It’s unfortunate but true that America has declared a unilateral drug war against its own citizens. The power of the state could have been used to promote awareness of the risks of various drugs and to help those addicted beat their habits. Instead otherwise law-abiding citizens are branded as criminals. Many are arrested on the flimsiest of excuses as law enforcement officers become liars in an effort to lock up as many people as possible.
Avoid the Pinellas Jail
Once arrested those suspected of having even small quantities of drugs often face significant prison sentences in federal and state courts in Florida. For example, it only takes being in possession of a handful of oxycodone, vicodin or other otherwise legal prescription pills to create a situation where a judge has no discretion to go under the federal or Florida minimum mandatory sentencing requirements. Even when a minimum mandatory sentence does not apply the strict standards of the sentencing guidelines may require a judge to give prison time even for a first time offender. Clearly the strict drug laws must be changed as soon as possible. The laws should focus on rehabilitation not punishment and on helping people not hurting them. More peoples lives have been destroyed by the strict enforcement of American drug laws than have been harmed by the illegal drugs themselves. But until federal and Florida drug laws are amended Clearwater criminal defense lawyers must find the best possible ways to minimize the terrible damage done to countless lives after a drug arrest. Here are the most important and effective things to do if you or someone you love has been arrested for a drug charge in Tampa Bay, Florida:
- Do whatever is necessary to get out of the Pinellas Jail which is well known for having poor food, unsafe conditions and providing poor medical care. Contact a bail bondsman if you don’t have the entire bail amount. Typically by paying ten percent of the entire bond to the bondsman which you forfeit as his fee, the bondsman pays the remaining 90% thus insuring that you don’t have to wait for months in jail while the case is being resolved. If the bond is still too high then a lawyer can file a motion with the judge to lower the bond by establishing that you are not a flight risk and that you have strong ties to the community.
- As soon as possible contact a reliable defense lawyer who is committed to helping you find the best results. Make sure the lawyer has prior criminal law experience and that criminal law is his one field of practice rather than finding a general practitioner or someone who also does civil law.
- Help your lawyer help you by providing any evidence you may have such as phone records, bank records, video or audio. It’s important to remember that you and your lawyer are now a team working together for the common goal of keeping you out of prison and finding the best result. Any information you provide may be helpful in arguments your lawyer may present to the prosecutor or judge in an effort to have your case dismissed or reduced to a misdemeanor.
- If the case can not be dismissed or reduced then it’s important to make a decision as soon as possible as to whether or not to have a jury trial. If you are not going to trial then you may want to co-operate with the government to obtain a better sentence. If you’re going to fight the charges then taking sworn depositions of the witnesses may be necessary. The decision on whether to go to trial is often pivotal as to how much prison time may be at risk.
It’s possible that your drug case may be decided in the special drug court. If that happens trial is unlikely as the purpose of the drug court is to give the judge other options than prison and punishment. Whether your case is decided in drug court or in a typical felony division, the Florida sentencing guidelines provide the map by which the judge will make most sentencing decisions. Therefore it’s important that your defense lawyer understand the sentencing guidelines and how they apply in your drug case.
As Congress and the Federal Sentencing Commission have not yet officially acted on the Attorney General’s recent request to reduce nonviolent federal drug criminal sentences by two levels, its important to know which Federal Judges are granting a variance with the expectation that the Federal Sentencing Guidelines will be changed soon.
The following is a list which should prove useful to criminal defense lawyers practicing in the Middle District of Florida. Each case can be assessed for further information in the Federal ECM filing system to determine what each of the Federal sentencing judges in each case may have required from defense counsel to make favorable ruling for a two level sentencing reduction. Cases where courts have granted two-level variance based on pending change in drug guidelines USSG § 2D1.1:
1. Federal Cases in Tampa
United States v. Bishop, Case No. 8:13-CR-387-T-30AEP (M.D. Fla. 2014)(Moody, J.)
United States v. Castaneda, Case No. 8:13-CR-403-T-33AEP (M.D. Fla. 2014)(Covington, J.)
United States v. Denson, Case No. 8:13-CR-180-T-33MAP (M.D. Fla. 2014)(Covington, J.)
