INTRODUCTION TO THE SENTENCING GUIDELINES

INTRODUCTION TO THE SENTENCING GUIDELINES

Where to find the Guidelines ONLINE at www.ussc.gov/guidelines In print from Westlaw

Chapter Organization Chapter 1 Introduction Chapter 2 Offense Conduct Chapter 3 Adjustments Chapter 4 Criminal History Chapter 5 Determining the Sentence Chapter 6 Sentencing Procedures Chapter 7 Probation and Supervised Release Chapter 8 Sentencing of Organizations

Calculating Your Client s Guidelines Know the statutory boundaries for your client s case - these trump the Guidelines with few exceptions Offense statute ACCA 21 U.S.C. 851 Use the right year Chapters 2 5 Sentencing Table

Our Client Our client was initially indicted under 21 U.S.C. 841 with being involved in a conspiracy to distribute over 50 grams of actual methamphetamine or 500 grams of a mixture containing meth. When he was arrested, law enforcement found 6 grams of meth and a handgun in his glovebox.

Our Client s Priors Our client has a little criminal history, too In 1978, in Florida, he was convicted of Possession of Cocaine with Intent to Distribute. He got a great deal, and only had to serve a little over six months but he could have gone away for 15 years In 1984, in Indiana, he was convicted of Burglary as a Class B felony in Indiana and went to the DOC for two years In 1987, he was arrested for a Possession of Marijuana and convicted of a misdemeanor In 2009, he was arrested for Possession of Marijuana he had half a joint in his car s ashtray, and was convicted with a felony but only 6 months on home detention

Statutory Boundaries for our Client 21 U.S.C. 841 charge: 10 life Client has a prior felony he could be charged with an 18 U.S.C. 922(g) violation; certainly faces guidelines enhancement for possessing a firearm during the drug conspiracy Is he ACCA eligible? Is he 851 eligible?

Armed Career Criminal Act (ACCA) 18 U.S.C. 924(e) The ACCA raises the mandatory minimum sentence to 15 years maximum is LIFE GL 4B1.4 also applies once ACCA status is determined

If charged under 922(g), is our client ACCA eligible? Requirements: A 922(g) charge (felon in possession of a firearm) Three prior convictions for certain felonies violent felony AND/OR serious drug offense

Violent Felonies under ACCA Any adult crime punishable by more than one year AND WHICH includes an element of force against any person OR Is burglary, arson, or extortion OR Involves use of explosives OR Otherwise involves conduct which poses serious potential risk of physical injury to another Juvenile offenses count if they involved a weapon AND if committed by an adult would have carried a sentence of more than one year

Serious Drug Offenses under ACCA Any conviction for a drug-related offense which: Has an element of dealing, such as dealing, possession with intent to distribute, manufacturing AND Is punishable by ten years or more

Our client s ACCA situation 1978 Florida offense 1984 Indiana burglary conviction 1987 Possession of Marijuana misdemeanor 2009 Possession of Marijuana - felony

Challenging the ACCA Categorical Approach Court can only look to the fact of conviction and its statutory definition, not the specifics of your client s case. U.S. v. Taylor and U.S. v. Shepard

What you can do Sometimes not much You MUST gather the Shepard documents yourself in order to challenge the ACCA determination Research statutory definitions Be prepared to challenge any damaging non- Shepard information appearing about the predicate convictions in the PSR

21 U.S.C. 851 If your client is charged under 21 U.S.C. 841, having prior drug felonies can increase the mandatory minimum sentence

Enhancements for 851 filing See 21 U.S.C. 841 for all statutory minimums and maximums One prior drug felony: raises minimum from 10-life to 20-life Two prior drug felonies: raises 10-life to MANDATORY LIFE

Government s Burden Government must file separate charging instrument alleging a prior drug felony BEFORE plea is entered or before trial begins Filing is discretionary

Do we have an 851 case? Requirements: A pending charged under 21 U.S.C. 841 One or more prior convictions for drug-related felonies

Prior Drug Felonies under 21 U.S.C. 851 ANY drug-related felony conviction which was punishable by more than one year in prison No lookback period

Our client s 851 situation 1978 Florida offense 1984 Indiana burglary conviction 1987 Possession of Marijuana misdemeanor 2009 Possession of Marijuana - felony

