Sentencing 101A 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 118 U.S.C. §§ 922(g)(1) and 924(a)(2)NMT 10 Years Imprisonment NMT $250,000 FineNLT 3 Years Supervised Release Class C Felony

COUNT 218 U.S.C. §§ 922(g)(1) and 924(a)(2)NMT 10 Years Imprisonment NMT $250,000 FineNLT 3 Years Supervised Release Class C Felony

FORFEITURE ALLEGATION 118 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 andAmmunition) 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 118 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)

Applicable Statutes

No Cost Resource: Cornell University Law School,

Legal Information Institute

www.law.cornell.eduResource

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

United States Sentencing GuidelinesGuidelines Worksheets

United States Sentencing GuidelinesSentencing 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 FactsWhere 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

Find the Applicable GuidelineAppendix A – Statutory Index

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

Guideline Section 2K2.1

Calculating the Offense Level2K2.1

Calculating the Offense Level (cont.)

Calculating the Offense Level (cont.)

Calculating the Offense Level (cont.)

Calculating the Offense Level (cont.)

CHAPTER THREE – Adjustments

Part A-Victim-Related AdjustmentsPart B-Role in the OffensePart C-Obstruction and Related AdjustmentsPart D-Multiple CountsPart E-Acceptance of Responsibility

Chapter Three Adjustments

Calculating the Offense Level (cont.)

Part D – Multiple Counts

Determine whether the counts should be grouped (3D1.2).

Offenses covered by Section 2K2.1 are to be grouped.

Calculating the Offense Level (cont.)

§3E1.1. Acceptance of Responsibility

(a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.

(b) If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.

Calculating the Offense Level (cont.)

Calculating Criminal HistoryChapter 4. Determining the Criminal History

Calculating Criminal History (cont.)

Calculating Criminal HistoryPoints Summary

Criminal History Points for offenses committed at 18 or older:

3 >13 months. Must be within 15 years of prior sentence imposition or release.

2 ≥ 60 days. Must be within 10 years of prior sentence imposition.

1 All others * Must be within 10 years of prior sentence imposition.

* Maximum of 4.

If offense committed before 18, 2 points if within 5 years of prior imposition or release and 1 point within 5 years of imposition.

CalculatingCriminal History (cont.)Criminal History

Criminal History Resources

The Client

Government’s Discovery

Pretrial Services Report

PACER

CaseNet

Prior Presentence Investigation Reports

Obtain Copies

Summary:Why it is important to know your client’s criminal history.

Statutory 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,

Determining the Offense Level

Summary:Why it is important to know your client’s criminal history –Chapter 4 Career Offender and Criminal Livelihood.

Career Offender

At least eighteen years old at the time he committed the instant offense of conviction.

The instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense.

At least two prior felony convictions of either a crime of violence or a controlled substance offense.

Armed Career Criminal

A defendant who is subject to an enhanced sentence under the provisions of 18 U.S.C. §924(e) is an armed career criminal.

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.

Determine the SentenceChapter 5

Determine the Sentence (cont.)

Determine the Sentence (cont.)

Determine the Sentence (cont.)

Determine the Sentence (cont.)

Determine the Sentence (cont.)

Determine the Sentence (cont.)

Determine the Sentence (cont.) 5G1.3 Imposition of a Sentence on a Defendant Subject to an

Undischarged Term of Imprisonment or Anticipated State Term of Imprisonment.Other Chapter 5 considerations

Determine the Sentence (cont.)

Determine the Sentence (cont.)

Determine the Sentence (cont.)

Determine the Sentence (cont.)

Part H – Specific Offender Characteristics List of characteristics and whether they are relevant for

determining whether a departure is warranted. Part K – Departures

5K1.1 Substantial Assistance 5K2.0 through 5K2.24 Other Grounds

Other Chapter 5 considerations

18 U.S.C. Section 3553(a)

• 18 U.S.C. Section 3553(a) factors give the court wide discretion within the statutory minimum and maximum.

Felon in Possession – maximum ten (10) years.

ACC -- minimum fifteen (15) years, maximum life.

Applicable --Sentencing Factors

Sentencing factors. 18 U.S.C. Section 3553(a).

(a)FACTORS TO BE CONSIDERED IN IMPOSING A SENTENCE.—The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—

(1)the nature and circumstances of the offense and the history and characteristics of the defendant;

(2)the need for the sentence imposed—

(A)to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B)to afford adequate deterrence to criminal conduct;

(C)to protect the public from further crimes of the defendant; and

(D)to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3)the kinds of sentences available;

(4)the kinds of sentence and the sentencing range established for—

A)the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—

(i)issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and

(ii)that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or

(B)in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section994(a)(3) of title 28, United States Code, taking into account any amendments made to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28);

(5)any pertinent policy statement—

(A)issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title28); and

(B)that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.[1]

(6)the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7)the need to provide restitution to any victims of the offense.

18 U.S.C. Section 3553(a)

Important Considerations

Plea Agreements –The Impact on Sentencing

Appeal waiver.

The Factual basis.

Agreed upon Guidelines.

The PSI Interview

Determine whether your client should interview.

Prepare your client.

Do NOT allow your client to attend without you.

Sentencing Mitigation

Expert Psychologist. Bureau of Prisons. Medical.

Non-Expert Friends and family. Employers. Letters to court. Photographs.

Allocution

Allocution. (al-ə-kyoo-shən) n. (1858) Criminal procedure. 1. A trial judge's formal address to a convicted defendant, asking whether the defendant wishes to make a statement or to present information in mitigation of the sentence to be imposed. • This address is required under Fed. R. Crim. P. 32(c)(3)(C). 2. An unsworn statement from a convicted defendant to the sentencing judge or jury in which the defendant can ask for mercy, explain his or her conduct, apologize for the crime, or say anything else in an effort to lessen the impending sentence. • This statement is not subject to cross-examination. 3. Criminal procedure. A defendant's admission of guilt made directly to a judge, esp. in response to a series of questions from the judge on whether the defendant understands the charges, the right to a trial, the consequences of a guilty plea, and the voluntary nature of the plea. Black’s Law Dictionary (10th ed. 2014), Bryan A. Garner, Editor in Chief.

AllocutionLetter from client.

Client address to the court.

Allocution article.

Non-citizen defendants

Treaty transfers.

http://www.justice.gov/criminal-oeo/international-prisoner-transfer-program

Additional Resources

Office of the Federal Public Defender Jefferson City: 573-636-8747 Kansas City: 816-471-8282 Springfield: 417-873-9022

Defender Services Office Training Division: www.fd.org An Introduction to Federal sentencing, Bradford Bogan, Assistant

Federal Public Defender, Western District of Texas.

United States Sentencing Commission www.ussc.gov Helpline: 202-502-4545

Additional Resources

United States v. Booker, 543 U.S. 220 (2005)

Rita v. United States, 551 U.S. 338 (2007)

Kimbrough v. United States, 552 U.S. 85 (2007)

Gall v. United States, 552 U.S. 38 (2007)

Irzarry v. United States, 553 U.S. 708 (2008)

Spears v. United States, 555 U.S. 261 (2009)

Pepper v. United States, 131 S.Ct. 1229 (2011)

Peugh v. United States, 133 S.Ct. 2072 (2013)

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The End.