United States v. Hayes, Case No. 8:11-cr-00345-EAK-EAJ-6 (M.D. Fla. 2014)(Kovachevich, J.)
United States v. Magana, Case No. 8:13-CR-458-T-30MAP (M.D. Fla. 2014)(Moody, J.)
United States v. Murphy, Case No. 8:11-CR-463-T-17TGW (M.D. Fla. 2014)(Kovachevich, J.)
United States v. Persuad, Case No. 8:13-CR-434-T-30TBM (M.D. Fla. 2014)(Moody, J.)
United States v. Rodriquez, Case No. 8:13-cr-00229-JSM-MAP (M.D. Fla. 2014)(Moody, J.)
United States v. Secrest, Case No. 8:13-CR-268-7-17MAP (M.D. Fla. 2014)(Kovachevich, J.)
United States v. Zamrripa, Case No. 8:13-Cr-502 (M. D. Fla. 2014)(Lazarra, J.)
2. Federal Cases in Orlando
United States v. Chehab, Case No. 6:13-cr-00179-CEH (M.D. Fla 2014)(Honeywell, J.)
United States v. Humberto Reyes, Case No. 6:13-cr-210-CEH-TBS (M.D. Fla. 2014)(Honeywell. J.).
3. A federal case from Jacksonville
United States v. Gibbons, Case No. 3:12-cr-201(S1)-J-34JBT & 3:13-cr-37-J-34MCR (M.D. Fla. 2014)(Howard, J.).
This list is clearly not comprehensive in that it does not include a case I wrote about in this blog a few weeks ago in which a federal judge in Tampa granted a two level variance for my client in a federal drug case involving steroids.
In using this information lawyers can ascertain whether their Judge will require a sentencing memorandum that specifically delineates the request or whether an oral motion at the time of sentencing will be sufficient. At least one federal defense lawyer sent an email to me saying that he planned to ask for a 180 day continuance for his client’s federal drug sentencing, in hopes that his client would benefit once implementation of the rule is finalized by Congress. I don’t believe this strategy is likely to meet with success nor is it the best way to proceed because the federal judges are not going to continue all of their pending drug cases for six months. Yet arguable at least it lays out a record for possible appeal later if the sentencing commission fails to make these changes retroactive.
Federal Judges should be granting these motions for two-level variance reductions because otherwise there will be an unfair disparity of sentencing for those who are sentenced now. Because Assistant U.S. Attorney’s are no longer objecting to the motions, it would seem that an appeal is as unlikely from the government as from those for whom the variance is given. For the most part it would seem that judges who are predisposed to grant this motion will address it on their own terms so that there is consistent sentencing at least within their own courtrooms, but shouldn’t all of the judges also be concerned about what the other federal judges are doing and the inconsistencies of sentencing within each jurisdiction?
Even when the variance is granted it’s important for lawyers not to allow their clients to have false hope. They need to make it clear to their clients to how small a two-level reduction in a federal sentence can be in terms of actual months of time served in prison. Step by step federal judges need to given much more discretion to do what is right for federal defendants by crafting sentences that may punish and deter, yet also give hope by changing lives for the better. Clearly nonviolent defendants should receive fairer sentences with much less jail, because the Attorney General of the United States is right two million Americans in prison is far too many, this two-level variance is the first step in actual prison reduction.
A recurring sentencing scenario that Clearwater criminal defense attorneys often experience is a frowning Judge who states on the record that regretfully the onerous sentencing guidelines call for a harsh sentence which must be imposed. At least the Sentencing Guidelines don’t yet call for being sent to the old Village Stocks as punishment or Judges would do that as well. It’s not enough that the United States Supreme Court has ruled that the Federal Sentencing Guidelines are merely advisory.
|Sentencing Options have changed.
If it’s a Federal Judge he’ll remind the lawyers that despite what the Supreme Court has stated, the Federal Sentencing Guidelines as they pertain to lengthy minimum mandatory sentences can only be pierced by substantial assistance based on co-operation or by the rarely invoked safety valve provision which only applies in drug cases and only if the Defendant is in the first criminal history category.