851 Hearings Client can deny priors after being convicted on instant case but before being sentenced Denial triggers necessity of hearing, and government has burden of proof. Both parties can introduce evidence Validity of priors older than 5 years cannot be challenged in this hearing, but you can seek state PCR relief

DETERMINING THE OFFENSE LEVEL CHAPTER TWO

RELEVANT CONDUCT 1B1.3 Crime of conviction proven BRD to jury + Other conduct proven POE to court: uncharged conduct dismissed conduct acquitted conduct

Where crime is undertaken with others, whether or not a conspiracy is charged, relevant conduct includes the conduct of others in furtherance of the criminal activity if the conduct was reasonably foreseeable to the defendant.

Use the drug quantity table 2D1.1(c) Did client have actual drug or a mixture containing the drug? When is drug purity relevant? Convert drugs to marijuana equivalent (2D1.1 commentary, #8)

FOR OUR CLIENT: 1. Which part applies? 2D1.1 2. What is the base offense level? Offense + relevant conduct Level 32 [50 + actual or 500 + mixture]

MULTIPLE COUNTS GROUPING UNDER 3D1.2 Offenses which group counts involving same V or transaction or common scheme or plan most property, drug offenses Offenses which do not group most violent crimes

2D1.1(B) SPECIFIC OFFENSE CHARACTERISTICS Possession of a firearm Use or threat of violence Distribution in a correctional facility Bribery of a law enforcement officer Maintaining premises for manufacturing or distributing drugs There are more.

FOR OUR CLIENT: How about specific offense characteristics? 2D1.1(b)(1) Possession of firearm adds 2 points Adjusted Offense Level of 34

AGGRAVATING ROLE ADJUSTMENT + 4 for leaders in activity involving 5+ persons or otherwise extensive operation +3 for managers in activity involving 5+ persons or otherwise extensive operation +2 for managers in other criminal activity

If client has an aggravating role adjustment and Used another person to commit crime, Distributed drugs to person <18, >64, or preg., Distributed drugs to unusually vulnerable person, Obstructed justice, or Engaged in pattern of criminal activity, add 2 more levels under 2D1.1(b)(14)

MITIGATING ROLE ADJUSTMENTS 3B1.2 Mitigating role [3B1.2]: - 4 for minimal participation -2 for Minor participation -3 if in-between Further reductions under 2D1.1(a)(5) * Based on relevant conduct, not just offense of conviction.

MORE MITIGATING ROLE REDUCTIONS If client receives minimal role adjustment under 3B1.2(a). 1. base offense level is capped at 32 2. additional 2 level decrease for client who had minimum knowledge, got no $ compensation, was motivated by love or fear.

THE SAFETY VALVE 5C1.2 Must meet certain qualifications: 1. NMT 1 criminal history point and 2. no firearms or violence and 3. not an organizer, leader or CCE and 4. has provided a clean up statement. Dissolves the mandatory minimum floor Additional 2 level reduction under 2D1.1(b)(16)

ACCEPTANCE OF RESPONSIBILITY 3E1.1 Client must clearly demonstrate acceptance Pleading Guilty not automatic acceptance Acceptance need not include relevant conduct Post-trial acceptance rare Third point discretionary with AUSA available only for level 16+ requires timely notification of acceptance Obstruction generally a disqualification

OBSTRUCTION INCLUDES Flight: post-arrest Perjury Witness tampering Providing materially false info to PO, Court, law enforcement

COOPERATION The proffer session Sentence reductions via 5K1.1 Require motion by the government Allow sentence below mandatory minimum Allow sentence below the USSG range Cooperation without a 5K1.1 Can be mitigating Lack of cooperation cannot be aggravating

ADJUSTED OFFENSE LEVEL = Base offense level + relevant conduct + multiple count factor + aggravating factors - mitigating factors +/- role adjustment - acceptance and/or cooperation = adjusted offense level

OUR CLIENT S OFFENSE LEVEL: Base offense level 32 + relevant conduct NA + multiple count factor NA + aggravating factors +2 - mitigating factors NA +/- role adjustment NA - acceptance -3 = adjusted offense level 31

BUT IF OUR CLIENT IS A CAREER OFFENDER. his Offense Level increases from 32 to 37 and his Adjusted Offense Level becomes 34. Offense levels may be increased by operation of the career offender guidelines. 4B1.1(b)

