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Newsletter – Fall 1995 – Issue 9 – Golden Nuggets Of Sentencing: A Continuing Series Of Useful Sentencing Tips

Fall 1995 – Issue 9

Federal Sentencing and Postconviction News

Golden Nuggets Of Sentencing: A Continuing Series Of Useful Sentencing Tips

By Alan Ellis

The following golden nuggets contain suggestions on how to get your client the shortest sentence possible to be served at the best place possible. This is the first in a continuing series designed to provide attorneys and their clients with useful sentencing tips.

1. Accompany your client to his meetings with the probation officer during the preparation of the Presentence Investigation Report. Probation officers are often overburdened, so obtain in advance the forms they need filled out and the documents they require. Have your client complete and bring them with him to the initial interview. If you have any cases supporting your position regarding anticipated disputed issues in the guidelines, bring the cases with you and highlight the relevant sections. Remember, probation officers are not lawyers and oftentimes have a difficult time with memoranda of law. Highlighted cases are much more helpful.

2. When you meet with the probation officer, find out what her “dictation date” is. This is the date on which she needs to dictate her first draft of the PSI. Before the dictation, if at all possible, get the probation officer and the prosecutor agree as to what you believe is your client’s offense behavior, his or her role in the offense and any grounds for downward departure. Once set in stone by the draft PSI, it is very hard, through objections, to get it changed.

3. Before doing any of this, hire, if your client can afford it, a sentencing specialist. These people are often social workers, former u.s. probation officers and other criminologists. They are able to interview a criminal defendant and get information from him that you and I as lawyers are not necessarily trained to get. For example, my firm calls upon forensic social worker Lianne C. Scherr, L.C.S.W., who has a background in psychiatric social work. She’s often able to identify mental illness in a client. This gives me grounds for a downward departure based on diminished capacity. She is also able to identify unique family circumstances, which in turn give me a ground for departure based on extraordinary family circumstances. If you don’t have a sentencing specialist, please feel free to call Ms. Scherr at (415) 383-1643. Also, there is an organization known as the National Association of Sentencing Advocates, which maintains a listing of over 200 sentencing specialists throughout the country; they can be reached at (202) 628-2820. In light of guideline sentencing—now that there is less information devoted to a defendant’s personal characteristics and no evaluation as to why he committed the offense—it’s more important than ever to enlist a sentencing specialist. Judges always want to know why a defendant committed a particular offense. Giving him or her the answer through your sentencing specialist goes a long way towards getting your client the lowest possible sentence.

4. Seek a departure based on the fact that the guidelines overstate the seriousness of the offense. Three Second Circuit cases, U.S. v. Restrepo, 936 F.2d 661 (2nd Cir. 1991); U.S. v. Alba, 933 F.3d 1117 (2nd Cir. 1991); and U.S. v. Lara, 47 F.3d. 60 (2nd Cir. 1994) seem to support this position in awarding a defendant a departure below the four-level downward adjustment for minimal role in the offense.

5. File a presentence memorandum between five and seven days prior to sentencing. Statistics show that in 80% of the cases judges come out on the bench with their minds made up as to what sentence they’re going to impose. This is called a “tentative sentence.” Unless you can put on a tremendous “dog and pony show” at sentencing, the likelihood is that your client is going to receive that sentence. Consequently, if you can get a solid presentence memorandum, with character letters and your social worker’s report (or your social worker’s report recast in your own words), you’ll go a long way toward helping the judge determine what sentence to impose before he or she has had a chance to crystallize his or her thoughts on the case.

6. Even if the court is not persuaded that any single mitigating factor warrants a downward departure, these factors taken together may warrant a downward departure. United States v. Cook, 938 F.2d 149 (9th Cir. 1991); U.S.S.G. §5K2.0 Commentary. Also, even if you don’t get a downward departure, these mitigating factors can often help in securing a sentence at the low end of the guideline range. This is particularly important when the offense level, the Criminal History Score or both call for high guidelines.


Breach of Plea Agreement
The government must live up to the promises it makes in its plea agreements — even promises it wishes it had not made. This is the message delivered by the First Circuit in United States v. Clark, 55 F.3d 9 (1st Cir. 1995). In that case, the plea agreement required the government not to oppose a three level downward adjustment for acceptance of responsibility. Following the signing of the agreement, the prosecution discovered that the defendant had obstructed justice. Rather than simply inform the lower court of the obstruction (which the government could have done within the terms of its agreement), the prosecution urged the sentencing court not to award the points for acceptance of responsibility. The First Circuit held that this violated the plea agreement, and remanded for resentencing.

When a plea agreement provides that the government will make a §5K1.1 departure motion if the defendant provides substantial assistance, the prosecution must at least give the defendant the opportunity to provide information. In United States v. Laday, 56 F.3d 24 (5th Cir. 1995), the court therefore found that the government breached its plea agreement when it made no effort to find out whether the defendant could provide substantial assistance.