Yet even when no minimum mandatory sentence is triggered under the Federal Sentencing Guidelines the Judge feels bound by them and will work from the guidelines toward a fair sentence.
In the state criminal justice system of Florida, the Judge will maintain that the Supreme Court’s opinion on the Federal criminal justice system has no bearing on the state of Florida and at this point the Judge is correct. So the Judge will look to Florida scoresheets calculations that create a sentencing guideline range to determine an appropreate sentence.
Here are some of the best ways to present better sentencing options for a Judge that trump the sentencing guidelines.
First, the facts of the case need to be exploited and explained in such a way that the Court will differentiate the case from others that seem similar but aren’t. This must be based on a fact based presentation and comparison of the case at hand in comparison to the typical case for which the criminal statute was clearly written. For example, intentionally spitting on an officer is a Felony Battery, but should the law apply with equal heft in punishment where the officer in question is shown to have egged the Defendant on?
Second, the Defendant must be made to seem much more sympathetic than a typical Defendant. At the heart of this is finding the lynchpin that explains to the Judge why this event happened and why it will never happen again. One purpose of sentencing may be punishment, but another purpose of sentencing is rehabilitation. How does it help society to punish a Defendant if at sentencing the defense can establish a high likelihood that the Defendant will never commit another crime?
At issue in every sentencing case should be the question: is this a fair sentence and if not, why not? Showing a wide disparity of sentences within a given law’s sentencing history may establish the inherent unfairness of a sentence. This is what happened in the abolition of the 100 to 1 mandatory minimum ratio of crack cocaine punishment to powder cocaine punishment in Federal Courts. But thousands of Americans suffered years of wasted prison time before the Courts, and finally Congress, were brave enough to make the needed change based on disparity of sentence.
Finding leverage for a fair sentence thru special personal characteristics of the Defendant is specified under the Federal Guidelines as giving the sentencing Judge discretion to go under the guidelines to provide for a fair sentence. This federal framework can also be very successful in state court system.
As an example would be a case involving a million dollar fraud scheme for which a client who also happens to have an on-going, non-curable disease accepts responsibility for his criminal conduct by pleading guilty. The Sentencing Guidelines call for jail based on the amount of the taking in the scheme to defraud. Yet establishing to the Judge that the client is taking non-FDA approved drugs for his illness, forces the Judge to go under the guidelines and give no prison time whatsoever, because non-FDA approved drugs are not allowed in the Federal Prison System.
If someone you care about is concerned about how the Sentencing Guidelines will affect a Judge’s sentencing decisions you need to find a Clearwater criminal lawyer who will find the best options that are available by making sure the Judge creates a sentence which gives the least amount of punishment while still protecting the community.
The goal of Clearwater criminal defense lawyers is to find the best possible outcome for every client charged with misconduct. Sometimes the best outcome will not be obtained by fighting the facts of a case in a jury trial, but by pleading to the charge with the understanding that the sentencing Judge will give a predetermined sentence that represents the best result for a client.
Yet the paradox of sentencing is that the Judge in many ways is the least informed of any of the key participants. Further, many judges may be influenced to give unfair sentences by outside factors, such as by elections. Still most judges seem to strive toward fairness in sentencing. During a sentencing hearing the Judge may have the most knowledge of the law, but typically, it’s also the Judge who will have the least knowledge of the facts and circumstances of that particular case.
This is true because the defense lawyer and prosecutors have investigated the case as well as engaged in the process of discovery with ready knowledge of police reports, depositions of significant witnesses and a working knowledge of the strengths and weaknesses of their cases. The more complex the set of facts the more reliant the Judge will be on the lawyers for the defense and prosecution in determining what he believes to be a fair sentence.
The best defense lawyers will leverage statements from prosecutors and law enforcement that may become useful in persuading the sentencing Judge to give a reasonable sentence. A number of years ago as a prosecutor in Tampa Bay, Florida, I found an odd think often happened during sentencing hearings. Counterintuitively, the most effective argument in aggravation would be made by the defense lawyer. This would occur when the sentencing Judge would box the lawyer into a damning statement about his client.
