Federal Sentencing Help

The U.S. Sentencing Commission modifies a 2006 guideline, U.S.S.G. Section 1B1.13, Reduction in Term of Imprisonment as a Result of Motion by Director of Buereau of Prisons (Policy Statement) by providing examples of extraordinary and compelling reasons. http://www.ussc.gov/2007guid/may2007rf.pdf 

The guideline implements Title 28 U.S.C. Section 994(t),  a section of the law that allows the Sentencing Commission, under general policy, to provide a means to reduce a sentence of an inmate, upon motion of the Director of the Bureau of Prisons under Title 18 U.S.C. Section 3582(c)(1)(A).   The court may reduce a term of imprionsment, if after considering the factors set forth in 18 U.S.C. Section 3553(a) the court determines that either 1) extraordinary and compelling reasons warrant the reduction, or 2) the inmate is at least 70 years old and has served at least 30 years in prison; AND the inmate is not a danger to the safety of any other person or the community and the reduction is consistent with the policy statement.

Keep posted for more particulars on what is compelling and extraordinary!

The U. S. Sentencing Commission reduced the crack cocaine guideline by two levels and ruled it retroactive.  Now 5 grams of cocaine base are assigned a base offense level of 24 (51-63 months at Criminal History Category I - which takes into account the 5 yr. MM statutory sentence.)  A U.S.S.G. base offense level score of 30 is assigned to an offense with 50 grams of cocaine base.  The Sentencing Commission’s prison impact model predicts that this change in the advisory guideline will affect 69.7% of the crack cocaine offenses sentenced under Section 2D1.1 and will result in an average decrease of  15months.  All those sentenced under the minimum mandatory statue will not be affected by this change.  The best way to determine this on an individual basis is to go back and read the Judgement and Commitment Order.  http://www.ussc.gov/PRESS/rel121107.htm

Strength training really does work!   Federal  criminal defense practitioners who have been bold enough to demand  Booker  (U.S. v. Booker, 543 U.S. 220 (2005)) sentencing recommendations under advisory guidelines for the past 2+ years, are getting some new enhanced muscle power at sentencing with the Supreme Court’s  Gall v. U.S. opinion.  Under  Gall,  and within the context of 18 U.S.C. 3553 ( a), the district courts should witness a substantial growth of mitigation strategies brought forth by the criminal defense practitioners on behalf of criminal defendants.  United States District Court Judges no longer have to be concerned with their decisions being overturned for “substantive reasonableness”.  The standard for review of sentences under the highly deferential standard adopted by the Court in Gall will result in more constitutional sentences.  

Nothing has changed for those tireless criminal defense professionals, like me, who have creatively worked with and around the U.S. Sentencing Guidelines since their birth 20 years ago.  Perhaps now however, more criminal defense attorneys will utilize the services of federal sentencing and mitigation experts who can prepare well written, case referenced briefs that offer district courts more sentencing options.  Sentencing briefs are the only way district courts can consider all the factors in mitigation prior to sentencing.   Along with the Kimbrough opinion, almost every defendant will now benefit from a defense filed mitigation brief.

In addition, Gall makes it possible to bring back ‘bargaining’ in the plea process.  Imagine if the defense bar was wholly prepared and briefed regarding all the mitigation present in the defendant’s case PRIOR TO PLEA NEGOTION!  In many cases it would mean more informed and better bargaining power for the defense.   There is more to sentencing strategy than cooperation.  Advising attorneys on circuit approved departures and downward adjustments is both valuable and necessary in obtaining the best plea for criminal defendants.  

Here is a pdf of the ruling.  Gall v U.S. Opinion.