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.

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