For example in a drug trafficking case the sentencing hearing could turn on the following:
Defense Lawyer: “My client’s drug addiction may be a threat to himself, but I’m certain he can not be viewed as a threat to the community.”
Judge: “If he’s a threat to himself, he’s a threat to anyone who might be called to try to help him, isn’t he, including any first responders to a 911 call. Probation will not work here, only jail will protect him from himself and the harm he may do others.”
Here the Judge finds the most reliable evidence for what may pass as the truth in facts which are brought to his attention from the defense and appear to be against interest. If the prosecutor states that a Defendant is a threat, that’s to be expected as obvious, but if the defense lawyer brings it up, well then it must not only be certain but should be acted upon.
Defense counsel from the very first day on the case must be pushing the prosecutor toward the belief of the most significant key facts that will help the defense in sentencing even if there is abundant evidence of the Defendant’s guilt.
These narrowing facts that support mitigation at sentencing should be brought into every conversation with the prosecutor and law enforcement during the course of depositions and discovery. With effective planning, skill and strategy the most effective argument a Clearwater criminal attorney will make at sentencing often comes from the prosecutor.
A confidential informant is used by law enforcement to prosecute defendants when police are unable to secure probable cause for an arrest without the testimony from someone who has directly dealt with the defendant. Clearwater Criminal Defense Attorneys find that most major conspiracy and trafficking cases will have one or more confidential informants as witnesses. These witnesses will testify that they bought drugs from the defendant at grand jury proceedings and at trials.
|Manet, Bar at Folies-Bergere, 1882
Ideally the police wire the confidential informant, listen as a drug deal is consummated and arrive at the nick of time before the confidential informant becomes a grim statistic.
Unfortunately law enforcement are recklessly using young defendants as confidential informers in significant drug deals as detailed in this recent heartbreaking New Yorker article about young people haplessly murdered while under the protection of police as they tried to work off minor drug charges. In one case that took place in Florida the police gave a young confidential informant $13,000 in cash to buy drugs and a gun from the target. She was murdered instead. Why did officers want her to buy drugs and a gun? Because the weapons and firearms count against the target would add an additional five years to the sentence, yet clearly adding a weapon to the mix increased the risks the CI faced and may have even tipped off the target that something was odd.
Sometimes the overzealous police officers fail to properly take into account the age and sophistication of the confidential informant nor to adequately appraise the confidential informant as to the actual risks inherent in co-operating. Officers use the threat of harsh Florida drug sentencing laws and mimimum mandatory drug sentences to frighten young people into co-operating.
In Florida law under Rachel’s Law, named for a young lady whose life was cut short while working as a confidential informant, law enforcement officers must have special training, must tell potential confidential informants that even with the co-operation their sentence may not be reduced and must allow the confidential informant to contact Clearwater Criminal Lawyers before agreeing to co-operate.
|Lucas Cranach, Judith Victorious, 1530
Occasionally biology can be shown to be the direct cause of someone’s unlawful act. How responsible is someone for a crime committed where biology directly caused the crime, such as the murder of thirteen people in Texas by a shooter who was later found to have a brain tumor that seems to have been the bio-trigger of his actions? In essence aren’t we looking at the judo-christian notion of free will? Shouldn’t judges be given the discretion to look at bio-triggers where found as a plausible cause or contributor of an action because the Defendant must be found to have the unfettered free will to commit the unlawful act.
When evidence of a Defendant’s predisposition to commit violent crime was presented to Judges in a controlled hypothetical study of sentencing in a study recently reported in the journal Science, the Judges used the information to reduce sentences even where the bio-trigger arguably meant that Defendants were more likely to commit violent crime in the future, making at least one Clearwater Criminal Defense Lawyer glad that it was a hypothetical set of facts and that the hypothetical violent defendants live in darkest limbo rather than right next door.
This result of the study is path-breaking because Judges may be willing to reduce sentences where relevant biological testimony based on brain scans or other relevant neuroscience establishes that behavioral mechanisms of the mind and body were factors in unlawful conduct suitable for departure from sentencing norms.
