Friday, April 25, 2014


As Congress and the Federal Sentencing Commission have not yet officially acted on the Attorney General's recent request to reduce nonviolent federal drug criminal sentences by two levels, its important to know which Federal Judges are granting a variance with the expectation that the Federal Sentencing Guidelines will be changed soon.

The following is a list which should prove useful to criminal defense lawyers practicing in the Middle District of Florida. Each case can be assessed for further information in the Federal ECM filing system to determine what each of the Federal sentencing judges in each case may have required from defense counsel to make favorable ruling for a two level sentencing reduction. Cases where courts have granted two-level variance based on pending change in drug guidelines USSG § 2D1.1:

1. Federal Cases in Tampa

United States v. Bishop, Case No. 8:13-CR-387-T-30AEP (M.D. Fla. 2014)(Moody, J.)

United States v. Castaneda,  Case No. 8:13-CR-403-T-33AEP (M.D. Fla. 2014)(Covington, J.)

United States v. Denson, Case No. 8:13-CR-180-T-33MAP (M.D. Fla. 2014)(Covington, J.)

United States v. Hayes, Case No. 8:11-cr-00345-EAK-EAJ-6 (M.D. Fla. 2014)(Kovachevich, J.)

United States v. Magana, Case No. 8:13-CR-458-T-30MAP (M.D. Fla. 2014)(Moody, J.)

United States v. Murphy, Case No. 8:11-CR-463-T-17TGW (M.D. Fla. 2014)(Kovachevich, J.)

United States v. Persuad, Case No. 8:13-CR-434-T-30TBM (M.D. Fla. 2014)(Moody, J.)

United States v. Rodriquez, Case No. 8:13-cr-00229-JSM-MAP  (M.D. Fla. 2014)(Moody, J.) 

United States v. Secrest, Case No. 8:13-CR-268-7-17MAP (M.D. Fla. 2014)(Kovachevich, J.)

United States v. Zamrripa, Case No. 8:13-Cr-502  (M. D. Fla. 2014)(Lazarra, J.)

2. Federal Cases in Orlando

United States v. Chehab, Case No.  6:13-cr-00179-CEH (M.D. Fla 2014)(Honeywell, J.)

United States v. Humberto Reyes, Case No. 6:13-cr-210-CEH-TBS (M.D. Fla. 2014)(Honeywell. J.). 

3. A federal case from Jacksonville

United States v. Gibbons, Case No. 3:12-cr-201(S1)-J-34JBT & 3:13-cr-37-J-34MCR  (M.D. Fla. 2014)(Howard, J.).

This list is clearly not comprehensive in that it does not include a case I wrote about in this blog a few weeks ago in which a federal judge in Tampa granted a two level variance for my client in a federal drug case involving steroids. 

In using this information lawyers can ascertain whether their Judge will require a sentencing memorandum that specifically delineates the request or whether an oral motion at the time of sentencing will be sufficient. At least one federal defense lawyer sent an email to me saying that he planned to ask for a 180 day continuance for his client's federal drug sentencing, in hopes that his client would benefit once implementation of the rule is finalized by Congress. I don't believe this strategy is likely to meet with success nor is it the best way to proceed because the federal judges are not going to continue all of their pending drug cases for six months. Yet arguable at least it lays out a record for possible appeal later if the sentencing commission fails to make these changes retroactive.

Federal Judges should be granting these motions for two-level variance reductions because otherwise there will be an unfair disparity of sentencing for those who are sentenced now. Because Assistant U.S. Attorney's are no longer objecting to the motions, it would seem that an appeal is as unlikely from the government as from those for whom the variance is given. For the most part it would seem that judges who are predisposed to grant this motion will address it on their own terms so that there is consistent sentencing at least within their own courtrooms, but shouldn't all of the judges also be concerned about what the other federal judges are doing and the inconsistencies of sentencing within each jurisdiction? 

Even when the variance is granted it's important for lawyers not to allow their clients to have false hope. They need to make it clear to their clients to how small a two-level reduction in a federal sentence can be in terms of actual months of time served in prison. Step by step federal judges need to given much more discretion to do what is right for federal defendants by crafting sentences that may punish and deter, yet also give hope by changing lives for the better. Clearly nonviolent defendants should receive fairer sentences with much less jail, because the Attorney General of the United States is right two million Americans in prison is far too many, this two-level variance is the first step in actual prison reduction.

