Federal Sentencing - Criminal History Flashcards
Where are “Criminal History” sentencing guidelines found?
Chapter 4
Criminal History
What must the Gov’t prove, always?
That it is the D that was convicted
Criminal History
What is used to compute Criminal History Category (CHC)?
- Length of sentence;
- Date of imposition or release;
- Whether current offense was committed while D was under and/or had recently completed another sentence
Criminal History
List the Criminal History Points added
- Add 3 pts. for imprisonment exceeding 1 yr. and 1 mt.
- Add 2 pts. for imprisonment at least 60 days
- Add 1 pt. for sentence not in 1 or 2 (up to 4 points)
- Add 2 pts. if D committed instant offense while under some supervision or imprisonment
- Add 1 pt. for crime of violence COV that didn’t get a point under 1,2, or 3
Criminal History
How many points for recency of criminal history?
None, Commission eliminated this in 2010, because some offenses were being counted up to 3 times
Within 2 years, used to add 2 points
Criminal History - Prior Sentence
What is a “prior sentence”?
Any adjudication of guilt that NOT a part of the instant offense and NOT relevant conduct of instant offense
**However, prior can be ELEMENT of instant offense (i.e. felon in possession of firearm)
Criminal History - Prior Sentence
When does the offense have to happen for it to be a “prior sentence”?
It can be before OR after instant offense.
NOTE: there is a split if conduct after sentencing but before REsentencing counts
Criminal History - Prior Sentence
Can the “prior” be an element of instant offense?
YES. i.e. felon in possession of firearm.
Criminal History - Prior Sentence
What makes a sentence a “separate sentence” for adding points?
Separated by “Intervening Arrest”
If no intervening arrest, treated separately, UNLESS (A) sentences resulted from offenses in same charging instrument; OR (B) sentences imposed on same day.
Criminal History - Categorical Approach
Do you use Taylor-Shepard documents to determine offense?
NO. Because aside from crime of violence (COV), the points are determined by length of sentence, rather than charge
Criminal History - Minor Offenses
Which offenses are SOMETIMES counted?
Only count following if at least 30 days jail or 1 year probation: reckless driving; contempt; disorderly conduct; DWLI; False info to Police Officer; Gambling; Hindering or failure to obey police; Hot check; Leaving scene of accident; Non-support; Prostitution; Resisting arrest; Trespassing.
Criminal History - Minor Offense
Which offense are never counted?
These offenses are never counted: fish and game violations; hitchhiking; juvenile STATUS offenses; local ordinance violations (other than those that are also State law violations); Loitering; Minor traffic offenses; Public Intoxication; Vagrancy
How are “non-traditional” sentences treated?
A diversion can be used if "finding of guilt" even if set aside Expunged offense, not counted Counts even if on appeal Military counts, if court marshal Foreign convictions, don't count
Habeas Corpus relief on unconstitutional sentences?
In Fed. cases, if D sentenced and later a prior that was used is invalidated, entitled to habeas relief
Not available in State court convictions - even if State appeal and writ has been exhausted
How has the Court treated “uncounseled” priors?
Generally, if D shows by preponderance of evidence that prior was in violation of right to counsel, then prior cannot be used
How is “sentence of imprisonment” calculated?
By the maximum sentence imposed
Indeterminate sentences are treated like the max
If court reduces sentence, then reduced sentence is used (i.e. shock probation)
What if part of a sentence is suspended, how is it treated for “sentence of imprisonment” for Chap 4 Criminal History Points?
Suspended sentence is not used
What is considered “imprisoned” for Chap 4 Criminal History Points?
24 hour a day confinement - prison, jail, boot camp, parole revocation treatment center
NOT home detention, NOT community treatment, NOT halfway house, NOT labor detail
What is the TIMING of priors for Chap 4 Criminal History Points?
3 points are assigned for “sentences of imprisonment” exceeding one year and month imposed within 15 YEARS of the instant offense OR resulting in incarceration within 15 YEARS of the instant offense
Watch for continuous parole revocations
What if parole revoked, and incarcerated for NEW offense?
The CRT treats it as though incarcerated for the paroled offense, and the new for purposes of the 15 YEAR Rule
What if instant offense is committed while D is on a criminal justice sentence?
+2 Criminal History Points
What is considered a “criminal justice sentence” for purposes of Chap 4 points for instant offense happening while serving sentence?
Any supervision, including non-reporting
UNLESS only sanction is a FINE
Escape while awaiting sentence = CRIM JUS SENT
What if instant offense is within 2 years of serving a sentence?
- If sentence was at least 60 days imprisonment (or while escaped) within 5 YEARS then +2
Only +1 if D is also given points for instant offense being committed during sentence for SAME SENTENCE
2.
Issue to spot concerning WHEN instant offense occurred?
- Conspiracy - Gov’t has to prove that D was engaged in conspiracy at relevant times for the 15 YEAR trigger or the 2 YEAR trigger
- Illegal Reentry - occurs when D is found
What about D that were younger than 18 at time of prior offense?
13+ month sentences count
60+ day sentences don’t UNLESS imposed within 5 years
Revocation - age at time of revocation controls
Do juvenile adjudications count for criminal history points?
