Thursday, August 27, 2015


After the initial sentencing in federal court it is still possible to secure a second sentencing to obtain a better sentence under Rule 35. This is true even if your client has already received a lower sentence under the 5K provision for co-operation. Typically in the Middle District of Florida the Government will not file for a Rule 35 sentencing departure unless there has been extraordinary work from the defendant on the Government's behalf. 

A typical example of extraordinary co-operation after conviction and sentencing for a federal crime would be the giving of testimony to a grand jury or federal trial jury against a fellow co-conspirator in a complex criminal case that results in an indictment or a conviction of a federal crime. In one significant federal criminal case in the Middle District of Florida that I handled a defendant was well rewarded by prosecutors after he lured a co-conspirator from a country without an extradition treaty with the United States to a country with an extradition treaty. 

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Federal Prison Drug Program for early release?
Another significant way to reduce the release date after sentencing is for the defendant to successfully complete the federal drug program while in federal custody. Typically there is a long waiting list for acceptance into the program. The federal inmate drug program itself includes classes that must be taken over the course of about eighteen months or so while in custody. The benefit is an entire year early of the sentenced release date. 

Unfortunately, because of the time it takes to complete the course and the waiting list, the beneficiaries of this federal prison program tend to be those defendants convicted of drug trafficking cases. Also, the program is open only to those federal prisoners who have established a drug problem with addictive behavior at sentencing or thru the Pre-sentencing Report. All too often defendants will mischaracterize and minimize their addiction problems to the probation officer assigned to conduct and complete the Pre-sentencing Report (PSR) with the result that the Bureau of Prisons (BOP) as directed by federal law will not grant access to the drug treatment program.

If the PSR does not reference any addictive behavior that can be proven, then the initial sentencing should include evidence to the federal district judge of addiction thru the testimony of the defendant, family, friends, psychiatrist or therapist for the judge to make an informed finding on the record that the addiction exists and recommend the drug program. It's also important to formally request that the judge amend the PSR to include the reference to the formal finding of addiction. Otherwise the BOP may not have ready access to the judge's decision that overruled the probation officer's assessment in the PSR.

These examples show that it's necessary to have an effective strategy before the initial sentencing which successfully will lay the groundwork for either a more beneficial second sentencing or early release thru Bureau of Prisons programs. Because the vast majority of federal defendants are forced to plead guilty, effective defense lawyers should plan early release strategies within and outside the federal sentencing guidelines well before sentencing in federal criminal in the Middle District of Florida in Tampa. 

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