Federal Sentencing Flashcards
Booker Holding
- Guidelines advisory but must always calculate it
- Must consider factors
- Parole abolished and inmates must serve 85%
First 4 things to consider for federal sentencing issue
- Statutory Max
- Mandatory minimum
- Guidelines
- Booker factors
Drug statute maximums
Life; 40; 20
When guidelines is more than stat max?
STAT MAX APPLIES—opposite of Florida!
Offense level for career offender
Stat max!
Alleyne v US
Extends apprenticeship to min mans—brandishing a gun upped the min man from 5-7 and that had to be proven to a jury
Guidelines vs Min man
Min man becomes guidelines
Booker and mandatory minimums
Booker doesn’t apply to min mans
2 ways to go below man/min
- Substantial Assistance
- Safety Valve
Substantial assistance in federal sentencing to go below min man
- Prosecutor must file motion (before sentencing called 5k) (after called Rule 35 motion)
- Court not constrained by the recommendation
What is the safety valve and when does it apply?
Must meet all 5 criteria and man min goes away—ONLY in drug cases
Offense level reduced 2 levels
Which guidelines should take effect—offense or sentencing
Sentencing BUT can get an exception if sentencing are more onerous but you cannot mix and match
Burden of proof on enhancement
Preponderance EXCEPT hate crime is beyond a reasonable doubt
Same for reductions—preponderance by defense
Aggravating role in guidelines
If organizer or leader that involved 5 or more participants—4 level enhancement
If manager or supervisor with 5 or more participants—3 level enhancement
If organizer or manager of any activity—2 level enhancement
DEFENDANT Counts as one of the 5
Can you get safety valve if you got an aggravated role enhancement?
No!
Role reduction in federal sentencing
Burden on defendant—court must consider totality of circumstances
Minimal participant, reduce by 4 levels
Minor participant, reduce 2
If in between, reduce by 3
Abuse of position of trust and special skill enhancement
If D absues position of trust or uses special skill that significantly facilitates the offense increase by 2 levels—usually if had professional or managerial discretion—less supervision—position of trust, literally
Obstruction as an enhancement
-2 level enhancement
-Examples: lying during testimony or financial affidavit, threatening witness, FTA
Reckless endangerment enhancement
2 levels if created substantial risk of SBI to someone in course of fleeing from LEO
Acceptance of responsibility mitigator
Can get 2 levels off. Plus if at a level 16 or higher,can get additional point off if he tells gov’t early he’s pleading guilty.
For Acceptance of Responsibility (AR) over level 16, what is required?
Prosecutor must file motion and can’t have been preparing for trial
Can you get AR after trial
Yes, but not likely—sometimes can if trying to preserve MTS or something—or if you admit to one count and not the other and that’s all you’re convicted of
Can you get obstruction enhancement and AR?
Yes—example is FTA at sentencing—could get obstruction for missing court but also AR for other reasons
How are criminal history points assessed?
Based on length of sentence imposed
How many criminal history points do you get for various sentences?
3 points for any sentence of more than 13 months
2 points for sentence of 60 days to 13 months
1 point for any other sentence—probation, fine, less than 60 days in jail
10 years more doesn’t count
How many 1 point counts can you get?
4–so if you had 8 prior misdemeanors, only get 4 points
Criminal history status points
If 7 or more criminal history points, one point is added if committing this offense while on any sentence or release status
Are all misdemeanors counted for points?
No, only if more than a year probation or 30 PCJ or if similar to an instant offense. Also needs to be things like contempt, DWLSR< ROWOV, Trespass, Reckless Driving
Do priors with concurrent sentences score the same or separately?
If intervening arrest, always count separately!!
If not only one if in same charging document or if sentences imposed on same day
Do withholds count for criminal history points?
Yes!
Do suspended sentences count in the time for criminal history points?
The suspended part does not
Example: if sentenced to 4 months in jail, gets 2 criminal history points. BUT if sentenced to 4 months but suspends 3, only get 1 point.
If plea to state charge in between incident date and sentencing for federal case does state sentence count?
Yes!
What happens if you have 0 criminal history points?
You can get a 2 level reduction in the offense level—some exceptions
5 Safety Valve Criteria
- No more than 4 criminal history points (1 pointers don’t count; 2 points that were violent disqualify or 3 points will disqualify)
- Didn’t use violence or threats or possess gun
- Didn’t result in death or SBI
- Not a leader in the offense
- Must truthfully provide all info to gov’t
What does the career offender enhancement do?
Guideline offense level defaults to higher level based on stat max AND criminal history goes to cat 6
Booker still applies
Career Offender Requirements
Must be convicted of a fed offense that’s controlled substance or crime of violence AND must have 2 prior felony convictions of this type before the offense date
What is a controlled substance offense in federal guidelines?
Felony drug offenses that include distribution, manufacture, possession WITS, import, dispensing and includes counterfeit substances!
Crimes of violence in federal for Career offender enhancement
Either element for use or attempted use of force OR enumerated (murder, kidnapping, agg assault, Robert, pos of machine gun, arson, extortion)
What is the Armed Career Criminal Act (ACCA)
Minimum of 15 years for Pos of FA by Convicted felon AND has 3 prior violent felonies or serious drug offenses
What qualifies as a serious drug offense for ACCA
Delivery, trafficking, POS WITS—not simple possession or purchase. Must have had max penalty of 10 years or more!
What’s a violent felony for ACCA
Use or attempted use or threatened use of force OR enumerated (adds burglary and explosives) but not Florida burglary
Do multiple priors count if they plead at the same time?
YES—only needed the offense to be separate even if no intervening arrest they still count
Booker Factors (10)
- Nature and circumstances and history of the offender
- Need to reflect seriousness of offense to promote respect for law
- Need for deterrence
- Need to protect the public
- Need to provide def with educational or vocational training or medical care or other treatment
- Kinds of sentences available
- Sentencing guideline range
- Policy statements of sentencing commission
- Need to avoid unwarranted sentence disparities
- Restitution
What’s it called when judge goes above or below range based on Booker factors?
Variance, not departure
Sentencing on VOP
Based on revocation table—grade of violation and criminal history category
What’s a grade c violation
Technicals and misdemeanors
What’s a grade B violation
All felonies that aren’t grade A violations
Grade A violation
Crime of violence, controlled substance offense, firearms, any felony punishable by > 20 years prison
Mandatory minimum for firearm in a crime of violence or drug trafficking (multiple levels)
-5-life consecutive to any other sentence
-if brandishes it during then it’s 7 years to life
-If sawed off gun OR discharges it’s 10
-If machine gun or silencer, it’s 30s
Second or subsequent violation of 924(c) gun violation
25 year consecutive if 1st conviction was final before the 2nd
If convicted of 924c charge can he also get guideline enhancement for using firearm?
No
Can acquitted conduct be considered in enhancement sentencing?
Yes! Also even if NG on a 924c, can still get enhancement because burden is lower
How is a dispute on guidelines/enhancement decided
Sentencing judge preponderance of the evidence and burden is on person seeking the adjustment
Order for calculating guidelines/sentence in federal court
- Find base level from chapter 2 and any specific offense characteristics
- Adjustments for victim, role, obstruction from chapter 3
- Figure out multiple counts
- Adjustment for acceptance of responsibility from ch 3
- Criminal history category from chapter 4
- Figure out guidelines range
- Sentencing requirements
