sentencing Mitigation Expert Psychologist. Bureau of Prisons. Medical. Non-Expert Friends and family. Employers. Letters to court. Photographs.

56 Allocution Allocution. (al-ə-kyoo-shən) n. (1858) Criminal procedure. 1. A trial judge's formal address to a convicted defendant, asking whether the defendant wishes to make a statement or to present information in mitigation of the sentence to be imposed. This address is required under Fed. R. Crim. P. 32(c)(3)(C). 2. An unsworn statement from a convicted defendant to the sentencing judge or jury in which the defendant can ask for mercy, explain his or her conduct, apologize for the crime, or say anything else in an effort to lessen the impending sentence. This statement is not subject to cross-examination. 3. Criminal procedure. A defendant's admission of guilt made directly to a judge, esp. in response to a series of questions from the judge on whether the defendant understands the charges, the right to a trial, the consequences of a guilty plea, and the voluntary nature of the plea. Black s Law Dictionary (10 th ed. 2014), Bryan A. Garner, Editor in Chief.

57 Allocution Letter from client. Client address to the court. Allocution article.

58 Non-citizen defendants Treaty transfers.

59 Office of the Federal Public Defender Jefferson City: Kansas City: Springfield: Additional Resources Defender Services Office Training Division: An Introduction to Federal sentencing, Bradford Bogan, Assistant Federal Public Defender, Western District of Texas. United States Sentencing Commission Helpline:

60 Additional Resources United States v. Booker, 543 U.S. 220 (2005) Rita v. United States, 551 U.S. 338 (2007) Kimbrough v. United States, 552 U.S. 85 (2007) Gall v. United States, 552 U.S. 38 (2007) Irzarry v. United States, 553 U.S. 708 (2008) Spears v. United States, 555 U.S. 261 (2009) Pepper v. United States, 131 S.Ct (2011) Peugh v. United States, 133 S.Ct (2013)

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62 The End.