JUSTICE DEPARTMENT LOWERS SENTENCES IN FEDERAL DRUG CASES IN THE MIDDLE DISTRICT OF FLORIDA

To my surprise in a recent drug sentencing in the Middle District of Florida the Tampa federal Judge reduced the offense level by two based on Attorney General Holder’s recent comments about the need to reduce the amount of prison time in federal sentencing. Though reluctant, there was no objection on the record from the Government. 

Under the Justice Department even law enforcement in Tampa Bay could serve less time for unlawful acts.
Avoiding Jail is Justice’s Goal


For the most part the federal judges and prosecutors in the Middle District of Florida have shown very little inclination to give downward levels at sentencing on what the Federal Sentencing Commission or Congress may do in the future. Yet 

My client was charged with possessing a significant amount of steroids and marijuana found incident to a search warrant. After reviewing discovery and discussing possible defenses, he acknowledged his guilt and accepted responsibility for his actions upon signing a plea agreement. The plea agreement noted that the Government would have no objection to a sentence being given in the low end of the guideline range. 

Yet because of the large quantity of steroids and marijuana as well as a significant prior record the expected federal guideline range appeared to be well within in zone D with a likelihood of at least 12 to 18 months in prison. 

The following facts provided the judge better options under the federal guideline range to allow my client to receive a time served disposition at sentencing.


First, my client’s successful and timely proffer resulted in the Government filing of a 5K motion for substantial assistance. Some times the Government fails to file the motion despite what I believe is excellent cooperation. Here my client never stopped cooperating from the moment of his initial arrest. The assistant U.S. Attorney asked for a two level reduction in sentencing. The Court granted a three level reduction upon hearing testimony from the Government agent about the extraordinary cooperation of my client.

Second, based on Attorney General Holder’s speech the night before the sentencing the Court entertained a motion to reduce the sentence by two additional levels due to the likelihood of future federal Congressional action or action taken by the Federal Sentencing Commission at the behest of the Justice Department. However, the Defendant was asked on the record by the judge to agree that he would not ask for another two level reduction if Congress passed such a law though he could ask for a further reduction if Congress passed a law with more than a two level reduction.

Third, we established that on his own volition my client had enrolled in a halfway house while being free on a signature bond while awaiting trial or plea. We asked the Judge to consider the time in the halfway house as 157 days of time served in jail while awaiting sentencing.

The three level reduction for a successful 5k proffer combined with the two level reduction for the Justice Department’s future legislative goals were sufficient to bring my client from sentencing zone D to sentencing zone B. In zone B the judge has much more discretion to give a fair sentence. The judge gave credit for the time served by my client in the halfway house. Ultimately the judge sentenced by client to time served.

Although things went fine for my client in his case, the Justice Department should act quickly to push the necessary changes thru Congress with help from the Federal Sentencing Commission so that every defendant will have sentencing parity no matter where in the country their drug indictments originated. The goal must be to limit over-incarceration in nonviolent federal drug cases by giving federal judges more sentencing discretion.

SENTENCING MUST ACCOUNT FOR STARTLING SCIENCE: ADDICTION IS BASED ON SHAPE OF DRUG USER’S BRAIN

A new drug study out of The University of Cambridge in England has some startling conclusions which should directly affect drug sentencing. Scientist found that recreational drug users who do not become addicted have “a brain structure which is significantly different than those who developed cocaine dependence.” 


Sigmund Freud was addicted to cocaine for over twelve years. Would he have been prosecuted for trafficking in cocaine had he lived in Tampa Bay, Florida today? The implication is that those who become addicted to drugs are suffering as much from a flaw in their brains than from a simple lack of will power or from a desire to break the law.

The research was published, Biological Psychiatry; here’s an excerpt from their findings:

The scientists discovered that a region in the frontal lobes of the brain, known to be critically implicated in decision-making and self-control, was abnormally bigger in the recreational cocaine users. 

The Cambridge researchers suggest that this abnormal increase in grey matter volume, which they believe predates drug use, might reflect resilience to the effects of cocaine, and even possibly helps these recreational cocaine users to exert self-control and to make advantageous decisions which minimize the risk of them becoming addicted. 

