"Armed Career Criminal" & "Career Offender"

Question 1

Doubling Minimum Mandatory (Min Mand.)

What are the requirements for the minimum mandatory sentence to be doubled (list drug amounts)?

Answer 1

21 USC 841
1. D manufacture, distribute, or possess with intent:
Heroin 1 kilo = 10 yrs; 100 g = 5 yrs
Cocaine 5 kilos = 10 yrs; 500 g = 5 yrs
Crack 280 grams = 10 years; 28 g 5 yrs
Mariju. 1000 k/plants = 10 yrs; 100 k/plant = 5 yrs
Meth 50 g/pure 500 g/mix = 10 5 g/pure 50 g/mix = 5yr.
2. D has one or more priors for “felony drug offense”
3. Govt must file Sec. 851 notice

Question 2

Doubling Minimum Mandatory (Min Mand.)

Define “felony drug offense” as required for doubling the minimum?

Answer 2

21 USC 841
Prior “felony drug offense” = any state or fed offense classified as felony involving manufacturing, distribution, possession with intent or SIMPLE POSSESSION

Question 3

Doubling Minimum Mandatory (Min Mand.)

Explain how the minimum mandatory sentence works with guidelines?

Answer 3

Min. Mand. trumps guideline sentencing range. Double min. mand. from 5 to 10 years or 10 to 20 yrs if D has prior drug felony.
If D has 2 or more, mand. life (1 kilo heroin, etc.) If no min. mand. but D has prior Gov’t files Sec. 851 Notice, raises stat. max from 20 to 30 yrs.

Question 4

Doubling Minimum Mandatory (Min Mand.)
Is doubling the minimum automatic?
What are the ways you can get less than the min. mand?

Answer 4

NOT AUTOMATIC: Notice before trial/plea under Sec. 851(a) must be given by Gov’t. If 851 notice filed, doubles supervised release term. Only Sec. 5K1.1 motions with 18 USC Sec. 3553(e) or Rule 35 motion or safety valve will waive min. mand.
NO TIME LIMIT ON PRIORS

Question 5

Doubling Minimum Mandatory (Min Mand.)

Code Provision - For Doubling Min. Mand.

Answer 5

21 U.S.C. Sec. 841 & 851

Question 6

What is the “Career Offender” code provision?

Answer 6

U.S.S.G. 4b1.1 & 28 U.S.C. Sec. 944(h)

Question 7

What is a “Career Offender”?

Answer 7

1. D at least 18
2. Instant offense is a felony conviction for a “Crime of Violence” or “Controlled Substance”
3. Two prior convictions for “crimes of violence” or “controlled substance offense”

Question 8

Career Offenders

What are the Predicate Offenses to become a “Career Offender”? Define.

Answer 8

“Crime of Violence” any felony for burglary of a dwelling, arson, extortion, other conduct involving serious risk of physical injury or with an element or the use or threat of force. Sec. 924(c) counts as crime of violence.
“Controlled Substance Offense” any state or fed offense involving mfg., distribution, or intent to distribute. NOT SIMPLE POSSESSION; NOT PURCHASE
924(c) convictions = predicate & instant offense with BOL 37 and CHC VI

Question 9

Besides the defined predicate offenses for “Career Offenders” what also counts as Crime of Violence for Career Offender Status?

Answer 9

924(c) Crime -
Crime of violence or drug trafficking crime uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm:
(i) imprisonment of not less than 5 years;
(ii) if the firearm is brandished, imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, imprisonment of not less than 10 years.

Question 10

What’re the results of being found to be a “Career Offender”?

Answer 10

CHC VI. Offense level determined by statutory max., which is determined depending on whether Gov’t files Sec. 851 enhancement, except for Sec. 924(c) convictions

Question 11

Is “Career Offender” automatic?

Is there a time limit on prior convictions to use for “Career Offender”?