Will Tampa Bay Florida Judges be willing to use this kind of evidence? Don’t count on it. And if our Judges use the information in mitigation should they also be able to use it in aggravation of sentence?
Though the study only dealt with violent crime sentencing, your favorite Clearwater Criminal Defense Attorney believes that Defendants who establish biological propensity, necessity or inevitability for nonviolent drug crimes would also have an excellent argument to go under unfair statutory drug crime minimum mandatory sentences, where the discretion from Judges needs to be expanded to find better results.
Our prisons are filled with people who shouldn’t be there. As this blog has noted minimum mandatory drug sentencing destroys more lives than do the drugs that are outlawed. And the extraordinary sentences served by nonviolent drug offenders have undermined American claims that our system of justice is fair and impartial, especially in Florida where one can be convicted without knowledge of drugs. Those involved in the criminal justice system such as prosecutors, judges and even Clearwater Criminal Defense Lawyers find that long sentences for nonviolent drug offenses are no longer extraordinary in a grinding process that continues to destroy lives at a blinding pace.
|Van Gogh, The Prison Courtyard
Today the NYT notes a recent Justice Department report that “public safety can be maximized without maximizing prison population.” Who knew? It’s a little late for the 218, 000 federal prisoners waiting for a justice system to catch up to common sense. And too bad for the many prisoners held in Tampa Bay, Florida for nonviolent drug crimes.
Your Clearwater Drug Defense Attorney recommends the following actions:
- The minimum mandatory sentence laws should either be abolished or be applicable only for violent crimes.
- By law prosecutors should be given less discretion in making charging decisions that force plea agreements and high sentences because of the fear that other charges will be added to an indictment or charging information.
- Our Judges need to be given more discretion to reduce minimum mandatory sentences.
- The Federal Bureau of Prisons should be given more incentives and direction to allow old prisoners, sick prisoners and nonviolent drug prisoners out of prison where there is little likelihood of recidivism without the need for Court Hearings unless either party objects to a reduction of sentence.
The Florida Supreme Court ruled a few hours ago that Florida is a very special place. Here in Florida you can be prosecuted for possession of drugs without having any knowledge about the drugs. Despite a Federal Judge’s courageous opinion finding that Florida drug laws are unconstitutional because due process requires knowing possession in drug cases, our Florida Supreme Court begs to differ. The tragedy of Florida drug laws for Clearwater Criminal Defense Attorneys is that there is no requirement of knowledge even in trafficking cases where harsh drug sentences of three, ten and fifteen year mandatory minimum sentences are typical.
In every other state in America except Washington (where no knowledge is required for simple possession in close proximity, say a joint found in one’s pocket) and in most civilized countries intent or knowledge of wrongdoing is the first requirement for any prosecution. The law destroys many more lives than the drugs ever could by creating a corrupt system of harsh punishments, prosecutions and false law enforcement drug investigations that remedies such as drug court have fail to correct.
Let’s let our Judges speak for themselves, here are extracts from the majority opinion upholding the constitutionality of the Florida Drug Laws and below that see extracts from the Dissent:
|Moreau, Prometheus, 1868
It is within the power of the legislature to declare conduct criminal without requiring specific criminal intent to achieve a certain result; that is, the legislature may punish conduct without regard to the mental attitude of the offender, so that the general intent of the accused to do the act is deemed to give rise to a presumption of intent to achieve the criminal result. The legislature may also dispense with a requirement that the actor be aware of the facts making his conduct criminal….
The elements of a crime are derived from the statutory definition. There are some authorities to the effect that infamous crimes, crimes mala in se, or common-law crimes may not be defined by the legislature in such a way as to dispense with the element of specific intent, but these authorities are suspect… In enacting section 893.101, the Legislature eliminated from the definitions of the offenses in chapter 893 the element that the defendant has knowledge of the illicit nature of the controlled substance and created the affirmative defense of lack of such knowledge. The statutory provisions do not violate any requirement of due process articulated by this Court or the Supreme Court. In the unusual circumstance where a person possesses a controlled substance inadvertently, establishing the affirmative defense available under section 893.101 will preclude the conviction of the defendant.
