Friday, November 04, 2016


For all federal defendants and their criminal law attorneys it's important to note that the new 2016 guidelines are now in effect.   For all cases sentenced or after November 1, 2016, the Judge at sentencing should rely on the Probation Office Presentencing Report to apply the new guidelines.  

If the guidelines in your federal criminal case in the Middle District of Florida were more favorable at the time the crime was committed as defined in the indictment or arguably as delineated by the plea agreement or as found by the jury during the facts found at trial, then you may elect to be sentenced under the older, more favorable guidelines.  See USSG s. 1B1.11(b)(1).  But it's important to keep in mind that the Probation office will not likely bring this fact to your attention nor will the Probation Officer assigned to complete the Pre-sentencing Report in your case include the older guidelines in the unbiased report when it sends it to the sentencing judge. If the older guidelines are more favorable for your client then you must include a request to the court in your response to the PSR or (preferably) in your Sentencing Memorandum furnishing the judge with a timely request to apply the guidelines in effect at the time the offense occurred.

The Federal Guideline Sentencing Commission issued this notice of the new amendments to the Federal Sentencing Guidelines. 

Immigration Offenses
The Commission amended the alien smuggling guideline(§2L1.1):(1)to increase the enhancement for cases involving the smuggling of unaccompanied minors from 2 levels to 4 levels,broaden its scope to offense-based rather than defendant-based, and revise the meaning of an"unaccompanied minor";(2)to expand the definition of"minor"to include an individual under the age of 18;and(3)to clarify that the"serious bodily injury "enhancement applies to any alien smuggling case involving sexual abuse. 
The Commission revised the illegal reentry guideline(§2L1.2):(1)to provide tiered enhancements based on prior convictions for illegal reentry offenses and criminal conduct that occurred before and after a defendant was ordered deported;(2)to eliminate the use of the"categorical approach"for predicate felony convictions and make several adjustments to the scope of the enhancement; and (3)to exclude "stale"convictions by requiring that prior convictions be used only if they receive criminal history points. 
Child Pornography
The Commission revised §§2G2.1 and 2G2.2 to ensure the "sadistic or masochistic" enhancement applies when the offense involves infants or toddlers.
The Commission amended §§2G2.1,2G2.2,and 2G3.1 to provide that the 2-level enhancement for"generic" distribution applies if"the defendant knowingly engaged in distribution."
In §§2G2.2and 2G3.1,the Commission revised the 5-level enhancement for distribution not for pecuniary gain to clarify that the enhancement applies"if the defendant distributed in exchange for any valuable consideration."  
Conditions of Probation and Supervised Release
The Commission revised,clarified,and rearranged the conditions contained in §§5B1.3 and 5D1.3 in order to make them easier for defendants to understand and probation officers to enforce. 

As you can see the committee made a number of obvious changes to the Federal Guidelines. Yearly guideline changes rarely change how federal minimum mandatory sentences will play out at sentencing and did nothing to help this year. Yet it's vitally important to find the best Federal Sentencing Guidelines for your client's situation when the Guidelines can help. But it's also important to steer clear of arguments to the court about which guidelines should apply that may prove ineffective.

For example, it's possible for the practitioner to be tripped up by the "one book" rule.  See USSG 1B1.11(b)(2), see also Application Note 1. to the guideline.  This rule provides that the court cannot apply one guideline section from one edition of the guideline manual and another guideline section from a different edition of the guideline manual. In other words you can't pick and choose from different Federal Guideline years, but you want to make the most favorable decision as to which sentencing guidelines are most likely to give your client the best possible federal sentencing outcome even in tough sentencing cases such as drugs.

No comments: