The resources below are designed to further an understanding of sentencing under particular statutory provisions, sentencing guidelines, or claims for relief. Many of the links provide ideas for how to argue against the application of a particular statutory provision or guideline in a given case. For resources that critically examine the history and basis of the most frequently encountered sentencing guidelines see the Deconstruction section on this page.
- Child Pornography
- Briefs Challenging Application of Mandatory Minimum for Receipt of Child Pornography
This opening brief and reply brief (filed in a pending case in the Third Circuit) argue that (1) where five counts of receiving or transporting child pornography were all the "same offense," for multiplicity and double jeopardy purposes, as a single count of possession of those very same files, the judgment must be vacated and the case remanded for an exercise of discretion whether to vacate the possession count (with no mandatory minimum), or the five other counts (each with a five-year mandatory minimum); and (2) the mandatory minimums were not mandatory because 18 U.S.C. § 3553(a) is the controlling sentencing provision.
- Fast-Track Disparity
- Fast-Track Policies
This document was compiled by the Federal Public Defender's Office for the District of Arizona. The compilation contains written fast-track policies from many districts nationwide. It is bookmarked alphabetically by district.
- Fast-Track Plea Agreements
This document was compiled by the Federal Public Defender's Office for the District of Arizona. The compilation contains plea agreement samples, various forms and waivers from many districts nationwide (defendant names redacted). It is bookmarked alphabetically by district.
- 1/31/12 DOJ Fast-Track Authorization Memo
(extending fast-track programs to all districts in illegal re-entry prosecutions)
- The Truth About Fast Track
- 12/28/09 DOJ Fast-Track Authorization Memo
- 5/29/09 DOJ Fast-Track Authorization Memo
- 2/1/08 DOJ Fast-Track Authorization Memo
- Conditional Waiver of Rights in Districts Without Fast-Track
Practitioners in districts without fast-track may consider using a conditional waiver of rights to support a disparate sentencing argument. The conditional waiver helps prove the client is similarly situated to defendants in fast-track districts in that he is willing to waive the same rights as do fast-track defendants, in exchange for a comparably low sentence.
- Fast-Track Articles and Primary Source Materials
These articles and primary source materials, published in the Fast Track issue of the Federal Sentencing Reporter (Vol. 21, No. 5, June 2009), are useful in arguing that judges have discretion to mitigate fast-track disparities. The above link provides free excerpts of and citations to the articles and source materials; use the citations to locate complete versions through LEXIS.
- United States v. Ramirez, et al. - Petition for Rehearing & Rehearing En Banc
(arguing that the Seventh Circuit's panel decision (1) creates a circuit split and deviates from the Seventh Circuit's own precedent by requiring defendants seeking fast-track disparity reductions to waive certain rights without receiving any benefit in exchange; and (2) creates an additional circuit split by requiring defendants to provide extremely detailed information about all fast-track programs)
- Guidelines Sentencing Generally
- Illegal Re-Entry (See also Fast-Track Disparity links above)
- Challenging the Upward Bumps: The Categorical Approach and Other Sentencing Strategies for Illegal Re-Entry (8 U.S.C. §1326) Cases
by Francisco Morales, Assistant Federal Public Defender, S.D. TX
- Analyzing Presentence Reports and Common Sentencing Issues in Illegal Reentry Cases
by Shari Allison and James Langell, Assistant Federal Public Defenders D. NM
- Crimes of Violence Under §2L1.2
compiled by Kristin M. Connor, Research and Writing Specialist, and Anne Berton, Assistant Federal Public Defender, W.D. TX
- Case List: Sentencing Issues in Reentry Cases
by Shari Allison, Research and Writing Specialist; and James Langell, Assistant Federal Public Defender, D. NM
- Defending Against Sentencing Enhancements in Immigration Cases
by Anne Berton, Assistant Federal Defender, W.D. TX, & Mike Gorman, Staff Attorney, Office of the Federal Defender, W.D. TX.
- Sentencing in Illegal Reentry Cases: Getting the Departures and Variances Your Client Deserves
by Kari Converse, Assistant Federal Public Defender, D. NM
(discussing ways to bring your client’s sentence down from the guideline Offense Severity Level.)
- Video: Sentencing Guideline Issues in Illegal Reentry Cases: Getting the Correct Guideline Calculations and Departures Your Client Deserves
by James Langell, Assistant Federal Public Defender, D. NM
- Predicate Convictions (See also Illegal Re-Entry links above)
- Is That Prior a Violent Felony or a Crime of Violence?: An Analytical Framework for Approaching ACCA (and Career Offender) Predicates
by Denise C. Barrett and Laura Mate, National Sentencing Resource Counsel Project
- Determining "Crimes of Violence" and "Violent Felonies"
by Michael A. Meetze, Assistant Federal Public Defender, D. SC
(Discussing how to determine whether a previous conviction actually qualifies as a crime of violence or violent felony and how to defend against any such erroneous characterization.)
- Video: Determining "Crimes of Violence" & "Violent Felonies"
by Michael A. Meetze, Assistant Federal Public Defender, D. SC
- Video: Defending Against Armed Career Criminal & Career Offender Designations
by Raquel Lazo, Assistant Federal Public Defender, D. NV; Brenda Weksler, Assistant Federal Public Defender, D. NV
- Video: Recidivism, Recidivism, Recidivism: How to Mitigate Your Client's Criminal History
by Jane McClellan, Assistant Federal Defender, D. AZ
- Glorious Goo: The Taylor/Shepard Categorical & Modified Categorical Analyses
by Steven Kalar, Senior Litigator, and Jodi Linker, Assistant Federal Public Defender, N.D. CA
- Potential Uses of Begay & Chambers: Annotated Caselaw Outline
by Anne E. Blanchard & Sara E. Noonan, Sentencing Resource Counsel Project
(discussing caselaw for use in ACCA cases and career offender guideline cases)
- Preserving the Sixth Amendment Claim for Proof of Prior Convictions (February 12, 2008)
In a number of federal prosecutions -- including immigration, firearms, and child pornography cases -- a client's sentence may be increased on the basis of prior convictions. This may violate the Sixth Amendment's jury trial and reasonable doubt requirements. In this article from the Ninth Circuit Blog, Steve Sady (Chief Deputy Federal Public Defender, D. OR) argues that practitioners should continue to make and preserve the Sixth Amendment claim that the fact of a prior conviction must be found by the jury.
- Sentencing Manipulation/Sentencing Entrapment
- Use of Minor Enhancement