sentencing 101 a beginner’s guide to sentencing in...
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Sentencing 101A beginner’s guide to sentencing in Federal Courts.March 23, 2016
Michelle Nahon Moulder, Assistant Federal Public Defender
Purpose of this presentation:The basics.
What you can expect:
• Tools
• Facts
• Guidelines basics
• Resources
• Practice pointers
• Questions.
The Tools
The Indictment
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
UNITED STATES OF AMERICA, No. xx-xxxxx-xx-x-xxx
Plaintiff,
v.
John Doe
Defendant.
COUNT 118 U.S.C. §§ 922(g)(1) and 924(a)(2)NMT 10 Years Imprisonment NMT $250,000 FineNLT 3 Years Supervised Release Class C Felony
COUNT 218 U.S.C. §§ 922(g)(1) and 924(a)(2)NMT 10 Years Imprisonment NMT $250,000 FineNLT 3 Years Supervised Release Class C Felony
FORFEITURE ALLEGATION 118 U.S.C. § 924(d)(1)
$100 Special Assessment
I N D I C T M E N T
THE GRAND JURY CHARGES THAT:
COUNT 1(Felon in Possession of Firearm andAmmunition) 18 U.S.C. § 922(g)(1)
and 924(a)(2)
On or about February 3, 2015, in Jasper County, in the Western District of
Missouri, the defendant, John Doe, having been convicted of a crime
punishable by imprisonment for a term exceeding one year, knowingly possessed,
in and affecting interstate commerce, firearms and ammunition, that is, a KHAR
CM40 .40 caliber handgun, serial number JN9239, with three rounds of .40 caliber
ammunition; all in violation of Title 18, United States Code, Sections 922(g)(1) and
924(a)(2).Dated: 06/17/2013 /s/ AUSA
Assistant United States Attorney
COUNT 2(Felon in Possession of Firearm and Ammunition)
18 U.S.C. § 922(g)(1) and 924(a)(2)
On or about April 24, 2015, in Jasper County, in the Western District of Missouri, the
defendant, John Doe, having been convicted of a crime punishable by imprisonment for
a term exceeding one year, knowingly possessed, in and affecting interstate commerce,
firearms and ammunition, that is, a Hi-Point Model C9 9mm firearm with an assigned
serial number of P1671468 with 8 rounds of Luger 9mm caliber ammunition; all in violation
of Title 18, United States Code, Sections 922(g)(1) and 924(a)(2).
FORFEITURE ALLEGATION 118 U.S.C. § 924(d)(1)
The allegations contained in Counts 1 and 2, above, are hereby incorporated as though
fully set forth herein for the purpose of charging criminal forfeiture to the United States of
America pursuant to Title 18, United States Code, Section 924(d)(1).
As a result of committing offenses in violation of Title 18, United States Code, Sections
922 and 924, as charged herein, defendant John Doe, shall forfeit to the United States all
firearms and ammunition involved in the particular aforesaid offenses as set forth above,
including but not limited to, a KHAR CM40 .40 caliber handgun, serial number JN9239, with
three rounds of .40 caliber ammunition; and a Hi-Point Model C9 9mm firearm with an
assigned serial number of P1671468 with 8 rounds of Luger 9mm caliber ammunition, all seized
from John Doe in Jasper County, Missouri, on or about February 3, 2015, and April 24, 2015.
A TRUE BILL.
/s/ FOREPERSON OF THE GRAND JURY
Applicable Statutes –Crime Charged
18 U.S.C. Section 922(g)
(g)It shall be unlawful for any person—(1)who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
. . .
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
Felon in possession
18 U.S.C. Section 922(g)
Applicable Statutes --Penalties
Penalties: 18 U.S.C. Section 924(a)(2)
Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.
Felon in possession
18 U.S.C. Section 924(a)(2)
Applicable Statutes –Potential Statutory Enhancements
Armed Career Criminal Act. 18 U.S.C. Section 924(e) (e)(1)In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).
(2)As used in this subsection—(A)the term “serious drug offense” means—(i)an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46 for which a maximum term of imprisonment of ten years or more is prescribed by law; or
(ii)an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law;
(B)the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—(i)has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii)is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another; and
(C)the term “conviction” includes a finding that a person has committed an act of juvenile delinquency involving a violent felony.