Tuesday, April 22, 2014


In an effort to "restore a degree of justice, fairness and proportionality" in federal sentencing the Department of Justice is finally moving to directly reduce unfair sentences for nonviolent defendants by broadening clemency criteria.

The goal is to correct widespread sentence disparities which have escalated with the implementation of harsh Federal Sentencing Guidelines that gave federal judges little discretion in federal sentencing. In fact for a number of years it has been federal prosecutors rather than federal judges who made the most important sentencing decisions. And with the Justice Department decision to broaden clemency criteria it's ever more clear that punishment in America is dominated not by judges but by prosecutors. Criminal defense lawyers could do little but force cases to trial or search for the best sentencing alternatives by persuading prosecutors that the case was weak.

Some federal judges even noted in opinions apparently not co-written by prosecutors that they had become little more than adding machines totally calculations for the sentencing guidelines without any real human input. In many cases wary federal judges have been unwilling to give lower sentences especially in jurisdictions such as the Middle District of Florida, where there existed the threat of successful appeal of the sentence by prosecutors. Even good judges found themselves hemmed in between harsh sentencing guidelines, minimum mandatory sentences and overzealous prosecutors. 

Clearly this is an important step toward fairer sentencing by the justice department. And at least this gives every sitting president the ability to right the wrongs of sentences that are unfair by granting clemency to clear up past unfair sentencing for those in prison awaiting American justice. One example of unfair sentence due to sentencing disparity given in the attorney general's statement on clemency is crack cocaine. At one point those caught with crack cocaine were routinely sentenced to 100 times as much prison time as those prosecuted and punished for other forms of cocaine, which the Supreme Court reduced it to 18 to one. Yet even at 18 to one, many of those people convicted of this nonviolent drug possession charge still remain in prison. But what we really need is fair sentencing. 

And the only way to gain fair sentencing is to change the entire criminal justice system. We need judges who are brave, articulate and compassionate, who understand what serving time in jail really means and who are willing to do what is right no matter what the public consequences. We need new laws that give the power of sentencing to judges not prosecutors. We need overzealous prosecutors to understand that their first duty is to implement justice. And we need federal criminal defense lawyers who never give up, who never stop fighting for their clients to find the best possible sentencing outcomes.

Thursday, April 17, 2014


Since a battery under Florida law is an intentional touching or striking of another person, a battery committed against a law enforcement officer should always require that the defendant intended to touch or strike an officer. Yet officers often make arrests for Battery on a Law Enforcement Officer (BOLEO) where there's no evidence of any intention to commit battery on the officer. 
W.C. Fields about to be Battered

While working years ago as a prosecutor and now as a defense lawyer in Tampa Bay, Florida I've seen dozens of cases dismissed or reduced when evidence clearly established that an officer was not intentionally touched. 

The following are four ways in which law enforcement officers often mistakenly charge an unintended or accidental touching as a BOLEO:

1. Law enforcement officers may overreact when they feel that a situation is getting out of control and make a BOLEO arrest to quell the situation. Officer safety is a legitimate issue but an arrest for BOLEO should only be made if the facts and circumstances of the case support an intentional touching or striking of an officer.

2. Other cases result from what should be charged as a mere misdemeanor resisting arrest without violence where a defendant is not immediately obeying an officer's commands to allow an arrest or provide specific information. In these situations the case should be reduced from a felony to reflect the actual facts of the case.

3. Sometimes officers become frustrated during the course of an investigation if an officer is injured even if the defendant had no intention of doing anything to the officer. In one case I had years ago the officer was angry that his glasses broke while securing my client during an arrest and was more than happy to use a felony charge as a means of paying for his new frames thru restitution. The other officers testified that there was no unlawful touching or striking of the officer's face so the BOLEO charge was dismissed.

