Federal Sentencing

OL Adjustments Abuse of Trust

+2 if not in BOL. May also be employed as an aggrivator. (govt must show trust between D and vicitms Hall

Armed Career Criminal

924(e) 3 prior convictions by any court under 922(g)(1). (a) violent felony OR (b) Serious Drug Offender on separate occasions. = 15 year minimum mandatory. "shall be fined and serve not less than 15 years with no suspended sentence or probation"

" Federal Rule

85% rule. Never serve day for day.

Violations of Supervised Release

Grade B - Felony

" Retroactive Relief

" If a guideline provision is designated as retroactive, sentenced defendant can file a Motion, under 18 USC §3582(c)(2), asking for relief. court has discretion.

Stinson

" The commentary is the text that follows the guideline. The commentary is authoritative, and the court must follow the commentary unless it is inconsistent with the guideline or violates the Constitution or federal statute. Unconstitutional to ignore commentary

One Book Ruule

""One Book Rule" provides that you cannot mix and match. You must choose either both new amendments or be sentenced under the guidelines in effect at time offense occurred. (Miller v. FL)

" "OL Adjustments Reckless Endangerment During Flight USSG § 3C1.2 "

"+2 (no injury related) If defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer, a 2 level increase.

OL Adjustments Obstruction

"+2, obstructed/impeded AND relevant to conduct OR closely related to conduct. It IS: lying, lying underneath (eg. Affidavit of indigence, motion to suppress, trial rtestimony), threats to witness, purjury, escape, failure to appear...... It is NOT: false name, false stmt (unless material) incomplete statements, or fleeing (that is covered under reckless enhancement) NO Double dipping for GOVT*** Perjury and FTA - only gets one engagement not multiple for multiple acts. Destroying Evidence during arrest, unless materially hinders investigation. Possible examples? Flushing counterfeit money down toilet; destroying CP when agents are knocking on the door Also can be enhanced for what D gets others to do.

" OL Adjustments -Roll enhancements

"+4 If defendant was an organizer or leader of a criminal activity that involved five or more participants, or was otherwise extensive, four level enhancement. +3 If defendant was a manager or supervisor, and the criminal activity involved five or more participants, or was otherwise extensive, a three level enhancement. +2 If the defendant was an organizer, leader, supervisor or manager of any activity, other than described above, a two level enhancement. NOTE Defendant can be one of the five! participant doesn't have to be charged.

Brooker Factors

"Booker Factors Are . . . The Nature and Circumstances of the Offense and the The need to reflect the seriousness of the offense, to promote respect for the law and to provide just punishment for the offense; The need for deterrence; The need to protect the public; The need to provide the defendant with needed educational or vocational training or medical care; The kinds of sentences available; The Sentencing Guideline range; The pertinent policy statements of the sentencing guidelines; The need to avoid unwarranted sentencing disparities; and 10. The need to provide restitution to victims.

Chapter 5/Rule 34 - Departures

"Encouraged by GL manual .Downward....Certain offense charateristcs for downward departure of GLS ... not Booker Factors.... (1) Age - significant (2) Mental Condition (3) Physical Condition /Aditctions (4) Military Service (5) Education and skill (Consider the totality of these factors) (could ask for downward variance under the factors as well) ..... Enhancement - Financial Harms, anything involving "abhorrent behavior of the D"......Once you determine the sentencing guideline range, you now look to see if any departures apply: 1. SubstantialAssistance(5KorRule35) 2. OverrepresentationORUnderrepresentationof criminal history (§4A1.3) 3. OtherdepartureslistedinChapterFive Examples - • Duress Diminished Capacity Victim Conduct

OL Adjustments - Vulnerable Victim

"Guideline Provision If defendant knew or should have know that the victim of the offense was a vulnerable victim, increase by two levels.Commentary-Defendant knew or should have known that offense involved an unusually vulnerable victim. Knew or should have known +2 , many VV +2....examples, 1. marketing ineffective cancer cures to a cancer patient. YES 2. Selling fraudulent securities to the general public and a few of the victims happen to have Alzheimer's disease. NO 2. Targeting a bank to rob based on its isolation and the defendant's belief that the police would have a very delayed response time to the bank alarm. YES

Extent of Mandatory Restitution

"Lagos v. United States, 138 S.Ct. 1684 (2018): Defendant was convicted, upon a guilty plea, in the United States District Court for the Southern District of Texas of wire fraud and was ordered to pay restitution to lender victimized by his fraud. Defendant appealed, challenging the restitution order. The words "investigation" and "proceedings" in Mandatory Victims Restitution Act provision, which required reimbursement for other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense, were limited to government investigations and criminal proceedings. The Mandatory Victims Restitution Act provision did not cover costs of private investigation into defendant's wire fraud that lender conducted on its own, prior to the government investigation, although lender shared with the government the information that its private investigation uncovered.

OL Adjustments Special Skill

+2 Used to commit or conceal crime and does not have to be formal training or formal education.

Violations of Supervised Release - Crime of Violence and Controlled Substance Offense

"Look for commentary.Conduct Constituting" a felony offense that is: Crime of Violence; Controlled Substance Offense; Firearms described in 26 U.S.C. § 5845(a), OR Any Offense punishable by a term of imprisonment ≥ 20 years.

Safety Valve

"ONLY drug cases(18 U.S.C. § 3553(f) and USSG § 5C1.2 . MUST meet all 5 criteria. Doesn't require motion from the government. Can get it after trial.

Booker Factor TIPS

"Things you should Know about applying Booker The Judge must ALWAYS correctly calculate the advisory guideline range - failure to do so is reversible error. Once correctly calculated, there is no presumption that the guideline sentence is a reasonable sentence in a case. Rather, the guidelines are just a starting point for further analysis. Using the Booker factors, any sentence above OR below the guideline range is called a VARIANCE. When thinking of Booker Factors, be creative! Much like state death penalty cases - using non-statutory mitigating factors. Use the listed Booker factors - supported by the facts listed in the Essay Question.

OL Adjustments - Roll enhancements

"This Adjustment contains an enhanced role for someone who is an organizer, manager or supervisor of criminal activity.EXAMPLE Drug organization, gun running conspiracy, white collar large scale fraud case. It contains a reduction for someone who is either a minor or minimal participant. EXAMPLE Getaway driver, girlfriend in a drug conspiracy. MUST ORGANIZE PEOPLE NOT PRODUCT even if it is only one person. (Martinez Case - must exhibit some authority, influence or control over other...not just paying off people) Abney Case - proffer was not enough to prove an enhancement when the D objects.

OL Adjustments Using a Minor

(+2)

Criminal History Points - Supervision

+2 for being on supervision at the time of the federal crime.

Criminal History Points - History of Incarceration NOT charges

(a) +3 Sentenced to more than 13 months and incarceration ended less than 15 years ago. (b) +2 60 days or more not included in (a) or and for probation less than 60 days within 10 years. (c) +1 offenses not in a or b or probation less than 60 days. ( cannot get more than 4 points for (c) ) (d) +2 under supervision when current offense occurred. (e) +1 violent crimes not in a b or c (cannot get more than 3 points for e).

Apprendi does not apply the following sentencing scenarios:

(i) Prior Convictions. Apprendi does not apply to the enhancement of a statutory maximum due to the Defendant's prior record. A good example of this is the federal crime of possession of a firearm by a convicted felon, found in 18 U.S.C. § 922(g)(1). The maximum penalty for such an offense is normally ten years in prison (see 18 U.S.C. § 924(a)(2)). However, the federal armed career criminal act (which will be discussed in detail later in the outline) provides that a person convicted of being a felon in possession of a gun, faces an enhanced sentence of life imprisonment if he has three prior convictions for either a serious drug offense or a violent felony offense. If the three prior convictions are established at the sentencing hearing, the defendant's statutory maximum penalty goes from ten years to life in prison. Because the armed career criminal act enhances the statutory maximum by virtue of a prior conviction, the holding in Apprendi does not apply to such an enhancement. In such a case, according to Apprendi, the prior convictions do not have to be pled in the indictment, nor does the jury have to find that the Defendant has been convicted of the three prior convictions beyond a reasonable doubt.