Armed Career Criminal Act (ACCA)
18 U.S.C. 924(e)
Applicable Statutes
No Cost Resource: Cornell University Law School,
Legal Information Institute
www.law.cornell.eduResource
The United States Sentencing Guidelines
The United States Sentencing Guidelines
Book form. https://bookstore.gpo.gov/products/sku/052-070-07689-5 $69
http://legalsolutions.thomsonreuters.com/law-products/Treatises/Federal-Sentencing-Guidelines-Manual-2015-ed/p/101309424 Regularly $76 -- 2015 on sale for $60.80.
Online.http://www.ussc.gov/guidelines-manual/guidelines-manual
FREE!!!
Where to find the Guidelines
United States Sentencing GuidelinesGuidelines Worksheets
United States Sentencing GuidelinesSentencing Table
Model Jury Instructions Available at the Eighth Circuit website:
http://juryinstructions.ca8.uscourts.gov/criminal_instructions.htm
Model Jury Instructions --Elements
Model Jury Instructions --Elements
The FactsWhere to find the facts you need to calculate the potential sentence.
The Facts
Sources
Client interview
Government’s Discovery
Investigation
Information
Criminal history
Health/mental health
Employment
School
Family
Calculating the Potential Sentence
The Statute Controls
Penalties: 18 U.S.C. Section 924(a)(2)
Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both
Armed Career Criminal Act. 18 U.S.C. Section 924(e) (e)(1)
In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).
Example: Felon in Possession
Calculating the Guidelines
Find the Applicable GuidelineAppendix A – Statutory Index
18 U.S.C. Section 922(g)
Guideline Section 2K2.1
Calculating the Offense Level2K2.1
Calculating the Offense Level (cont.)
Calculating the Offense Level (cont.)
Calculating the Offense Level (cont.)
Calculating the Offense Level (cont.)
CHAPTER THREE – Adjustments
Part A-Victim-Related AdjustmentsPart B-Role in the OffensePart C-Obstruction and Related AdjustmentsPart D-Multiple CountsPart E-Acceptance of Responsibility
Chapter Three Adjustments
Calculating the Offense Level (cont.)
Part D – Multiple Counts
Determine whether the counts should be grouped (3D1.2).
Offenses covered by Section 2K2.1 are to be grouped.
Calculating the Offense Level (cont.)
§3E1.1. Acceptance of Responsibility
(a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.
(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.
Calculating the Offense Level (cont.)
Calculating Criminal HistoryChapter 4. Determining the Criminal History
Calculating Criminal History (cont.)
Calculating Criminal HistoryPoints Summary
Criminal History Points for offenses committed at 18 or older:
3 >13 months. Must be within 15 years of prior sentence imposition or release.
2 ≥ 60 days. Must be within 10 years of prior sentence imposition.
1 All others * Must be within 10 years of prior sentence imposition.
* Maximum of 4.
If offense committed before 18, 2 points if within 5 years of prior imposition or release and 1 point within 5 years of imposition.
CalculatingCriminal History (cont.)Criminal History
Criminal History Resources
The Client
Government’s Discovery
Pretrial Services Report
PACER
CaseNet
Prior Presentence Investigation Reports
Obtain Copies
Summary:Why it is important to know your client’s criminal history.
Statutory Penalties:
18 U.S.C. Section 924(a)(2)
Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.
Armed Career Criminal Act. 18 U.S.C. Section 924(e) (e)(1)
In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years,
Determining the Offense Level
Summary:Why it is important to know your client’s criminal history –Chapter 4 Career Offender and Criminal Livelihood.
Career Offender
At least eighteen years old at the time he committed the instant offense of conviction.
The instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense.
At least two prior felony convictions of either a crime of violence or a controlled substance offense.
Armed Career Criminal
A defendant who is subject to an enhanced sentence under the provisions of 18 U.S.C. §924(e) is an armed career criminal.
Three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another.
Determine the SentenceChapter 5
Determine the Sentence (cont.)
Determine the Sentence (cont.)
Determine the Sentence (cont.)
