Federal Sentencing Flashcards
1
Q
How to Qualify under ACCA?
A
- Must be convicted of Felon in Possession of a Firearm; AND
- Must have three (3) prior convictions for violent felonies or serious drug offenses (committed on different occasions).
2
Q
Effect of Status of ACCA
A
- Penalty goes from 0-10 years to 15yMM-Life
- Criminal History becomes at least a level 4
- Offense level raised to a 33 or 34
3
Q
Other details/notes of ACCA
A
- It’s an automatic enhancement - no notice requirement;
- Only 5K Motions or Rule 35 motions can waive the 15yMM; and
- No time limit on prior convictions
4
Q
How to Qualify as a Career Offender
A
- D is at least 18;
- Instant offense is felony conviction for crime of violence or controlled substance offense; and
- Two (2) prior convictions for crimes of violence or controlled substance offense
5
Q
Effect of Becoming a Career Offender?
A
- Criminal History category becomes a six (6);
- Offense level determined by statutory max (which is determined depending on whether gov’t files sec. 851 enhancement, except for sec. 924(c) convictions
6
Q
For Career Offender purposes, what is a controlled substance offense?
A
Essentially any drug offense except possession or purchase.
7
Q
What are Crimes of Violence/Violent Felonies for Career Offender & ACCA purposes?
A
- Burglary of Dwelling
- Arson
- Extortion
- Use of Explosives
- Residual Clause (…or otherwise involves conduct that presents serious potential risk of physical injury to another)
- i.e. - fleeing & eluding, escape, throwing a deadly missile - Johnson case = Residual Clause is unconstitutional/void for vagueness as applied to ACCA (but ok for Career Offender)
8
Q
How do you qualify for 3, 2, or 1 Criminal History Points?
A
Based on length of incarceration
3 points if incarceration is 13 months or more. (go back 15 years to count these)
2 points if incarceration is 60 days - 13 months. (go back 10 years to count these)
1 point is everything else (probation, fine, 30 days, w/h of adjudication)
ADD 2 points to the above if D is on probation when he commits new crime
9
Q
What’s a Departure under USSC sec. 4A1.3?
A
Let’s a court depart UPWARD or DOWNWARD if reliable information indicates the D’s criminal history category significantly under represents the seriousness of D’s criminal history or likelihood he’ll commit future offenses - AND VICE-VERSA.
10
Q
Other Departures (Policy Statements)
A
All may be considered individually or in combination with other offender characteristics that distinguish D from typical cases.
- Age - including youth;
- Mental & emotional conditions - can be relevant in considering conditions of prob./sup. release
- Physical condition - including drug/alcohol dependency & gambling addiction
- Military service
- Educational/vocational skills*
* may be used as ground for departure, however, can also be used as enhancement (Abuse of Position of Trust/Special Skill). These usually relevant to determine conditions of probation or supervised release.
11
Q
4 factors to consider in a federal sentencing issue
A
- Calculate statutory maximum
- Any statutory minimum mandatory
- Federal Sentencing guidelines
- Booker factors
12
Q
When were federal sentencing guidelines enacted?
A
October 1, 1987
13
Q
What effect did the enactment of the federal sentencing guidelines have on the back end of sentences?
A
They eliminated parole.
14
Q
What major changes happened in 2005 to the federal sentencing guidelines?
A
- US Sup Ct. decided US v. Booker.
- Changed guidelines from mandatory to advisory
- Now the Court MUST consider the Booker factors
15
Q
Apprendi v. NJ (2000)
A
Any fact that increases the penalty for crime beyond the statutory max (other than the fact of a prior conviction) must be submitted to the jury and proven BARD.
16
Q
Alleyne v. US (2013)
A
- Like Apprendi, but as applied to mandatory minimums
- Any fact that increases the statutory mandatory minimum must be alleged in the charging document, submitted to the jury and proven BARD.
17
Q
When can’t D be charged with Federal Felon in Poss. of a Firearm
A
Can’t be charged if:
- If D gets a W/H in State court;*
- Civil rights - specific to firearm possession - restored
- If K doesn’t prove the gun** passed through interstate commerce
- W/H can still be counted for criminal history points
- bullets can satisfy interstate commerce requirement
18
Q
Ways to get below the mandatory minimum
A
- Substantial assistance;
- Safety valve; and
- Holder memo (sort of…).
19
Q
How to get Substantial Assistance
A
S.A. - applies in all cases - not just drug cases
- State MUST file the substantial assistance motion (pre-sentencing = 5K motion; post-sentencing = Rule 35 motion)
- Motion must specifically request the court go below the m/m
- Once K files motion the court can sentence to anything. Court not limited to State’s recommendation
20
Q
Rule 35(b) jurisdictional time period
A
Rule 35(b) - substantial assistance motion post sentencing must be filed within ONE (1) year of sentencing unless:
- Information not known to D until after 1 year
- Information didn’t become useful until more than 1 year after sentencing
- Information which usefulness couldn’t be anticipated by D until more than 1 year after sentencing.
21
Q
What are the Safety Valve criteria?
A
Only applies in drug cases. And if all 5 criteria are met, m/m goes away (& 2 level reduction in guidelines score).