OL Adjustments - Restrint of the V

+2 Physically restrained. (locekd up, tied up, bound)

" OL Adjustments Acceptance of Responsibility

-2 Clearly accepts all responsibility in all cases. -1 one more if BOL is more than 16 and assisted authorities timely AND govt files notice. After trial? If trial on a legal issue that was not fact related. Judge has disctretion. JOA may help. Unless the govt and judge will agree to a conditional plea. Can get enhancement for obstruction and reduction of FTA and automatic remourse.

OL Adjustments Mitigating Rule

-4 minimal participant (RARE if convicted after trial and should not have been charged) -2 minor participant less culpable but not minimal - 3 if somewhere in-between (requires multiple defendants)

How to handle the guidelines

1) Mitigte circumstances through effective advocacy. connect/lobby to United States Probation Officer regarding the PreSentence Report. Throughout, review the PSR and look for EVERY conceivable circumstnace of mitigation. Distringuish YOUR defendant from other defendants. OR under the GLS argue for "minor role" or. " substantially less culpable" ex: a drug offense that doesnt qualify. Mitigate within the range of possibilities. (2) mitigate with downward departures (3) Booker factors and variances.

post-booker

1) mitigate circumstances,

Safety Valve Criteria Statutory- NEW under the First Step Act

1. Not more than FOUR criminal History point (single point offenses, DON'T COUNT. 2 point offenses only count where there was "a violent offense" (defined in 18 USC 16) (NO 3 point criminal history or disqualified) 2. D did not use force, violence, threats or possess a firearm or other dangerous weapons AND didn't include others to do so. 3. No death or serious bodily injury resulted from crime 4. Not the organizer or leader in a 21 USC 845 criminal enterprise. 5. Prior to sentencing, the defendant told the GOVT everything that they knew/all information or evidence of the offense (even if that information was not helpful) BEFORE sentencing (even if five minutes before)

Safety Valve Criteria under the GLS

1. Not more than ONE criminal History point 2. D did not use force, violence, threats or possess a firearm or other dangerous weapons AND didn't include others to do so. 3. No death or serious bodily injury resulted from crime 4. Not the organizer or leader in a 21 USC 845 criminal enterprise. 5. Prior to sentencing, the defendant told the GOVT everything that they knew/all information or evidence of the offense (even if that information was not helpful)

4 steps of fed Sentencing

1. Statutory Max, 2. Stat. Min/Mand Min 3. Fed GLS 4, Booker 18 USC 3553(a)

4 steps of fed Sentencing

1. Statutory max 2. Statutory min/mand min. 3. Federal guidelines 4. Booker factors/variances

FEDERAL SENTENCING CHECKLIST CONTINUED

10. After you have determined the offense level for all of the counts, go to Chapter Three to determine what adjustments may apply to your case. Once in Chapter Three, go through the list of adjustments to see if any apply to your case. You should memorize the Chapter Three Adjustments and see which ones apply to your case. Again, if you get an essay question, see if any of these adjustments apply to the facts of your case. Remember that the Government must prove any enhancement by a preponderance. Any reduction must be established by the defense by a preponderance. There is a multiple count guideline (U.S.S.G. § 3D), which deals with multiple counts issues. Grouping is an extensive exercise and not covered in this outline. It will, however, be covered during the seminar presentation. If Defendant were charged in one count, there would be no grouping since one would just do the guidelines for that one count 11. Once you are finished going down the list of Chapter Three adjustments, you will come to the last adjustment, called "acceptance of responsibility," which is found at U.S.S.G. § 3E1.1. Although not every adjustment applies to every case, there should always be an acceptance of responsibility analysis done in each case. Why? Because a defendant can plead guilty and still be denied an acceptance of responsibility reduction. Likewise, a defendant who goes to trial can, in rare circumstances, receive a reduction for acceptance of responsibility (for example, when a defendant goes to trial merely to preserve a legal issue for appeal). Acceptance of responsibility is a two-step process. First, if the defendant clearly accepts responsibility for his actions, the offense level is decreased by two levels. However, if at this point in the process the total adjusted offense level is 16 or greater, then the defendant is eligible for another one point reduction if upon motion of the government states that the defendant timely notified the government of his intention to enter a plea, thereby permitting the government to avoid preparing for trial. Remember that the "Hate Crime Motivation" enhancement must be proven by a reasonable doubt. Bottom Line on the Extra Point (1) Defendant must be level 16 or higher when doing the acceptance of responsibility analysis, and (2) Government files a pleading telling the court that Defendant agreed to plea guilty in enough time so that Government did not have to prepare for trial. *** Remember, government must file motion in order for court to give extra point for reduction. Keep in mind that, for acceptance of responsibility, the court is in a unique position to evaluate a defendant's acceptance of responsibility.

GLS in effect

11/1/1987

FEDERAL SENTENCING CHECKLIST CONTINUED

12. After you have finished with your acceptance of responsibility analysis, you have the total adjusted offense level. 13. Now go to Chapter Four to calculate your client's criminal history score on the horizontal axis of the guideline table. Note remember that in determining your client's criminal history scoring, it is important to look at the actual amount of imprisonment imposed in the prior case. Sometimes a prior felony conviction will score less than a misdemeanor conviction because the amount of time imposed in the prior felony case was less. Also, remember that there are different time limits for determining whether a prior conviction will still count in your case. After you have calculated your client's criminal history pursuant to U.S.S.G. § 4A1.1, make sure you check to see if your client qualifies for career offender enhancement, pursuant to § 4B1.1. Remember, the prosecutor does not have to file an enhancement notice under the career offender guidelines in order to trigger the enhancement. The enhancement is self-executing. 14. After determining your client's criminal history, see if your client qualifies for either an upward or downward departure based on the adequacy of his criminal history, pursuant to U.S.S.G. § 4A1.3. All other guideline departures are analyzed in Chapter Five of the guidelines. However, a guideline departure based on the adequacy of criminal history is found in Chapter Four of the guidelines. 15. Go to Chapter Five and see if your client qualifies for a safety valve reduction, pursuant to U.S.S.G. § 5C1.2.

FEDERAL SENTENCING CHECKLIST CONTINUED

16. Go to Chapter Five, Part H to see if your client qualifies for a departure based on one of the following provisions. Pay particular attention to the following: 5H1.1 Age; 5H1.3 Mental and emotional condition; 5H1.4 Physical condition, including drug or alcohol dependence; 5H1.11 Military service. 17. Check under U.S.S.G. § 5K2 to see if any of the permissible departures outlined in that chapter might apply in your case. 18. Check under U.S.S.G. § 5K2.0 to see if your client qualifies for a Aheartland@ upward or downward departure based on factors that were not taken into account by the sentencing commission.

FEDERAL SENTENCING CHECKLIST CONTINUED

19. Go to 18 USC § 3553(a), the "Booker" factors. This statute requires courts to impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph 2. Subsection (a)(2) states the purposes are: (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; (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. Section 3553 (a) also directs sentencing courts to consider: the nature and circumstances of the offense and the history and characteristics of The defendant; the kinds of sentences available; the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct the need to provide restitution to victims of the offense. 113 Booker consdierations Keep in mind that the remedial majority in Booker directed the courts to consider ALL of the § 3553(a) factors, many of which the guidelines either reject or ignore. You should memorize the Booker factors (listed above as well as on page 3 of the outline). If you get a sentencing essay question, see what § 3553(a) factors might apply to your fact pattern and discuss them in your answer. For example, if the question indicates that the Defendant was raised in an abusive home, then the factor: history and characteristics of the defendant should be discussed in your answer.

