Iowa State Public Defender Conference. Des Moines, Iowa June 16, 2016

Transcription

1 Iowa State Public Defender Conference Des Moines, Iowa June 16, 2016

2 The Interplay of Federal and State Criminal Cases Rich McWilliams

3 A BRIEF OVERVIEW OF THE FEDERAL SENTENCING PROCESS 18 U.S.C 3553(a) Federal Sentencing Guidelines = 1 of 7 coequal factors.

4 THE TABLE Offense Level + Criminal History Category Range

5 But they re advisory, right?

6 FED. SENTENCES IN IOWA (FY15) SENTENCINGS (670) PERCENTAGE WITHIN - GUIDELINES % ABOVE % GOVERNMENT- SPONSORED BELOW- GUIDELINES NON- GOVERNMENT- SPONSORED BELOW- GUIDELINES % %

7 THINGS TO BE AWARE OF*: Three ways that state-court convictions increase federal sentences: Criminal-History Points Offense Level Career Offender, Armed Career Criminal Act, and 21 U.S.C. 851.

8 CRIMINAL-HISTORY POINTS

9 CRIMINAL-HISTORY POINTS Based on a point system because, hey, why not? Less than 60 days (within last 10 yrs) = 1 pt 60 + days up to 13 months (within last 10 yrs) = 2 pts 13 months or more (within the last 15 yrs) = 3 pts.

10 CRIMINAL-HISTORY POINTS Wait there s more! Some offenses NEVER count: Fish and game violations Hitchhiking Juvenile status offenses and truancy Loitering Minor traffic infractions Public intoxication Vagrancy

11 CRIMINAL-HISTORY POINTS Some offenses count SOMETIMES*: NOL/DUS False info to the police Gambling Failure to obey/hindering a police officer/resisting Insufficient-funds check Leaving scene of accident Prostitution Trespassing * - THESE COUNT IF THE SENTENCE IS 30+ DAYS JAIL OR MORE THAN 1-YEAR PROBATION

12 OFFENSE LEVEL

13 OFFENSE LEVEL Common Cases Where One s Criminal History Affects the Offense Level: 1. Felon in possession (garden variety) 2. Illegal reentry

14 OFFENSE LEVEL FELON IN POSSESSION

15 FELON IN POSSESSION 14 Prohibited Person; 20 One prior felony for either a crime of violence or a controlled-substance offense; 24 Two prior felonies for either a crime of violence, a controlled-substance offense,* or one of each;

16 FELON IN POSSESSION:

17 OFFENSE LEVEL ILLEGAL REENTRY

18 ILLEGAL REENTRY START at 8; - If you have a felony, ADD 4; - If you have an aggravated felony, ADD 8; - If you have a felony drug-trafficking offense for which you received <13 months OR 3+ misdemeanor crimes of violence, ADD 12; - If you have a felony drug-trafficking offense and received >13 months or any felony crime of violence: ADD 16.

19 ILLEGAL REENTRY:

20 THE REALLY BAD NEWS: CAREER OFFENDER, THE ARMED CAREER CRIMINAL ACT, and 21 U.S.C (Oh my!)

21 CAREER OFFENDER - GUIDELINE (i.e., does not affect stat. max/min.) and, thus, advisory; - In play in felony controlled-substance offenses and felony crimes of violence; - Moves you to a pre-determined BOL and CHC VI if you have two prior, countable CSOs/COVs.

22 CAREER OFFENDER:

23 ARMED CAREER CRIMINAL 18 U.S.C. 924(e) - STATUTE (i.e., eliminates judicial discretion) - In play in gun cases; - Applies if you have any combination of three prior convictions for violent felonies or serious drug offenses. - Increases mandatory minimum to 15 years; - ALSO, moves you to a minimum BOL of 33 and CHC IV.

24 21 U.S.C. 851 CONGRATULATIONS! You have ONE prior drug offense and the U.S. Attorney has just noticed it. Your: 0 to 20 5 to to Life JUST BECAME A JUST BECAME A JUST BECAME A 0 to to life 20 to life

25 21 U.S.C. 851 CONGRATULATIONS! You have TWO prior drug offenses and the U.S. Attorney has just noticed them. Your: 0 to 20 JUST BECAME A 0 to 30 5 to 40 JUST BECAME A 10 to Life 10 to Life JUST BECAME A Mandatory life - no release

26 THE REALLY, REALLY BAD NEWS: HAVING TO WORK WITH AFPDs (or SIMULTANEOUS STATE/FEDERAL CASES )

27 SAFETY VALVE (18 U.S.C. 3553(f))

28 SAFETY VALVE: Eliminates mandatory minima and reduces offense level in drug cases where certain criteria are met, including: - Not a leader/organizer; - No guns, violence; - Provide complete and truthful info to USG; - One CH point or less.

29 SUPERVISED- RELEASE VIOLATIONS

30 SUPERVISED-RELEASE VIOLATIONS:

31 GRADES OF SUPERVISED-RELEASE VIOLATIONS Grade A = felony COVs, CSO s, gun offenses, or felonies with stat. max above 20 yrs Grade B = other felony Grade C = MISDs and everything else.

32 WHOSE CUSTODY AM I IN? WHY DOES THAT MATTER? FEDERAL CUSTODY: Federal time is ticking. Any state time not technically ticking. CC/CS decision is up to state judge. STATE CUSTODY: Must be writted over to federal court. Federal time is NOT ticking (regardless of USMS hold) CC/CS decision is up to: Federal prosecutor Federal judge

33 CONCURRENT VS. CONSECUTIVE IS IT POSSIBLE? If Δ is in federal custody, the issue is out of the federal judge s hands. If Δ is in state custody, the issue is out of the state judge s hands.

34 CONCURRENT VS. CONSECUTIVE FEDERAL SENTENCES CAN BE RUN CONCURRENT TO FUTURE STATE SENTENCES.

35 CONCURRENT VS. CONSECUTIVE SETSER V. UNITED STATES, 132 S.Ct (2012): - Interprets federal sentencing statute; - Can run a federal sentence concurrent/consecutive to a state sentence;

36 CONCURRENT VS. CONSECUTIVE WHY: Any consecutive state sentence = detainer throughout federal sentence Disqualifies Defendant from RDAP, programming, etc. Saves the Iowa State Prisons money; Still adds habitual-offender predicate to defendant

37 QUESTIONS? CONTACT INFO: RICH MCWILLIAMS (402)