Sentencing in Federal Court for drug trafficking and other federal crimes often require federal judges to give minimum mandatory sentences. This is because federal judges do not have as much discretion as federal prosecutors.
Prosecutor Yes: No Judge & No Defense Lawyer
The very process of how federal criminal cases proceed allows the federal prosecutor often shapes the final sentencing results long before the federal judge is even assigned to the case. In grand jury proceedings prosecutors are permitted but not judges nor defense attorneys. Prosecutors mold the grand jury deliberations by defining for the grand jury the nature of criminal violations charged in the indictment. Prosecutors decide very early if the grand jury should trigger the minimum mandatory sentencing provisions of the Federal Sentencing Guidelines. That early decision will effect how the case will later be decided.
Once the federal indictment is unsealed and an arrest of the defendant is made, then the defendant is confronted with a stark choice. Should the defendant co-operate and plead guilty to the charge or should the charge be tested thru a trial by jury. Should the defendant choose to fight the charges he will likely be forced to wait in jail for his trial because by definition any drug or weapons charge that triggers a minimum mandatory sentence forces a federal magistrate to make a finding under the law that the defendant is not only a threat to the community but a flight risk.
If the defendant decides to plead guilty again a federal prosecutor with help from a federal agency such as the FBI or the DEA, will have the ultimate decision as to whether the case justifies going under the minimum mandatory sentence.
The defendant is given an opportunity to give a proffer. In the proffer he must answer truthfully in assisting the prosecutor in making further indictments and arrests. The prosecutor has sole discretion as to whether the defendant was truthful, honest and useful. Ultimately the prosecutor must file a motion for substantial assistance known as a 5k motion (or known as a Rule 35 motion if made after the initial sentencing). The federal judge can not entertain a motion for substantial assistance unless the prosecutor files the appropriate motion because under federal law the judge only has jurisdiction when and if the federal prosecutors file.
Clearly, federal judges should be given much more discretion to give fair sentences under the strict minimum mandatory requirements and under the Federal Sentencing Guidelines. But until that happens your criminal defense lawyer must understand how to adjust, attack and benefit from the framework of the guidelines to achieve the best results. It’s important to find an attorney who understands the grand jury process, how prosecutorial decisions are made and the criteria for sentencing among federal district court judges in the Middle District of Florida to find the best ways to avoid the guideline ranges and provide the judge with better sentencing options.
Don’t let the threat of a federal indictment or the possibility of a long federal prison sentence ruin your life. Attorney Robert Hambrick has handled many successful federal criminal cases in the Middle District of Florida. Robert can help you make the most important decisions of your life in dealing with the federal criminal justice system to achieve a result that will let you move forward with your life.
Even after sentencing in federal criminal cases there is still hope for federal prisoners to be re-sentenced within a year of the original sentencing date to a lower period of prison time based on Rule 35 substantial assistance for the best possible sentencing outcomes.
In a typical federal criminal case in which a defendant either pleads guilty or is found guilty after trial, the defendant will be given an opportunity to give a proffer before sentencing. A proffer is a statement of knowledge of criminal acts that not only constitute the charged misconduct in the indictment, but often includes knowledge of other criminal conduct.
In many Federal jurisdictions including the Middle District in Tampa the Department of Justice Assistant United States Attorneys will make a motion for a substantial assistance departure from sentencing guidelines only if the quality of the information is likely to result in further arrests or indictments.
Under federal law only the Government may file a motion for substantial assistance. If the proffer results in a substantial assistance motion before sentencing, then part 5k of the Federal Sentencing Guidelines governs; whereas if the proffer results in a substantial assistance after sentencing, then it is Rule 35 of the Federal Guidelines that governs. Even when the Government deems that there is an insufficient proffer of alleged criminal conduct to provide a 5k motion before sentencing, there is still a possibility for new information to be considered for substantial assistance under Rule 35.
What should a federal defendant who has already been sentenced do to persuade the Government to provide him with a Rule 35 substantial assistance? Here is a five step process to consider:
1. The prosecutor most likely to file the Rule 35 is the very one who prosecuted the federal prisoner. The prosecutor will be most interested in expanding the federal indictments that led to the underlying criminal case against the federal defendant. Therefore, the most important information that a defendant may possess is any new information about the initial criminal conduct.
