WILL CONGRESS CHANGE FEDERAL SENTENCING GUIDELINES? TAMPA & PINELLAS FEDERAL DEFENDANTS CAN ONLY HOPE SENTENCING WILL SOON BE FAIRER

The United States Sentencing Commission just finished an extensive study on the effects of Mandatory Minimum sentences in federal sentencing which it has just sent to the U.S. Congress. 

You'll find some excellent recommendations that Congress should immediately adopt such as reducing Mandatory Minimum sentences, giving Judges more discretion in sentencing, reducing Prosecutorial power, enlarging the safety valve for more than just first time offenders, making the guidelines fairer and reducing demographic and racial disparity in sentencing - all of which would provide your Federal Criminal Trial Attorney with some reason to believe that sentencing under the Federal Guidelines really could become fair and impartial.

Below is a brief summary from Amy Baron Evans (many thanks) of Chapter 12 (the Recommendations). You can access the entire study from the link below. 
Drugs ·         “Commission analysis indicates that the quantity of drugs involved in an offense is not as closely related to the offender’s function in the offense as perhaps Congress expected.”  “[O]ffenders who performed lower-level functions such as Couriers and Mules also were convicted of drug offenses carrying a mandatory minimum penalty in a significant proportion of their cases (49.6% and 43.1%, respectively). For every function, the quantity of drugs involved in the offense on average resulted in a median base offense level that included or exceeded the five-year mandatory minimum penalty.”  But, USSC suggests, safety valve and role adjustments correct for the problem on average. 

·         Criminal history in drug cases – the “cumulative impacts” 

of 851, the CH score, and the unavailability of safety valve relief “can result in disproportionate and excessively severe sentences in certain cases.” 

FAMM - The Fair Sentencing Act of 2010

Firearms

Stacking 924(c)s “results in excessively severe and unjust sentences in 

some cases.”  Average sent5ence was 351 months!  “There are some circumstances where such a long sentence may be appropriate (e.g., in the eight cases in fiscal year 2010 in which the offender’s primary guideline was §2A1.1, which covers first degree murder), but there are other circumstances in which the offender received such a long sentence even though the offense did not involve any physical harm or threat of physical harm to a person.” 

Mandatory Minimum Sentencing | Drug War Facts

ACCA:  Applied inconsistently in part because whether an offense is a 

“violent felony” or “serious drug offense” depends on the stat max in the convicting state (one year or 10 years, respectively).  “As a result, the Armed Career Criminal Act’s mandatory minimum penalty can apply to offenders who served no or minimal terms of imprisonment for their predicate offenses, further increasing the potential for inconsistent application insofar as the penalty may be viewed as excessively severe in those cases.” Recommendations:
·         Reduce the penalties for 924(c)s, especially stacked 924 (c)s
·         Make 924(c) a true “recidivist” statute by limiting to prior convictions
·         Give the court limited discretion to impose consecutive sentences for multiple 924(c)s as in 1028A

Sex offenses

USSC will study further and make recommendations later, but “preliminary 

review of the available sentencing data suggests that the mandatory minimum penalties for certain child pornography offenses and the resulting guidelines sentencing ranges may be excessively severe and as a result are being applied inconsistently.”  The data is non-gov sponsored variances, gov-sponsored variances, and failure to charge the mand min in 53% of cases where it’s available. 

Congressional Record: Proceedings ... - Google Books

Aggravated Identity Theft

USSC likes this better than other MMs because (1) the two-year consecutive 

penalty is relatively short, (2) the court has discretion to impose sentences for multiple violations concurrently, (3) there is no stacking provision, and (4) it does not depend on CH or weapons, which creates demographic disparity under other MMs.  There is inter-district disparity in the use of 1028A but this may be because it’s new, and in any event, the punishment is relatively short. 

Features - Identity Theft: Outline of Federal Statutes and Bibliography of Select Resources | LLRX.com

Safety valve in general

Congress should consider whether to enact safety valve for low-level, 

non-violent offenders convicted of other offenses.  

Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System

Areas of Practice for Robert Hambrick - Attorney in Clearwater, FL

Readings - Federal Sentencing Guidelines Revisited | Snitch | FRONTLINE | PBS

Crack Cocaine Sentencing | fd.org: ODS Training Branch

Fair Sentencing Act - Wikipedia, the free encyclopedia

This recent painting depicts a beaming French Poodle who sits centre stage as the wise Judge at Court. That's an adoring bailiff at the judge's left paw staring at the Judge with appropriate admiration and respect.  I'm the bright black Labrador to the Judge's right with an Important Brief that I've dipped in beef broth in hopes of the Judge devouring my every word.