Calculating the Sentence
When a defendant is already serving a sentence for another offense, policy statement §5G1.3(c) and its commentary calls upon the court to craft a sentence which results in a combined term of imprisonment approximating the term which would have been imposed had the defendant been sentenced under the guidelines for both offenses at the same time, so long as that process results in “a reasonable incremental punishment.” In United States v. Garrett, 56 F.3d 1207 (9th Cir. 1995), the Ninth Circuit remanded for resentencing where the lower court failed to make this calculation, and instead simply ordered that the sentence imposed run concurrently (from the date of imposition) with the previously imposed sentence which resulted in a longer sentence.

Double Jeopardy
Normally a defendant may not file an appeal until after sentencing. In United States v. Chick, — F.3d —, 1995 W.L. (9th Cir. 1995), the Ninth Circuit recognized an exception to allow a defendant to appeal a district court’s denial of a motion to dismiss on Double Jeopardy grounds. The defendant contended that to prosecute him following his civil forfeiture would violate the “double punishment” prong of the double jeopardy clause. The prosecution argued that requiring the defendant to go through a trial did not violate Double Jeopardy since the “double punishment” prong could not be violated until sentencing. The court disagreed, holding that requiring the defendant to go through a trial that could lead to a prohibited sentencing would itself require him to suffer the violation of his rights. The court therefore allowed the interlocutory appeal. The Third Circuit has agreed on the jurisdictional point, United States v. Baird,1995 W.L. 473499 (3rd. Cir. August 11, 1995), while strongly implying it will agree with the Ninth Circuit on the merits of United States v. 405,089.23 in U.S. Currency, 33 F.3d 1210 (9th Cir. 1994). The Sixth Circuit also agrees with the Ninth on the Double Jeopardy issue. United States v. Ursery, 1995 W.L. 41189 (July 13, 1995).

Downward Departures
When the government files a motion pursuant to §5K1.1 to depart downward based on a defendant’s substantial assistance, the Court is required to determine the extent of the departure “on an individual basis.” United States v. King, 53 F.3d 589 (3d Cir. 1995). The Court remanded for resentencing because the district court had stated that its “practice” was to depart 3 levels in §5K1.1 cases, and because there was no evidence that the district court had undertaken the required case-specific analysis necessary to determine the appropriate departure. A sentencing court also may not avoid exercising its discretion by limiting the extent of its downward departure based on the possibility of the government’s filing a rule 35(b) motion in the future. United States v. Bureau, 52 F.3d 584 (6th Cir. 1995).

When a defendant’s substantial assistance occurs a year or more after the imposition of sentence, Rule 35(b) authorizes prosecutors to file reduction motions only where the assistance “involves information or evidence not known by the defendant until one year or more after imposition of sentence.” In United States v. Morales, 52 F.3d 7 (1st Cir. 1995), the district court denied the government’s motion because the information the defendant provided was literally “known” to her at the time of her sentencing. The First Circuit reversed, holding that for purposes of Rule 35(b), a defendant does not “know” something until he or she becomes aware of its value to the prosecution, or until the prosecution asks for it.

A district court’s refusal to depart downward is not appealable, but its refusal to make findings necessary to exercise that discretion may be appealed. In United States v. Fisher, 55 F.3d 481 (10th Cir. 1995), the district court refused a downward departure based on the defendant’s being an infirm paraplegic with serious complications. The Tenth Circuit reversed, holding that the lower court did not properly exercise its discretion since it made no finding with respect to whether the defendant’s disabilities constituted “an extraordinary physical impairment” under §5H1.4. The Appeals Court instructed the district court on remand that if it found an extraordinary physical impairment, it should determine whether it warranted a shorter term or alternative to imprisonment. The appeals court cautioned the lower court that the purpose of such a determination was not only to be fair to the defendant, but also to reduce the costs to the government.

The United States Customs Service has the authority to seize and administratively forfeit (i.e., forfeit without a court order) drug proceeds and property and money used to facilitate drug transactions. The administrative process requires the customs service, among other things, to notify anyone it knows has an interest in the property. In United States v. Giraldo, 45 F.3d 509 (1st Cir. 1995), the First Circuit, following Robinson v. Hanrahan, 409 U.S. 38 (1972) (per curiam), held that the Customs Service violated a property owner’s due process rights when it sent the notice to the defendant’s home address, even though the Customs Service knew that he had been imprisoned as a result of a conviction related to the seizure. The court held that where the Customs Service fails to give proper notice, the remedy is to order the return of the property or commence judicial forfeiture proceedings.

Obstruction of Justice
Although the obstruction of justice enhancement may apply where a defendant testifies falsely at trial, 3C1.1 Appl. Note 3(b), the enhancement is inappropriate where the defendant merely denies guilt or refuses to talk with authorities. Appl. Note 1. In United States v. Pelliere, 57 F.3d 936 (10th Cir. 1995), the Tenth Circuit reversed the enhancement where the defendant told a customs agent and testified during a detention hearing that he had never sold or delivered drugs; the Court found these statements and testimony nothing more than denials of guilt.

