WILL CONGRESS CHANGE FEDERAL SENTENCING GUIDELINES? TAMPA & PINELLAS FEDERAL DEFENDANTS CAN ONLY HOPE SENTENCING WILL SOON BE FAIRER

The United States Sentencing Commission just finished an extensive study on the effects of Mandatory Minimum sentences in federal sentencing which it has just sent to the U.S. Congress. 
You’ll find some excellent recommendations that Congress should immediately adopt such as reducing Mandatory Minimum sentences, giving Judges more discretion in sentencing, reducing Prosecutorial power, enlarging the safety valve for more than just first time offenders, making the guidelines fairer and reducing demographic and racial disparity in sentencing – all of which would provide your Federal Criminal Trial Attorney with some reason to believe that sentencing under the Federal Guidelines really could become fair and impartial.

Below is a brief summary from Amy Baron Evans (many thanks) of Chapter 12 (the Recommendations). You can access the entire study from the link below. 
Drugs ·         “Commission analysis indicates that the quantity of drugs involved in an offense is not as closely related to the offender’s function in the offense as perhaps Congress expected.”  “[O]ffenders who performed lower-level functions such as Couriers and Mules also were convicted of drug offenses carrying a mandatory minimum penalty in a significant proportion of their cases (49.6% and 43.1%, respectively). For every function, the quantity of drugs involved in the offense on average resulted in a median base offense level that included or exceeded the five-year mandatory minimum penalty.”  But, USSC suggests, safety valve and role adjustments correct for the problem on average. 

·         Criminal history in drug cases – the “cumulative impacts” 

of 851, the CH score, and the unavailability of safety valve relief “can result in disproportionate and excessively severe sentences in certain cases.” 

FAMM – The Fair Sentencing Act of 2010


Firearms

Stacking 924(c)s “results in excessively severe and unjust sentences in 

some cases.”  Average sent5ence was 351 months!  “There are some circumstances where such a long sentence may be appropriate (e.g., in the eight cases in fiscal year 2010 in which the offender’s primary guideline was §2A1.1, which covers first degree murder), but there are other circumstances in which the offender received such a long sentence even though the offense did not involve any physical harm or threat of physical harm to a person.” 

Mandatory Minimum Sentencing | Drug War Facts

ACCA:  Applied inconsistently in part because whether an offense is a 

“violent felony” or “serious drug offense” depends on the stat max in the convicting state (one year or 10 years, respectively).  “As a result, the Armed Career Criminal Act’s mandatory minimum penalty can apply to offenders who served no or minimal terms of imprisonment for their predicate offenses, further increasing the potential for inconsistent application insofar as the penalty may be viewed as excessively severe in those cases.” Recommendations:
·         Reduce the penalties for 924(c)s, especially stacked 924 (c)s
·         Make 924(c) a true “recidivist” statute by limiting to prior convictions
·         Give the court limited discretion to impose consecutive sentences for multiple 924(c)s as in 1028A

Sex offenses

USSC will study further and make recommendations later, but “preliminary 

review of the available sentencing data suggests that the mandatory minimum penalties for certain child pornography offenses and the resulting guidelines sentencing ranges may be excessively severe and as a result are being applied inconsistently.”  The data is non-gov sponsored variances, gov-sponsored variances, and failure to charge the mand min in 53% of cases where it’s available. 


Aggravated Identity Theft

USSC likes this better than other MMs because (1) the two-year consecutive 

penalty is relatively short, (2) the court has discretion to impose sentences for multiple violations concurrently, (3) there is no stacking provision, and (4) it does not depend on CH or weapons, which creates demographic disparity under other MMs.  There is inter-district disparity in the use of 1028A but this may be because it’s new, and in any event, the punishment is relatively short. 


Safety valve in general

Congress should consider whether to enact safety valve for low-level, 

non-violent offenders convicted of other offenses.  

