Clearwater criminal attorneys who practice in the Federal criminal justice system court system are often dumfounded by the senseless Federal Sentencing Guidelines. Congress continues to create new Federal offenses for a wide range of criminal conduct that was once the purview of state courts. And counterintuitively as more petty misconduct becomes federal, that same misconduct draws ever harsher punishment merely because it is federal.
Some members of Congress are considering expanding the safety valve provision to apply to cases other than those involving drugs. The idea is that most Federal sentencing is far too harsh especially when minimum mandatory sentences are triggered.
Even when a Federal drug defendant avoids a minimum mandatory sentence and gains a two level downward departure for safety valve, the harsh prescribed sentence rarely seems to be based on a fair consideration of the actual facts and circumstances of the case. Instead the sentence will be based on the arcane dictates of the Sentencing Guidelines, which is based on severe punishment rather than deterrence.
In the Middle District of Florida the better Federal Judges are embracing the recent Supreme Court rulings permanently establishing, one presumes, that the Federal Guidelines are meant to be merely advisory. Yet even when these Judges would want to grant lighter sentences based on the personal characteristics of a Defendant, the Federal Guidelines make the process much more difficult because so much Federal charged misconduct calls for significant prison time.
Although what may be needed in Federal sentencing is a system that allows for greater discretion for Federal Judges while reducing the power of Federal prosecutors, the goal of fair sentencing could also be accomplished by diverting nonviolent and less significant cases from the Federal sentencing structure.
The best way to accomplish this goal would be to establish an effective Federal Pretrial Intervention Program. Those with minimal prior records, who are accused of nonviolent acts such as drug possession or sale would be given an opportunity to have their indictments dismissed upon completion of programs based on deterrence rather than punishment.
In the Tampa Bay, the Florida state court system, allows first time offenders charged in misdemeanors or third degree felonies to avoid a conviction. The reduction of cases allows prosecutors and judges to concentrate their time and resources on the most important cases. Yet Florida is going a step further by experimenting with a civil citation program for nonviolent criminal offenses.
Wouldn’t the Federal criminal system also benefit by eliminating the clutter thru a Pretrial Intervention Program for nonviolent, first time offenders while giving these defendants the benefit of a second chance without ruining their lives? In the mean time Clearwater criminal defense lawyers will do everything possible to find the best possible solution for first time, non violent offenders in the Middle District of Florida in Tampa.
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.
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.
Tampa Bay Criminal Attorneys aren’t the only ones who believe federal judges must have more discretion and flexibility in sentencing.
|Soaring Safety Valve
For many years the Federal Sentencing Guidelines have taken sentencing discretion away from judges while giving prosecutors ever greater control of sentencing by determining how charges are brought before federal grand juries. When a minimum mandatory sentence is called for under the Federal Sentencing Guidelines, a judge is rarely free to go under the required sentence unless a Defendant has no prior criminal conduct under the Safety Valve provision or a Defendant co-operates thru substantial assistance to such an extent that other co-defendants are arrested at which time a prosecutor may file a motion for downward departure.
The problem with the Safety Valve is that it is applicable only in drug cases. The problem with substantial assistance is that United States prosecutors often fail to file 5K or Rule 35 motions for downward departure even where there has been excellent co-operation. Under the statute the Judge does not have jurisdiction to hear any argument for substantial assistance unless the prosecutors file a motion thus giving the prosecutor more sentencing power than the sitting Federal District Judge appointed for life.
The press release from a Senator sponsoring the bill notes that from 1991 to 2011 the number of minimum mandatory penalties doubled. The Sentencing Guidelines have increased sentencing lengths for other crimes even where minimum mandatory sentencing doesn’t apply. The resulting over-incarceration has been catastrophic for Americans as the current federal prison population of 217,000 is double what it was in the year 2000. The cost in wasted dollars is huge, but the cost in wasted lives is even greater; as the American prison system fails in rehabilitation while only providing ever greater punishments for crime.
The bipartisan Justice Safety Valve Act of 2013 would allow federal judges greater use of the Safety Valve provision in a much needed way so that judges will have the discretion to give fair sentences in all federal cases not just drug cases.
An expansion of the Safety Valve provision is beneficial for federal defendants in that fair-minded federal judges will have an opportunity to do what they believe is right under the facts and circumstances of each case listening to arguments of Clearwater Criminal Defense Lawyers as well as prosecutors to arrive at the best sentence rather than just the harshest sentence.
Your favorite Clearwater Criminal Defense Attorney applauds Federal Judges who use their discretion to construct fair sentences under the Federal Sentencing Guidelines range.
|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.
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
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
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.
|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).”