GREAT NEWS FOR CRACK-COCAINE CASES:
FAIR SENTENCING ACT OF 2010 IS PASSED!
PRESIDENT OBAMA SIGNS ACT INTO LAW
Great news for crack-cocaine defendants! On July 28, 2010 the United States House of Representatives passed legislation to significantly reduce the sentencing disparity between crack-cocaine and powder cocaine in federal cases and to repeal the five year mandatory minimum associated with simple possession of crack cocaine. The bill, otherwise known as the Fair Sentencing Act of 2010, S.1789, was already unanimously approved in March by the Senate and submitted on July 28, 2010 to the White House for President Obama’s signature.
FREQUENTLY ASKED QUESTIONS about the federal crack reform bills
1) When will the new law become effective?
A: Once the President signs a bill that has been passed by Congress, the law is in effect. The sentencing guidelines, which are published every year in November, will be modified shortly.
2) How does the law change the prior 100:1 ratio between crack-cocaine and powder cocaine?
A: The Fair Sentencing Act of 2010 changes for the better the prior 100:1 ratio. It also eliminates the current 5 year mandatory minimum for simple possession (without intent to distribute) of crack-cocaine. The new law calls for an 18:1 ratio - an 80% reduction from before.
WHAT HAPPENS NOW?
Now that President Obama has signed the bill into law, the U.S. Sentencing Guidelines will be modified shortly. Once this occurs it will then be determined as to whether or not this amendment will be applied retroactively. This is a major step for this bill, as there are more than 20,000 inmates who are already serving crack-cocaine sentences. NLPA is confident that the amendment will be held to be retroactive. As with the 2007 guideline amendments, which were retroactively applied, it is hard to imagine this new amendment not being made retroactive when considering the significant impact it will have on thousands in the federal Bureau of Prisons.
ACTIVE CASES - If a defendant who has been charged in a crack-cocaine case is still awaiting trial, sentencing or is on appeal or timely post-conviction proceedings, this new law can be of tremendous help! NLPA can assist your counsel in raising this critical issue and any others to help you.
INACTIVE CASES - For who have already been through the trial, plea, sentencing, appeal and/or post-conviction stage or who are otherwise beyond time for the filing of any of these actions, relief may be available through what is known as a §3582 motion.
WARNING: Unfortunately for thousands of defendants, in 2007 when the guidelines were amended and applied retroactively, a system was put in place which involved the Public Defender's Office filing a standard form on behalf of thousands of defendants - many of whom were not even aware of such action being taken. Most of these "forms" were simply denied. It is unclear if the courts will utilize a similar procedure for this new amendment so it is encouraged that if action is to be taken, it be taken to help reduce your sentence immediately to ensure a fully briefed argument is filed (rather than simply a form) to help reduce your sentence.
HOW CAN WE HELP?
For those involved in active cases, NLPA can offer its assistance to counsel at the pretrial, pre-sentencing, appellate and post-conviction stage. NLPA can prepare research and/or pleadings for your attorney to raise all of your issues - including this new law. Please contact us for more information concerning our services, fees and financing options.
For those with inactive cases, NLPA can assist counsel in one of two ways:
1) §3582 Motion.........$2,500.00
2) Evaluation of How New Crack Law Can Help You..........................$1,000.00
NLPA is proud of its winning track record. We have enjoyed success in having the initially proposed 1:1 ratio applied already. Now we stand ready to have our team put to work in defending this matter to ensure that you or your client are fairly considered for this significant reduction. If you or your client are in need of assistance in this matter, please contact NLPA today. After all, the pursuit of justice is a team approach!
CASES OF INTERESTED
Dillon vs. U.S. - Supreme Court of the United States, Case # 09-6338 (formerly United States v. Percy Dillon, 572 F.3d 146 (3rd Cir. 2009))
The Supreme Court is currently in the process of deciding a case that could have a wide ranging effect on any federal defendant serving a sentence for crack cocaine offenses. In 2008, the United States Sentencing Commission amended the United States Sentencing Guidelines, retroactively reducing the base offense level for crack cocaine offenses. This enabled virtually every federal defendant serving a crack cocaine sentence to seek resentencing under 18 U.S.C. § 3582(c)(2). This resulted in a flood of motions under that section of the United States Code by the effected inmates. The amended guidelines provided for a two level reduction in the offense level for most crack cocaine defendants. However, many federal inmates who arguably should have received relief following the guideline amendments did not.