And from the take no prisoners Dissent:
I cannot overstate my opposition to the majority’s opinion. In my view, it shatters bedrock constitutional principles and builds on a foundation of flawed ‘common sense.’ (the majority opinion)…makes neither legal nor common sense to me, offends all notions of due process, and threatens core principles of the presumption of innocence and burden of proof….
What will become of the innocent? The answer to that question in the present context is as inevitable as it is disturbing. Under the majority’s decision and the above examples, the innocent will from the start be presumed guilty. The innocent will be deprived of their right to simply deny the charges and hold the State to its burden of proving them guilty beyond a reasonable doubt. The innocent will instead be forced to assert an affirmative defense, whereupon the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance…
There are many examples of drugs being in close proximity to someone where there was no knowledge such as the case of a man whose mechanic found a stash of half a million dollars worth of cocaine while fixing the breaks of a used van. The owner on being told what had been found in the used car said “my hands went numb,” he’s a lucky man because there’s a Clearwater Criminal Drug Defense Lawyer who knows that if that man had been stopped in St. Petersburg, Largo or in Tampa Bay Florida he could be spending many years in prison or paying a hefty price in time and money to prove his lack of knowledge
The U.S. Supreme Court today made crack cocaine sentencing slightly fairer by ruling that District Court Judges should apply the changes Congress made to lower drug weight calculations for the triggering of a Mandatory Minimum Sentence in the Fair Sentencing Act to those sentenced after the act was passed but committed the crime earlier. The Fair Sentencing Law changed what the originally used ratio of 100 to 1 weight of crack to cocaine was amending the weight ratio to 18 to 1.
|Manet, Absinthe Drinker,1859
Your favorite Clearwater Criminal Defense Lawyer still believes the ratio is unfair as the cocaine weight should not depend on how the cocaine is cooked, and crack sentencing tends to hit minorities at a higher level of incarceration creating sentencing disparity for similar quantities of drugs in Largo, St. Petersburg and Tampa Florida. In fact as I described in this Blog last year although the rates of drug use for whites and blacks are the same black are ten times as likely to go to prison.
The opinion is limited, but Justice Breyer wrote, “Finally, we can find no convincing reason why Congress would have wanted these unfair consequences.”
And the opinion also noted that the Federal Sentencing Guidelines are advisory, leading a Clearwater Criminal Attorney to hope Judges will keep pushing to reverse the unfair consequences of mandatory minimum sentences giving Judges more discretion to provide fair sentencing based on the facts of the case and other relevant factors for aggravation or mitigation of the sentence.
Florida’s harsh Drug Laws and outrageous penalties are making headlines in Britain. The latest case involves a girl who just turned 18 a few days after her arrest for bringing in cocaine as a clueless mule. Mercy? Justice? Leniency?
Of course not, this is Florida, where even your favorite Clearwater Drug Attorney never fails to be amazed and astonished that Prosecutors – not impartial Judges – ultimately determine the length of drug sentencing by how the Prosecution initially files the charge.
Do the Prosecutors believe that the Juvenile did this on her own? Clearly she was a witless drug mule. Incredibly, the girl would face less time if accused of a murder in the cracked sentencing structure of the State of Florida.
Our Beautiful Sunshine State has politicized prosecutors who determined that Justice could best be served by treating the girl as an adult although she was just a mule and although she was a minor at the time of the crime. She faces up to life in prison with a 15 year Mandatory Minimum Sentence in Florida.
Here’s are excerpts from the recent article from England’s Daily Telegraph:
Niles, a student, told police she did not know what drug she was carrying but suspected she was involved in some illegal activity, according to an arrest report. The cocaine was hidden in cake mix boxes found in her luggage.
Miami-Dade detective Nubia Azrak wrote that Niles “suspected that the activity she was involved in was suspicious but she did not question it”.Police said the teen, who is from London, was picked for screening by customs agents. A police source said: “She is a classic drug mule who thought she could easily bring the drugs through an airport undetected.”
Prosecutors said Niles was a “poster child” for how easily drug smugglers can corrupt young people.