January 14, 2005
Report your Booker stories here
I have received a very thoughtful request to start a "post with the goal of collecting 'Booker stories' from the district courts around the country via the comments." As the request stated, "having a single place for that information could make it easier to get a handle on exactly what is going on 'on the ground' in the wake of Booker."
So, this post is for Booker stories. The requestor got things started by reporting on two sentencings in his building in the Southern District of West Virginia today by two different judges. Here's the report:
Both were low offense level cases, but both judges mentioned Booker in one way or another. In the first case, the defendant's offense level came in at 12 (marijuana conspiracy charge). The defendant spent 4.5 months in custody following her arrest and has since been on bond and going through drug rehab. The judge noted that the Guidelines were now advisory, but proceeded to impose a Guideline-sanctioned sentence of 10 months imprisonment, 4.5 already served and 5.5 on home confinement, and 3 years of supervised release.
In the second case, the defendant also came in at an offense level of 12 (theft charge). The defendant is 81 years old and very ill. After noting the advisory nature of the Guidelines, which would have required some time "in custody," the judge imposed a sentence of a 10-month term of home confinement as a condition of that probation. The judge used his new-found power under Booker to avoid the requriements of Zone C of the Sentencing Table that would have required at least 5 months of actual incarceration.
So it appears that, in the SDWV at least, the "advisory" nature of the Guidelines may provide some relief, although there have been no hearings with seriously contested enhancements or relevant conduct yet, to my knowledge. No word from Judge Goodwin yet, either.
January 14, 2005 at 05:59 PM | Permalink
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I am a student and a follower of Blakely, Booker, and Fanfan.
I have been reading updates, but have not been able to find how Blakely, Booker, or Fanfan would apply to someone who has been sentenced according to the following:
Plea Agreement did not mention a two-point gun enhancement, but the PSI did, which raised the sentence by two points, and possibly four points since the safety valve could not be applied because of the gun enhancement.
The defendant received a 5K (downward departure).
Could the 5K be taken away from the defendant if he asks for resentencing under Blakely, Booker, or Fanfan?
Could the judge resentence the defendant to a higher range if the case is brought back to ask for the four point reduction he should have gotten?
Anyone out ther with answers please Advise by email.
Posted by: Becky Shore | Jan 14, 2005 8:23:12 PM
Just quickly, there are some circumstances where you can receive a two-level enhancement for a gun and qualify for safety valve. As to your Booker question, from looking at Justice Breyer's directions for remand on Booker, it looks like a person, upon remand, could face resentencing under the Code. There is an argument I and others have been examining that involves the Due Process Clause that may prevent such an outcome in limited circumstances. See Bouie v. City of Columbia, 378 U.S. 347 (1964).
Posted by: doug | Jan 14, 2005 10:18:54 PM
This is a link to The Advocate newspaper in Baton Rouge, LA. It not only discusses how the judges in the middle district here are responding to Booker, but also a case that is before the 5th circuit.
Posted by: April | Jan 14, 2005 10:34:38 PM
The most interesting statement in the above mentioned article comes from Judge Brady, who says "But of one thing I am certain, and that is that I'm not bound by the guideline ranges."
This statement did not surprise me at all, as Brady is one of our "good" judges, but the statements from Judge Polozola that defense arguments will be more important now and that "I'm going to listen a lot more closely" is almost shocking. Judge Polozola is the king of upward departures. I can think of several cases where he declined to accept the agreement betweeen the prosecution and defense, and upward departed several years.
Posted by: April | Jan 15, 2005 10:55:37 AM
RETROACTIVITY- WHAT TO DO!
I need some advise. I am helping a friend who is in federal prison, sentenced in 2000, for drug possession and sale. His sentence was enhanced by relevant conduct – 14 years. He argued Apprendi on direct appeal- to no avail. He filed his habe, ineffective assistance of counsel, and lost. Now with nothing else left, what to do? I’m starting my research. Any suggestions? I have been looking at recalling the mandate. Can that be used? Any help would be appreciated.