4. Officer or prosecutors may make a tactical decision to add BOLEO charges that would normally not be filed where it can be used as effective leverage to convict the defendant of other charged misconduct. By driving the guidelines higher with a new charge the prosecutors up the ante for a defendant who might want to fight the other charges in trial thus increasing the chances of obtaining a conviction.

If you've been falsely arrested for Battery on a law enforcement officer, it's important to have a criminal defense lawyer look for the underlying reasons why a BOLEO charge has been filed in each case and then to support his conclusions with evidence such as video, audio, photographs, medical records or witness testimony. By establishing a likely motive for the police to have mistakenly charged the felony BOLEO it becomes much more likely to find ways to dismiss the charge or reduce the felony to a more manageable misdemeanor. 

Wednesday, April 16, 2014


Even after sentencing in federal criminal cases there is still hope for federal prisoners to be re-sentenced within a year of the original sentencing date to a lower period of prison time based on Rule 35 substantial assistance for the best possible sentencing outcomes. 

In a typical federal criminal case in which a defendant either pleads guilty or is found guilty after trial, the defendant will be given an opportunity to give a proffer before sentencing. A proffer is a statement of knowledge of criminal acts that not only constitute the charged misconduct in the indictment, but often includes knowledge of other criminal conduct. 

In many Federal jurisdictions including the Middle District in Tampa the Department of Justice Assistant United States Attorneys will make a motion for a substantial assistance departure from sentencing guidelines only if the quality of the information is likely to result in further arrests or indictments.

Under federal law only the Government may file a motion for substantial assistance. If the proffer results in a substantial assistance motion before sentencing, then part 5k of the Federal Sentencing Guidelines governs; whereas if the proffer results in a substantial assistance after sentencing, then it is Rule 35 of the Federal Guidelines that governs. Even when the Government deems that there is an insufficient proffer of alleged criminal conduct to provide a 5k motion before sentencing, there is still a possibility for new information to be considered for substantial assistance under Rule 35.

What should a federal defendant who has already been sentenced do to persuade the Government to provide him with a Rule 35 substantial assistance? Here is a five step process to consider:

 1. The prosecutor most likely to file the Rule 35 is the very one who prosecuted the federal prisoner. The prosecutor will be most interested in expanding the federal indictments that led to the underlying criminal case against the federal defendant. Therefore, the most important information that a defendant may possess is any new information about the initial criminal conduct.

2. The prosecutor is busy prosecuting other cases. In fact his or her knowledge about the facts and circumstances of the case is often more limited than that of the government agent involved. Therefore, the most important person to contact with any new information is the government agent.

3. The Government agent must be convinced that the information has the following attributes:

  • The information is new. Any information that was given in the original proffer before sentencing is no longer new nor original. The government agent can not be expected to spin wheels over old facts.
  • The information is timely. If the information is no longer of use, then it will not help the Government. 
  • The information is credible, trustworthy and reliable. Any inconsistencies within the framework of alleged facts makes all of the facts given more difficult to believe.
4. If the information for a proposed new proffer is about other criminal conduct than the charged offense, then it may be necessary to contact other federal agents or state law enforcement officers. But remember that since the motion must be filed in federal court by a federal prosecutor, it's important to include the original federal agent or whichever agent is handling his files if, for example, he has retired or rather unexpectedly become a zen monk in Japan. 

5. In this process it's important to find a champion, but the champion is not going to be your defense lawyer. Your champion will be the government agent who makes the time and effort to listen to a new proffer, who believes the proffer is reliable and credible and who then persuades the prosecutor to file the Rule 35 motion. 

Once a substantial assistance motion is filed a defense lawyer may be of assistance in making effective arguments to the federal judge for giving as many levels as possible in a downward departure from the original sentence. The goal will be to find the most effective ways to provide the federal sentencing judge with better sentencing options by reducing the federal sentencing guideline range.

Monday, April 14, 2014


Here in Florida the summer heat can bake your parked car's inside temperature to over 120 degrees in ten minutes. No wonder the hot cities of Florida often rank in surveys as the worst places for road rage incidents. 

