Federal Sentencing Flashcards
How to Qualify under ACCA?
- 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).
Effect of Status of ACCA
- 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
Other details/notes of ACCA
- 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
How to Qualify as a Career Offender
- 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
Effect of Becoming a Career Offender?
- 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
For Career Offender purposes, what is a controlled substance offense?
Essentially any drug offense except possession or purchase.
What are Crimes of Violence/Violent Felonies for Career Offender & ACCA purposes?
- 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)
How do you qualify for 3, 2, or 1 Criminal History Points?
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
What’s a Departure under USSC sec. 4A1.3?
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.
Other Departures (Policy Statements)
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.
4 factors to consider in a federal sentencing issue
- Calculate statutory maximum
- Any statutory minimum mandatory
- Federal Sentencing guidelines
- Booker factors
When were federal sentencing guidelines enacted?
October 1, 1987
What effect did the enactment of the federal sentencing guidelines have on the back end of sentences?
They eliminated parole.
What major changes happened in 2005 to the federal sentencing guidelines?
- US Sup Ct. decided US v. Booker.
- Changed guidelines from mandatory to advisory
- Now the Court MUST consider the Booker factors
Apprendi v. NJ (2000)
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.
Alleyne v. US (2013)
- 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.
When can’t D be charged with Federal Felon in Poss. of a Firearm
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
Ways to get below the mandatory minimum
- Substantial assistance;
- Safety valve; and
- Holder memo (sort of…).
How to get Substantial Assistance
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
Rule 35(b) jurisdictional time period
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.
What are the Safety Valve criteria?
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.
Chapter 3 Adjustments
- 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
Chpt. 3 Adjustment -
ABUSE OF POSITION OF TRUST / USE OF SPECIAL SKILL
- 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
Chpt. 3 Adjustment -
OBSTRUCTING ADMINISTRATION OF JUSTICE
- 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
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
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
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
What are the 4 types of federal sentences?
- probation
- fine
- incarceration
- supervised release
Are guidelines a per se reasonable sentence?
No, see Talley
May the court consider the crack/powder disparity in imposing a sentence?
Yes
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.
By what standard is a federal sentence reviewed?
Reasonableness
If guidelines exceed the min-man, which applies?
Guidelines
If guidelines exceed the statutory max, which applies?
Statutory Max