They found that this same region in the frontal lobes of the brain was significantly reduced in size in people with cocaine dependence…They also found that people who use illicit drugs like cocaine exhibit high levels of sensation-seeking personality traits, but only those developing dependence show personality traits of impulsivity and compulsivity.

One of the lynchpins of criminal law is that punishment must be based on acts which were done with the free will of the Defendant. Once someone becomes addicted the focus of the Criminal Justice System should not be on punishment with hard drug laws but on prevention. Yet for a percentage of the population taking drugs becomes an uncontrollable impulse. 
One wonders what would happen to an habitual cocaine addict such as Sigmund Freud who was addicted to cocaine for over twelve years. Had he live here in Tampa Bay, Florida would he have simply been charged with Trafficking in Cocaine while facing years of prison with a minimum mandatory sentence? 
An excellent book, Anatomy of an Addiction tells the harrowing tale of how Sigmund Freud beat his addiction while his best friend a renowned surgeon was ruined from his addiction to cocaine, while both experimented with the drug. 
Now with this new Cambridge scientific study we know that it wasn’t mere will power that determined who would beat the addiction, it was biology. Other recent studies have show that genetic triggers prove predisposition to commit crime.
Shouldn’t the Criminal Justice System take biological traits leading to addiction into account as sentencing to ensure fairness in Drug Court? Clearwater Criminal Defense Attorneys must persuade Judges that dependence on drugs is not just a lack of will power it’s often simply a fact of biology.

HOW COULD A FAMOUS ARCHITECT CAUGHT WITH 13 POUNDS OF COCAINE RECEIVE ONLY SIX MONTHS JAIL?

Your favorite Clearwater Criminal Defense Attorney applauds Federal Judges who use their discretion to construct fair sentences under the Federal Sentencing Guidelines range. 

Architect Drug Mule
Architect Eugenio Velazquez

A California Federal Judge recently sentenced a famous Tijuana architect who designed some of the city’s most beautiful landmarks including it’s modern Cathedral as well as Tijuana’s iconic, possibly ironic, Police station. The hapless architect was caught entering the United States with nearly 13 pounds of cocaine hidden in his minivan. 

That weight of cocaine in the Middle District of Tampa, Florida easily nets a Defendant at least a ten year minimum mandatory sentence with the possibility of additional time under the Federal Sentencing Guidelines, whichever results with the higher number. A Defendant with no criminal history can benefit from the federal safety valve provision permitting the Judge to pierce the minimum mandatory, but it gives only a two level drop from the guideline score range, which easily is over ten years on thirteen pounds of cocaine.

So why and how did the California Federal District Judge go under the Federal Sentencing Range? 

The Defendant claimed that drug traffickers threatened his life if he refused their demands to take the drugs over the border. Plus it helped that the Defendant had led up a ‘good life’ before his arrest. After all, Judges one hopes, are human.

Press Reports note that the Judge took into account the fact that the  Defendant verified the threats against him:

The judge said the ability of Velazquez to verify threats against him were crucial to the reduced sentence. He was also acknowledged for leading “a good life” until his arrest.
The architect, fearful of drug-fueled violence in Tijuana, accepted his client’s offer to provide personal security while Velazquez crossed the border between home and work.Then the client — unnamed in the filing — demanded pay of $40,000 or drive drugs across the border….
Velazquez’s attorney told reporters after the sentencing that a friend verified the claims for U.S. investigators. Both men said they were threatened at gunpoint.

As Mexican cartels move cocaine north from South America, they rely on “mules” to hide small packages of drugs in vehicle compartments and on their bodies to get past U.S. inspectors on the Mexico border. Many couriers are young, poor or adrift, desperate for a few hundred dollars.

To persuade the sentencing Judge to give a fair sentence, Clearwater Criminal Lawyers must first establish that the Defendant has lived a ‘good life’ then present facts in mitigation at sentencing with verifiable evidence. 