Posted by: jimmy | Jan 15, 2005 2:58:48 PM
Fraud Case-Need clarity after Booker
I have plead to one count of conspiracy to commit wire fraud. The plea agreement did not stiplulate to the amount of the fraud and I did not plead to any amount. My counsel at the time said that the Judge would consider the loss issue during the sentencing hearing. I have always maintained that there was no intended loss on my part. Now, to the question.. will the Judge have to sentnce me to the base level for conspiracy to commit wire fraud (level 6) since the amount of the loss was never presented to a jury or admitted by the defendant or will the Judge be allowed to fact findings presented by the prosecution and the defense and determined by a preponderance of the evidense under the guidelines?
Posted by: Anthony | Jan 15, 2005 5:19:07 PM
My brother was sentenced in 2002 and received 85 months in Federal prison for being involved in a car ring. His base offense was 4 points, his criminal history was 6 points, but he received 24 points in enhancements because the judge estimated that in his lifetime he stole 200 high end cars. Should he file for resentencing?
Posted by: Lisa | Jan 15, 2005 8:54:08 PM
Before your question can be answered, several issues must be addressed. First, did you sign a Blakely waiver? Did the PSI indicate a loss amount and recommend an upward departure? Did you object to the PSI? Did you waive trial by jury in your plea? While each of the foregoing may have substantive impact on your sentence, the question ultimately will be, I my humble opinion, whether the sentencing judge follows Booker and either impanels a jury or sentences you without consideration of the facts not proven BRD (Booker was remanded for this purpose). Remember Booker stands for 6th Amendment rights and that the Judge is not bound by the guidelines. If you signed a Blakely waiver or failed to object to the PSI enhancements, the Government will claim that the sentencing court may consider the Guideline range with the enhancements even though the facts were not proven BRD.
Posted by: Bob | Jan 16, 2005 5:48:05 AM
I did not sign a Blakely waiver, Blakely had not yet been decided and I did not waive any rights to a trial by a jury. The PSI recommended upward departures based on the total loss amount estimted for the conspiracy which involved many parties. The indictment was very broad and stated that 10M had been lost but was not specific as to which defendant created the loss nor did it identify any victims. My plea was very specfic and during the colloquy at the plea hearing I only admitted to very specfic facts none of which pertained to the loss issue. Only that certain misrepresentations had been made. I objected to the PSI report in it's entirety, addressing each issue, made my Blakely objections and disputed that any loss was attributable to me.I specifically stated on the record "I did not steal any money if that is your question" when pressed by the Judge.
Posted by: Anthony | Jan 16, 2005 10:21:48 AM
Based on the facts you presented, one thing is for certain, the sentencing court is not required to follow the guidelines. Furthermore, based on the remand in Booker, I would argue that the sentencing court in consulting the guidelines, if he so choses, can only rely on relevant conduct, including amount of loss, determined by a jury BRD, or admitted to by you. In light of the fact that you did not waive a jury trial, which is a bit unusual in any pre-Blakely plea (you may want to consult the Plea hearing transcript closely) you can at least claim that you are entitled to a jury determination of all facts still in dispute before sentencing. However, if the sentencing judge decides to consult the guidelines but not enhance for unresolved facts, as the Court did recently in a SD of Florida case (pre-Booker) you could obtain a sentencing windfall. On the otherhand, the Court can sentence you within the statutory range so long as the sentence complies with the Breyer remedy in Booker.
Posted by: Bob | Jan 16, 2005 11:01:31 AM
A closer read of the Plea Hearing transcript finds this quote from the Judge " you understand if you plead guilty, there will be no trial; I will sentence you based on this plea just as though you'd been found guilty by a jury?" So how does this effect me at sentencing?