Of course, NLPA worked hard on drafting arguments to help such defendants, even before the retroactive amendment went into effect. NLPA’s arguments sought full resentencings, not just mechanical two-level reductions to the offense levels for all crack cocaine offenders. Due to a lack of desire to conduct so many full resentencing hearings, the federal courts took the blanket position that the retroactive guideline amendments did not require full resentencings, and in many cases defendants that were entitled to the two-level reduction did not have their sentences reduced because they still fell within the same guideline sentencing range they were in prior to the amendment. NLPA continued to make the arguments in the event that the issue was ever resolved by the Supreme Court. That time is here.
Percy Dillon sought resentencing under 18 U.S.C. § 3582(c)(2), and was one of the lucky individuals that actually received a reduced sentence based on the retroactive amendments. However, he also argued that he was entitled to a full resentencing under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and that the District Court erred in failing to recognize its authority to conduct a full resentencing. This is the same argument that NLPA has been assisting attorneys with all across the country for the last two years. The Third Circuit Court of Appeals denied relief, but the United States Supreme Court granted certiorari and is currently in the process of deciding the case. Oral arguments have been held and a final decision should be issued soon. If the Supreme Court rules that full resentencings are required in such cases, and we believe they will, every crack cocaine offender in the federal system will be entitled to a new sentencing hearing where the judge will be free to impose virtually any sentence available under the law. This could obviously result in significant sentence reductions for thousands upon thousands of federal inmates.
The only logical result the court could reach on this matter is that the effected defendants must be given a full resentencing under the new advisory guideline system. It just impossible to successfully argue that the guidelines should be advisory when a district court sentences a defendant initially (as they do it now), but binding when a similar defendant is resentenced. Treating the guidelines as binding was already ruled improper in the Booker decision. Since Booker, we have been confident that the High Court would extend that decision in the appropriate circumstance. It appears that circumstance is here and now. If you are serving time for a crack cocaine offense, even if you already have sought relief under 18 U.S.C. § 3582(c)(2), this decision will effect you in a substantial way.
NLPA will continue to monitor this critical case.
NLPA CONTINUES A TREND OF EXCELLENCE -A RECAP ON OUR SUCCESSFUL CASES
DURING THE SECOND QUARTER OF 2010
During 2010 NLPA continues obtaining successful outcomes for its clients. While obviously no one can guarantee the successful outcome of every case, here is a spotlight of what we were able to accomplish through to our second quarter of this year!
Crabb, C - NLPA assisted counsel for Mr. Crabb with his sentencing. His case was heard in the USDC MD PA (Case No. 4:07-cr-00423-9). His PSI recommended a guideline range of 168-210 months. At sentencing the court imposed 96 months - saving Mr. Crabb almost ten years in prison!
Payne, T - NLPA assited Mr. Payne’s counsel with sentencing research. His case was heard in the USDC ND AL (Case No. 5:09-cr-00050-1). The PSI in his case was requesting mandatory life in prison with the government recommending at least twenty years. However, at sentencing the court imposed an eight year sentence!
Green, M- NLPA assisted counsel for Mr. Green in preparing for his sentencing which was being heard in the USDC ED MI (Case No. 2:09-cr-20143-1). Mr. Green entered into a Rule 11 plea agreement and the PSI requested a sentence of 108-135 months pursuant to that plea. However, at sentencing the court imposed 78 months along with a recommendation for the RDAP program (which would reduce the sentence by another 12 months upon completion) and also designation close to his family. This has saved Mr. Green more than five years in prison and, with credit for time served thus far, he should be home with his family soon!
Estevez-Estevez, F - NLPA assisted Mr. Estevez’s counsel in preparing for his sentencing which was heard in the USDC MD FL - Jacksonville Division (Case No. 3:08-cr-00011-1). Mr. Estevez’s PSI Report listed him in the guideline range of 188-235 months. However, the court instead imposed a sentence of 115 months - saving him TEN YEARS in prison!
Davidson, T - NLPA assisted counsel for Mr. Davidson in drafting research to assist with the sentencing in his case. His case was heard in the USDC of SC - Columbia Division (Case No. 3:08-cr-00885-1). The PSI in the case recommended a sentencing guideline range of 57-71 months. However, the court imposed a sentence of 45 months - saving Mr. Davidson more than two years in prison!
Velazquez, A - NLPA assisted Mr. Velazquez’s counsel in the preparation of his direct appeal in the Appellate Court of Illinois for the Second District (Case No. 2-08-0872) to challenge his life sentence imposed on a murder conviction. Upon receipt of the arguments on appeal, the State’s response brief conceded to the many errors made in the case and the original sentence was declared unconstitutional. Therefore, the case has been remanded for a re-sentencing to be held.