Multiples of 12

1>12 2>24 3>36 4>48

Guidelines

5. The actual guideline provisions are presented in numbered chapters divided into alphabetical parts. True to the federal government desireto complicate a simple concept, each guideline is identified by three numbers and a letter (e.g. 1B1.3). The only reason this is being mentioned here is that there is a difference between the actual guideline (i.e. 1B1.3), and what is known as the "commentary." Each guideline provision contains a commentary that further explains the application of the guideline. The commentary is the text that follows the actual guideline. For example, in the materials, you will find the guidelines for bank robbery offenses. The text immediately following the robbery guideline is the commentary.

ONLY TWO WAYS to get below Man MIN

5k1.1 Mtion - Substantial Assistance OR Safety Valve . You can get both.

Note, two notable exceptions to this Guidelines Ranges

: 1) an enhancement for "hate motivated crimes," pursuant to § 3A1.1(a), which must be established by proof beyond a reasonable doubt; and 2) a two level enhancement for possessing a dangerous weapon during a drug offense has a different burden (§2D1.1(b)(1) and application note 1) The government has the initial burden of showing the weapon was present. The defense must then prove that the weapon was not connected to the offense. United States v. Hall, 46 F. 3d 62 (11th Cir. 1995).

Supervised Release (SR)

A form of post-imprisonment, supervision is imposed at time of original sentencing. EXAMPLE Defendant convicted of child porn sentenced to 10 years in prison, followed by 5 years of Supervised Release. During the 5 years of SR, he is supervised by the United States Probation Office.

Violations of Supervised Release

Grade C - Technicals. Didn't report when moved, dirty urine etc.

GL v. MAX

If GLs exceed - the Stat Max is the top of the GLs

SPECIAL MANDATORY MINIMUM ISSUE 18 U.S.C. § 924(c) "USING," "CARRYING," OR POSSESSING A FIREARM DURING A DRUG TRAFFICKING OFFENSE OR A CRIME OF VIOLENCE

A. Section 924(c) provides that any person who (1) uses, (2) carries, or (3) possesses in furtherance of, a firearm during the commission of either a crime of violence, or a drug trafficking offense, is subject to an enhanced statutory sentence. NOTE: This section is NOT a guideline enhancement. Rather, a separate statutory crime MUST be pled and proven as a separate charge in the indictment. This charge is commonly known as a 924(c) charge. If the Defendant is convicted of the 924(c) charge, the sentence always runs consecutive to the sentence on the main charge. If the prosecutor charges only the substantive charge, the Defendant cannot receive the enhanced statutory 924(c) sentence. In such a case, the Defendant may only receive a guideline enhancement for the gun. Example 1: Two count Indictment. Count One charges bank robbery. Count Two charges, under 924(c), using a gun during a crime of violence. Defendant commits a bank robbery and uses a gun during the robbery. The prosecutor indicts the Defendant in count one for the robbery and in count two for using the gun during robbery, pursuant to 924(c). If convicted, assuming the Defendant gets three years under the guidelines for the bank robbery, the 924(c) sentence on count two will always run consecutive to the substantive charge. Thus, the Defendant's sentence in this hypo will be a total of eight years. Example 2: One count Indictment charging Defendant with bank robbery. Same facts as above. Defendant robs a bank using a gun. Prosecutor decides to indict only on the bank robbery. The Defendant cannot receive the enhanced 924(c) sentence since it was not pled and proven to the jury. The Defendant can only receive a guideline enhancement for the use of the gun. Caveat: If Defendant is sentenced on a 924(c), he cannot receive 102 a guideline enhancement for the use of the same gun. If the Defendant is not charged with the 924(c), he can receive a guideline enhancement for using the gun, which need only be proven by a preponderance of the evidence. FURTHER, if the Defendant is ACQUITTED of the 924(c), but convicted of the robbery, the Court can still impose the guideline enhancement for the gun because the burden of proof for guideline enhancement is a lesser burden, to-wit: preponderance of the evidence.

Chapter 3 OL Adjustments

Adjustments to the OL - Preponderence is the burden . D must object to the enhancements.

Possessing a gun in furtherance of pursuant to § 924(c).

After the Supreme Court decision in Bailey curtailed the use prong of the 924(c) statute, Congress amended the statute to provide that a Defendant could be guilty of the offense if he possesses a gun Ain furtherance of@ a drug trafficking offense or crime of violence. The statute took effect on November 13, 1998, and obviously only applies to offenses committed on or after that date. Although the Supreme Court has not issued a decision yet on this part of the statute, the Eleventh Circuit's decision in United States v. Timmons, 283 F. 3d 1246 (2002), is helpful. In Timmons, the police executed a search warrant on the defendant's apartment. The defendant was found and arrested just outside his apartment. Inside, police found a stove top oven in the living room. On top of the oven were two loaded guns. Inside the oven was an empty box of ammo. In a drawer underneath the oven the cops found crack cocaine and $350. A plastic baggy with pieces of cocaine was found under the couch cushion. Six individually wrapped pieces of cocaine were recovered from a shoe in the defendant's closet. The total amount of drugs seized was 35 grams. The defendant was charged with possession of a gun in furtherance of a drug trafficking offense, pursuant to § 924(c). In a case of first impression, the court found that the government must establish that the firearm helped, furthered, promoted, or advanced the drug trafficking. Based on the facts in this case, the court concluded that Timmons was guilty of possessing the gun in furtherance of the drug activity.

After GLs

Apply Booker Factors

a. Important Minimum Mandatory Issues

Applying the Minimum mandatory in the Guideline context: Although the federal sentencing guidelines will be discussed later in this outline, the relationship of the guidelines with a minimum mandatory penalty is discussed here. (i) When the guideline range exceeds the minimum mandatory penalty, then the guideline range applies. Example: Defendant has a guideline sentencing range of 121- 151 months. The statutory minimum mandatory penalty is five years in prison. Because the guideline range exceeds the minimum mandatory, the guideline range is applied. (ii) When the guideline range exceeds the statutory maximum penalty, the statutory maximum penalty applies and becomes the guideline sentence. Example: The Defendant commits a bank robbery and is charged with one count of bank robbery (a twenty- year maximum) and one count of conspiracy to commit bank robbery (a five-year maximum). At trial, he is acquitted of the bank robbery count but is convicted of the conspiracy count. His guideline range in this hypo is 121 -- 151 months. However, the statutory maximum is five years. In such a case, the statutory maximum becomes the guideline range and the Defendant cannot be sentenced to more than five years. (iii) When the guideline range is less than the statutory minimum mandatory, then the minimum mandatory becomes the guideline range and minimum mandatory applies. Example: The Defendant in a drug case is charged with more than 280 grams of crack, which carries a ten year minimum mandatory penalty. Because of various favorable adjustments in the Defendant's sentencing guideline calculations, his guideline range is 63-78 months. Because the minimum mandatory exceeds the guideline range, the minimum mandatory penalty becomes the guideline range and the Defendant is sentenced to ten years.

Departure and Variance

Argue for both "two bites of the apple"

Statutory Max Example

As an example, in cocaine cases, the three categories are as follows: 21 USC § 841(b)(1)(A).............280 or more grams of crack...........................................life max penalty (same) ...........................................................5000 or more grams of powder coke 21 USC § 841(b)(1)(B) .........less than 28 grams of crack.......40 year max (same) ...........................................................less than 500 grams of powder coke 21 USC § 841(b)(1)(C) .............less than 28 grams of crack.......twenty year max (same) ...........................................................less than 500 grams of powder coke

"Stacking" of consecutive sentences

As previously indicated, 924(c) provides for a mandatory consecutive sentence. The statute also provides additional, enhanced consecutive penalties for "second and subsequent" convictions under this subsection. Second or subsequent § 924(c) Second or subsequent 924(c) involving a machine gun or bomb 25 years consecutive to first 924(c) conviction and also consecutive to substantive charge

Criminal History Points - Over representation /Under Representation and. Discretion

Court may consider if "criminal history points accurately reflect D's history" and deviate up or down for that reason. COULD BE A GOOD ESSAY ARGUMENT consider if it was 9.5 years ago...

3. The Federal Sentencing Guidelines

Basic Information 1. The Federal Sentencing Guidelines took effect on November 1, 1987. The guidelines apply to any crimes occurring on or after that date. 2. In determining the applicable guidelines, the court shall use the guideline manual in effect on the date that the defendant is sentenced (USSG § 1B1.11(a)). If using said guidelines would violate the ex post facto clause, then the Court shall use the guidelines in effect on the date the offense of conviction was committed (§1B 1.11(b)(1l) and Miller v. Florida. "One Book" Rule. The guideline book in effect on a particular date shall be applied in its entirety. Thus, no "mixing and matching" of beneficial provisions is allowed. (§ 1B1.11(b)(2.)). Finally, if the defendant is convicted of two offenses, the first committed before, and the second after, a revised edition of the guidelines Manual became effective, the revised edition of the guidelines manual is to be applied to both offenses.

Burden of Proof for Reductions

Burden on D and by a preponderence.

Burden of Proof for a GL enhancement

Burden on GOVT and by a preponderance (except hate crimes which are PBARD) Perponderence is not "toothless" have to present solid evidenec. NOTE: Acquitted conduct can be used because of lower standard. BUT convicted, cannot use to enhance (because its calculated into the base level offense)

"Crack"

Called cocaine base in GLs

" OL Adjustments -Official Victim

Dont apply when Official role is an element of the offense. +3 if V is govt official or fomer/current employee, immediate family And crime motivated by V status. +6 if V is govt official AND former/current employee, immediate family And crime motivated by V status. +6 if LEOS and D knew or should have know

Career Offenders and Violent Career Offenders

ENHANCEMENT - Like a Departure but UP. CO cases related to case doctrine that doesn't apply to VCO. .................3 priors DURING drug sales on 3 different arrests (ok to sentence on same case

BLO and Special Offense Charateristics

Each Offense will have "Special Offense Characteristics" which will enhance or reduce. EG - child prom. (DONT FORGET COMMENTARY) videos (any length is 75 images. File sharing is not "trading" under the GLs. Use of computer - HAVE to apply it because they HAVE to correctly calculate the GLs. (no distinguishing between levels of culpability.

1. The Statutory Maximum

Each federal offense contains a penalty provision which sets forth the statutory maximum penalty for the offense. Any guideline sentence imposed cannot exceed the statutory maximum sentence. In light of the Supreme Court's 2000 decision in Apprendi v. New Jersey, 529 U.S. 1002, 120 S.Ct. 1289 (March 6, 2000), it is important to know and understand the maximum penalty for the offense that is charged in the Indictment. For all federal crimes, there is a statutory maximum penalty. In most cases, the statutory maximum penalty will be clear and unambiguous. For example, in a simple bank robbery case, the statutory maximum is twenty years in prison. With other offenses, the statutory maximum increases based on some fact in the case. For example, most federal drug statutes fall in one of three categories, depending on the weight of the drugs charged. As the weight goes up, and crosses certain thresholds, the statutory maximum penalty increases as well.

They must get it right

Finally, it is important to remember that the district court MUST first correctly calculate the guidelines. Once that is done, the court must consider the § 3553(a) factors to determine a reasonable sentence. And, always remember, that the guideline sentence is NOT presumed to be a reasonable sentence.

Chapter 2 - BOL

Find the base offense level per the statute. 1-43.

Problem with new Safety Valve

GL still control. May be eligible under Statute but not under GLS - Ask fro a variance. (anyone who was sentenced after 12/21/18 - should get NEW safety valve. If prosucted under Title 46 (Boat Cases) you can get it.

Getting to Max

GOVT had to allege the highest amount to get to the Statutory Max. Otherwise they cannot get the max.

Violations of Supervised Release

Grade A - Felony that is Controlled Substance Offense OR crime of violance.

6. IMPORTANT NOTE: THE GUIDELINES IN EFFECT AT THE TIME OF SENTENCING ARE THE APPLICABLE GUIDELINES TO YOUR CASE.

HOWEVER, if the guidelines in effect at the time of sentencing are more onerous than the guidelines in effect at the time the offense was committed, then, in order to avoid an ex post facto violation, the defendant can elect to be sentenced pursuant to the guidelines in effect at the time of the offense. 7. For each count, determine the applicable Chapter Two offense conduct guideline and the base offense level required thereunder. 8. For each count, determine if there is a Chapter Two specific offense characteristic which either increases or decreases the guideline range. Note: Remember that all specific offense characteristics, are all those characteristics that might be present during the crime charged. Example: For the crime of robbery (i.e. did the defendant use a weapon, did the defendant harm anybody, did the defendant restrain anybody, etc. A complete list of specific offense characteristics is listed in the robbery guidelines). 9. After checking the specific offense characteristics, read the commentary to see if any of the application notes apply to the determination of the base offense level.

RUle 35 Motion

Has to be filed within 1 year of sentencing . Same procedure was 5k

Criminal History Points

How to Calculate - Chaper 4

Guidelines Trumped by Mandatory Minimum

If the Man Min is in effect, and the GLs are lower than the MAN MIN, the judge CANNOT go below the MAN MIN even if the GLs are lower. ( eg. GLs 5-10 but man min is 10, cannot go below 10, OR if GLs 10-20 and Manx min is 5, can apply booker, go below 10 but cannot go below %)

Criminal History Points - open cases

If there is a pending case, it goes to the order of the sentences NOT the order of the crime. SO if there are open cases, don't let D plead until federal sentencing.

OL Adjustments - Roll in the Offense

If you see multiple defendants - think Roll in offense!! Even if they are unindicted conconsirators .

OL Adjustments - Hate Crimes

Ifthedefendantintentionallyselectedany victim, or any property, as the object of the offense of conviction, because of actual or perceived race, color, religion, nation origin, ethnicity, gender, gender identity, disability, or sexual orientation, increase by three levels.

Chapter 5. - Imposition - Zone B

Imprisonment, Imprisonment + Probation OR probation that subintermines confinement

6. Importance of the Commentary after Stinson v. United States, 113 S. Ct. 1913 (1993).

In 1992, the Eleventh Circuit Court of Appeals decided that it would ignore the guideline commentary in a case involving the offense of Possession of a firearm by a convicted felon. The commentary to § 4B1.2 provided that, for career offender purposes, the term "crime of violence" did not include the offense of unlawful possession of a firearm by a felon (see commentary in Chapter Four materials). The Eleventh Circuit reasoned in Stinson that controlling authority in the Eleventh Circuit held that such an offense was a "crime of violence." The Supreme Court reversed and held that "...commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." Stinson v. United States, 113 S. Ct. 1913 (1993). The importance of this information is that there may be an exam question which asks whether the lower court can ignore the commentary in making a guideline determination. According to Stinson, the answer is NO, subject to the limitations indicated above, when said commentary interprets or explains a guideline.

Mandatory Consecutive Penalty is Life in prison

In 1993, the United States Supreme Court, in Deal v. U.S., 113 S. Ct. 1993 (1993), held that these consecutive enhanced sentences even applied when several § 924(c) counts were charged in a single indictment. Thus, pursuant to Deal, a defendant who is charged with two bank robberies, and with two 924(c) counts for each bank robbery, is facing 25 (5+25=30) years in prison, solely for the 924(c) convictions, which are consecutive to the substantive offense. In such a case, the Defendant's sentence would look like this: Robbery charge guideline sentence (hypothetical) seven years: 1st 924(c) count 2nd 924(c) count Total Sentence: 5 years consecutive 25 years consecutive 37 years.

