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SENTENCING RESOURCE PAGE

Introduction to Federal Sentencing
The Law of Sentencing Post-Booker
Developing Effective Mitigation Arguments
Specific Guideline Sentencing Issues
Important Developments at the United States Sentencing Commission
The Presentence Report
Probation and Supervised Release
Bureau of Prisons
 
INTRODUCTION TO FEDERAL SENTENCING
THE LAW OF SENTENCING POST-BOOKER
This section contains articles explaining federal sentencing law post-Booker, and resources that may be helpful in arguing for a non-guidelines sentence under 18 U.S.C. §3553(a). In addition to the Supreme Court decisions in Rita, Gall and Kimbrough, discussed below, practitioners should be aware of another post-Booker case currently pending before the Supreme Court, Irizarry v. United States (No. 06-7517). Irizarry raises the question of whether a district court must give the parties advance notice if it intends to impose a non-guidelines sentence. In addressing this question, the Court may further define the role of the advisory guidelines in sentencing. Click here for more on Irizarry.

DEVELOPING EFFECTIVE MITIGATION ARGUMENTS
SPECIFIC GUIDELINE SENTENCING ISSUES

Even post-Booker, practitioners must understand how to correctly apply the advisory sentencing guidelines. This section will contain select articles addressing the application of a particular guideline or set of guidelines. For a comprehensive review of the law regarding guideline application issues, see Federal Sentencing Law and Practice (Thomas W. Hutchison, et al. eds., 2007), available at most law libraries and bookstores.

IMPORTANT DEVELOPMENTS AT THE UNITED STATES SENTENCING COMMISSION

2008 Amendments: The USSC has voted to amend a number of sentencing guidelines, commentary and policy statements. Two, which relate to crack cocaine offenses, are effective as of May 1, 2008. The remaining amendments were sent to Congress on May 1, 2008 and, assuming Congressional approval, will take effect on November 1, 2008.

Text of all amendments can be found here. Analysis of the more significant amendments is below.

  • Introduction to Chapter One (effective date: November 1, 2008)
    In this amendment, the Commission characterizes the role of the guidelines, their evolution, and their relevance in light of recent Supreme Court rulings in Booker, Rita, Gall, and Kimbrough. Practitioners should be aware that the Commission’s perception regarding both its role and the import of recent Supreme Court decisions is controversial, and should be prepared to address these concerns when challenging the validity of a guideline provision or the weight that should be afforded to guideline sentencing recommendations. Click here for an in-depth discussion of this amendment and defense concerns.

  • Immigration Guideline (USSG §2L1.2) (effective date: November 1, 2008)
    This amendment alters the definitions of “crime of violence” and “drug-trafficking offense” as used in §2L1.2. The amended definition of crimes of violence added an explanatory parenthetical to the definition of forcible sex offenses which reads “including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced.” The amendment adds to the definition of drug-trafficking an "offer to sell." Both changes contradict some circuit case law. This amendment also includes a departure provision for situations where the guideline offense level overstates or understates the seriousness of the enhancing prior conviction. Practitioners should note how this amendment will increase advisory guideline sentencing ranges for certain clients starting November 1, and should also look for appropriate cases in which to raise the downward departure provision even prior to November 1.

  • Disaster Fraud (amending USSG §2B1.1) (effective date: November 1, 2008)
    This amendment is a repromulgation of the temporary, emergency amendment that became effective on February 6. The amendment makes several changes to §2B1.1 as it relates to fraud offenses involving disaster relief or emergency benefits, and adds a downward departure provision where a defendant is also a victim of a major disaster or emergency. Practitioners should look for appropriate cases in which to raise the downward departure provision prior to November 1. Click here for an in-depth analysis of this amendment.