- D doesn’t have more than 1 criminal history point;
- D doesn’t use threats or violence or possession of f/a in connection with offense;
- Offense doesn’t result in death or serious bodily injury;
- D isn’t the organizer, leader, manager, or supervisor; and
- Not later than sentencing, D truthfully provided gov’t with all information she had.
22
Q
Chapter 3 Adjustments
A
- Hate Crime / Vulnerable Victim
- Aggravated Role
- Official victim
- Restraint of Victim
- Mitigating Role
- Abuse of position of Trust / Use special skill
- Using Minor to Commit an Offense
- Obstruction / Impeding Admin. of Justice
- Reckless endangerment during flight
- Acceptance of Responsibility
- Commission of offense while on release
23
Q
Chpt. 3 Adjustment -
ABUSE OF POSITION OF TRUST / USE OF SPECIAL SKILL
A
- Special skill* or position of trust; AND
- Significantly facilitates commission of crime or concealment of crime
- Special skill can be learned (Breaking Bad Jesse example)
- *Position of trust doesn’t apply to mailmen who steal mail or bank clerk’s who embezzle money
24
Q
Chpt. 3 Adjustment -
OBSTRUCTING ADMINISTRATION OF JUSTICE
A
- D willfully obstructs/impedes (or attempts to) the investigation, prosecution, sentencing;
AND - Obstructive conduct related to: (a) D’s offense of conviction & relevant conduct OR (b) a closely related offense
*Results in 2 level enhancement
25
Chpt. 3 Adjustment -
ACCEPTANCE OF RESPONSIBILITY
- Must accept responsibility & be remorseful
- Results in 2 point decrease*
- You CAN get Obstruction enhancement &; Acceptance decrease (rare but possible)
* You can get a 3rd point ONLY IF:
(a) D is offense level 16 or higher; and
(b) K files motion saying D indicated his desire to plea far enough in advance of trial so K didn't have to prepare
26
BOOKER FACTORS (part 1) - CheVRON
Che: Characteristics & History of D
V: Vocational/Educational training for D (the need to)
R: Respect for law, Reflect seriousness of offense, punishment (the need to)
O: prOtection of public
N: Nature & circumstances of offense
27
BOOKER FACTORS (part 2) - DUSTER
D: Deterrence (need for)
U: Unwarranted sentencing disparities (need to avoid)
S: Statements, pertinent policy statements of Sentencing commission
T: Types/Kinds of sentences available
E: rEstitution to victim
R: Range - sentencing guidelines
28
What are the 4 types of federal sentences?
1. probation
2. fine
3. incarceration
4. supervised release
29
Are guidelines a per se reasonable sentence?
No, see Talley
30
May the court consider the crack/powder disparity in imposing a sentence?
Yes
31
What are the Booker Factors?
Mnemonic:
Policy prevents available public education; disparate restitution is the nature of guideline punishment.
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(3) the need for deterrence;
(4) the need to protect the public;
(5) the need to provide the defendant with needed educational or vocational training or medical care;
(6) the kinds of sentences available;
(7) the Sentencing Guidelines range;
(8) pertinent policy statements of the Sentencing Commission;
(9) the need to avoid unwarranted sentencing disparities; and
(10) the need to provide restitution to victims.
32
By what standard is a federal sentence reviewed?
Reasonableness
33
If guidelines exceed the min-man, which applies?
Guidelines
34
If guidelines exceed the statutory max, which applies?
Statutory Max
35
If guidelines are lower than the min-man, which applies?
Min-man
36
Which federal offenses carry min-mans?
Drug Offenses: based on quantity, or causing death/ SBI
Gun Offenses
Child Sex Offenses (except possession of kiddie porn)
Bringing Aliens into USA
Aggravated ID Theft Offenses
Mnemonic: children steal the identity of armed aliens on drugs
37
What must a defendant prove to receive the "safety valve" provision?
1. Def doesn’t have more than one criminal history point
2. Defendant didn’t use violence, threats of violence, didn’t possess gun or dangerous weapon in connection w crime
3. Offense didn’t result in death or SBI
4. Def was not manager, organizer, leader or supervisor of others in the offense
5. No later than sentencing, defendant testifies truthfully about the nature of the offense
Mnemonic: The truth is, at one point, I was a manager who used violence and caused death.
38
What types of offenses are effected by the "safety valve" provision?
Drug cases with minimum mandatories
39
What was the effect of the Fair Sentencing Act of 2010
It reduced the maximum for crack offenses
40
Is a jury finding needed to prove sentencing enhancements?
No
41
What are the 7 steps in determining a defendant's guidelines?
1. base offense level
2. special offense characteristics
3. adjust the offense level
4. determine criminal history points
5. determine whether defendant is a career/armed career offender
6. determine zone
7. analyze whether there should be a variance
```
Mnemonic:
Basically
She
Adjusts
His
Catheter
Zealously
Violently
```
42
If the guidelines in effect at the date of sentencing are different than the guidelines in effect at the date of the offense, which one should be used?
The guidelines in effect at the date of sentencing, unless doing so would violate the ex post facto clause
43
Who may file a 5K motion?