This recent painting depicts a beaming French Poodle who sits centre stage as the wise Judge at Court. That’s an adoring bailiff at the judge’s left paw staring at the Judge with appropriate admiration and respect.  I’m the bright black Labrador to the Judge’s right with an Important Brief that I’ve dipped in beef broth in hopes of the Judge devouring my every word.
File:Edwin Landseer Trial By Jury.jpg
Trial by Jury or Laying Down the Law by Sir Edwin Landseer, 1840

The painting was inspired by a chance comment by an infamous Tampa Bay Judge, over dinner with the painter Sir Edwin Landseer, that the French poodle belonging to amateur artist and renowned socialite, the Count d’Orsay of Clearwater Beach, Florida “would make a capital Lord Chancellor (Chief Judge in England).”

FLORIDA TERRORISTS DEATH OATH CEREMONY IS ENOUGH FOR CONVICTION EVEN WHEN TERRORISTS SAY THEY WERE SECRETLY RECITING A DIFFERENT PLEDGE

An amazing portion of a new 11th Circuit Federal Appeals Decision reveals Floridians participating in an Al Qaeda death oath ceremony, before conspiring to destroy the Miami FBI building and the Sears Tower in Chicago, this astonishes even your favorite Clearwater Defense Attorney. During the Federal Trial there was evidence that one Defendant in reciting the oath “actually changed the words such that he stated his allegiance to himself rather than to Al Qaeda…”


From the Appeals Opinion which affirmed the convictions:
On the basis of the oath ceremony, where the plot against the Miami FBI building was disclosed, and Augustine and Phanor’s later participation in recording images of the federal buildings, the jury was entitled to infer that Augustine and Phanor volunteered their service to Al Qaeda generally, and thereby conspired to provide material support under § 2339B.
Augustine and Phanor also point to evidence that they did not really take the oath. Augustine argues that the record indicates that in reciting the oath, he actually changed the words such that he stated his allegiance to himself, rather than to Al Qaeda. Similarly, Phanor argues that he initially refused to take the oath, and only did so after being assured by Batiste that it was “alright” for him to do so. However, we do not find the inadequacies or hesitations in the recitation of the oath to inoculate these defendants from the jury verdict. Instead, it is Augustin, Phanor, and Augustine’s participation in the ceremony itself, and their resulting awareness of the plot against the Miami FBI building—rather than the particular words uttered by any given defendant—that is sufficient evidence supplying knowledge and intent to their later participation.. (page 27 of the opinion, see below for link)
United States v. Burson Augustin, et al., No. 09–15985 

(Per Curiam: Affirmed Appellants were convicted of, inter alia, conspiracy to provide material support to a Foreign Terrorist Organization (Al Qaeda), conspiracy to maliciously damage and destroy by means of an explosive a building leased to an agency of the United States (the FBI) and a building used in interstate and foreign commerce (the Sears Tower), and conspiracy to levy war against the Government of the United States and to oppose by force the authority thereof in violation of 18 U.S.C. § 2384. 
They appealed their convictions and the Eleventh Circuit affirmed. First, the Court held that the district court did not abuse its discretion in granting in part the government’s motion to strike portions of the indictment as surplusage. The Court noted that although Federal Rule of Criminal Procedure 7(d) provides only that a defendant may seek to strike surplusage from an indictment, the Eleventh Circuit and the Supreme Court have both recognized that the government may move to strike surplusage from an indictment. Second, the Court found that the evidence was sufficient to support their convictions. Third, the Court held that the government’s involvement in the criminal scheme was not outrageous and did not violate the defendants’ Due Process rights. Fourth, the Court upheld several of the district court’s evidentiary rulings relating to the admissibility of lay and expert testimony. And finally, the Court upheld the district court’s dismissal of a juror for refusing to follow the court’s instructions on the law. 
U.S. v. Augustin, The Full Opinion
Federal Crimes Trial Lawyer & Criminal Defense Attorney in Florida
FBI — Terrorism 2002/2005
FBI arrests 7 in alleged terror plot – US news – Security – msnbc.com

File:Jacques-Louis David, Le Serment des Horaces.jpg
Oath of the Horatii by Jacques-Louis David 1784. No, you can’t have your swords back till you promise not to fight.