The Road Runner cartoon was filled with road rage when the Coyote tried to kill the always lucky road runner.
Road Rage Coyote & Road Runner
All of us occasionally make mistakes while driving. When you see someone make a stupid driving mistake don't rub it in their face nor even their hood. And if another driver accuses you of making a driving mistake, remember that the best rule of the road when confronted is not to let the finger pointing escalate to name calling or yelling. After all this if Florida where a retired police officer recently was accused of shooing an unarmed man at a theater for texting on his phone. 

Here are five rules to help you avoid being involved in a road rage incident where you may be arrested for an alleged criminal act no matter who is really at fault.

1. You should assume that the other driver is armed with guns, knives and other weapons and act accordingly. If you think the other driver is armed then it makes sense to stay as far from his vehicle as possible.
2. You should assume that everything you say or do is being recorded in video and audio. Not only will other vehicles will have plenty of occupants with cell phone cameras ready, there are also cameras along many roads, at intersections and along the businesses by the road.
3. You should never pull your car over to have it out with the other driver. If the other driver pulls over in hopes of fighting it out, use the opportunity to get far away. Nothing is going to be accomplished other than risking the safety of everyone in both vehicles.
4. If the other driver is using his vehicle as a weapon in an aggravated assault by driving too close to you in a threatening manner, call 911 while trying to drive to the nearest police station or other area of apparent safety.
5. As soon as an incident occurs do your best to de-escalete the situation. 

What are the possible criminal charges awaiting drivers involved in road rage? Criminal charges begin with any threat to the other driver using any weapon used during the coarse of the incident. Under Florida law the legal definition of weapon may include the vehicle itself if the car is used to threaten someone; for example, by pulling away just before a collision with the purpose of scaring the other driver which would constitute an aggravated assault. 

If a car actually does touch or strike the other car, then depending upon the damage and injury to the passengers and driver, Tampa Bay police could charge either battery or aggravated battery. Clearly a weapon fired or thrown from a moving vehicle could also result in battery or aggravated battery charges as well as throwing a deadly missile charge. If there is a collision and the driver fails to remain at the scene to render possible aid charges of hit and run will likely be filed. Further, police and prosecutors have will bring charges of vehicular homicide if a death results or murder charges if there was heat of passion or sufficient time for premeditation before the death.

The problem in many of these cases is that both drivers may be viewed by law enforcement as being at fault for allowing a bad situation to escalated into something far worse where people end up being injured. Because of the significance of the aggravated felony charges, even someone without any criminal history could find himself not only arrested but also facing a possible long term of prison if criminal charges are filed. Therefore it's always important to avoid road rage situations that could easily escalate ruining the lives of everyone in both cars.

Wednesday, April 09, 2014


One lucky Florida ophthalmologist managed to snare a cool $21 million from his medicare billings last year. A hundred less fortunate doctors made due by sharing $610 million from the total doctor's billings to medicare of $600 billion. All of this information was disclosed when medicare finally opened its books on individual doctors share of medicare billings. The strategy and tactics of robust billings allow some of our lowly medicare doctors to make even more money than those fancy doctors on television. But when does robust billing become fraud worthy of an FBI investigation?

Turns out the Dr. House on television makes less money than some doctors helping the poor on medicare.
Is there a Doctor in my House?
Hidden behind the rush of these recent news stories is the fact that federal investigators will begin shifting thru the cloud of statistics in order to begin targeting individual doctors in hundreds of fraud investigations. 

Indicting doctors and other health care providers allegedly involved in health care fraud will become a high priority of the FBI and the United States Attorney's Office not only in the Middle District of Florida but throughout the entire country. 

Medicare fraud typically arises from either over billing or from fake billings. To prove over billing or fake billing the FBI will investigate doctors for medicare fraud under Plan B in the following ways:

First,  the FBI will be look for an average mean medicare billing for each specialty.  For example, it might not be unreasonable for larger billings in specialties which require more expertise.

Second, the FBI will look for an average mean in medicare billing for each part of the country segregating the billings based on the costs and history of billings in every location. 

Third, the FBI will target doctors and hospitals that have billed medicare for more than the average mean of specialty and location.

Fourth, the FBI will look for disgruntled employees and former employees to gain insight as to whether there was a criminal conspiracy to over-bill medicare. Employees will be given two significant incentives of not being indicted laced with the possibility of whistle blower status with financial reward. Employees who fail to co-operate by remaining faithful to the hospital or doctor may find themselves indicted as part of a criminal conspiracy to defraud medicare.