DETERMINING THE CRIMINAL HISTORY CATEGORY CHAPTER FOUR

Part A Overview of Criminal History, Chapter 4 Points for various offenses Exclusions from the calculation Horizontal Departures Part B Career Offenders and other enhancements based on criminal history

Gather Data Your client Pretrial Services Report AUSA

Verify Criminal History Data Hard copies of criminal records: Charging instruments Plea Agreements Sentencing Orders and Abstracts Sources Your client DOC website, Doxpop, MyCase.in.gov, courts

Calculating Criminal History GL 1A1.1 3 points 2 points 1 point 0 points most of the time 0 points all of the time

Calculating our Client s 1978 Florida offense Criminal History 1984 Indiana burglary conviction 1987 Possession of Marijuana misdemeanor 2009 Possession of Marijuana felony

Definition: Career Offender Guideline GL 4B1.1 Client is charged with either a crime of violence or a controlled substance offense Client has at least two prior felony convictions of either a crime of violence or a controlled substance offense. Career Offender Status raises the Offense Level AND the Criminal History Category see 4B1.1(b)

Is our Client a Career Offender? 1978 Florida offense 1984 Indiana burglary conviction 1987 Possession of Marijuana misdemeanor 2009 Possession of Marijuana felony

ACCA and 851 Cases under the Guidelines ACCA status changes Offense Level and Criminal History Category GL 4B1.4 851 Cases only change mandatory minimum sentence and trump your client s guidelines with few exceptions

DETERMINING THE SENTENCE Chapter Five

PREPARING FOR SENTENCING: THE PSIR INTERVIEW Prepare for it Prepare the client for it Attend it Provide the client s own version of the facts Provide a person who can verify family history Support a DAP or placement recommendation

PREPARING FOR SENTENCING: Read it. THE COMPLETED PSIR File timely written objections. F.R.Cr.P. 32 Ask to seal objectionable information. Supplement the information with letters, investigative reports, exhibits, etc. These can be filed on a non-public docket.

DON T FORGET. The Court can make a placement recommendation which may be followed if appropriate. Determine the security classification. BOP Program Statement 5100.08 Determine program eligibility: DAP Unresolved cases are treated as detainers.

THE SENTENCING HEARING Put PSIR objections on the record Brief important issues in advance Live witnesses or proffered testimony? Evidentiary disputes usually resolved by POE but note: some guidelines require higher standard * AUSA must move for 3 rd level acceptance, 5K1 adjustments

18 USC 3553 Courts shall impose a sentence sufficient, but not greater than necessary.to reflect the seriousness of the offense to provide just punishment for the offense.to avoid unwarranted sentence disparities among defendants.found guilty of similar conduct..

THE 3553(a) FACTORS 1. Nature & circumstances of offense and history and characteristics of defendant; 2. Need for the sentence: punishment, deterrence, treatment; 3. Kinds of sentences available; 4. The sentencing range; 5. Policy statements of the Sentencing Comm.; 6. Avoid sentencing disparity; and 7. Provide restitution to victims.

THE COURT MUST CONSIDER The nature and circumstances of the offense and The history and characteristics of the defendant.

Serving the sentence. Where will it be served? Place of imprisonment: 18 U.S.C. 3621(b) When will it start? BOP relies on J&C and PSIR Credit for prior custody: Custody means jail! 18 U.S.C. 3585(b), USSG 5G1.3 * How long will it really be? Good time credit: 18 U.S.C. 3624(b)

ADDITIONAL RESOURCES Congressional Research Service, Drug Offenses: Maximum Fines and Terms of Imprisonment ; Report to Congress 12/12/11. www.crs.gov Criminal History Primer, Office of General Counsel, U.S. Sentencing Commission 4/12 Sentencing Resource Page, Office of Defender Services www.fd.org

HOTLINES FOR CJA COUNSEL: Office of Defender Services: 1-800-788-9908 FOR ALL COUNSEL: Sentencing Commission: 1-202-502-4545

Still have questions.. Laura Paul 812-478-0008 laura@laurapaul.net Jessie A. Cook 812-232-4634 jacook@iquest.net Sara Varner, IFCD 317-383-3520 sara_varner@fd.org