2. The prosecutor is busy prosecuting other cases. In fact his or her knowledge about the facts and circumstances of the case is often more limited than that of the government agent involved. Therefore, the most important person to contact with any new information is the government agent.
3. The Government agent must be convinced that the information has the following attributes:
- The information is new. Any information that was given in the original proffer before sentencing is no longer new nor original. The government agent can not be expected to spin wheels over old facts.
- The information is timely. If the information is no longer of use, then it will not help the Government.
- The information is credible, trustworthy and reliable. Any inconsistencies within the framework of alleged facts makes all of the facts given more difficult to believe.
4. If the information for a proposed new proffer is about other criminal conduct than the charged offense, then it may be necessary to contact other federal agents or state law enforcement officers. But remember that since the motion must be filed in federal court by a federal prosecutor, it’s important to include the original federal agent or whichever agent is handling his files if, for example, he has retired or rather unexpectedly become a zen monk in Japan.
5. In this process it’s important to find a champion, but the champion is not going to be your defense lawyer. Your champion will be the government agent who makes the time and effort to listen to a new proffer, who believes the proffer is reliable and credible and who then persuades the prosecutor to file the Rule 35 motion.
Once a substantial assistance motion is filed a defense lawyer may be of assistance in making effective arguments to the federal judge for giving as many levels as possible in a downward departure from the original sentence. The goal will be to find the most effective ways to provide the federal sentencing judge with better sentencing options by reducing the federal sentencing guideline range.
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.
|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.
Although it’s rare for a Federal Judge to commute any Federal sentence, yesterday a New York Federal Judge commuted two consecutive life sentences for Joseph Massino the first boss of any notorious crime family to benefit from substantial assistance. Based on Federal Rule 5k at the initial sentencing and Rule 35 within a year of sentencing, prosecutors may recommend vast downward departures from the harsh federal sentencing guidelines when it suits their purpose.
|FBI photo of Gambino funeral.
What doesn’t surprise a Tampa Bay Federal defense lawyer is that the Judge commuted the sentence only at the urging of Federal prosecutors who detailed the extensive cooperation which included information on hundreds of Bonanno family members and associates.
It’s likely he neither implicated me nor members of my family, nor you and yours; however, it’s always a possibility.
Press reports note that the Judge was swayed by the extent of his cooperation as well as the clear future threat of harm to be endured by Mr. Massino, but is Mister how I should refer to him – as he’ll be out of jail in just sixty days – due deference tempered by abject fear tilts to the honorific Sir, rather than mere Mister, as quickly turning my head searching right then left for any suspicious, furtive movements, ducking only occasionally – I try to type as rain falls before silent darkness approaches.
Making fun isn’t the best idea in these situations. God, I pray, don’t let that stoic guy read this. Has he, one wonders, actually reformed or will there be more bloodletting?
Perhaps the Judge and Federal prosecutors would rather not think about that. Would any of them want to live in the same neighborhood of this, um, errrrr… Gentleman, when he takes on his new identity in Tampa Bay, Florida, with a less exciting but equally lucrative new career provided by our Government?
The truth about Federal cooperation is ugly. The more you know and the better you’re able to testify against those below you within the criminal chain of command the more time off you get. So those who are involved in the most illegal activity later gain the most benefit. In it’s own warped way our Federal criminal justice system grants incentives for those who would enjoy a life of crime with limited risk by granting the most benefits for those who rise high in their criminal conspiracy.
Many Federal defendants plea guilty because they believe the Federal criminal justice system is rigged and a recent study supports that notion in that 96% of Americans who are indicted by Federal Grand Juries plead guilty rather than risk going to trial. Now we know that even Federal plea agreements are rigged.
The Judges have only the limited amount of discretion which prosecutors provide them by filing substantial assistance motions. The prosecutors don’t want to waste filing the motions on the bit players. So Clearwater criminal defense attorneys find that it’s the lower rung folks, those who did the least, who must face the harsh Federal Sentencing Guidelines, spending lifetimes in prison for nonviolent crimes such as drug offenses with minimum mandatory sentences from which Federal Judges have limited discretion.
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.