Posted by: Anthony | Jan 16, 2005 1:05:49 PM
I also am interested in what "jimmy" wrote on Jan.15,05. I don't see any answers to that question on this site.
Posted by: tommi | Jan 16, 2005 5:24:33 PM
It's me again.
I posted a comment a couple of days ago, but I feel I might have inadvertently ommitted some valuable information regarding the case in question.
Here are the facts in their entirety.
The defendant was sentenced in 2001.
The Plea agreement's sentencing guideline recommendations specifically spelled out the defendant was to receive a 34 Base Level Offense, with a three-point reduction for acceptance of responsibility. The Plea also cited 2K2.1 (a) (5) and 3d1 and 5G1.2, which I assume means the gun charges were grouped and would not result in additional points in the Base Level Offense. Therefore, the Plea Agreement resulted in a total of a 31 Base Level.
The defendant's PSI cited the Base Level of 34 (2D1.1), a three-point reduction for Acceptance of Responsibility, AND A TWO-POINT ENHANCEMENT FOR A GUN per 2D1.1 (b) (1). Therefore, the PSI resulted in a total of 33 for the offense.
The defendant also received a 5K (downward departure), which resulted in a sentence of 67 months (which would be the bottom of the range for a 33 offense level).
The sentence was based on the PSI two-point enhancement for the gun, which also resulted in the defendant being ineligible for a year off for attending "drug school", and ineligible for a two-point reduction of the safety valve.
Although the Plea agreement does not mention the gun enhancement or the fact the defendant would not receive the safety valve reduction of two points, the Plea Agreement was accompanied by a signed letter from the federal prosecutor that said "there will be no ehancement for the gun" and "the defendant may be eligible for a two-point reduction for safety valbe consideration."
The defendant is considering requesting resentencing to ask for the removal of the two-point gun enhancement and receipt of the two-point safety valve reduction. This would result in his Base Level Offence being 29 and a reduction of approximately 23 months from his original sentence.
However, the defendant is concerned the 5K he received could be taken away if he goes back for resentencing.
Can a 5K motion be taken away from a defendant if he goes back for resentencing?
Can extra time be added onto the original sentence as a result of requesting resentencing?
Given the information above, do you believe the defendant has a chance in sentence reduction since the judge used specific characteristics from the PSI (gun ehancement) that was not admited to in the Plea Agreement?
Posted by: Becky | Jan 16, 2005 5:51:41 PM
My husband was arrested in June of 2003 in a multiple drug conspiracy charge. The charge states:"conspiracy to possess with the intent to distribute more than 5 kilograms of cocaine, a Schedule II controlled substance." So my concern is: He went to a jury trial with 4 other defendants, some are still on the run and others have pled guilty. He was convicted at trial and awaited to be sentenced. His lawyer put in lots of motions, including Blakely motions and such forth. The trial judge sentenced him to life in prison. Let me back track a little, at trial they played 2 telephone conversations, and I must mention they did not get a voice analysis so they do not know if it is my husband talking or not. The phone numbers did not come back registered to my husband. Anyways, they only took the single person who testified against him's word that it was my husband on the phone. So because of what the whitness said regarding the phone calls, he said that the conversations were about crack maybe. But the indictment is for cocaine. They senetenced him with the guilty verdict on 2 kilograms of crack cocaine and enhanced his sentence due to priors etc. So my question is how could that judge have possibly sentence him especially with the Blakely still up in the air? And how can they charge him and sentence him to 2 kilograms of crack cocaine when they indicted him with 5 kilograms or more of cocaine?
