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 page. Click on the headings below to access links to documents. Acquitted Conduct Appellant's Supplemental Brief and Cert Petition Raising Sixth Amendment Challenge to the Use of Acquitted Conduct in Sentencing Child Pornography Summary of Some Useful Aspects of the Sentencing Commission's December 2012 Report to Congress on Federal Child Pornography Offenses Summary by Amy Baron-Evans, Sentencing Resource Counsel, of portions of Report cited in defendant's brief in a possession of child pornography case. Sentencing Commission's December 2012 Report to Congress: Federal Child Pornography Offenses 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. SS 3553(a) is the controlling sentencing provision. Controlled Substances Crack Cocaine Sentencing An Offer You Can't Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty This 126-page report by Human Rights Watch details how prosecutors throughout the United States extract guilty pleas from federal drug defendants by charging or threatening to charge them with offenses carrying harsh mandatory sentences and by seeking additional mandatory increases to those sentences. Endangering Human Life & the Environment - A Sentencing Hearing Potential by Gene Gietzen, Forensic Scientist, Forensic Consulting Associates, Springfield, MO (describing usefulness of expert testimony in combating the endangering human life and the environment enhancement in meth lab cases) Sentencing Manipulation/Sentencing Entrapment by Eda Katherine Tinto, Assistant Clinical Professor of Law, Benjamin Cardozo School of Law (This case sheet describes successful sentencing manipulation and sentencing entrapment claims in fake stash house and other drug cases. See also Undercover Policing, Overstated Culpability, by the same author.) Crime Victim Rights Crime Victim Rights Page Fast-Track Fast-Track Polices in Illegal Reentry Cases by District and Circuit This chart by Sentencing Resource Counsel collects information on the fast-track programs for illegal reentry cases -- or lack thereof -- in every district (except Guam and the Northern Marianas) as of December 2013, organized by circuit in order to highlight whether or not variances based on fast-track disparity are allowed in the circuit. 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) Firearms Johnson v. United States: Briefs, Opinions, Orders and Other Materials "Annotated" USSG Sect. 2K2.1 & Commentary by Brent E. Newton, Assistant Federal Public Defender, S.D. TX (providing step-by-step instruction in applying SS 2K2.1, the firearms guideline) First Step Act The First Step Act was signed into law on December 21, 2018. The Act significantly impacts mandatory minimum sentencing for certain offenses, among other things. For example, the Act reduces some of the enhanced minimum mandatory sentences for controlled substance offenses where the government files a notice under 21 U.S.C. Sec. 851. It limits the types of prior drug convictions that qualify as Sec. 851 predicates, and adds to the list of qualifying predicates, some prior violent felony convictions. The Act also makes changes to 18 U.S.C. Sec. 924(c) to eliminate the 25-year consecutive provision unless the defendant has a final prior Sec. 924(c) conviction. In addition, the Act expands the availability of safety-valve (e.g., expand the eligibility for safety valve to defendants with up to four criminal history points, with exclusions) but only if the conviction is entered on or after the date of enactment. Finally, the Act permits defendants sentenced before the Fair Sentencing Act (which reduced the disparity between crack and powder cocaine), to petition for their sentences to be re-evaluated and reduced. Please see below for more information. The First Step Act of 2018 by 115th Congress of the United States of America This 56-page document is the First Step Act. Frequently Asked Questions on the First Step Act, S. 756 (Jan. 3, 2019) by Families Against Mandatory Minimums (FAMM) This outline provides answers to frequently asked questions about the Act, including information about good time and earn time credits. Sentencing Reform Provisions of the First Step Act (Jan. 8, 2019) by Craig Crawford, Attorney Advisor, Defender Services Office Training Division, Washington DC, Amy Baron-Evans, National Sentencing Resource Counsel, Boston, MA, and Jayme L. Feldman, Sentencing Resource Counsel Research/Writing Specialist, Washington, DC This one-page sheet gives an overview of the sentencing reform provisions, showing the provisions Pre-First Step Act and Post-First Step Act and their applicability. Chart for Sections 401-404 of the First Step Act and Preventing and Challenging an Enhanced Sentence Under Section 851 by Amy Baron-Evans, National Sentencing Resource Counsel, Boston, MA A chart covering Sections 401-404 of the First Step Act, and a memo entitled Preventing and Challenging an Enhanced Sentence Under Section 851 are available on the password-protected side of fd.org. These materials are not to be distributed to anyone else including clients, prosecutors, probation officers or courts. If you have questions