  • New Crack-Marijuana Equivalency Table (commentary to USSG §2D1.1 and §1B1.10) (effective date: May 1, 2008)
    The amendment to §2D1.1's commentary remedies a major portion of the mathematical anomalies created by Amendment 706. Specifically, it proposes a change to the drug equivalency table to provide (as it did prior to Amendment 706) that 1 gram of crack cocaine is equal to 20 kilograms of marijuana, and then calls for a two-level decrease in the resulting offense level. The corresponding amendment to §1B1.10 proposes that this change be retroactive. Practitioners should note that this amendment does not resolve the within-range anomalies and the differing ratios between crack and powder cocaine in the drug quantity table. Click here for more on the mathematical anomalies.

  • Other Proposed Guideline Amendments (effective date: November 1, 2008)
    The Commission proposed five amendments in addition to the five discussed above:
    • It voted to reference offenses under the new 18 U.S.C. § 227 (part of the Honest Leadership and Open Government Act of 2007) to §2C1.1.
    • It implemented the Animal Fighting Prohibition Enforcement Act of 2007 (which creates a new offense and increases penalties for existing offenses) by creating an additional offense level and setting forth a new ground for upward departure in §2E3.1.
    • It implemented the Court Security Improvement Act (which creates two new offenses) by adding enhancement provisions to §2A6.1 and §2H3.1. It also adds upward departure and cross-reference provisions to §2A6.1, and cross-reference and definitional instructions to §2H3.1.
    • It created in §2N2.1 an enhancement applicable when a defendant has a prior conviction for an offense under either the Federal Food, Drug, and Cosmetic Act or the Prescription Drug Marketing Act. It also amended this guideline provision to recommend an upward departure where the offense “created a substantial risk of bodily injury or death.”
    • It proposed a number of technical corrections to various guidelines.

Defender Recommendations to Sentencing Commission: The Federal Defender community frequently submits written comments to the USSC on a variety of matters, including proposed amendments to the guidelines. These submissions, which may provide ideas for challenging guideline sentences, can be accessed on our Defender Recommendations to Sentencing Commission page.

THE PRESENTENCE REPORT
  • The Presentence Investigation Report
    Publication 107 of the Office of Probation and Pretrial Services (March 2006)
    (a guide for U.S. probation officers in the preparation of presentence reports)
PROBATION/SUPERVISED RELEASE

Occasionally counsel may represent a client who receives a sentence of probation. More often, clients will be sentenced to a term of imprisonment which will be followed by a term of supervised release. Supervised release is similar to probation in that it involves supervision by a federal probation officer, and requires adherence to conditions set by the court at the original sentencing hearing. Whether the client faces the prospect of a sentence to probation, or a sentence of imprisonment to be followed by a term of supervised release, counsel should be familiar with the law and mechanics of these modes of supervision so that, among other things, counsel may argue for appropriate conditions, advise the client of the ramifications of violating those conditions, and prepare the client for the rigors of federal supervision.

Further, from time to time counsel may be appointed to represent a client who has allegedly violated the conditions of probation or supervised release, and thus faces the potential consequences of revocation and incarceration. Effective advocacy in a revocation case includes an understanding of the process due a client in a revocation proceeding, a familiarity with the applicable statutes and sentencing guidelines, and, if a violation is conceded or proved, the thorough preparation and presentation of mitigating evidence.

Please visit our Probation/Supervised Release page for further information.

BUREAU OF PRISONS
Actions taken or advised by counsel throughout the course of a pending case may influence decisions made by the Bureau of Prisons if and when the client is incarcerated. For example, information disclosed during the presentence interview may be pertinent to the BOP’s decision to classify a client at a particular security level, designate the client to a particular institution, or determine whether the client is eligible to participate in certain beneficial programs. Moreover, a client may encounter issues while serving a sentence within the BOP which requires counsel’s involvement owing to counsel’s ongoing ethical duty to protect a client’s interests. Please visit our Bureau of Prisons page for information which may help you navigate through these and other issues.

Office of Defender Services/Training Branch, Administrative Office of the United States Courts * One Columbus Circle, N.E. * Suite G-430 * Washington, DC 20544 Phone (202) 502-2900 * Hotline (800) 788-9908 * Fax (202) 502-2911