Only the government
44
For what type of offenses is probation prohibited federally?
Class A or B felonies
45
When do guidelines recommend straight probation?
When the bottom of the guidelines are 0
46
When is supervised release recommended?
At the end of drug sentences
47
When is supervised release not recommended?
For aliens
48
What types of conditions can the court impose for supervised release?
Conditions that are reasonably needed to achieve sentencing purposes
49
When MUST probation or supervised release be revoked?
1. possession of a firearm
2. possession of drugs
3. refusing to take drug test 3x w/in 1 year
50
Must a defendant's probation me revoked for testing positive for drugs?
Not necessarily, depending on available treatment and defendant's participation
51
On what types of offenses may restitution be ordered?
Every type
52
Whom may restitution be awarded to?
Victims directly or proximately affected by crime
53
What are the victim's rights re: federal sentencing?
1. notice for hearings
2. be present for hearings
3. be heard at hearings
4. restitution
54
What factors aggravate a drug offense?
1. possession of a gun
2. maintaining a place for drug activity
3. use of violence in conjunction with drug offense
55
What is the base offense level range for drug offenses?
From 6-38
56
What effect does a defendant's mitigating role in a drug offense have on the offense level?
It can reduce the offense level by 2-4 levels
57
How is the offense level determined for financial offenses?
By the amount of loss and number of victims
58
What types of drug offenses allow for the consideration of purity in determining offense level?
Meth, Oxy, PCP
59
What constitutes "relevant conduct" for the purpose of determining a base offense level?
Factors beyond the elements of the charge including defendant's acts, omissions, solicitations and whether it was a joint offense
60
For what type of drug offenses can purity be considered for upward departure?
All drug offenses
61
What qualifies a defendant as a "repeat child sex offender"?
Instant case is a child sex offense and defendant has one prior for a child sex offense
62
When grouping related counts that involve the same harm, what determines the offense level for that group of offenses?
The offense of the highest offense level
63
If certain charges are dismissed pursuant to a charge-bargain, may they still be considered as relevant conduct for upward departure purposes?
Yes
64
What is a "sentence recommendation"?
When a prosecutor agrees to (or agrees not to oppose) a particular sentence or sentencing range.
65
Is the court bound by the government's sentencing recommendation?
No
66
May a defendant withdraw his plea if the court does not follow the government's sentencing recommendation?
No
67
Whom is bound by a specific agreed-upon sentence?
The government. The court can reject. If court rejects, defendant can withdraw plea.
68
Under what circumstances can a court accept an agreed-upon sentence that varies from the guideline range?
If it varies for justifiable reasons
69
Can firearms offenses run concurrent?
No
70
May a defendant's "cooperating" statements made in the course of plea negotiations be used in trial if the case does not result in a plea?
No, unless defendant has waived his rights pursuant to rule 410
71
What are the three statutory maximums for drug offenses?
20 yrs, 40 yrs, life
72
What does the Holder memo say?
Prosecutors have the authority not to charge a drug min-man even if there is a min-man amount of drugs involved in the case.
73
What is the government's burden of proof when seeking an enhancement other than the hate crime enhancement?
Preponderance
74
What is the government's burden of proof when proving a hate-crime enhancement?
Beyond a reasonable doubt
75
Is there a remedy for a defendant who was sentenced before guidelines were changed to his benefit?
Yes, can file a motion under 18 USC. Relief is discretionary.
76
What are the factors that may adjust an offense level?
Mnemonic: mocha aurora
```
Mitigating role
Official victim
Commission while on release
Hate crime
Abuse of position of trust
```
```
Acceptance of responsibility
Using minor
Restraint of victim
Obstruction of justice
Reckless endangerment during flight
Aggravated role
```
77
What is required for a defendant's offense level to be adjusted based on an "official victim"?
Crime committed against leo or his family
Crime committed against prison official
Doesn't apply if def didn't know of V's official status
Doesn't apply if one gov't employee harms another
78
What is required for a defendant's offense level to be adjusted based on obstruction for perjury?
The court must make a finding that the defendant purjured himself
79
```
Which of the following constitute obstruction?
A. false statements to cops
B. lying on indigency affidavit
C. failing to appear for court
D. tossing drugs as a reflex
```
A, B and C. Not D.
80
```
Which of the following constitute obstruction?
A. refusing to answer PO's questions
B. giving a false name under arrest?
C. threatening a witness
D. fleeing from arrest
```
C only
81
What constitutes "reckless endangerment during flight"?
Def created risk of death or SBI while fleeing. This includes high speed chases and resisting
82
When may a defendant receive an "acceptance of responsibility" adjustment after trial?
When he maintains innocence as to one count, but does not as to another
83
Is using a gun during the commission of a trafficking or violent offense an enhancement?
No, it is a separate statutory crime
84
May a defendant receive a concurrent sentence for using a gun during the commission of a trafficking or violent crime?
No, must be sentenced consecutively.
85
What factors are not relevant for departure?
Education, vocational skills, family
86
What factors are relevant for departure?
Age, military service, mental health, physical health, emotional condition