Yes. Imprisonment is if the juvenile is in custody of “state agency responsible for confining juveniles”
Revocation - age at time of revocation controls
How many criminal history points if:
D placed on probation for 3 separate offenses; revoked for all offense and sentenced to 10 years in each; the imprisonment is within 15 years of instant offense.
5
3 for 13+ mt. imprisonment
1 each for other convictions
CRT seeks to give greatest number of points
What makes a D a “Career Offender”?
- at least 18 years old
- Instant Offense - Crime of Violence or Felony Drug Offense;
- D has at least 2 priors for Crime of Violence or Felony Drug Offense
MUST GET Criminal History Cat. VI (highest)
Is a “Career Offender” eligible for minor role reduction?
NOOO.
Can JUV prior be used for “Career Offender” classification?
Only D convicted as adult can be used - SO 17 in Texas counts, because convicted as adult
JUV. Adjudications do not count
How does the Criminal History Guideline define “crime of violence”?
Fed or State punishABLE by term exceeding ONE year:
1. element use, attempted use, or threat of force against PERSON;
2. burg. of a DWELLING, arson, extortion, involve explosive, or ANY conduct that creates substantial risk of physical injury to another
4B1.2(a)
How do you determine “risk of physical injury” for “Crime of Violence” in “Career Offender” context?
Remember, this is Chap 4
Use Categorical Approach to “residual” clause - the COUNT of conviction must “by it’s nature” pose the risk
Is evading in a vehicle a “Crime of Violence” in “Career Offender” context?
Yes.
Is failing to report an offense a “Crime of Violence” in the “Career Offender” context?
No.
Elaborate on “Crime of Violence” residual clause (risk of physical injury)?
“purposeful, violent, and aggressive” force that must be characteristic of the enumerated offenses
Begay SCOTUS Test
Under “Career Offender” guideline is “negligent homicide” a crime of violence?
No. Begay analysis
Under “Career Offender” guideline is “attempted sexual crime” always a crime of violence?
No. Begay analysis
Under “Career Offender” guideline is DUI and escape a crime of violence?
No. Begay analysis.
Under “Career Offender” guideline what is a felony “Controlled Substance Offense”?
Is it the same as the ACCA?
Punishable by MORE than 1 YEAR
mnf’g, import, export, dist., or dispensing controlled substance (or counterfeit)
OR possess with intent to do any of those things
NOTE: ACCA requires punishment to be 10 years
Under “Career Offender” guideline “Controlled Substance Offense” include “offer to sell”?
NO, Texas delivery law allows conviction for offer to sell, SO doesn’t fit
Careful thought, Texas “possess with intent to deliver” does fit!!
Is unlawful possession of a firearm a “Crime of Violence” in Chap 4 “Career Offender” definition?
NO, unless 26 USC 5845 “firearm” i.e. sawed off, bomb, machine gun, silencer
Also, look under armed career criminal enhancements
Do you use Chap 3 or 4 where D convicted of using firearm during drug trafficking or arson?
No. These are controlled by statute.
“Career Offender” specific Guideline Range for 18 USC 924(c) and 929(c) counts?
924(c) crime of violence or drug trafficking crime with use of firearm
929(a) armor piercing ammunition
360 to life if no §3E1.1 Acceptance of Responsibility
292-365 if 2-level reduction under §3E1.1. Acceptance of Responsibility
262-327 if 3-level reduction under §3E1.1. Acceptance of Responsibility
What are the offenses for 18 USC 924(c) and 929(c)?
924(c) crime of violence or drug trafficking crime with use of firearm
929(a) armor piercing ammunition
Is Acceptance of Responsibility available for: 924(c) crime of violence or drug trafficking crime with use of firearm, or 929(a) armor piercing ammunition with Career Offender?
Yes.
360 to life if no §3E1.1 Acceptance of Responsibility
292-365 if 2-level reduction under §3E1.1. Acceptance of Responsibility
262-327 if 3-level reduction under §3E1.1. Acceptance of Responsibility
Do inchoate offenses count for Career Criminal Guideline?
Yes. aiding and abetting, conspiracy and attempt, solicitation
Not, accessory after the fact
What is the Three Strikes Law?
18 USC 3559(c) - NOT IN Guidelines
Mandatory life if instant offense “serious violent felony”, and:
two previous convictions on separate prior occasions for two or more serious felonies
OR one serious violent felony and one serious drug offense
What is the “Criminal Livelihood”?
“engaged in a livelihood” if D derived income from pattern in 12 months amounting to 2000 times the Federal minimum wage and conduct was D’s primary occupation
What’s the sentencing guideline for “Criminal Livelihood”?
Minimum offense level of 13 unless Acceptance of Responsibility applies, then a minimum of 11
4B1.3
Does the “Career Criminal” guideline apply to Repeat Child Sex Offenders?
No. Special provision, 4B1.5
Does acceptance of responsibility apply to Repeat Child Sex Offenders?
Yes.
How are Repeat Child Sex Offenders sentenced?
Greater of:
1. Chapter 2 and 3 adjustments; or
2. Table
Does not include POSSESSION of child porn
Fed: Ch 4 - What is a “pattern of activity” for sexual offense criminal history?
defendant engaged in a pattern of activity involving prohibited sexual conduct if on at least two separate occasions, the defendant engaged in prohibited sexual conduct with a minor.
Note: present offense can be counted as “occasion”