Posted by: Tiffany | Jan 16, 2005 7:43:49 PM
The "crime" was invented by the US Justice Dept. They have tried to ruin 7 mens lives. The attack began several years ago and has been going on till the present. The case was tried with 3 defendants out of the 7 that were indicted. One defendant acquitted, one hung, and one that did not have an attorney was found guilty of 4 of the 8 counts. His base level is 6, and after all the made up enhancements he is at a level 34. This is a great time difference of incarceration. 6=0-6months, 34=20years plus! So now we wait till sentencing. The judge has kept the defendant in jail since june 17,2004 he is a "flight risk". So he waits till March 4th, 2005 9am for his sentence to be told. With the no enchancements law unless proven to a jury or a defendant admitted it, wouldn't this judge have to let him go with time served? It is a terrible thing what man is permitted to do to "win" his case. No lie will enter the Kingdom of Heaven. Any thoughts on this will help. Thanks
Posted by: tommi | Jan 17, 2005 10:38:09 AM
My brother plead guilty to conspiracy to commit fraud and the loss amount was not admitted to in the plea agreement. However, the plea agreement stated that he must serve 60 months unless his sentencing guideline range comes in lower than 60 months in which case he must serve the high end of the applicable guideline range. Since the court accepted this plea agreement isn't it binding on the court to sentencing him by his guideline range if they come in lower than 60 months? However, since the court must impose this sentence pursuant to the plea agreement that makes the guidelines mandatory in his case thus giving rise to Blakely arguments on any enhancements. It seems to me on the surface that the maximum sentence that the court can impose is the lower of the high end of his guideline range or 60 months. Thus making it a violation of his 6th amendment right to have any facts considered other than those admitted to in the plea agreement. What is your view on this.
Posted by: D. Andre | Jan 17, 2005 4:29:49 PM
My son was found not guilty of a home invasion but was found guilty of witness tampering. The charge was 10 to 16 months under the guidelines but the judge enhanced his sentence to 48 months. He started serving his sentence on June 30, 2003. In light of the Booker decision is there any way that he can get out of prison because he has served 18 months now? He already had his appeal and lost. His lawyer did object to the enhancement at sentencing and again at the appeal.
Posted by: Fran | Jan 17, 2005 6:20:05 PM
In my previous posting, I wrote: My brother was sentenced in 2002 and received 85 months in Federal prison for being involved in a car ring. His base offense was 4 points, his criminal history was 6 points, but he received 24 points in enhancements because the judge estimated that in his lifetime he stole 200 high end cars. Should he file for resentencing?
I am a paralegal and have been following Booker, Fanfan and Blakely. I am confused (as everyone is) is if he should file an appeal. Thanks
Posted by: Lisa | Jan 18, 2005 12:21:43 AM
Post-Booker sentencing story: Client was convicted in jury trial of drug conspiracy (meth), 200-350 grams. Judge granted departure motion based on criminal history departing from 110 months to 97 months, minimum guideline range. Judge strongly objected to going down to statutory minimum and said we didn't give him good enough reasons. We put everything on the record and pounded on "parsimony". It might have helped us get the departure but beyond that, it just got a lot of resistance from the judge to go lower at sentencing.
Posted by: Jeremy M. | Jan 18, 2005 3:56:30 PM
Just to clarify, the departure in the above post-Booker sentencing was for overrepresentation of criminal history under 4A1.3 of the USSG. The judge said that we as a defense bar need to come up with some pretty strong answers to why a judge should sentence to the statutory minimum instead of guideline range if statutory minimum is lower than guideline range other than "Booker gives me the power". I pointed him to 18 USC 3553a and any other departure-based or other reasons I could come up with, including the unconstitutionality of the Guidelines (the merits majority). Federal judges are apparently e-mailing each other A LOT about Booker and I think they are not sure exactly how to stop the Guidelines from "bleeding to death" or what the heck to do with Booker and this newly-found uncomfortable amount of power they have.
Posted by: Jeremy M. | Jan 18, 2005 9:29:22 PM
One more post about the case above: it was a Nebraska case; trial Judge was Judge Kopf/8th Circuit.