Mirzoyan, A- NLPA assisted Mr. Mirzoyan in the preparation of a transfer request to a halfway house. He was serving time in the Bureau of Prisons on a federal case. We have been advised that the BOP has confirmed that Mr. Mirzoyan will be released to a halfway house in May, 2010.
Sills, J- NLPA assisted Mr. Sills’ counsel in the preparation of a 2255 motion. His case was heard in the USDC SD FL (Case No. 2:04-cr-14033-2). Mr. Sills 2255 motion was denied unfortunately. However, the good news is that the judge gave a favorable decision that could be of use to Mr. Sills on his Certificate of Appealability so that a higher court could review this matter. Mr. Sills request for Certificate of Appealability which was based upon his 2255 arguments was then granted.
Riley, J - NLPA assisted counsel for Mr. Riley with the sentencing in his case. His case was heard in the USDC of South Carolina, Orangeburg Division (Case No. 5:08-cr-00945-4) and involved charges of possession with intent to distribute cocaine, crack-cocaine with forfeiture allegations; use of a communication facility in commission of a felony; and aiding and abetting. The PSI in his case called for a sentencing guideline range of 121-151 months with a mandatory minimum of 10 years. However, at the sentencing, the court imposed a term of confinement of 87 months - saving Mr. Riley more than five years in prison and escaping a mandatory minimum sentence!
Hawkins, R - NLPA assisted the office of James Belt in the preparation of a direct appeal for the case of his client, Mr. Hawkins. The case was heard in the Fifth Circuit Court of Appeals (Case Nos. 09-10057 & 09-10253). Mr. Hawkins was convicted in the Northern District of Texas for charges involving selling defaced firearms. He plead guilty and was sentenced to 60 months. In its opinion, the Court of Appeals vacated the District Court’s judgment and remanded the case for a new trial. (See below for a more detailed outline of this outcome).
Baker, Mark - NLPA assisted attorney George Sallaway in the preparation of sentencing research in the case of his client, Mr. Baker. Mr. Baker’s case was heard in the USDC ND of NY, Syracuse Division (Case No. 5:08-cr-00671-2) and his charges involved conspiracy to distribute cocaine and cocaine-base and selling of same. After entering into a plea of guilty in the case, the PSI was returned requesting a sentence of 51-63 months. However, at sentencing, the court imposed only 27 months - saving Mr. Baker three years in prison!
Solano, B- NLPA assisted counsel for Mr. Solano in the preparation of research designed to attack the PSI recommendation in his case of 188 months. The case was heard in the USDC ND IL (Case No. 1:08-cr-00777-5). At the sentencing hearing the court imposed just 42 months - saving Mr. Solano more than TWELVE YEARS in prison!
CASE SPOTLIGHT:
US v. HAWKINS
All too often, criminal defendants plead guilty - not because they are in fact guilty - but rather because they feel they have no other choice, or because they have been pressured to do so by their attorney. After sentencing, Rule 11(e) provides that a “plea may be set aside only on direct appeal or collateral attack.” Unfortunately, on appeal, individuals often face a further hurdle, as appellate courts generally apply a plain error standard where an appellant seeks relief from a plea, but did not file a motion to withdraw at the district court level. Additionally, plea agreements often contain appeal waivers, by which the government attempts to limit a defendant’s ability to appeal. These same hurdles faced Robert Hawkins. With the assistance of NLPA, working with Attorney James Belt, Mr. Hawkins was able to overcome these hurdles.
In September, 2008, Mr. Hawkins pleaded guilty to possessing a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k), in the Northern District of Texas. The plea was entered pursuant to a written plea agreement, accompanied by a factual resume. The factual resume purported to set forth the essential elements of an offense as the following: (1) That the defendant knowingly possessed a firearm; (2) That the firearm had the importer’s or manufacturer’s serial number removed, obliterated, or altered; and (3) That the firearm, at any time, had been shipped or transported in interstate or foreign commerce. Missing was the essential element that the defendant knew that the firearm’s serial number had been removed, obliterated or altered. See, e.g. United States v. Johnson, 381 F.3d 506, 508 (5th Cir. 2004). This omission was not corrected at the plea hearing, as the court relied upon the deficient statement of the elements in the factual resume.
The district court accepted Mr. Hawkins’ plea, and he was sentenced to 60 months in prison. Mr. Hawkins was dissatisfied with the result, especially when he later realized that, had he gone to trial, the government would have been required to prove that he knew the serial number on the firearm had been obliterated. He could not contest that he possessed a firearm, or that its serial number was missing. However, he certainly would have contested an allegation that he knew the serial number had been removed or obliterated.