Trial by Jury or Laying Down the Law by Sir Edwin Landseer, 1840

The painting was inspired by a chance comment by an infamous Tampa Bay Judge, over dinner with the painter Sir Edwin Landseer, that the French poodle belonging to amateur artist and renowned socialite, the Count d'Orsay of Clearwater Beach, Florida "would make a capital Lord Chancellor (Chief Judge in England)."

FLORIDA TERRORISTS DEATH OATH CEREMONY IS ENOUGH FOR CONVICTION EVEN WHEN TERRORISTS SAY THEY WERE SECRETLY RECITING A DIFFERENT PLEDGE

An amazing portion of a new 11th Circuit Federal Appeals Decision reveals Floridians participating in an Al Qaeda death oath ceremony, before conspiring to destroy the Miami FBI building and the Sears Tower in Chicago, this astonishes even your favorite Clearwater Defense Attorney. During the Federal Trial there was evidence that one Defendant in reciting the oath "actually changed the words such that he stated his allegiance to himself rather than to Al Qaeda..."

From the Appeals Opinion which affirmed the convictions:

On the basis of the oath ceremony, where the plot against the Miami FBI building was disclosed, and Augustine and Phanor’s later participation in recording images of the federal buildings, the jury was entitled to infer that Augustine and Phanor volunteered their service to Al Qaeda generally, and thereby conspired to provide material support under § 2339B.

Augustine and Phanor also point to evidence that they did not really take the oath. Augustine argues that the record indicates that in reciting the oath, he actually changed the words such that he stated his allegiance to himself, rather than to Al Qaeda. Similarly, Phanor argues that he initially refused to take the oath, and only did so after being assured by Batiste that it was “alright” for him to do so. However, we do not find the inadequacies or hesitations in the recitation of the oath to inoculate these defendants from the jury verdict. Instead, it is Augustin, Phanor, and Augustine’s participation in the ceremony itself, and their resulting awareness of the plot against the Miami FBI building—rather than the particular words uttered by any given defendant—that is sufficient evidence supplying knowledge and intent to their later participation.. (page 27 of the opinion, see below for link)

United States v. Burson Augustin, et al., No. 09–15985 

(Per Curiam: Affirmed Appellants were convicted of, inter alia, conspiracy to provide material support to a Foreign Terrorist Organization (Al Qaeda), conspiracy to maliciously damage and destroy by means of an explosive a building leased to an agency of the United States (the FBI) and a building used in interstate and foreign commerce (the Sears Tower), and conspiracy to levy war against the Government of the United States and to oppose by force the authority thereof in violation of 18 U.S.C. § 2384. 
They appealed their convictions and the Eleventh Circuit affirmed. First, the Court held that the district court did not abuse its discretion in granting in part the government’s motion to strike portions of the indictment as surplusage. The Court noted that although Federal Rule of Criminal Procedure 7(d) provides only that a defendant may seek to strike surplusage from an indictment, the Eleventh Circuit and the Supreme Court have both recognized that the government may move to strike surplusage from an indictment. Second, the Court found that the evidence was sufficient to support their convictions. Third, the Court held that the government’s involvement in the criminal scheme was not outrageous and did not violate the defendants’ Due Process rights. Fourth, the Court upheld several of the district court’s evidentiary rulings relating to the admissibility of lay and expert testimony. And finally, the Court upheld the district court’s dismissal of a juror for refusing to follow the court’s instructions on the law. 
U.S. v. Augustin, The Full Opinion
Federal Crimes Trial Lawyer & Criminal Defense Attorney in Florida
FBI — Terrorism 2002/2005
FBI arrests 7 in alleged terror plot - US news - Security - msnbc.com

Oath of the Horatii by Jacques-Louis David 1784. No, you can't have your swords back till you promise not to fight.

DRUG TESTING & DRUG TREATMENT OR JAIL? IS THE CLEARWATER DRUG COURT A VIABLE OPTION IN PINELLAS COUNTY FLORIDA

To the credit of our local Judges and attorneys, Pinellas County has instituted a reasonably enlightened treatment for some drug offenders (see below for qualifications). It would almost be enough to make even a jaded Clearwater Drug Defense Attorney smile were it not for the fact that the rules for the Drug Court Program allows prosecutors rather than Judges to determine who can be accepted into the program -- wouldn't it make more sense for an impartial Judge to decide who is worthy of the program and to expand the ability of Judges to dismiss or reduce charges where appropriate.