Interplay of Booker factors with a 924(c) mandatory minimum sentence

In 2017, The United States Supreme Court decided the case of Dean v. United States, 581 U.S.____(2017) 137 S. Ct. 1170 (2017). As previously indicated, if a defendant is convicted of two 924(c) counts, every second and subsequent conviction carries a 25 year consecutive sentence. Thus, if defendant is convicted of two 924(c) charges, he will have a 30 year consecutive sentence in addition to the sentence in the underlying case. In Dean, the court held that the sentencing count could consider the 30 year mandatory when imposing a downward variant sentence on the underlying charge.

US v TALLEY

In United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005), the Eleventh Circuit adopted a two-step procedure that district courts should follow in imposing sentences after Booker: "First, the district court must consult the Guidelines and correctly calculate the range provided by the Guidelines" Id. (citation omitted). "Second," the district court "must consider" ten enumerated factors "to determine a reasonable sentence." See above.Id. See also 18 U.S.C. § 3553(a) (directing that sentences should be "sufficient, but not greater than necessary to achieve the purposes of sentencing." Talley thus confirms that the guideline range is only one of (at least) ten factors that should guide district courts in sentencing. Further, in Talley, the Court held that a guideline sentence cannot be presumed to be reasonable per se. The court explained that such an argument "does not comport with the Booker decision." Talley, 431 F.3d at 786. Thus, while the Talley Court affirmed that the guidelines remain "central" to the sentencing process, the court went on to observe that," [t]o say that a sentence within the guideline range is >by itself reasonable is to ignore the requirement that the district court, when determining a sentence, take into account the other factors listed in section 3553(a)." Id.

FEDERAL SENTENCING CHECKLIST CONTINUED

In a sentencing hypothetical, the following is a suggestion in how to address the issues: 1. For each count, determine if there is a statute of limitations issue. 2. For each count, determine the statutory maximum. 3. For each count, do Apprendi analysis. 4. For each count, determine if there is a statutory minimum mandatory penalty. 5. Using the index in the back of the guideline book, match the statutory offense charged with the applicable specific offense guideline. Once you have determined the specific offense guideline, go to Chapter Two of the guideline manual.

FEDERAL SENTENCING CHECKLIST

In answering a federal sentencing hypothetical on the exam, it is important to follow the chronological steps in arriving at the appropriate sentencing guideline range and in determining a fair sentence FEDERAL SENTENCING CHECKLIST (1) Sentence Application In theory, the guidelines were intended to eliminate sentencing disparity. To a large extent, this intent is fulfilled in the strict application of the sentencing guidelines. However, what makes the system very unequal in many circumstances is the application of the statutory minimum mandatory in certain types of cases. Under guideline practice, when a minimum mandatory sentence is lower than the guideline range, then the guideline range applies. However, when the minimum mandatory penalty exceeds the guideline range, then the minimum mandatory applies. Unfortunately, your client can only get below the minimum mandatory range by either cooperating with the government (a distasteful alternative), or by qualifying for a safety valve reduction. The safety valve reduction is limited to virtual first time offenders who must meet five criteria. Also, the "safety valve" is only available in drug cases Thus, it always important to know the statutory maximum, as well as any minimum mandatory penalty, before you begin your guideline analysis. Additionally, because of the Booker decision, the guidelines must be considered, but are no longer mandatory. Rather, they are only advisory. Booker also requires that a sentencing court consider all the factors set forth in 18 U.S.C § 3553(a) in determining an appropriate sentence. IMPORTANT since the sentencing court must take into account both the guidelines, as well as the criteria set forth in § 3553(a), there is a question as to which analysis you do first. The Eleventh Circuit has held that the sentencing court must first correctly calculate the sentencing guidelines. Once the guidelines are correctly calculated, the court must then consider all of the other § 3553(a) factors. Thus, in answering an essay question, you should make sure you analyze the facts of your case, together with the appropriate 3553(a) factors.

II. Federal Sentencing - Handling a Federal Sentencing Issue

In approaching a federal sentencing issue, there are four steps that must be considered: 1. The statutory maximum, 2. The statutory minimum mandatory (if any), 3. The Federal Sentencing Guidelines, and 4. The Factors contained in Title 18 U.S.C. § 3553(a), The "Booker Factors."

A. Cases sentenced pursuant to the Mandatory Federal Sentencing Guidelines, (October 1, 1987 -- January 12, 2005)

In the early 1980's, there was a push to "reform" sentencing so that similarly situated defendants would be facing the same sentencing range based on two factors: actual offense conduct and criminal history.Thus, the sentencing guidelines were created in an attempt to eliminate sentencing disparity among similarly situated defendants. On the back end, the guidelines attempted to accomplish this goal by eliminating the parole system and by requiring each criminal defendant to serve at least 85% of his or her sentence. Thus, any defendant sentenced under the federal sentencing guidelines are not eligible for parole. On the front end of the system, the guidelines created a scheme whereby the Defendant's actual criminal conduct would be calculated based on several factors including, but not limited to, the defendant's actual criminal conduct, the presence of other criminal offense characteristics (i.e. whether the defendant had a weapon, whether the defendant engaged in more than minimal planning to commit the offense, in a drug case, the actual amount of drugs the defendant was responsible for, whether or not said amount was charged in the indictment, etc.). In determining the actual offense level, the court could consider conduct that wasn't charged in the indictment to enhance a defendant's sentence. This "relevant conduct" only had to be established by a preponderance of the evidence and reliable hearsay was allowed in proving such an enhancement.

" PSR

Information used in imposing sentence . Sentencing Requirments 1!) PSR required, 2) Objections required 3) Must calculate GLS correctly 4) DA MUST object to something or make a point about SOMEthing in Sentencing

Criminal History Points - Concurrent time

Intervening arrests (bonds out and commits new crime) - count each one. BUT - otherwise time is counted as ONE offense. NOTE: withholds don't make a difference

B. Federal Sentencing Post Booker (January 12, 2005 - Present)

On January 12, 2005, the United States Supreme Court decided the case of United States v. Booker, 125 S.Ct. 738 (Jan. 12, 2005). The Court first invalidated the mandatory nature of the guideline sentencing scheme. However, as a remedy, the court did not do away with the guidelines, but rather found that the guidelines would be advisory only. The court found that district judges, in imposing federal sentences, needed to take into account the dictates of 18 U.S.C. § 3553(a) in determining an appropriate sentence. As a result of the Supreme Court decision in Booker, the federal pendulum, known as the federal sentencing scheme, has swung back to a hybrid system of pre- guideline and guideline practice so that a guideline system remains in place, but said system is not mandatory only advisory to the sentencing court. In fashioning an appropriate sentence, the court must now look not only at the guidelines, but at the numerous factors listed in 18 U.S.C. § 3553(a).

" Porter Case

Korean War Hero - left mentally damages, killed ex girlfriend and boyfriend. Attorney representing him didn't present ANY evdience. Reversed death penalty.

Max Minimum

Look to see if there is one.