Answer 11

AUTOMATIC ENH: no notice required
15 YR TIME LIMIT ON PRIORS: sentenced or served time on prior within 15 yrs of COMMISSION of instant offense. Both priors counted separately, cannot be “related cases”

Question 12

What is an “Armed Career Criminal”?

Answer 12

1. Violation of 18 U.S.C. Sec. 922(g) - felon in possession of firearm.
2. Three prior convictions for “violent felonies” or serious drug offenses committed on different occasions.*
   NOTE: Guideline and min. mand. enh.

Question 13

Armed Career Criminal

What is the test for “separate offenses”?

Answer 13

Whether first offense was complete when second commenced; single proceeding for convictions OK

Question 14

Armed Career Criminal

What is counted a Predicate Offense for ACC? Define.

Answer 14

“Violent Felony” any felony that:
i. element use, threat of use, or attempted use of force against another person; or
ii. burglary, arson, extortion, explosives used, or otherwise involves conduct that presents serious potential risk of physical injury to another.
“Serious Drug Offense” fed drug offense with 10 year + max., or state drug offense involving mfg./distribution and at least 10 year max.

Question 15

Armed Career Criminal

What happens if you’re found to be an “Armed Career Criminal”?

Answer 15

CHC IV.
Offense Level 33 or 34.
Under Sec. 924(c), 15 year min. mand.

Question 16

Is “Armed Career Criminal” automatic?
What are the ways to get below min. mand. for Armed Career Criminal?
What is the time limit for prior offenses?

Answer 16

AUTOMATIC: No notice needed. Only S.G. 5K1.1 motions with 18 U.S.C. Sec. 3553(e) or Rule 35 motion with waive 15 yr. min. mand.
NO TIME LIMIT ON PRIORS: must be separate prios

Question 17

What is the Sentencing Guideline and requirements for “Substantial Assistance to Authorities Departure”?

Answer 17

Sec. 5K1.1
Gov’t says D provided “substantial assistance” in the investigation or prosecution of another person CRT may depart from the guidelines.
Reasons may include:
(1) the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered;
(2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
(3) the nature and extent of the defendant’s assistance;
(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;
(5) the timeliness of the defendant’s assistance.

Question 18

What’s required for the 3 Strikes law?

Answer 18

1. Instant offense must be “serious violent felony” (SVF)

2. Two prior convictions for SVF or one prior SVF + one prior “serious drug offense”

Question 19

Define the priors for the 3 Strikes Law?

Answer 19

SVF murder, sex crimes, kidnapping, extortion, arson, firearms use, attempts/conspiracy thereof, or any offense punishable over 10 years with force as element or which by its nature involves substantial risk of physical force being used.
“Serious Drug Offense” anything punishable under 21 U.S.C. Sec. 841(b)(1)(A); 1K herion, 5K cocaine, 280 g crack, etc.

Question 20

What is the result of the 3 Strikes Law?

Answer 20

Mandatory Life

Note that 18 USC Sec. 3582 may provide relief to defendants over 70 who have done at least 30 years

Question 21

Is the 3 Strikes Law automatic?
What is the time limit on priors?
Are there exceptions for 3 Strikes Law for SVF?

Answer 21

NOT AUTOMATIC: Gov’t must give written 851 Notice
NO TIME LIMIT ON PRIORS
Robbery doesn’t count if no dangerous weapon used
Similar exception for arson

Question 22

What is the notice provision for the 3 Strikes Law?

Answer 22

21 USC § 851 NOTICE
Proceedings to establish prior convictions
Cannot increased punishment for one or more priors, unless before trial, or before entry of a plea of guilty, the Gov’t files an information with the court (and serves a copy on the person or counsel for the person) stating in writing the previous convictions to be relied upon.

Question 23

What can be used to attack prior?

Answer 23

Based on Taylor, Shepard, and Descamps

Question 24

Name the provisions for the 2 types of “Safety Valves”?