The cooperative effort of a team approach is a hallmark of the Sixth Judicial Circuit Adult Drug Treatment Court in Clearwater Florida, Pinellas County. It is a court-supervised, comprehensive drug treatment court for non-violent defendants, I guess that leaves me out. This is a voluntary program requiring frequent appearances before the Drug Court Judge, substance abuse treatment and frequent, random testing for substance abuse.
1. Successful completion of the Adult Drug Treatment Court plan may result in the dismissal of charges against defendants entering the program through Pre-Trial Intervention (defendants facing a first-time, non-violent, third-degree felony charge and admitted to Drug Court at the sole discretion of the State Attorney).
2. For defendants entering the Drug Court as a condition of probation (post-plea drug court), successful completion may result in adjudication being withheld and/or a reduced length of probation.
3. All participants are required to make frequent court appearance (judicial reviews). Participants will appear before the drug court judge every 30 to 45 days.
4. Drug court is a 24-month program. After completion at least one year, persons who have completed treatment, remained drug free and completed all of their requirements of Pre-Trial Intervention or probation may petition the court for a dismissal of the charges (Pre-Trial Intervention) or early termination of probation (post-plea drug court).
Pinellas County Drug Court
Most Recent Drug Court Stats from Pinellas
Florida State Courts
Drug court a success: research - National - smh.com.au

A recent painting depicts a Pinellas County Prosecutor making impartial decisions on which Defendants will be eligible for Drug Court in Clearwater, Florida. 

Picasso The Absinth Drinker 1901.  What? Can you repeat that?

WHAT CAN FLORIDA LEARN FROM EUROPEAN DRUG DECRIMINALIZATION

In the nineteen-eighties most of the major industrialized countries of the world followed America's lead in declaring war on drugs by harshly increasing sentences for convictions and spending more money on investigations and prosecutions. The result was higher percentages of people in the democracies being sent to prison, sometimes even higher then in the totalitarian countries. 
Minimum Mandatory Drug sentences are especially troubling for Clearwater Trial Attorneys such as myself who have seen the destructive force of the criminal law strike and destroy productive lives.
To the credit of our local judges and attorneys, Pinellas County has instituted an enlightened treatment for those who qualify, which will be described in more detail in a future blog. Adult Drug Court, Clearwater Drug Defense Attorneys 


Yet for Florida Courts in search of justice some answers can be found from Portugal's experience. Portugal, a gateway for drug importation for all of Europe, buckled under European Union pressure to commit a huge percentage of its population to long term prison sentences, then Portugal relented. Recently, the New Yorker wrote about Portugal's solution, it success and its failure...


In 2001, Portuguese leaders, flailing about and desperate for change, took an unlikely gamble: they passed a law that made Portugal the first country to fully decriminalize personal drug use. 
For people caught with no more than a ten-day supply of marijuana, heroin, ecstasy, cocaine, or crystal methamphetamine, there would be no arrests, no prosecutions, no prison sentences. 
Dealers are still sent to prison, or fined, or both, but, for the past decade, Portugal has treated drug abuse solely as a public-health issue. When caught, people are summoned before an administrative body called the Commission for the Dissuasion of Drug Addiction. Each panel consists of three members—usually a lawyer or a judge, a doctor, and a psychologist or a social worker. The commissioners have three options: recommend treatment, levy a small fine, or do nothing. In most respects, the law seems to have worked: serious drug use is down significantly, particularly among young people; the burden on the criminal-justice system has eased; the number of people seeking treatment has grown; and the rates of drug-related deaths and cases of infectious diseases have fallen. 
Yet there is much to debate about the Portuguese approach to drug addiction. Does it help people to quit, or does it transform them into more docile drug addicts, wards of an indulgent state, with little genuine incentive to alter their behavior? By removing the fear of prosecution, does the government actually encourage addicts to seek treatment? In the United States, the misuse of legally sold prescription medications has become a bigger health problem than the sale of narcotics or cocaine. There are questions not only about the best way to address addiction but also about how far any society should go, morally, philosophically, and economically, to placate drug addicts.
Portugal Decriminalized Drugs. What Can the U.S. Learn? : The New Yorker
DEA, Federal Trafficking Penalties
Federal Mandatory Minimum Sentences Drug Chart
Are Mandatory Minimum Drug Sentences Cost-Effective? | RAND
Here's a recent painting of a bright young couple eagerly awaiting their marriage license in Pinellas County, Florida.

Degas' painting (1876) portrays grim Absinthe drinkers in a cafe, imagine how they'll look when they see the bill.