In order to correct an injustice, Mr. Hawkins hired NLPA and Attorney James Belt to prepare an appeal to set aside his plea. With research assistance from NLPA, Attorney James Belt filed a brief, asserting the issue regarding Mr. Hawkins’ involuntary plea, as well as certain other arguments. In preparing these arguments, Mr. Belt and NLPA were mindful of the appeal waiver, which allowed for challenges to the voluntariness of the plea, as well as issues based on ineffective assistance of counsel or arithmetic errors at sentencing. With regards to the plea, it was argued that the district court erred in failing to inform Mr. Hawkins of the nature of the charge to which he was pleading guilty, and by failing to ensure that there was an adequate factual basis for the plea, and that the resulting plea was therefore involuntary.
In making these argument, it was established that the errors affected Mr. Hawkins’ substantial rights, as due process requires a guilty plea to be voluntary, and “a guilty plea . . . cannot be truly voluntary if a defendant ‘has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt.'" Marshall v. Lonberger, 459 U.S. 422, 431 (1983) (quoting Henderson v. Morgan, 426 U.S. 637, 645, n. 13 (1976)).
In spite of the provision in the plea agreement that blocked Mr. Hawkins from filing an appeal, the Court of Appeals agreed, finding that the district court erred by (1) failing to make sure Mr. Hawkins understood the nature of the charge; and (2) by accepting his plea when there was no sufficient factual basis regarding a critical element of the offense. The court also agreed that these errors were clear, and that they affected Mr. Hawkins’ substantial rights. Therefore, the court vacated Mr. Hawkins’ conviction and remanded the matter for entry of a new plea. Thus, Mr. Hawkins now has the ability to proceed forward and make informed decisions regarding his legal options.
NLPA has been at the forefront of the effort to correct improper guilty plea proceedings and obtain justice for those who have entered involuntary guilty pleas. The Hawkins case demonstrates how NLPA can assist counsel in the preparation of appeal arguments attacking the validity of guilty pleas, as well as how NLPA can assist individuals in their fight to overcome the hurdles faced by individuals who have regrettably pleaded guilty, and who are further challenged with overcoming appeal waivers.
Clearly, NLPA's research paid off for Robert Hawkins. Due to the combined efforts of NLPA and Attorney Belt, its experience as well as its willingness to consider , justice was served and Mr. Hawkins’ involuntary plea was vacated. This case serves as a valuable reminder that there are multiple ways to attack an improper guilty plea, all of which depend upon a comprehensive and technical reading of the transcripts and other documents related to the plea, as well as an understanding of the applicable law.
Should you or your client find yourself in a similar situation - where a plea was entered involuntarily, NLPA and its experienced team of attorneys stands ready to assist you with the most up to date research to help protect your client's rights. We look forward to another victory!
HOW TO CHALLENGE CHILD PORNOGRAPHY GUIDELINES
As you know, since the enactment of §2G2.2 of the United States Sentencing Guidelines which governs child pornography in 2004, the guideline concerning possession and trafficking of child pornography has been amended eleven times. All of these amendments have resulted in increase in both base offense levels and applicable level of the two offenses involving child pornography. These changes have had the effect of significantly increasing the guideline range applicable to a child pornography offender - even if he has never sexually abused a child. These changes have largely been the consequences of numerous morality arguments raised by specific congressmen but have not been based upon any empirical studies by the Sentencing Commission indicating that such increases were necessary.
Because of these changes, the sentencing guidelines for child pornography possession have increased more than 300%.
In attempting to seek a below-guideline sentence for child pornography offenses, counsel should be aware that there are a number of excellent court decisions that can aid in these arguments.
For example, numerous district courts have concluded that the current version of U.S.S.G. §2G2.2 “diverges significantly from the Sentencing Commission’s typical, empirical approach, “ frequently producing a sentence “greater than necessary to provide just punishment.”(United States v. Hanson, 561 F. Supp. 2d 1004, 1008 (E.D. Wis.2008); United States v. Stern, 2008 U.S. Dist. LEXIS 102802 (N.D. Ohio Dec. 19, 2008).) Several district courts have expressed concern: “The Court is particularly troubled that the Guidelines for sentencing those who possess child pornography ‘have been repeatedly raised despite evidence and recommendations by the [United States Sentencing] Commission to the contrary.’” (Hanson, 561 F. Supp. 2d at 1009). A recent study shows that “[o]ver the last six years, the mean imposed sentence on [child pornography] offenders has increased an average of 11.9 months per calendar year.” (Stabenow, supra, at 2.)