Answer 24

U.S.S.G. 5C1.2 & 18 U.S.C. Sec. 3553(f)

Question 25

What does the Safety Valve do?

Answer 25

Waives min. mand. found in 21 U.S.C. Sec.
841 mfg, disp, dist. CS
844 possession CS
846 attempt or conspiracy CS
960 trafficking CS
963 attempt or conspiracy to traffic CS
“without regard to statutory minimum sentence”

U.S.S.G. 2D1.1(b)(11) will get additional 2 levels off

Question 26

What are the qualifications for the safety valve?

Answer 26

1. 0-1 criminal history points
2. No violence or guns
3. Offense didn’t result in death or serious injury
4. Not a leader or organizer under USSG B1.1 or CCE
5. Before sentencing, provide Gov’t with information about offense and relevant conduct

Question 27

What is the result of qualifying for the safety valve?

Answer 27

Can reduce any drug sentence, with 2 additional levels off, including any mandatory minimum statutory term to guideline sentencing range

Question 28

How does the D trigger the “Safety Valve”?

Answer 28

NO MOTION REQUIRED

Waives min. mand. - Court must grant if D meets criteria. CRT decides if truthful.

Question 29

Safety Valve
Where is the criteria located?
What is the criteria?

Answer 29

S.G. 5C1.2.
18 U.S.C. § 3553(f)(1)-(5)
(1) D doesn’t have more than 1 criminal history point;
(2) D did not use violence or credible threats of violence or possess a firearm or other dangerous weapon;
(3) the offense did not result in death or serious bodily injury to any person;
(4) D was not an organizer, leader, manager, or supervisor of others;
(5) not later than the time of the sentencing hearing, D has truthfully provided to the Gov’t all information and evidence D has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan

Question 30

Safety Valve

When D provides truthful information, BUT what if the Gov’t already knows the info?

Answer 30

the fact that the defendant has no relevant or useful other information to provide or that the Gov’t is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirements of SV

Question 31

Safety Valve

Is there a minimum offense level required for a “Safety Valve”?

Answer 31

Yes for S.G. 5C1.2. - D eligible for SV but statutorily required minimum sentence is at least five years, the offense level applicable from Chapters Two (Offense Conduct) and Three (Adjustments) shall be not less than level 17.

Question 32

What is the “Substantial Assistance” provision for before sentencing?

Answer 32

USSG 5K1.1
18 USC 3553(e)
1. Motion by government at or prior to sentencing
2. For “substantial assistance,” but court can evaluate significance, nature, extent, and timeliness of assistance and truthfulness, completeness, and reliability of any testimony plus injury or danger to defendant

Question 33

What can happen based on “Substantial Assistance”?

Answer 33

CRT may depart below guideline range, without limit - even below that requested by Gov’t

Question 34

What needs to happen for D to get “Substantial Assistance” departure?

Answer 34

Gov’t must make motion, but Gov’t discretion to file
CAN waive min. mand., but only if Gov’t references 18 USC 3553(e)
CRT discretion to grant

Question 35

Can Substantial Assistance waive min. mand?

Answer 35

CAN waive min. mand., but only if Gov’t references 18 USC 3553(e)

Question 36

Substantial Assistance - BF Sent.

with “acceptance of resp”?

Answer 36

Substantial Assistance shall be considered independently of any reduction for acceptance of responsibility.
Substantial Assistance is directed to the investigation and prosecution of criminal activities by persons OTHER than the defendant, while acceptance of responsibility is directed to the defendant’s affirmative recognition of responsibility for his own conduct.

Question 37

Substantial Assistance

CRT’s Discretion to evaluate

Answer 37

Substantial weight should be given to the Gov’t evaluation of the extent of the D’s assistance, particularly where the extent and value of the assistance are difficult to ascertain.

Question 38

Substantial Assistance

CRT should consider

Answer 38

(1) the court’s evaluation of the significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered;
(2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
(3) the nature and extent of the defendant’s assistance;
(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;
(5) the timeliness of the defendant’s assistance.