WHEN COPS PLAY ROBBERS: FORMER POLICE OFFICER CHARGED IN MULTIPLE FLORIDA BANK ROBBERIES

former cop robs banks in St. Petersburg Florida; violent acts can be as addictive as drugs but are not a good reason to go under florida guidelines
Picasso, Before Robbing Banks

Risk taking can be as addictive as drugs, but mixing drugs with the ultimate risk of Florida bank robbery makes for a toxic mix for a Clearwater Criminal Defense Attorney to unwind. The crack bank robber who recently called 911 saying that he was about to rob another Tampa Bay bank is a former police officer with a huge drug problem. His life spiraled out of control not only from drug addiction but seems to have escalated into the need to take ever greater risks with an addiction to the risks of robbery itself. As press reports note:

Money is rarely the sole motivator in bank heists, says William Rehder, a bank robbery expert and 33-year FBI agent. What drives the robbers, the thing that keeps them coming back to steal even more, is the excitement of the act itself.
“All bank bandits are serial,” Rehder said. “Robbing a bank is as much an addiction as drugs can be.”

That’s likely what it was for Kane…as Kane himself told authorities after each time he was busted, it was addiction, the primal rush one gets from carrying out something as invigorating and dangerous as taking someone else’s money, that led to his downfall.

Yet even if violent acts such as robbery are addictive should Courts take that addiction into account to lower the Florida sentencing scoresheet and guideline as might be reasonable with a proven drug addiction? Violent crimes by their very nature must be treated by the Courts in Florida with more care than nonviolent crimes.
Criminal sentencing has many objectives which Clearwater Criminal Lawyers often argue such as the hope for rehabilitation or the need for punishment, but protecting the public from violent acts is a primary goal which in Tampa Bay Florida will always be the sentencing Court’s primary concern no matter what addiction is proven.

NONVIOLENT DRUG OFFENDERS IN US & FLORIDA PRISONS SHOULD BE RELEASED AS MINIMUM MANDATORY SENTENCING IS UNFAIR & UNAMERICAN

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's The Prison Courtyard shows that wasted time of prison. We must stop mandatory minimum drug sentencing in Clearwater, Largo, St. Petersburg and Tampa Bay, Florida
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.

USED VAN COMES ‘FULLY LOADED’ – BOUGHT FOR $14,000 HAS STASH OF $500,000 WORTH OF COCAINE FOUND BY MECHANIC WHEN BREAKS ARE FIXED – IN FLORIDA LACK OF KNOWLEDGE WOULD NOT STOP PROSECUTION

A psychologist in California thought he had a great deal on a used van at $14,000. But 14 months later when he had his breaks fixed the mechanic found over half a million dollars of Cocaine. “My hands went numb,” he said.
He’s a lucky man. He’s lucky that the drug cartel missing the cocaine didn’t find him, then lead him toward a life ending accident.  


And he’s especially lucky he doesn’t live in Florida. In Florida, Knowledge of the Cocaine is not required for arrest, prosecution and conviction of Trafficking in Cocaine
In Florida the innocent psychologist could be subjected to life with a 15 year Minimum Mandatory prison sentence, despite a Federal Judge making a finding that the law violates the United States Constitution. Drug Law Unconstitutional

EXCERPT FROM THE MERCURY NEWS:
“This insulation isn’t supposed to be here,” the mechanic said, digging behind the panel. But it soon became clear that the tablet-sized objects wrapped in purple and clear cellophane weren’t installed by the manufacturer.
“I’m, like, dumbfounded,” said Preston, who works at Santa Clara Valley Medical Center. “Honest to God, my hands went numb.”
Police quickly arrived and found 14 packages of cocaine hidden in the doors. After impounding the van for closer examination, they found five more above the back wheels, Preston said.
“They told me, ‘You’re so lucky, you’d be in jail for the rest of your life if you got searched in a traffic stop and they found this.’ “
But they also told him something chilling: Take the van back in to the repair shop to check for tracking devices because somebody is probably looking for it. Then get rid of it.
When Preston tried to return the coke-mobile to Thrifty Car Sales this summer for one without drugs, he said a manager was anything but solicitous. She told him he could trade in the van, but only for the current Blue Book value — about $4,000 less by his estimation than he originally paid. He had put about 6,000 miles on the van.
Chrysler van comes fully loaded — cocaine included – San Jose Mercury News
Criminal Defense Attorney and Trial Lawyer for Drug Crimes & DUI in Clearwater, FL
Florida – Drug Laws Ruled Unconstitutional – NYTimes.com
State drug trafficking laws ruled unconstitutional | ruled, state, city – The News Herald


Tampa Bay Police ask your help in finding the original owners of this Vehicle:
File:Carretto.jpg
Italy: Sicilian working cart,1890.