In addition to dramatically increasing the applicable base offense level, the changes in the guidelines have made lamost every enhancement apply to almost every case. These guideline changes, in turn, cause most guideline sentences for defendants convicted of possession of child pornography to approach the statutory maximum. (See United States v. Grober, 595 F. Supp. 2d 382, 384-85 (D.N.J. 2008).) As a result, probation officers frequently recommend sentences of 97 months or more for defendants whose statutory maximum is 10 years, who fall into Criminal History Category I, and who have never sexually exploited a child.
The U.S. Supreme Court recently emphasized that guidelines not supported by empirical data are entitled to less deference than are guidelines that exhibit the Sentencing Commission’s “exercise of its characteristic institutional role” as an expert agency tasked with promulgating empirically based guidelines. (See 28 U.S.C. §§991(b)(1)(C), 994 (describing empirical starting point for promulgation of guidelines and independent development of same); Spears v. United States, 129 S. Ct. 840, 842-43 (2009) (Internal quotation marks omitted).) The child pornography guidelines, like those for crack cocaine, are not based on empirical research and should receive little deference. Several district courts have so held. (Grober, 595 F. Supp. 2d at 392-93; United States v. Phinney, 2009 U.S. Dist. LEXIS 13277 at *23-24 (E.D. Wis. Feb. 20, 2009); United States v. Gellatly, 2009 U.S. Dist. LEXIS 2693 (D. Neb. Jan. 5, 2009).)
NLPA does not support any “slap on the wrist” approach to the sentencing of child pornography defendants. However, we all know that defendants who possess and receive child pornography are a particularly despised group of individuals. However, this lack of popularity which makes them especially vulnerable to receiving unduly harsh sentences does not change the fact that they are entitled to due process and a sentence that is consistent with fairness.
If you have a client who is about to be sentenced in a child pornography case and would like NLPA’s assistance in preparing research concerning downward departure arguments, please contact NLPA. Our attorneys in conjunction with penological and sociological experts can help prepare strong sentencing arguments to help keep your client’s sentence at the lowest level.
INTERESTED IN HIRING NLPA?
Do you have pressing deadlines? - Give us a due date and you can relax. Have a brief due? - Call us for a free preliminary consultation so we can determine a cost estimate. NLPA can provide anything from a research memorandum to a file-ready brief - whichever you may need. If you’re considering hiring someone to assist with your criminal proceedings, NLPA offers realistic fees that may suit you in your pursuit of finding top-notch yet affordable legal research & consulting assistance. We believe you will find our fees to be extremely competitive compared to other legal research firms in the country. We also have several alternative options for paying our fees.
NLPA can accept payment via cashier’s check or money order through the mail.
We also can accept credit/debit card payments over the telephone as well as electronic check (check by phone) payments over the telephone.
For most services provided NLPA also offers payment plans as well. With a minimum down payment you could soon be financing your legal fees.
Therefore, if you are interested in discussing the financing options available to you for your specific matter, please contact us. NLPA assists in virtually every stage of criminal proceedings from pretrial to post-conviction and also assists in immigration matters. For additional information on the services offered by National Legal Professional Associates please contact our offices.
This newsletter is designed to Introduce you to NLPA. As NLPA is not a law firm, professional services are only provided to licensed counsel in all areas that involve the practice of law. NLPA has created this publication to provide you with authoritative and accurate information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. This publication is not meant to be a substitute for legal or other professional advice, which NLPA is not rendering herein.
Copyright © 2010 National Legal Professional Associates
About NLPA
NLPA is a research and consulting firm, owned and staffed by attorneys, and dedicated to the professional mission of providing counsel, research, and related work product to members of the Bar. Our ownership structure includes attorneys licensed to practice before many local, state, and federal courts; however, NLPA is not a law firm and provides no “front line” legal services. On the other hand, we are much more than your typical paralegal service as our work is prepared by attorneys. Our sole purpose is to provide research and consulting assistance by lawyers, for lawyers . . . and their clients. With cutting-edge computer research capabilities, an experienced and top quality staff, and more than the past two decades’ experience, NLPA is well-positioned to provide the types of assistance members of the Bar need. You are important to us and we hope we can commence and maintain a long-term relationship with you. Please know that we are here to assist in all your needs. If you would like to know more about the services we offer, please contact us at:
National Legal Professional Associates
11331 Grooms Road, Suite 1000
Cincinnati, OH 45242
Tel.: (513) 247-0082 * Fax: (513) 247-9580
E-Mail: contactus@nlpa.com * Website: www.NLPA.com
NLPA: WE LISTEN, WE CARE, WE GET RESULTS !
National Legal Professional Associates
11331 Grooms Road, Suite 1000
Cincinnati, OH 45242
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