A Rule 35(b) motion

MUST be filed within one year after the sentencing hearing. If the prosecutor fails to file the Rule 35 within this time period, the court loses jurisdiction and cannot grant the motion. Thus, if a prosecutor files such a motion 366 days after the sentencing hearing, the sentencing court losses jurisdiction and cannot reduce the sentence. If a prosecutor files a Rule 35 motion more than one year after the sentencing hearing, the court may reduce the sentence if the substantial assistance involved: -- Information not known to the defendant until one year after sentencing; -- Information provided the defendant within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or -- Information the usefulness of which could not reasonably been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant. -- The prosecutor must file a substantial assistance motion in order for a court to grant a substantial assistance downward departure. -- In order to get below the minimum mandatory, the prosecutor=s substantial assistance motion must specifically request that the court go below the minimum mandatory penalty. If a prosecutor=s motion asks the Court to reduce only the guideline level, then the court may reduce the client's guideline level for substantial assistance, but cannot go below the minimum mandatory penalty. -- Once the prosecutor files the motion requesting a downward departure for substantial assistance below the minimum mandatory, the "door is open" and the trial court can reduce the client's sentences far as the court wants. Thus, once the motion is filed, the court can exceed the prosecutor's recommendation. For example, the client is looking at 121-151 months under the guidelines and is facing a ten year minimum mandatory. The prosecutor files a substantial assistance motion asking the court to go below the minimum mandatory and sentence the client to eight years in prison. The court grants the Government's motion but instead sentences the client to two years in prison. This is allowed. Once the motion is filed, the court can follow the government=s recommendation, can give more of a reduction than requested or give less of a reduction.

Apprendi

Must be charge, jury must find PBARD OR the D admits at change of plea.

Chapter 5. - Imposition

Must be within GLs unless other issue...

"

NOTE: NEW Safety Valve UNDER GLs "First Step Act"

Substantial Assistance Motion

Once filed, door is wide open. Can be used in ANY case. Prosecutor MUST confer jurisdiction onto the judge but filing the motion and asking for the judge to go below stat. Min (they can make it conditional but it doesn't matter) Even if GOV asks for 8 years, judge can do whatever. Judge cal also reject the motion. Pre-Trial - 5k Motion. Post-Sentencing - Rule 35(b) Motion.

Criminal History Points - Suspended

Sentence = subtract suspended time from total sentence

Booker Factors

Memorize. Apply any consideration to one of the Booker factors

2. The Statutory Minimum Mandatory Penalty

Most federal criminal statutes do not carry a minimum mandatory penalty. However, some of the most utilized offenses (i.e. drug and some gun offenses) do carry mandatory minimum penalties. After determining the statutory maximum penalty for each charged offense, you must then check to see if the offense carriesa mandatory minimum penalty. Even though there is a thorough sentencing guideline system in place, statutory mandatory minimum penalties will oftentimes trump the guideline calculation (for example, this always happens when the defendant's guideline range is less than the statutory minimum mandatory. In such a situation, the higher mandatory minimum will become the guideline sentence). Thus, in addressing any sentencing question on the test, you must always determine if there is a mandatory minimum penalty before you do your guideline calculation.

Booker

Nearly twenty years after the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), it is now "emphatically clear" that the "Guidelines are guidelines - that is, they are truly advisory." United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). The Guidelines are no longer "the only consideration" at sentencing. Gall v. United States, 552 U.S. 38, 49 (2007). Rather, the Guidelines merely provide a "starting point" for the Court's sentencing considerations. Id.; accord Cunningham v. California, 549 U.S. 270 (2007). While a sentencing court must consider the Guidelines as a starting point, a court should not presume "that the Guidelines range is reasonable." Gall, 552 U.S. at 50. Instead the Court is to impose sentence after "mak[ing] an individualized assessment based on the facts presented" in each particular case. Id. Moreover, the Court need not find "extraordinary circumstances to justify a sentence outside of the Guidelines range." Id. at 47. 5 As one district court judge has put it+, the Guidelines' "most fundamental flaw is the notion that the complexity of human character and conduct can be rationally reduced to some arithmetic formula."5 This is especially true in white collar and tax cases such as this case, where the sentencing range is largely determined by escalating loss enhancements pursuant to USSG §§ 2B1.1 and 2T1.1, an increasingly criticized approach that usually results in draconian advisory Guidelines. See, e.g., United States v. Adelson, 441 F. Supp. 2d 506, 512 (S.D.N.Y. 2006) (describing "the utter travesty of justice that sometimes results from the guidelines' fetish with abstract arithmetic, as well as the harm that guideline calculations can visit on human beings if not cabined by common sense."); see also United States v. Parris, 573 F. Supp. 2d 745, 754 (E.D.N.Y. 2008) (noting that despite the fact that the Guidelines "reflect Congress' judgment as to the appropriate national policy for such crimes . . . this does not mean that the Sentencing Guidelines for white-collar crimes should be a black stain on common sense" and sentencing defendant "to a term of incarceration of 60 months in the face of an advisory guidelines range of 360 to life.").

Chapter 5. - Imposition - Zone A

No need for imprisonment

Watson Case

Not so fast, the Supreme Court held, in Watson v. United States, 128 S.Ct. 579 (2007), that a defendant who trades his drugs for a gun does not use a firearm during and in relation to a drug trafficking offense. Thus, a defendant's 924(c) conviction was set aside.

Judge Must CORRECTLY calculate the GLs

Otherwise reversible error. GLs are advisable as long as they are correctly calculated.

" "

Peugh v. U.S., 133 S.Ct. 2072 (2013). " The guidelines in effect at the time of the sentencing are controlling (Miller v. FL) UNLESS the outcome of the guidelines is much worse. Ex Post Facto. Use the old ones. YOUR duty to seek out constitutional violations on the PO

Chapter 5. - Imposition - Zone D

Prison ONLY

Chapter 5. - Imposition - Zone C

Prison OR Prison + Probation

BIG DIFFERENE between state and federal

Probation Officers - basically attorney.

Sentencing in Violation of Probation (VOP) and Violation of Supervised Release (VOSR) Cases

Probation and Supervised Release (SR) are very similar. Supervised by the United States Probation Office and must follow a list of conditions. Just like State Court, judge may impose probation.

" OL Adjustments Yates

Requires LEADERSHIP and EXTENSIVE OPERATIONS. Not for when the person only controlled or supervised Property. Must influence PEOPLE

ACC Prior Crimes

Requires a look at the elements of the crime. If DIVISIBLE the court looks at a modified categorical approach under Shappard. If the elements are consistent with generic

OL Adjustments Cruikshanks Case

Reversed where court said "quanitify of drugs was no large that no one could play a minor roll." NO - Totality of the Circumstances. *

APPLICATION OF THE SENTENCING GUIDELINES

Sentencing Table On the following page 16, there is a copy of the federal sentencing table. This one page guideline table is used in every federal felony case. On the left hand side of the table, there are numbers beginning with 1 and ending with 43. These numbers are called offense levels. The more serious the charge, the higher the offense level. The higher the offense level, the higher the sentencing guideline range. Each range is indicated by months of prison. On the top of the page are Roman Numerals I through VI. Each Roman Numeral represents a Criminal History Category. The greater the defendant's criminal history, the greater the criminal history category. In order to determine the defendant's sentencing range, the court must determine the appropriate offense level for the offense conduct and then determine the appropriate criminal history level. The final sentencing range will be where the two meet on the sentencing table. For example, a defendant with no prior criminal history will be in criminal history category I. Such a defendant, whose total adjusted offense level is 15, for example, will be in a sentencing range of 18 to 24 months incarceration. [See Sentencing Table (in months of imprisonment) next page].

924C

Separate Crime - Charged with Drug Trafficking Offense OR Crime of Violence (eg commits bank robbery and possess gun while possessing) Enhancement AND crime. Very confusing. Consecutive to other sentence. (if you're aquitted of it, can be used for enhancements) 5 years consecutive for possession and 7 years consecutive for brandishing. ** FOR EACH COUNT***. Reduced pursuant to the First Step Act (BUT if you finish your sentence and then do it AGAIN, you get 25 years consecutive) language.. "carried, used in furtherance, or brandished"

Violations of Supervised Release

Separate Hisotry. Criminal history is based on the original criminal history on the original charge

Statutory Max

Simple. For Drug Offenses (based on weight) 20/40/Life Max

Guidelines Basics

State with GLs and go to booker. Each GL has a 3 number 1 letter ID.