WHAT CAN FLORIDA LEARN FROM EUROPEAN DRUG DECRIMINALIZATION

In the nineteen-eighties most of the major industrialized countries of the world followed America’s lead in declaring war on drugs by harshly increasing sentences for convictions and spending more money on investigations and prosecutions. The result was higher percentages of people in the democracies being sent to prison, sometimes even higher then in the totalitarian countries. 
Minimum Mandatory Drug sentences are especially troubling for Clearwater Trial Attorneys such as myself who have seen the destructive force of the criminal law strike and destroy productive lives.
To the credit of our local judges and attorneys, Pinellas County has instituted an enlightened treatment for those who qualify, which will be described in more detail in a future blog. Adult Drug CourtClearwater Drug Defense Attorneys 


Yet for Florida Courts in search of justice some answers can be found from Portugal’s experience. Portugal, a gateway for drug importation for all of Europe, buckled under European Union pressure to commit a huge percentage of its population to long term prison sentences, then Portugal relented. Recently, the New Yorker wrote about Portugal’s solution, it success and its failure…


In 2001, Portuguese leaders, flailing about and desperate for change, took an unlikely gamble: they passed a law that made Portugal the first country to fully decriminalize personal drug use. 
For people caught with no more than a ten-day supply of marijuana, heroin, ecstasy, cocaine, or crystal methamphetamine, there would be no arrests, no prosecutions, no prison sentences. 
Dealers are still sent to prison, or fined, or both, but, for the past decade, Portugal has treated drug abuse solely as a public-health issue. When caught, people are summoned before an administrative body called the Commission for the Dissuasion of Drug Addiction. Each panel consists of three members—usually a lawyer or a judge, a doctor, and a psychologist or a social worker. The commissioners have three options: recommend treatment, levy a small fine, or do nothing. In most respects, the law seems to have worked: serious drug use is down significantly, particularly among young people; the burden on the criminal-justice system has eased; the number of people seeking treatment has grown; and the rates of drug-related deaths and cases of infectious diseases have fallen. 
Yet there is much to debate about the Portuguese approach to drug addiction. Does it help people to quit, or does it transform them into more docile drug addicts, wards of an indulgent state, with little genuine incentive to alter their behavior? By removing the fear of prosecution, does the government actually encourage addicts to seek treatment? In the United States, the misuse of legally sold prescription medications has become a bigger health problem than the sale of narcotics or cocaine. There are questions not only about the best way to address addiction but also about how far any society should go, morally, philosophically, and economically, to placate drug addicts.
Portugal Decriminalized Drugs. What Can the U.S. Learn? : The New Yorker
DEA, Federal Trafficking Penalties
Federal Mandatory Minimum Sentences Drug Chart
Are Mandatory Minimum Drug Sentences Cost-Effective? | RAND
Here’s a recent painting of a bright young couple eagerly awaiting their marriage license in Pinellas County, Florida.

Degas’ painting (1876) portrays grim Absinthe drinkers in a cafe, imagine how they’ll look when they see the bill.

FEDERAL COURT FINDS FLORIDA’S DRUG LAWS UNCONSTITUTIONAL WILL STATE JUDGES AGREE?

Will Florida’s 6th Circuit Judges in Pinellas, Tampa Bay, St. Petersburg, Clearwater and Largo Florida have the political courage to follow Judge Scriven’s recent well reasoned federal decision? Miami Judges are finding Florida Drug laws unconstitutional, but the consequences for their decisions are less severe than in Tampa Bay.  So the question might be better urged as must the judges follow the law as given by the Federal Judge? The answer will come from how the Supreme Court of Florida interprets Florida Drug law.
The applicability of Judge Scriven’s decision in Shelton — that the Fla Drug statute is unconstitutional on its face — cannot be overstated — for state and federal cases. Some of you that you have raised this issue before and are glad for the opportunity of raising it again while working on ideas for its application in federal cases — which regularly apply enhancements based on prior Florida drug convictions. 

