Thursday, September 01, 2011


Clearwater Criminal Defense Attorneys know that the federal sentencing guideline amendments promulgated by the Sentencing Commission pursuant to the congressional directive in the Fair Sentencing Act can be challenged -- and the aggravators should be challenged. Yet challenging the aggravators is an art which sometimes requires counterintuitive thinking and use of federal case law to produce the best possible result at a Federal Sentencing. 

The new federal guideline aggravators include upward adjustments based on the degree of violence involved in a federal crime, maintaining an establishment, and super role aggravators, which as the name implies is not something that a Defendant wants to have happen at sentencing. 

Clearly America needs to learn about decriminalization of nonviolent drug crimes as in Europe if the true goal of Congress is to provide fair sentences. More needs to be done to allow prisons to use compassionate release to allow sick inmates to serve less time in prison. And long jail terms should be given to mainly to violent criminals only rarely giving long sentences to white collar criminals who could be shamed into good behavior by other means than jail, especially at a time when the crime rate in Tampa Bay is falling as in the entire United States. Yet many prisoners spend the best part of their lives in prison because of the harsh drug laws with minimum mandatory sentences imposed by the Federal Sentencing Guidelines with too little discretion given to our Federal Judges.
Below are excerpts from the Sentencing Resource Counsel explaining how to challenge these aggravating factors:
Deconstructing the New Guideline Enhancements Implemented in Response to the Fair Sentencing Act of 2010
Sentencing Resource Counsel Project July 22, 2011
The Fair Sentencing Act of 2010 increased the quantity thresholds for the five- and ten- year mandatory minimums under 21 U.S.C. §§ 841(b)(1) & 960(b) in crack cases and eliminated the five-year mandatory minimum for simple possession of crack cocaine. See Pub. L. No. 111- 220, §§ 2, 3 (Aug. 23, 2010). The resulting18:1 powder-to-crack ratio reflects political compromise rather than an empirically based policy judgment about the relative harms of crack and powder cocaine. 
The Act improves fairness but cannot be said to “restore fairness” when fairness in federal cocaine sentencing never existed. These ameliorative changes came at a significant price. Congress also directed the Commission to ensure that the guidelines provide penalty increases for a variety of aggravating factors for all drug offenses. See Pub. L. No. 111- 220, §§ 5, 6. It directed an enhancement of at least two levels if the defendant used or threatened violence, id. § 5, bribed a law enforcement officer, id. § 6(1), or maintained an establishment for the manufacture or distribution of drugs, id. § 6(2). It also directed an enhancement of at least two levels for defendants who receive an aggravating role enhancement and who engaged in other specified conduct, id. § 6(3)(A), such as using another person through fear, friendship or affection to engage in illegal conduct, id. § 6(3)(B)(i), or distributing drugs to, or involving, a person under 18, over 64, or pregnant, id. § 6(3)(B)(ii)(I)-(II), or distributing drugs to, or involving, a person unusually vulnerable due to physical or mental condition or particularly susceptible to criminal conduct...
This paper provides a brief overview of why guideline increases promulgated in response to a congressional directive are unlikely to advance the purposes of sentencing. It then demonstrates that the guideline increases promulgated in response to the directives in the FSA do not advance the purposes of sentencing, focusing first on the two new enhancements most likely to impact your cases (use or threatened use of violence and maintaining a drug-involved premises), how
1 See United States v. Williams, __ F. Supp. 2d __, 2011 U.S. Dist. LEXIS 48599, at **53-100 (N.D. Iowa Apr. 7, 2011) (Bennett, J.) (describing in exhaustive detail the historical and legislative backdrop of the 18:1 ratio and the absence of rationale for it); United States v. Shull, __ F. Supp. 2d __, 2011 2559426 (S.D. Ohio June 29, 2011) (excellent review of same and war on drugs)...The Commission amended the guidelines in response to these directives, and ways to argue that the resulting enhancement either does not apply or should not be followed as a matter of policy. When relevant, important language and commentary serving to limit their scope is highlighted.For completeness, the two new provisions for defendants receiving the minimal role adjustment under Chapter 3 are set forth, with important language highlighted.
And as always it's unfortunate but sadly true that the Guideline Enhancements directed by Congress are very unlikely to reflect sound policy judgments in the real world. So it's important to bring to the Court's attention other factors which may be used by the Court to lower a sentence even when in practical terms an enhancement applies.
Unlike the Sentencing Commission, Congress is under no obligation to ensure that its policies meet the purposes of sentencing, to conduct empirical research, or to consult with Judges, Prosecutors nor especially Clearwater Criminal Defense Lawyers. Nor is Congress obliged to ensure that its enactments are consistent with each other, or with the guidelines, or with any overarching theory of how to best achieve the purposes of sentencing. Congress is free to legislate piecemeal in response to a highly publicized case, or in response to lobbying by the Department of Justice or other interest groups seeking sentence increases for purposes other than those set forth in § 3553(a).
The ink had hardly dried on the first set of guidelines when Congress began directing the Commission to take particular actions through what are referred to as “directives,” both general and specific. A general directive instructs the Commission to study a particular issue and report back to Congress or amend the guidelines if the Commission determines it is needed. Specific directives, however, require the Commission to take particular actions. Specific directives, unlike mandatory minimums, are binding on the Commission, and this is so even if they conflict with the goals of the SRA. See United States v. LaBonte, 520 U.S. 751 (1997).