FINDING THE BEST WAYS TO AVOID GUIDELINE RANGES TO PROVIDE JUDGES BETTER SENTENCING OPTIONS

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. 


Old Village Stocks are as dated as the sentencing guidelines in Florida criminal cases in Tampa Bay, Florida.
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.


FINDING YOUR BEST POSSIBLE SENTENCING OUTCOMES IN FEDERAL DRUG TRAFFICKING CASES IN FLORIDA

Clearwater criminal defense lawyers are often asked about how to obtain the best possible results in federal drug cases in the Middle District of Florida in Tampa, Florida. In almost every Federal case but especially in Federal Drug cases such as Trafficking in Cocaine, Methamphetamine or Marijuana, the most important decision is the initial decision. Does a Defendant plead guilty or does he or she fight the charges by demanding a Federal trial with the very real possibility of being found guilty? 

Either choice is difficult because the Federal Sentencing Guidelines requires that every Federal Drug Trafficking case yields a harsh minimum mandatory sentence as punishment. And more often than not Federal Prosecutors have more discretion to go under those minimum mandatory sentences than do Federal Judges. 

A Federal Courtroom in the MIddle District of Florida in Tampa Florida where Defendants must decide whether to plead guilty or face a trial by jury.

And as many as 96% Federal Defendants plead guilty which is a stunning criminal justice failure in that they believe the Federal criminal process is rigged against them.

If you plead guilty and have no prior criminal history, then you may be eligible for the safety valve, which will allow your sentencing Judge to go under the minimum mandatory sentence in your case. But if you have any kind of prior record, even misdemeanors, then safety valve will not be available unless your attorney is able to overturn the Judgement and Sentence from the jurisdiction in which you were convicted before you are sentenced on the new Federal charges. Although some enlightened members of Congress are attempting to enlarge the safety valve provision to give Federal Judges more discretion, it’s unlikely that this will help on any pending cases.
If the safety valve provision of the Federal Sentencing Guidelines is not available, then the Judge can go under a minimum mandatory sentence if and only if the U.S. Attorney’s Office files a motion for substantial assistance, known as a 5k Motion before sentencing or a Rule 35 if filed within a year of the initial federal sentence. In the Middle District of Florida motions for substantial assistance are filed if and only if the level of co-operation is such that a new arrests are made or a defendant establishes that he or she is willing to testify against co-defendants. 
All of these fact make pleading guilty to a Federal drug case a roll of the dice without the benefit of knowing with certainty what will happen. But if you do not plead quickly, then the only alternative is to fight the charges with a jury trial. You’ll want to find a Tampa Bay Federal defense attorney with excellent qualifications and experience in Federal trials who will provide you with the best possible defense.

DECONSTRUCTING FEDERAL MIDDLE DISTRICT OF FLORIDA SENTENCING GUIDELINE ENHANCEMENTS

Clearwater Criminal Defense Attorneys know that the federal sentencing guideline amendments promulgated by the Sentencing Commission pursuant to the congressional directive in the Fair Sentencing Act can be challenged — and the aggravators should be challenged. Yet challenging the aggravators is an art which sometimes requires counterintuitive thinking and use of federal case law to produce the best possible result at a Federal Sentencing. 

The new federal guideline aggravators include upward adjustments based on the degree of violence involved in a federal crime, maintaining an establishment, and super role aggravators, which as the name implies is not something that a Defendant wants to have happen at sentencing. 

Clearly America needs to learn about decriminalization of nonviolent drug crimes as in Europe if the true goal of Congress is to provide fair sentences. More needs to be done to allow prisons to use compassionate release to allow sick inmates to serve less time in prison. And long jail terms should be given to mainly to violent criminals only rarely giving long sentences to white collar criminals who could be shamed into good behavior by other means than jail, especially at a time when the crime rate in Tampa Bay is falling as in the entire United States. Yet many prisoners spend the best part of their lives in prison because of the harsh drug laws with minimum mandatory sentences imposed by the Federal Sentencing Guidelines with too little discretion given to our Federal Judges.
Below are excerpts from the Sentencing Resource Counsel explaining how to challenge these aggravating factors:
Deconstructing the New Guideline Enhancements Implemented in Response to the Fair Sentencing Act of 2010
Sentencing Resource Counsel Project July 22, 2011
The Fair Sentencing Act of 2010 increased the quantity thresholds for the five- and ten- year mandatory minimums under 21 U.S.C. §§ 841(b)(1) & 960(b) in crack cases and eliminated the five-year mandatory minimum for simple possession of crack cocaine. See Pub. L. No. 111- 220, §§ 2, 3 (Aug. 23, 2010). The resulting18:1 powder-to-crack ratio reflects political compromise rather than an empirically based policy judgment about the relative harms of crack and powder cocaine. 