ACCA / Florida Robbery as Predicate Offense

Stokeling v. United States, 139 S.Ct. 544 (2019): A robbery offense that requires the criminal to overcome the victim's resistance necessitates the use of physical force and therefore categorically qualifies as a predicate violent felony under the ACCA's elements clause, and robbery under Florida law, which has as an element the use of force sufficient to overcome a victim's resistance, categorically qualifies as a predicate violent felony under the ACCA's elements clause.

Carrying a firearm pursuant to § 924(c)

The Bailey decision, did NOT address the issue of what constitutes "carry" under the statute. The "carry" prong of this offense was decided in Muscarello v. U.S., 118 S. Ct. 1911 (1998) which held that the term carry is not limited to carrying firearms on one's person, but also applies to person who carries firearms in a vehicle. The court further held that a defendant who has a firearm in his car while he drives to a drug deal "carries" the firearm in the vehicle for purposes of the 924(c) enhancement. Thus, the carry prong may be successfully alleged when the Defendant drives to a drug deal with a gun in the car, even though the Defendant may leave the car (and the gun) to consummate the drug deal.

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 2362--2363 (2000).

The basic holding of Apprendi Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt . . . . "[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts [other than prior convictions] that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt."

Effect of Booker

The effect of Booker is that federal district courts must consider the factors set forth in Section 3553(a) in determining a sentence. These factors are: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed educational or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to victims.

(i) Substantial Assistance:

The first way to get below the mandatory minimum penalty is to engage in substantial assistance. In order to get a substantial assistance reduction, the prosecutor MUST file a motion. Your client can dime out ten drug dealers, but if the Government does not file a substantial assistance motion, the Court does not have jurisdiction to lower the sentence below the mandatory minimum. The following are things you should know about substantial assistance in federal court: (A) You can get a substantial assistance reduction for any crime. It is not limited to drug cases. (B) A substantial assistance motion filed before the sentencing hearing asking the Court to reduce the defendant=s sentence at the sentencing hearing, is filed pursuant to USSG §5K1.1 of the guidelines. The motion is commonly known as a "5K motion". (C) A substantial assistance motion filed after the client is sentenced is filed pursuant to Rule 35(b) of the rules of Federal Criminal Procedure. This motion is commonly known as a "Rule 35". NOTE: there really is no difference between the substance of a "5K" motion and a "Rule 35" motion.

Guidelines HIsotry

The guidelines also created a formula for calculating the defendant's criminal history in an attempt to treat similarly situated defendants based on criminal history. The result was a guideline sentencing table which had a defendant's offense level on the vertical axis and his criminal history on a horizontal axis. The result is that each defendant fell into a sentencing range of months. The guideline system was mandatory and each judge was required to sentence within the appropriate guideline range. Judges could depart above or below the guideline range, but only in unique cases. The type of available departure was severely limited by the guidelines in most situations.

3. Retroactivity of Amended Guideline Ranges ----

The guidelines manual provides that if a defendant is serving a term of imprisonment, and the guideline range applicable to the defendant is subsequently lowered as a result of an amendment to the guidelines manual, a reduction in the defendant's sentence is authorized. IMPORTANT NOTE: This provision applies only to amendments set forth in 1B1.10 of each year's guideline manual. Thus, if the amendment is declared retroactive by the guideline manual, then the defendant is eligible to have his sentence lowered. However, such a reduction is not automatic and is in the discretion of the Court. Note also, that the lowering of the guideline range may not allow the defendant to receive a new guideline sentence which is below any statutory minimum mandatory penalty.

Combination of 924(c) penalties with guideline penalties.

The guidelines provide that if a person is convicted of a 924(c) charge, the defendant cannot receive a guideline enhancement for the same firearm. USSG § 2K2.4. For example, the bank robbery guidelines provide a five level enhancement if the defendant possesses a firearm during a bank robbery USSG § 2B3.1(b)(2)(C). Thus, the defendant's total guideline score is enhanced by five levels for the firearm. If the same defendant is charged and convicted of bank robbery and for using a Firearm during the bank robbery, pursuant to 924(c), then the guidelines are calculated WITHOUT the five level enhancement and the defendant's 924(c) conviction will run consecutive to the bank robbery guidelines. Likewise, in a drug case, USSG § 2D 1.1 (b)(1), provides a two level enhancement if the defendant "possesses a firearm" during a controlled substance offense. If the defendant is convicted of a 924(c) charge, then his drug guideline will not be enhanced two levels for the firearm. If he is convicted of the drug charge and acquitted of the 924(c), he still can be enhanced two levels under the guidelines for possessing the gun during the drug trafficking offense.

The 924(c) Consecutive Sentences

The most bizarre aspect about a 924(c) charge is the consecutive sentences. The consecutive penalties of 924(c) conviction are set forth as follows: FOR A FIRST OFFENSE a. simple using, carrying or possessing in furtherance of b. brandishing while using, carrying or possessing in furtherance of c. simple use of a sawed off rifle d. using carrying or possessing a machine gun, bomb or gun with a silencer five years consecutive to substantive offense seven years consecutive to substantive offense ten years consecutive to substantive offense thirty years consecutive to substantive offense Thus, a first time bank robber who robs a bank with a handgun, and who brandishes the handgun during the robbery, will, if indicted and convicted of 924(c), will receive approximately three years for the bank robbery under the federal sentencing guidelines and seven consecutive years on the 924(c) charge. Likewise, a similar defendant who robs the same bank, but uses a machine gun or a bomb, is still looking at approximately three years for the bank robbery charge, but a consecutive thirty year sentence for the machine gun or bomb on the 924(c) charge.Thus, it goes without saying that getting a prosecutor to drop a 924(c) charge is one of the most effective plea bargaining tools in federal court.

(ii) "Safety Valve" USSG § 5C1.2:

The safety valve can only be applied in drug cases. This reduction came about as a way to reward individuals who could not receive a "substantial assistance" reduction, but who deserved some sort of reduction. (i.e. drug dealer's wife who is looking at a five year minimum mandatory penalty, but whose involvement was very small and therefore she does not know enough to get a substantial assistance reduction). Once the client qualifies for safety valve, the mandatory minimum goes away and the judge can sentence the defendant without regard for the mandatory minimum. Thus, even if the defendant is facing a mandatory minimum penalty of life imprisonment, due to an 851 drug enhancement, he still may qualify for a safety valve reduction if he meets all five criteria. Additionally, under the drug guidelines, the defendant gets an additional two level reduction, in his guideline score, if he qualifies for safety valve.

Defining "Drug trafficking offenses" and "Crimes of violence"

The term "drug trafficking offenses" applies to both state and federal offenses. In federal court, there is not a criminal offense that is called "drug trafficking." Rather, the drug trafficking offenses include Possession with the Intent to distribute drugs, Importation of drugs, and the conspiracy to commit either one of these offenses. The term "crime of violence" is defined in the statute as being a felony offense that (A) has an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. 18 U.S.C. § 924(c)(3). Most of the time a § 924(c) is charged with a crime of violence, the substantive offense will usually be a robbery, or a carjacking.

SMith Case

The term uses" and "carries" was the subject of an earlier United States Supreme Court opinion in Smith v. U.S., 113 S. Ct. 2050 (1993). In Smith, the defendant attempted to trade his firearm for a quantity of drugs. The defendant was prosecuted and convicted for the substantive drug offense, as well as the 924(c) charge. The defendant appealed arguing that the trading of a gun specifically for drugs did not violate 924(c) since the guns were not used or carried in relation to the drug offense. The Supreme Court rejected this argument, upheld the conviction and held that anyone who trades firearms for drugs, "uses" the drugs in relation to a drug trafficking offense.