Here are some interesting ideas about the federal ruling finding Florida’s drug laws unconstitutional:

The court noted that no other strict liability statute carrying the penalties of the magnitude of § 893.13 has been upheld under federal law... the court ruled that § 893.13 regulates inherently innocent conduct because it does not require even a minimal showing that the Defendant knew he was delivering any illicit substance as an element of the offense charged. The court explained that there is along tradition of lawful delivery and transfer of containers that might contain substances – carrying luggage on and off public transportation, bags in and out of stores, carrying book bags and purses, transporting boxes via commercial transportation. 

The bag is then given to another for safekeeping. Caught in the act, the hapless victim is guilty based upon the only two elements of the statue: delivery (actual, constructive, or attempted),and the elicit nature of substance. The victim would be faced with the Hobson’s choice of pleading guilty or going to trial where he is presumed guilty because he is in fact guilty of two elements. He must then prove his innocence for lack of knowledge against the permissive presumption the statute imposed that he does in fact have guilty knowledge. Such an outcome is not countenanced under applicable constitutional proscriptions.

What this boils down for Clearwater Federal Defense Lawyers is that Judge Scriven believes Florida law allows a Defendant to be prosecuted and found guilty of possession of drugs even if the Defendant has no knowledge of the drugs.  Knowledge is the linchpin of any criminal act. How can someone be guilty of possessing drugs unless there’s proof the person knew of the drugs and without knowledge how could there be real possession?

CORRUPT SENTENCING CORRUPTS PROSECUTORS IN PINELLAS

Mandatory minimum drug sentences not only destroy those who are sentenced but corrupt those who must determine when they will be applied. Because the Florida legislature has taken the decision-making process away from Florida judges, the decisions have been left to prosecutors or those given that authority by elected prosecutors. Your Clearwater Criminal Defense Attorney strongly believes that Florida Judges, not Florida prosecutors should be given discretion to go below mandatory minimum sentences, below I’ll show you why.

While I was a prosecutor in the Pinellas Sixth Judicial Circuit in Clearwater, a man named Murphy who was assigned the tasks of watching the attorneys at trial, evaluating their performances as well as determining when the state attorney’s office would amend the charging document to allow a judge to give a sentence below the the minimum mandatory range.

Murphy was trusted as the often green behind the ears attorneys in the office not only because he was the chief investigator, but because he had a long storied career of excellent service, judgement and achievment. I liked him a great deal. He was an affable irishman, always laughing, always ready to slap you on the back at the end of a successful drug trial. He’d always be there at sentencing to make sure neither you nor the judge dropped the ball and later he’d be at the bar buying a celebratory drink or two.

One day a young couple was arrested by the Pinellas County Sheriff’s Office for forging scripts also known as prescription fraud for oxycodone they’d become addicted to after a horrific automobile accident a year or so before. The handful of pills triggered three year minimum mandatory sentences for each of them.

Not surprisingly Murphy recommended probation rather than jail in their cases. Without his recommendation neither the judges nor the attorneys would have been able to go under the three years.
Murphy had set up a hotel encounter with the wife, a quid pro quo for the mercy only he could give. Just as Murphy had taken off his clothes they heard a pounding at the door, the wife unlocked it and the husband burst into the room breaking things up.

Later taped conversations by FDLE and the FBI revealed that Murphy – the chief investigator and the man in charge of who could get less than the harsh drug sentence statutory mandatory – continued to solicite sex for a reduction of the sentence even after the hotel incident.

This obvious Prosecutorial Misconduct with the ensuing whirlwind of publicity aged Murphy and may have helped usher in Pinellas County Drug Court. Clearwater Criminal Lawyers will never forget seeing this once respected man humbled, jobless and ruined. At his sentencing with hands shaking, his health broken as he sat in his second-hand wheelchair with torn leather begging the judge to give him a period of probation rather than the lockup he surely deserved— where those prisoners serving their dull dark minimum mantory years would certainly have murdered him…