The Act improves fairness but cannot be said to “restore fairness” when fairness in federal cocaine sentencing never existed. These ameliorative changes came at a significant price. Congress also directed the Commission to ensure that the guidelines provide penalty increases for a variety of aggravating factors for all drug offenses. See Pub. L. No. 111- 220, §§ 5, 6. It directed an enhancement of at least two levels if the defendant used or threatened violence, id. § 5, bribed a law enforcement officer, id. § 6(1), or maintained an establishment for the manufacture or distribution of drugs, id. § 6(2). It also directed an enhancement of at least two levels for defendants who receive an aggravating role enhancement and who engaged in other specified conduct, id. § 6(3)(A), such as using another person through fear, friendship or affection to engage in illegal conduct, id. § 6(3)(B)(i), or distributing drugs to, or involving, a person under 18, over 64, or pregnant, id. § 6(3)(B)(ii)(I)-(II), or distributing drugs to, or involving, a person unusually vulnerable due to physical or mental condition or particularly susceptible to criminal conduct

This paper provides a brief overview of why guideline increases promulgated in response to a congressional directive are unlikely to advance the purposes of sentencing. It then demonstrates that the guideline increases promulgated in response to the directives in the FSA do not advance the purposes of sentencing, focusing first on the two new enhancements most likely to impact your cases (use or threatened use of violence and maintaining a drug-involved premises), how
1 See United States v. Williams, __ F. Supp. 2d __, 2011 U.S. Dist. LEXIS 48599, at **53-100 (N.D. Iowa Apr. 7, 2011) (Bennett, J.) (describing in exhaustive detail the historical and legislative backdrop of the 18:1 ratio and the absence of rationale for it); United States v. Shull, __ F. Supp. 2d __, 2011 2559426 (S.D. Ohio June 29, 2011) (excellent review of same and war on drugs)…The Commission amended the guidelines in response to these directives, and ways to argue that the resulting enhancement either does not apply or should not be followed as a matter of policy. When relevant, important language and commentary serving to limit their scope is highlighted.For completeness, the two new provisions for defendants receiving the minimal role adjustment under Chapter 3 are set forth, with important language highlighted.

And as always it’s unfortunate but sadly true that the Guideline Enhancements directed by Congress are very unlikely to reflect sound policy judgments in the real world. So it’s important to bring to the Court’s attention other factors which may be used by the Court to lower a sentence even when in practical terms an enhancement applies.

Unlike the Sentencing Commission, Congress is under no obligation to ensure that its policies meet the purposes of sentencing, to conduct empirical research, or to consult with Judges, Prosecutors nor especially Clearwater Criminal Defense Lawyers. Nor is Congress obliged to ensure that its enactments are consistent with each other, or with the guidelines, or with any overarching theory of how to best achieve the purposes of sentencing. Congress is free to legislate piecemeal in response to a highly publicized case, or in response to lobbying by the Department of Justice or other interest groups seeking sentence increases for purposes other than those set forth in § 3553(a).
The ink had hardly dried on the first set of guidelines when Congress began directing the Commission to take particular actions through what are referred to as “directives,” both general and specific. A general directive instructs the Commission to study a particular issue and report back to Congress or amend the guidelines if the Commission determines it is needed. Specific directives, however, require the Commission to take particular actions. Specific directives, unlike mandatory minimums, are binding on the Commission, and this is so even if they conflict with the goals of the SRA. See United States v. LaBonte, 520 U.S. 751 (1997).