AGGRAVATED IDENTITY THEFT - WARNING SIGNS YOUR LIFE HAS BEEN ABDUCTED FOR CONSUMERS IN CLEARWATER

Always be alert for these RED FLAGs of Identity Theft from your Federal Trial Lawyer:

• You find that there exist accounts in your name which you never opened. 
• You find purchases from accounts that you do not remember nor can explain.
• You find purchases made to unknown companies, organizations or people.
• You find inaccurate, flawed, incorrect or fraudulent information on credit reports on any information including any accounts or any personal information, such as the month, day or year of birth, your mother's maiden name, the name of your favorite pet (Sancho) your Social Security number, the spelling of your middle name, your present or past employers and the years you worked there.
• You find that you are no longer receiving bills for credit cards or other debts, because the Identity Thief changes the address to which the bills are sent to cover his tracks.
• You find that you have been sent a credit card for which you never applied and that my name is on it instead of yours.
• You find that your credit rating has fallen, that you've been denied credit.
• You find that you get voice messages, repeated debt letters from bill collection agencies, attorneys (damn them!), or from unique businesses concerning services, merchandise or priceless antique art work you could never afford and most likely didn't buy even if you were under the influence of drugs, alcohol or Antiques Roadshow.

If you may have been a vicim of identity theft in Clearwater, Florida and believe your information has been compromised this web page has information on what to do next.

As to the legal ramifications of identity theft here is a synopsis of yesterday's important 11th Circuit Federal Identity Theft decision:

United States v. John Doe, No. 09–15869 

( October 26, 2011) Appeal from the United States District Court for the Southern District of Florida John Doe (real name unknown at time of appeal) appealed his convictions for aggravated identity theft, claiming that the government did not produce sufficient evidence that Doe knew the name and social security number he used in applying for a United States passport belonged to an actual person. The Eleventh Circuit rejected this claim, noting that Circuit precedent stands for the proposition that a defendant's repeated and successful testing of the authenticity of a victim's identifying information prior to the crime at issue is powerful circumstantial evidence that the defendant knew the identifying information belonged to a real person as opposed to a fictitious one. Drawing all reasonable inferences in favor of the government, the Court found that a rational jury could have concluded that Doe knew the victim’s identifying information was subject to a detailed verification process when he applied for a driver's license. Doe's successes in obtaining not one, but two different driver's licenses from two different jurisdictions, in addition to opening a bank account and obtaining a debit card from Bank Atlantic, were meaningful circumstantial indicia that Doe knew the victim’s identifying information belonged to a real person, the Court wrote. 
The full text of the decision can be found here.
Bureau of Justice Statistics (BJS)
Internet Crime Trends
Good News & Bad News About Identity Theft

This unfortunate man was recently the victim of Identity Theft. Now he wonders around Europe trying to find out who it was he was meant to be while confronting mighty windmills.

Honoré Daumier - Don Quixote - 1868 - Where's Sancho, my golden retriever?

AVOID BEING TAKEN IN BY THIS NOTORIOUS TELEPHONE SCAM - ADVICE FOR TAMPA BAY CONSUMERS

Each of us should be concerned about the avalanche of personal information we give out nearly every day, not only from high tech computers but every time we make a phone call. 
All Floridians - especially older Floridians in the Tampa Bay Area - face being scammed and need to be on guard for telephone scams; the scammers will try to pry money from you over the phone.
Yet people in the Tampa Bay area, including Clearwater, St. Petersburg, and Pinellas County, Florida are sometimes falsely accused of committing fraudulent acts such as phone crimes, cyber crimes and white collar crimes, especially when confronted with unreasonable law enforcement officers with little training, if so call your Criminal Defense Attorney and Trial Lawyer.
Here's a notorious telephone scam and the grandmother who outfoxed the perpetrators of this crime as illustrated in a recent Daily Finance article. 
 An 84-year-old Illinois lady receives a chilling phone call from a man saying he is her grandson, a soldier who only recently has come home from the War in Iraq. He needs emergency money fast - always a possible hint of a scam - his voice sounds different, shaking, strange - "Have you been drinking?"she asks. "No, grandma I've just been in a car accident in Canada and hit a pole." 
Her heart skips a beat as he says he needs $5,000 immediately.
This grandmother outfoxes the fox by agreeing to wire the money on condition that he her give one word, "What's your grandfather's name?" (see her full declaration to the Federal Trade Commission) He tries to avoid answering her question, she asks him again, he hangs up.
How to Avoid Becoming a Financial Scam Victim - DailyFinance
Consumer Sentinel Network - Law enforcement's source for consumer complaints
FBI — Common Fraud Schemes


Should you see the tortured artist below, a man well known for making crank phone calls and perpetrating endless scams, please contact French Law Enforcement immediately.

Frédéric Chopin, by Eugene Delacroix, the original is hidden in Clearwater, the copy may be found at the Louvre.
1838