Posted by: Jeremy M. | Jan 18, 2005 9:30:54 PM
My husband was sentenced in February 2005 for a conspiracy of trafficking cocaine and had agreed to plead guilty to a charge that would have kept him in jail for 21-26 months. (Federal) The night before sentencing we get a call that the DA wants to add a gun enhancement. This came as a surprise seeing that the gun was a legally owned beretta that was in a locked case in our bedroom closet. The gun has not been fired in about 8 years and I had never even seen it. But because there were drugs in the house, the charge was added. My husband's sentence doubled to 41 months. I have been told that I should use the basis of proximity to the drugs. They were as far away as you can get away from each other. Is this a good argument? Do you have any suggestions for the argument when the appeal finally rolls around?
(The appeal is only for the enhancement)
P.S. The DEA agent had testified that there was no evdience that a gun was ever present and the prosecutor had suggested in light of the testimony that it not be added and the judge overruled him and added it.
To be perfectly honest I'm at a loss. I have seen the ugly side of the court system and the carelessness of these attorneys. My children miss their father and I miss my husband. I know that he made a mistake but why the severity in drug charges? It's sickening.
Posted by: Lynn M. | Aug 1, 2005 10:44:09 PM
Hello. Please help me find the motion that can get a good man a reduced prison sentence under the Booker guidelines due Jan. 12 2006. I am a student at Rollins College and he has helped me alot in my life. I am trying to return the favor to him. Does anyone have a copy of the motion or know where to find it? Please email email@example.com
Thank you and G-d bless.
Posted by: Alexis Samaniego | Jan 11, 2006 11:12:34 AM
I have been studying the Federal Courts & sentencing guidelines for a few years due to knowing a couple of people who have been to trial and sentenced. My question is: When the government files an appeal due to sentencing (wasn't content with amount of time given) and the Judge gives an Alternative Amended Judgement, what exactly does this mean?
Posted by: Cindy | Jan 15, 2007 3:43:55 PM
I am concerned highley about how the federal gov. can take a human being's life and turn it inside out with no remorse....how is it that a person can get nearley 17 years of there life taken just because three people decide that they dont like him/her and so all that they got to do is tell officials a persons name along with saying they heard or seen them in a illegal situation, and BOOM....there goes a body's life up the creek without a paddle. they say its 9/11 laws ("which in my opinion gives the gov. way to much athority...")is what constitutes this new screwed up way of sentancing on conspiracy/meth charges. What I am confussed about is,I have friends along with myself who have been in prison or jail for meth charges and some of us have been "made" as far as learning a lesson. WHATS PATHETIC THOUGH...IS WE FEAR HAVING A SOCIAL LIFE WE FEAR LIVING A NORMAL LIFE BECAUSE IF SOMEONE DOES HAVE HARD FEELINGS TWARD US WE ARE SCREWED. People let me assure you the government is out of controll. I have a very close dear freind who was just put back in federal prison for 16.6 years for a trumped up rediculious charge called "CONSPEIRACY BY HERESAY" No evidence needed only someone who dont like you who cant do the time for there crime to say your name. My freind was a state prisioner who was a little on the wild side as we all have been in our day. he was on paroll with the stat seeing a parole officer 2 times a month passing his drug tests holding down a respectable job and staying out of trouble,spending time (when allowed by his ex ol'LADY) WITH HIS BEAUTIFUL BABY GIRL, Then one day out of nowhere the feds come running in on him and take that babies daddy away for 16.6 years ,she wont even know him throughout her childhood and why because a thing "discised as a human being "thought he was still into drugs and was just telling her he didnt fool with it anymore to keep from letting her have any" got mad and told police he was manufacturing. they needed no mor they went on the girls word who is already in trouble for meth who is a known user facing time, and went to my freinds home ,disrupted his home found nothing to back the girls story ,yet because my freind was a "recovering"meth offender he automatically is guilty. I myself wont even go home to live where i grew up I am afraid to go home this is really a strange and uncalled for way to feel but the government has caused alot of the american people to feel this way the authorities are supposed to be there to protect and serve but now they are the ones we need protected from.my freind hasnt got alot of money so therefore i guess he is stuck. I mean isnt that really what is going on. the government wants nothing but your money. well now there must be something more they want. the prisions are so overcrouded that inmates sleep almost stacked ontop of one another,on the floor not enough blankets to give one to everyone not enough food to satisfy there hunger not enough sox to keep therre feet warm,yet they keep throwing people in on charges that make no sence while there are rapists, murders, child molesters,wife beaters, and what about mental abusers thats never even a thing you ever hear of the police helping with. I mean where is the real justice in our so called governent anyway?
Posted by: tammy lafever | Feb 10, 2007 9:52:47 PM
I have a friend who signed a plea agreement, and in pre sentencing the prosecutor agreed on an undisclosed amount of cocaine against him. Then when he got is PSI back they want to charge him with a kilogram of cocaine which calls for a level 26 charge instead of the previous which was a level 14 can his attorney file a motion for the booker law. And can the booker law lower is sentence.
Posted by: lisa | Mar 21, 2007 11:35:14 PM
Hi, my brother just got sentenced today, Februrary 28, 2008, to 2nd degree murder (15 years to life). The judge strike a year for the knife and my brother was give 584 days credit in county jai. What does it mean to have a 15 year to life sentence? & what about parole? I am a paralegal but in Immigration. Thanks for your anticipated cooperation in this matter.
Posted by: maria | Feb 28, 2008 7:14:21 PM
I have a friend who was just arrested for conspiracy to possess concaine and he is facing indictment by a federal grand jury. A guy who was previously caught by the DEA with an enormous amount of cocaine and who is now an informant for the feds called him to a disclosed location to set him (my friend) up. Wouldn"t this be considered a form of entrapment?
Posted by: Michelle | Apr 1, 2008 11:00:04 AM
Posted by: | Oct 14, 2008 6:53:04 AM
I NEED SOME ADVICE ON HELPING MY BOYFRIEND, HE IS A FIRST TIME OFFENDER AND HAS NO OTHER CRIMES ON HIS RECORD, HE ENTERED A PLEA AND HIS LAWYER KEPT TELLING HIM THINGS THAT WAS NOT TRUE WITH HIS CASE NOW HE IS IN A FEDERAL CORRECTIONAL INSTITUTION, THE JUDGE WANTS HIM TO TAKE THE DRUG PROGRAM THAT IS TO GRANT A YEAR OFF AFTER HE COMPLETES THE PROGRAM, THEY TELL HIM HE CAN'T TAKE THE DRUG PROGRAM BECAUSE HE HAS A GUN ENHANCEMENT WHICH WAS IN HIS POSSESSION, NOW HE IS STUCK IN BETWEEN NOT KNOWING WHAT HE NEEDS TO DO. CAN ANY ONE EXPLAIN TO ME HOW WE CAN GET THE GUN ENHANCEMENT AMENDED SO HE CAN TAKE THE DRUG PROGRAM, AND IS THERE ANY ADVICE YOU CAN GIVE ON HOW HIS LAWYER TREATED HIM I SEEN FOR MYSELF THAT HE DID NOT HAVE GET A FAIR TRIAL, HIS LAWYER DID NOTHING TO SUPPORT HIM, HE NEVER CAME TO SEE HIM OR EVEN HELPED HIM TO UNDERSTAND HIS PSI, AND THE WORST PART ABOUT IT ALL THE MAIN TRIAL FOR HIS SENTENCING HEARING HIS LAWYER NEVER SHOWED UP HE SENT SOMEONE THAT DID NOT EVEN KNOW ABOUT HIS CASE. PLEASE HELP ME IN GOING IN THE RIGHT DIRECTION FOR HELPING HIM I AM ALL HE HAS FOR SUPPORT. THANKS SO MUCH BILLIE JO
Posted by: BILLIE JO | Nov 4, 2008 2:23:40 PM