Proffered Info Cont

There are limitations that provide the guideline shall not be applied to restrict the use of information: --known to the government prior to entering into the cooperation agreement; --concerning the existence of prior convictions and sentences in determining the defendant's criminal history; --in a prosecution for perjury or false statement; --in the event there is a breach of the cooperation agreement by the defendant; --in determining whether a sentence should be reduced pursuant to a substantial assistance motion made by the government.

b. Getting Below the Mandatory Minimum:

There are only two ways to get below a statutory mandatory minimum penalty in the federal system: "Substantial Assistance" and "Safety Valve." Because of this, the federal sentencing system -- especially in drug cases -- pushes defendants towards cooperating and/or pleading guilty.

Test Tip

Think like a Defense Attorney and Prosecutor for Booker Factors.

More Min Mand Issues

This situation does not happen very frequently, but it does happen. The sentencing guideline ranges for particular crimes are related to the statutory minimum mandatory penalties. For example, the statutory minimum mandatory for 280 grams, or more, of crack is ten years in prison. Likewise, the guideline base offense level for the same amount of crack is 121-151 months in prison. However, as will be discussed later in the guideline section, the application of certain guideline adjustments can lower the defendant's base offense level, sometimes by several years. In such a case, the guideline range can be significantly lower than the mandatory minimum penalty. The second situation where the guideline range might be lower than the minimum mandatory is when the United States Sentencing Commission lowers the guideline range for a particular crime. However, if Congress does not follow suit and lower the minimum mandatory penalty, then the guideline range can again be significantly lower than the minimum mandatory and the minimum mandatory penalty will apply. This happened several years ago when the Commission significantly lowered the guideline offense range for LSD offenses, but Congress refused to lower the related mandatory minimum.

Repeat Dangerous Sex Offenders Agsint Minors

Three Strikes Provision - Mandatory Life. Prior convictions on separate dates for 2 "serious violence felony" and/or "serious drug offense"

Apprendi Effect

Thus, because of Apprendi, an indictment must allege the minimum drug amount necessary to invoke the enhanced statutory maximum penalty. In a case where the indictment is silent as to the drug amount, then the lowest possible statutory maximum applies regardless of the amount involved. In the example above, an indictment which does not allege a specific amount would carry, upon conviction, a statutory maximum penalty of twenty years in prison. Likewise, in a case in which the government introduces into evidence more than 5000 grams of cocaine powder, but the Defendant is only charged with 400 grams, the maximum penalty, upon conviction, can only be twenty years for that count. Apprendi Overview The Apprendi opinion was decided in 2000. Since that time, the Supreme Court and the various federal appellate courts have attempted to clarify the application of Apprendi to different federal sentencing schemes.

Criminal History Points - Supervision

VOPS - look at the total time on probation OR if went to jail as a result, look at total incarceration.(cannot get more than 3 points for one crime)

Federal Sentencing Argument

Under 18 U.S.C. § 3553(a), a sentencing court must "impose a sentence sufficient, but not greater than necessary, to comply" with the purposes of sentencing set forth in the second paragraph of the statute. United States v. Shortt, 485 F.3d 243, 248 (4th Cir. 2007). In undertaking its analysis, the Court must give consideration to the advisory sentencing range recommended by the Guidelines and any relevant Guideline policy statements, as well as other traditional sentencing factors. Sentencing Factors/Booker Factors+ (1) the nature of the offense and history and characteristics of the defendant; (2) the purpose of sentencing; (3) the kinds of sentences available; (4) the Sentencing Guidelines; (5) pertinent policy statements issued by the Sentencing Commission; (6) the need to avoid unwarranted disparities among similar offenders; and (7) the need to provide restitution to victims. See 18 U.S.C. § 3553(a).

Career Offender / Florida Battery as a predicat

United States v. Gandy, 2019 WL 1055146 (11th Cir. March 6, 2019): under modified categorical approach, defendant's prior conviction under Florida battery statute was crime of violence for Federal Sentencing Guideline's career offender enhancement.

ACCA / Burglary of non-permanent or habitable Mobile Structure as VF

United States v. Stitt, 139 S.Ct. 399 (2018): Burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation qualifies as the enumerated violent felony of burglary, for purposes of mandatory minimum sentence under the ACCA, abrogating United States v. White, 836 F.3d 437, and United States v. Grisel, 488 F.3d 844.

3 tiers

Used to be math without subtraction prior to booker

Mitigation

Useful tools -debate the need for a departure analysis. In light of variances and booker factors.

B. What Is Using, Carrying, or Possession in Furtherance Of?

Using a firearm under § 924(c) There have been numerous United States Supreme Court cases, as well as Circuit Court of Appeals cases, interpreting this statute. The most notable of these cases, Bailey v. U.S., 116 S. Ct. 501 (1995), was decided in December 1995. In Bailey, the Supreme Court held that, as to the "use" prong of the statute, the defendant had to "actively employ" the firearm in order to be convicted of 924(c). It was not enough, the Court held, that the defendant, possessed the gun, or had access to the gun. Thus, a defendant selling drugs out of his house who has a gun underneath his living room chair is NOT guilty of using a firearm pursuant to § 924(c) since he is not actively employing the firearm during the commission of the drug offense.

7. "Proffered Information" and § 1B1.8.

When the defendant agrees to cooperate with the government by providing information concerning unlawful activities of others and, as part of the cooperation agreement, the government agrees that no self-incriminating information will be used against the defendant, then such information shall not be used in determining the applicable guideline range, except to the extent contained in the agreement. Thus, in many drug conspiracy cases, the most culpable offender can limit his liability by "proffering" information regarding the unlawful activity of others. Thus, if the defendant is caught with one kilo of crack, but his proffer reveals he is responsible for much more cocaine, the self-incriminating information cannot be used against the defendant in determining the appropriate guideline range (provided the government did not previously know the proffered information).

Alleyne

You should read this. 924c statute explained, does for mandatory minimum what appredni did for the max. (any fact that increases the MIN must be pleaded and alleged in charging document and must be proven or admitted at change of plea

The criteria for the safety valve reduction

can be found at USSG § 5C1.2 (and listed below): 1. the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines; 2. the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; 3. the offense did not result in death or serious bodily injury to any person; 4. the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848; and 5. not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

Hall Case and Dangerous Weapons enhancements

possession dangerous weapon - initial burden on Govt to show use. D then has burden to show the weapon not connected to offense. (US V HALL)

The Supreme Court's decisions in Gall, Cunningham, and Kimbrough v. United States, 552 U.S. 85 (2007),

significantly broadened the discretion of courts to impose a less stringent sentence than the one suggested by the Guidelines, and in this case the Court should exercise its broad discretion and impose a sentence substantially below the Guidelines calculated by Probation, especially since Mr. Manafort has been held in protective solitary confinement for almost nine months and has agreed to forfeit the vast majority of his assets accumulated over a lifetime of work per the plea agreement in the District of Columbia.

In Alleyne v. United States, 133 S. Ct. 2151 (2013),

the Supreme Court held that any fact that increases the statutory mandatory minimum sentence is an element of the crime that must be submitted to the jury and found beyond a reasonable doubt. This means that for a defendant to be subject to a mandatory minimum sentence, prosecutors must ensure that the charging document includes those elements of the crime that trigger the statutory minimum penalty.

4. For guideline enhancements,

the government must prove the enhancement by a preponderance of the evidence. Likewise, to establish a guideline reduction, the defendant must prove the reduction applies by a preponderance of the evidence.

It is important to read § USSG 6A1.3,

which discusses the resolution of Disputed Factors at sentencing. See also U.S. v. Watts, 519 U.S. 148, 154 (1997), in which the Supreme Court discussed the admissibility of acquitted conduct at sentencing.