Fifth, the FBI will gain access to business records by utilizing search warrants for criminal conduct. This can temporarily shut down the doctor's office inducing enough immediate financial hardship to scare the doctor into co-oporating with the Government.

With the Government focused on lowering health care costs, it's clear that it will soon declare war on doctors who may have robustly billed medicare. The ultimate objective of the Government will be the arrest, conviction and imprisonment of imminent doctors to deter others from who received payments from Medicare under Part B. 

Doctors who are under investigation may not receive target letters informing them of the fact. In fact in most medicare fraud investigations a target letter is only sent after a completed investigation as a prelude to a possible negotiation with the doctor to avoid a grand jury indictment by allowing him or her to plead guilty in federal court to a significant federal crime.  Any doctor who believes he or she may be a target of a federal investigation concerning medicare billing should secure immediate help from a knowledgeable federal criminal defense lawyer to avert federal indictment and prosecution.

Tuesday, April 01, 2014


The trend of current criminal law acknowledges that whenever possible children charged with crime should not be treated as adults. The Florida Bar has been pushing for judges rather than prosecutors to determine when a child should be treated as an adult.

Our Gang members sitting with their dog. Let children be children. This is how Florida  law can forgive childhood mistakes and avoid minimum mandatory sentences in Tampa Bay Florida.
Free Our Gang from Prison
In Florida, juveniles whom prosecutors have charged as adults or young adults up to the age of twenty-two may be granted Youthful Offender status for a second chance. This may happen even over the objection of the State Attorney's Office if a judge can be persuaded with effective arguments to make a finding that a child  or young adult qualifies under the statute. 

A young person who pleads guilty under the Youthful Offender Statute may preempt the application of draconian sentencing laws in the following ways:

First, any harsh drug minimum mandatory sentences that would normally be triggered by conviction of a significant drug offense may be avoided. For example, in drug trafficking cases for drugs such as marijuana, heroin, cocaine, methamphetamine or oxycodone the outrageous long term sentences typically of three, ten, fifteen and twenty-five years of prison may be avoided. 

Second, a young person charged with various firearm counts may be able to avoid specified minimum mandatory sentencing which a judge would otherwise not be able to sentence below. For example, in a case of possession of a sawed-off shotgun, a young defendant could avoid a minimum mandatory sentence of three years on the firearm count. 

Third, in cases of sexual battery, lewd and lascivious conduct or sexual assault, mandatory sex offender probation conditions can be avoided under the Youthful Offender statute. Many times young people are charged as adults even when the actual sexual conduct was consensual. For example, when a High School senior has consensual sexual relations with a freshman whose age falls just shy of recently amended Florida Romeo and Juliet statutes. Also, in a recent article Richard Sanders makes a compelling argument that imposing mandatory sex offender probation conditions is not required under the Youthful Offender Statute despite some poorly reasoned case law to the contrary.

Finally, the large fines typically imposed in significant criminal cases can also be avoided under the Florida Youthful Offender Statute if the presiding judge is persuaded that the young offender neither has the means nor ability to pay or that a fine would be detrimental to becoming a productive citizen in the future.

Young people perceive the passage of time differently than adults and imposing any jail on a young person is a much harsher punishment in actual deprivation than a similar punishment to an adult. Further, as psychiatrists have long noted and as the U.S. Supreme Court has recently come to realize, the brain functioning properties of children may them more likely to do foolish things, to not think thru things as an adult would and to not be as responsible as an adult might be.

Under Chapter 958 of the Florida Statutes the Court merely needs to make a finding that a qualifying defendant would benefit from a set of sanctions which are likely to improve his or her "... chances of correction and successful return to the community." This, of course, should be the aim of every judge in every criminal case. Yet too often our best judges have their decision making tied by legal restrictions and are kept from doing their most important job, which is constructing a sentence that punishes as little as possible while still deterring crime. The goal of a good judge is to sentence is such a way that a defendant does not become a ward of the state, but instead becomes a productive, law-abiding citizen.