after reading the First Step Act and reviewing the materials, contact your FPD office, abaronevans@gmail.com, or aamra_ahmad@fd.org. Chart for Earned Time Credits Under the First Step Act by Sentencing Resource Counsel for the Federal Public and Community Defender (updated Nov. 2018) Sentencing Guidelines Criminal History Score Computation Jeff Lazarus, Assistant Federal Public Defender, Federal Public Defender for the Northern District of Ohio, Cleveland, OH Grouping & Relevant Conduct Materials compiled by Cherrelle Herbert, Visiting Attorney Advisor, Sentencing Resource Counsel The Firearms Guidelines Jeff Lazarus, Assistant Federal Public Defender, Federal Public Defender for the Northern District of Ohio, Cleveland, OH Illegal Entry and 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. SS1326) 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 SS2L1.2 (Jan. 2018) compiled by Kristin M. Kimmelman, 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.) Turning Migrants Into Criminals: The Harmful Impact of U.S. Border Prosecutions This 82-page report by Human Rights Watch documents the negative impact of illegal entry and reentry prosecutions. Predicate Convictions (see also Illegal Re-Entry links above) Johnson v. United States: Briefs, Opinions, Orders and Other Materials Career Offender Guideline: Practice Guide to Amendments to "Crime of Violence" Definition in USSG SS 4B1.2(a), Offenses Moved from the Commentary to the Enumerated Offense Clause at USSG SS 4 B1.2, Effective August 1, 2016, Guideline SS 4B1.2 Commentary Offenses by National Sentencing Resource Counsel Crimes of Violence Chart (2015) by Kirk Redmond, First Assistant Federal Public Defender, D. KS The Categorical and Modified Categorical Approach (May 2015) by Norma A. Aguilar, Supervising Attorney, Federal Defenders of San Diego, Inc. California's Proposition 47 (information on the 2014 ballot initiative that retroactively reduces many non-violent felonies to misdemeanors) Chart of Sentence Enhancers and Sentence Reducers (2013) by Jaime Hawk, Assistant Federal Defender, Federal Defenders of Eastern Washington & Idaho This chart has been superseded by Johnson v. United States,135 S.Ct. 2551 (2015), hence the parts covering crimes of violence and violent felonies are no longer accurate. For more updated information on crimes of violence and violent felonies, please see crimes of violence and violent felonies in the specific criminal defense topics or program materials. 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.) Sentencing Manipulation/Sentencing Entrapment Sentencing Manipulation/Sentencing Entrapment by Eda Katherine Tinto, Associate Director of the Lawyering Program (2012-13), Acting Assistant Professor of Lawyering, NYU School of Law (This case sheet describes successful sendrugs mitencing manipulation and sentencing entrapment claims in fake stash house and other drug cases. See also Undercover Policing, Overstated Culpability, by the same author.) Strong Use Of Minor Enhancement But I'm Not Twenty-One Yet: How Section 3B1.4 of the United States Sentencing Guidelines Ignored Congress's Intent to Enhance Sentences Only for Adults at Least Twenty-One-Years of Age Who Corrupt Minors by Using Them to Commit Federal Offenses -- And What Federal District Courts Can Do About It by Tory L. Lucas, Associate Professor of Law, Liberty University School of Law Retroactivity (2014 Amendments to SS 1B1.10) FAQs: 2014 Amendments to USSG SS 1B1.10: Retroactivity of "Drugs Minus 2" (Amendment 782) and Sentence Reductions in Cases Involving Mandatory Minimums and Substantial Assistance (by Denise Barrett and the Federal Defender Retroactivity Task Force on Drugs Minus 2) This FAQ is a general primer on two amendments that the U.S. Sentencing Commission made to USSG SS1B1.10, affecting motions for sentence reductions filed under 18 U.S.C. SS 3582(c)(2). First, the Commission made retroactive amendment 782, which changed the threshold amounts in the drug quantity tables at USSG SS 2D1.1 and 2D1.11. A special limiting instruction accompanies the amendment, delaying the effective date until November 1, 2015. Second, the Commission clarified that the starting point for calculating a reduction comparable to the substantial assistance reduction given at the original sentencing (or Rule 35) is the bottom of the amended guideline range, not the mandatory minimum term of imprisonment. Sample Standing Order of Appointment in Re: Retroactive Application of Amendment 782 USSG SS 1B1.10: Public Safety and Post-Sentencing Conduct (by Sentencing Resource Counsel for the Federal Public and Community Defenders) When ruling on a 3582 motion the court must consider the factors set forth in 18 U.S.C. SS 3553(a) and the "nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant's term of imprisonment." The court may also consider the defendant's post-sentencing conduct. This paper provides tips on investigating these issues and resources that may help show why a reduction in the term of imprisonment for your client does not pose a serious enough danger to any person or the community for the court to deny relief or not give a full reduction.