Question 39

CORRECTING A SENTENCE
What rule and when can CRT correct a sentence?
Why can the CRT correct?

Answer 39

Rule 35(a)
Within 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.

Question 40

REDUCING A SENTENCE
What rule?
Generally, when may the Gov’t file to reduce sentence?

Answer 40

Rule 35(b)(1) In General, within one year of sentencing, the CRT may reduce a sentence if the D, after sentencing, provided “substantial assistance” in investigating or prosecuting another person.

Question 41

REDUCING A SENTENCE

Can Gov’t file after 1 year?

Answer 41

Rule 35(b)(2) Later Motion. More than one year after sentencing, the CRT may reduce a sentence if the D’s substantial assistance involved:

(A) information not known to the D until one year or more after sentencing;
(B) information provided by the D to the Gov’t within one year of sentencing, but which did not become useful to the Gov’t until more than one year after sentencing; or
(C) information the usefulness of which could not reasonably have been anticipated by the D until more than one year after sentencing and which was promptly provided to the Gov’t after its usefulness was “reasonably apparent to D”

Question 42

REDUCING A SENTENCE

What assistance can CRT consider?

Answer 42

Rule 35(b)(3) In evaluating whether D provided substantial assistance, the CRT may consider the defendant’s presentence and post-sentence assistance

Question 43

REDUCING A SENTENCE

Below statutory min. sentence?

Answer 43

Rule 35(b)(4) When acting under Rule 35(b), the court may reduce the sentence to a level below the minimum sentence established by statute.

Question 44

List the different “Substantial Assistance” provisions

Answer 44

1. USSG 5K1.1
2. 18 USC 3553(e)
3. FRCP Rule 35

Question 45

Reducing Sentence BELOW statutory min.

What is the USC code provision?

Answer 45

18 USC 3553(e) Gov’t motion the CRT has authority to impose a sentence below statutory min. so as to reflect a D’s substantial assistance in the investigation or prosecution of another person who has committed an offense.

Question 46

Reducing Sentence BELOW statutory min.

What is the Rule provision?

Answer 46

Rule 35(b)(4) When acting under Rule 35(b), the court may reduce the sentence to a level below the minimum sentence established by statute.

Question 47

Reducing Sentence BELOW statutory min.

What is the guideline provision?

Answer 47

USSG 5K1.1 MUST reference 18 USC 3553(e)

Question 48

When to file for Downward Departure?

Answer 48

Motion no later than time of sentencing (check local rules or specific judge’s rules on timeliness)

Question 49

What limitations are on Downward Departure?

Answer 49

Departure in guideline levels, but not below mand. min.

Question 50

How is Downward Departure triggered?

Answer 50

No motion of Gov’t required, depends on particular judge as to whether D must file motion of whether argument only is OK.
Does not waive min. mand. The CRT has discretion to grant reasonable departure if D proves the grounds exist.

Question 51

Where are the Factors To Be Considered in Imposing a Sentence located?
What are they?

Answer 51

18 USC 3553(a)

(a) Factors To Be Considered in Imposing a Sentence:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines;
(5) any pertinent policy statements;
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.

Question 52

Factors To Be Considered in Imposing a Sentence

Determining Factor 2: the need for the sentence imposed

Answer 52

18 USC 3553(a)
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

Question 53

Is there a minimum offense level required for a “Safety Valve”?

Answer 53

Not for SG 2D1.1(b)(11) - it doesn’t require a minimum offense level 17 like other safety valve provision does; doesn’t require motion by Gov’t

Question 54

What are the Safety Valve provisions?

What’s the big difference?

Answer 54

S.G. 5C1.2. - min. level 17

SG 2D1.1(b)(11) - no min.

Question 55

Is 3 strikes rule in Guideline?

Does it require the underlying convictions to be final?

Answer 55

No.
Yes.
18 USC § 3559 - Sentencing classification of offenses