Determine the Sentence (cont.)
Determine the Sentence (cont.)
Determine the Sentence (cont.)
Determine the Sentence (cont.) 5G1.3 Imposition of a Sentence on a Defendant Subject to an
Undischarged Term of Imprisonment or Anticipated State Term of Imprisonment.Other Chapter 5 considerations
Determine the Sentence (cont.)
Determine the Sentence (cont.)
Determine the Sentence (cont.)
Determine the Sentence (cont.)
Part H – Specific Offender Characteristics List of characteristics and whether they are relevant for
determining whether a departure is warranted. Part K – Departures
5K1.1 Substantial Assistance 5K2.0 through 5K2.24 Other Grounds
Other Chapter 5 considerations
18 U.S.C. Section 3553(a)
• 18 U.S.C. Section 3553(a) factors give the court wide discretion within the statutory minimum and maximum.
Felon in Possession – maximum ten (10) years.
ACC -- minimum fifteen (15) years, maximum life.
Applicable --Sentencing Factors
Sentencing factors. 18 U.S.C. Section 3553(a).
(a)FACTORS TO BE CONSIDERED IN IMPOSING A SENTENCE.—The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—
(1)the nature and circumstances of the offense and the history and characteristics of the defendant;
(2)the need for the sentence imposed—
(A)to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B)to afford adequate deterrence to criminal conduct;
(C)to protect the public from further crimes of the defendant; and
(D)to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3)the kinds of sentences available;
(4)the kinds of sentence and the sentencing range established for—
A)the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—
(i)issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and
(ii)that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or
(B)in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28);
(5)any pertinent policy statement—
(A)issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title28); and
(B)that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.[1]
(6)the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7)the need to provide restitution to any victims of the offense.
18 U.S.C. Section 3553(a)
Important Considerations
Plea Agreements –The Impact on Sentencing
Appeal waiver.
The Factual basis.
Agreed upon Guidelines.
The PSI Interview
Determine whether your client should interview.
Prepare your client.
Do NOT allow your client to attend without you.
Sentencing Mitigation
Expert Psychologist. Bureau of Prisons. Medical.
Non-Expert Friends and family. Employers. Letters to court. Photographs.
Allocution
Allocution. (al-ə-kyoo-shən) n. (1858) Criminal procedure. 1. A trial judge's formal address to a convicted defendant, asking whether the defendant wishes to make a statement or to present information in mitigation of the sentence to be imposed. • This address is required under Fed. R. Crim. P. 32(c)(3)(C). 2. An unsworn statement from a convicted defendant to the sentencing judge or jury in which the defendant can ask for mercy, explain his or her conduct, apologize for the crime, or say anything else in an effort to lessen the impending sentence. • This statement is not subject to cross-examination. 3. Criminal procedure. A defendant's admission of guilt made directly to a judge, esp. in response to a series of questions from the judge on whether the defendant understands the charges, the right to a trial, the consequences of a guilty plea, and the voluntary nature of the plea. Black’s Law Dictionary (10th ed. 2014), Bryan A. Garner, Editor in Chief.
AllocutionLetter from client.
Client address to the court.
Allocution article.
Non-citizen defendants
Treaty transfers.
http://www.justice.gov/criminal-oeo/international-prisoner-transfer-program
Additional Resources
Office of the Federal Public Defender Jefferson City: 573-636-8747 Kansas City: 816-471-8282 Springfield: 417-873-9022
Defender Services Office Training Division: www.fd.org An Introduction to Federal sentencing, Bradford Bogan, Assistant
Federal Public Defender, Western District of Texas.
United States Sentencing Commission www.ussc.gov Helpline: 202-502-4545
Additional Resources
United States v. Booker, 543 U.S. 220 (2005)
Rita v. United States, 551 U.S. 338 (2007)
Kimbrough v. United States, 552 U.S. 85 (2007)
Gall v. United States, 552 U.S. 38 (2007)
Irzarry v. United States, 553 U.S. 708 (2008)
Spears v. United States, 555 U.S. 261 (2009)
Pepper v. United States, 131 S.Ct. 1229 (2011)
Peugh v. United States, 133 S.Ct. 2072 (2013)
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The End.