The guidelines provide that avoiding arrest will not normally support the obstruction of justice enhancement. §3C1.1 appl. Note 4(d) (where that flight recklessly endangers others, enhancement may be appropriate under §3C1.2). The Ninth Circuit recently reversed the application of the obstruction enhancement based on the defendant’s flight to avoid arrest, even though the fugitive defendant also used aliases to avoid apprehension. The court in United States v. Stites, 56 F.3d 1020 (9th Cir. 1995), held that since the defendant’s use of “aliases did not prevent his apprehension,” it did not support the enhancement. The court also ruled that the defendant did not obstruct justice by refusing to provide the probation officer with current financial information.

Prisoner Rights
The third circuit recently reversed a district court’s summary dismissal of a prisoner’s suit against prison officials who engaged in a practice of opening his incoming court mail out of his presence, in violation of prison regulations and the constitution. The court first held that the pattern and practice of opening inmate mail violated the first amendment right to free speech as well as a fifth amendment due process right to court access. (the court made it clear that an isolated incident would not rise to the level of a constitutional violation.) Next, the court held that a pattern and practice of opening inmate court mail implicates a core aspect of the right to access to the courts and that therefore the inmate need not show any actual injury to prevail. Finally, the court held that the doctrine of qualified immunity did not protect the officials from suit, since they should have known that opening court mail outside the inmate’s presence violated his constitutional rights. Bieregu v. Reno, — F.3d —, 1995 W.L. 409147 (3d Cir. 1995). [although my practice is limited to federal post-conviction criminal defense, I report this case due to its importance to my readers. — the Editor].

Quantity of Controlled Substance
This past may, the sentencing commission sent to congress a proposed amendment to §2D1.1 which would require courts to exclude excess moisture to determine the weight of marijuana relevant to sentencing. Although this amendment does not go into effect until November 1, 1995 (assuming that Congress does not modify or reject it before then), the Eleventh Circuit has used the amendment as “subsequent legislative history” to interpret the meaning of prior application notes, and in effect has ruled that sentencing courts must apply it immediately. United States v. Smith, 51 F.3d 980 (11th Cir. 1995) (per curiam).

Relevant Conduct
When a plea agreement provides for cooperation in exchange for the government’s promise not to use revealed information against the defendant, the guidelines prohibit such information from being used to determine the applicable guideline range, as well. §1B1.8. Although this guideline does not apply to a defendant who previously revealed information to a state prosecutor under a grant of state transactional immunity, the Ninth Circuit recently held that the Fifth Amendment’s privilege against self-incrimination protects a defendant in this situation. Before the district court can rely on such information to set a sentence, the federal government must first show that it had an independent and legitimate source. United States v. Camp, 58 F.3d 491 (9th Cir. 1995).

Before a court may order restitution, it must “consider … The financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents ….” 18 U.S.C. §3664(a). The Second and Third Circuits recently reversed restitution orders which were imposed in violation of this statutory requirement. In United States v. Mortimer, 52 F.3d 429 (2d Cir. 1995), the Court reversed an order to pay restitution immediately where the lower court considered the defendant’s financial resources, but failed to consider his ability to pay restitution immediately. In United States v. Khan, 53 F.3d 507 (2d Cir. 1995), the record did not reflect that the district court had considered the financial resources of the defendant and the needs of the defendant’s dependents. In United States v. Hunter, 52 F.3d 489 (3d Cir. 1995), the record did not demonstrate any reasonable basis for the lower court to believe that the defendant could pay the restitution over a three year period, as it had ordered.


From the Bureau of Prisons
The bop has published interim rules which govern early release consideration for participation in drug abuse treatment programs. As authorized by 18 U.S.C. §3621(e)(2), the rules provide for up to a 12 month reduction in sentence for inmates who participate in a residential drug abuse treatment program. To be eligible, an inmate must have a verifiable documented drug abuse problem, no serious mental impairment, be eligible for the security level of the residential program, sign a statement acknowledging his or her program responsibility, and be within 36 months of release. Inmates who have already completed a residential drug abuse program are, under certain circumstances, also eligible for early release consideration.


Even when a defense attorney is convinced that the sentencing court has already decided to award a downward departure pursuant to §5H1.4 based on a defendant’s extraordinary physical impairment, he or she should still support the departure motion with expert testimony. Unless a departure decision is supported by the record, it could be reversed on the government’s appeal. This happened in United States v. Sherman, 53 F.3d 782 (7th Cir. 1995). Although the district court was convinced by the defendant’s appearance and testimony that his obesity and asthma were extraordinary physical impairments, the Seventh Circuit reversed, and remanded to give the defendant the opportunity to present expert testimony with respect to whether the Bureau of Prisons would be able to care for the defendant’s medical problems.

The Law Offices of Alan Ellis specializing In Federal Sentencing, Appeals, 2255 Habeas Corpus