Sentencing 101 A beginner¢â‚¬â„¢s guide to sentencing in Federal . 2016-03-21¢  Sentencing 101 A beginner¢â‚¬â„¢s

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  • Sentencing 101 A beginner’s guide to sentencing in Federal Courts. March 23, 2016

    Michelle Nahon Moulder, Assistant Federal Public Defender

  • Purpose of this presentation: The basics.

  • What you can expect:

    • Tools • Facts • Guidelines basics • Resources • Practice pointers • Questions.

  • The Tools

  • The Indictment

    IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI

    SOUTHWESTERN DIVISION

    UNITED STATES OF AMERICA, No. xx-xxxxx-xx-x-xxx

    Plaintiff,

    v.

    John Doe

    Defendant.

    COUNT 1 18 U.S.C. §§ 922(g)(1) and 924(a)(2) NMT 10 Years Imprisonment NMT $250,000 Fine NLT 3 Years Supervised Release Class C Felony

    COUNT 2 18 U.S.C. §§ 922(g)(1) and 924(a)(2) NMT 10 Years Imprisonment NMT $250,000 Fine NLT 3 Years Supervised Release Class C Felony

    FORFEITURE ALLEGATION 1 18 U.S.C. § 924(d)(1)

    $100 Special Assessment

    I N D I C T M E N T

    THE GRAND JURY CHARGES THAT:

    COUNT 1 (Felon in Possession of Firearm and Ammunition) 18 U.S.C. § 922(g)(1)

    and 924(a)(2)

    On or about February 3, 2015, in Jasper County, in the Western District of

    Missouri, the defendant, John Doe, having been convicted of a crime

    punishable by imprisonment for a term exceeding one year, knowingly possessed,

    in and affecting interstate commerce, firearms and ammunition, that is, a KHAR

    CM40 .40 caliber handgun, serial number JN9239, with three rounds of .40 caliber

    ammunition; all in violation of Title 18, United States Code, Sections 922(g)(1) and

    924(a)(2). Dated: 06/17/2013 /s/ AUSA

    Assistant United States Attorney

    COUNT 2 (Felon in Possession of Firearm and Ammunition)

    18 U.S.C. § 922(g)(1) and 924(a)(2)

    On or about April 24, 2015, in Jasper County, in the Western District of Missouri, the

    defendant, John Doe, having been convicted of a crime punishable by imprisonment for

    a term exceeding one year, knowingly possessed, in and affecting interstate commerce,

    firearms and ammunition, that is, a Hi-Point Model C9 9mm firearm with an assigned

    serial number of P1671468 with 8 rounds of Luger 9mm caliber ammunition; all in violation

    of Title 18, United States Code, Sections 922(g)(1) and 924(a)(2).

    FORFEITURE ALLEGATION 1 18 U.S.C. § 924(d)(1)

    The allegations contained in Counts 1 and 2, above, are hereby incorporated as though

    fully set forth herein for the purpose of charging criminal forfeiture to the United States of

    America pursuant to Title 18, United States Code, Section 924(d)(1).

    As a result of committing offenses in violation of Title 18, United States Code, Sections

    922 and 924, as charged herein, defendant John Doe, shall forfeit to the United States all

    firearms and ammunition involved in the particular aforesaid offenses as set forth above,

    including but not limited to, a KHAR CM40 .40 caliber handgun, serial number JN9239, with

    three rounds of .40 caliber ammunition; and a Hi-Point Model C9 9mm firearm with an

    assigned serial number of P1671468 with 8 rounds of Luger 9mm caliber ammunition, all seized

    from John Doe in Jasper County, Missouri, on or about February 3, 2015, and April 24, 2015.

    A TRUE BILL.

    /s/ FOREPERSON OF THE GRAND JURY

  • Applicable Statutes – Crime Charged

    18 U.S.C. Section 922(g)

    (g)It shall be unlawful for any person—(1)who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

    . . .

    to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

    Felon in possession

    18 U.S.C. Section 922(g)

  • Applicable Statutes -- Penalties

    Penalties: 18 U.S.C. Section 924(a)(2)

    Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.

    Felon in possession

    18 U.S.C. Section 924(a)(2)

  • Applicable Statutes – Potential Statutory Enhancements

    Armed Career Criminal Act. 18 U.S.C. Section 924(e) (e)(1) In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).

    (2)As used in this subsection—(A)the term “serious drug offense” means—(i)an offense under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46 for which a maximum term of imprisonment of ten years or more is prescribed by law; or

    (ii)an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law;

    (B)the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—(i)has as an element the use, attempted use, or threatened use of physical force against the person of another; or

    (ii)is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another; and

    (C)the term “conviction” includes a finding that a person has committed an act of juvenile delinquency involving a violent felony.

    Armed Career Criminal Act (ACCA)

    18 U.S.C. 924(e)

    https://www.law.cornell.edu/uscode/text/18/lii:usc:t:18:s:922:g https://www.law.cornell.edu/uscode/text/18/lii:usc:t:18:s:922:g:1 https://www.law.cornell.edu/uscode/text/21/801 https://www.law.cornell.edu/uscode/text/21/951 https://www.law.cornell.edu/uscode/text/46/lii:usc:t:46:ch:705 https://www.law.cornell.edu/uscode/text/21/802

  • Applicable Statutes

    No Cost Resource: Cornell University Law School,

    Legal Information Institute

    www.law.cornell.eduResource

    http://www.law.cornell.edu/

  • The United States Sentencing Guidelines

  • The United States Sentencing Guidelines

    Book form. https://bookstore.gpo.gov/products/sku/052-070-07689-5 $69

    http://legalsolutions.thomsonreuters.com/law- products/Treatises/Federal-Sentencing-Guidelines-Manual-2015- ed/p/101309424 Regularly $76 -- 2015 on sale for $60.80.

    Online. http://www.ussc.gov/guidelines-manual/guidelines-manual

    FREE!!!

    Where to find the Guidelines

    https://bookstore.gpo.gov/products/sku/052-070-07689-5 http://legalsolutions.thomsonreuters.com/law-products/Treatises/Federal-Sentencing-Guidelines-Manual-2015-ed/p/101309424 http://www.ussc.gov/guidelines-manual/guidelines-manual

  • United States Sentencing Guidelines Guidelines Worksheets

  • United States Sentencing Guidelines Sentencing Table

  • Model Jury Instructions Available at the Eighth Circuit website:

    http://juryinstructions.ca8.uscourts.gov/criminal_instructions.htm

  • Model Jury Instructions -- Elements

  • Model Jury Instructions -- Elements

  • The Facts Where to find the facts you need to calculate the potential sentence.

  • The Facts

    Sources

     Client interview

     Government’s Discovery

     Investigation

    Information

     Criminal history

     Health/mental health

     Employment

     School

     Family

  • Calculating the Potential Sentence

  • The Statute Controls

    Penalties: 18 U.S.C. Section 924(a)(2)

    Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both

    Armed Career Criminal Act. 18 U.S.C. Section 924(e) (e)(1)

    In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).

    Example: Felon in Possession

  • Calculating the Guidelines

  • Fin