{"id":2495,"date":"2017-08-13T16:34:54","date_gmt":"2017-08-13T20:34:54","guid":{"rendered":"http:\/\/sexoffenderonestopresource.com\/florida\/?p=2495"},"modified":"2017-08-13T16:34:54","modified_gmt":"2017-08-13T20:34:54","slug":"notes-from-federal-sentencing-seminar","status":"publish","type":"post","link":"https:\/\/sexoffenderonestopresource.com\/florida\/notes-from-federal-sentencing-seminar\/","title":{"rendered":"Notes from Federal Sentencing Seminar"},"content":{"rendered":"
\n

Notes from Federal Sentencing Seminar<\/h1>\n

by\u00a0Florida Action Committee<\/a><\/span><\/p>\n<\/div>\n

\n

The following are notes from\u00a0The Twenty-Sixth Annual National Seminar on Federal Sentencing\u00a0<\/u>sponsored by the Tampa Bay Chapter of the Federal Bar Association, The National Association of Criminal Defense Lawyers, (www.NACDL.org) The Criminal Law Section of the Federal Bar Association, and the Criminal Justice Section of The American Bar Association (www.americanbar.org\/crimjust)<\/p>\n

The seminar took place June 28-30th and was attended by a member of our Board of Directors, who graciously took notes so that we can all benefit from the information. Below are her notes:<\/p>\n

Plenary session<\/strong>:\u00a0A View From the Bench<\/u>\u00a0Thursday, June 29th<\/sup>\u00a08:30-10:00 A.M.<\/p>\n

Federal judges discussed their personal views on federals sentencing policy and procedure. The panel also discussed current events and topics in Federal Sentencing law.<\/p>\n

Panel<\/strong>:<\/p>\n

Honorable Nancy Atlas, US District Court, Southern District of Texas (NA)<\/p>\n

Honorable Bernice B. Donald, U.S. Court of Appeals for the Sixth Circuit\u2019 (BD)<\/p>\n

Honorable Gerard Lynch, U.S. Court of Appeals for the Second Circuit (GL))<\/p>\n

Honorable Carlos Mendoza, U, S. District Court, Middle District of Florida (CM)<\/p>\n

Moderator: Morris \u201cSandy\u201d Weinberg, Jr. Esq. of Zuckerman Spaeder, LLP Tampa Florida (SW)<\/p>\n

 <\/p>\n

NOTE TO READER:<\/u><\/strong>\u00a0comments are referenced by the initials of the various speakers as noted in the panel list above.<\/p>\n

GL<\/strong>\u00a0Was a critic on 1987 with sentencing guidelines; believes guidelines are where we are now; if a judge errs, case can be sent back unless addressed at the time of sentencing; since the 80\u2019s, the guidelines DO influence (question regarding pre-Booker\u2014 response noted by BD)<\/em><\/p>\n

BD<\/strong>\u00a0Was initially shocked by the guidelines; found them to be mandatory and wanted to avoid reversals in court; thought to be draconian; then Booker gave another level of discomfort;<\/p>\n

NA<\/strong>\u00a0Went to the civil division initially because she was wanting to avoid criminal cases but wound up on the federal level as a judge. Was also uncomfortable with guidelines but only mandatory portions; once facts were determined, it was up to the judge to get the facts. Even pre-Booker there was some flexibility; variances were strongly discouraged by where she was in Texas; guidelines DO provide comfort to avoid unwarranted sentences. The difference is seen in the sentencing; Critical factor is how the prior experience is impacting your decision.<\/p>\n

CM<\/strong>\u00a0All one\u2019s experiences are important but NOT for the impact on sentencing; but it SHOULD be difficult and stressful!! It should not be easy or natural to put someone behind bars (citing attorney in St. Augustine as he mentioned both his parents are naturalized citizens.)<\/p>\n

GL<\/strong>\u00a0agrees. Some guidelines distance them from sentences but it is intense and difficult; in one way guidelines made it \u2018easier\u2019 but added to the stress!<\/p>\n

BD<\/strong>\u00a0Doesn\u2019t miss sentencing as she is now in the appellate court!<\/p>\n

NA<\/strong>\u00a0Statutory minimums are difficult; i.e. when doing three strikes cases, it will cause one to lose sleep; feels the need to anchor within guidelines so if enormous variations occur, congress may make some changes.<\/p>\n

CM\u00a0<\/strong>Defendant should really fight to provide for a case with thorough addressing of guidelines\u00a0(my thought\u2014how is a defendant to know to do this?)<\/em><\/p>\n


\n<\/em>GL<\/strong>\u00a0Law is very clear; there is to be the consideration of many factors; cases come with a number of factors. Policies should be set centrally; don\u2019t ignore the guidelines!<\/p>\n

BD\u00a0<\/strong>agrees; it is important for defending attorneys to get involved; to provide well-resourced information for presentencing report.<\/p>\n

Post Booker allows for variations anchored within guidelines; this is important; can reference a later break out session by Roger Handberg<\/em><\/p>\n

BD<\/strong>\u00a0Thinks some disparity is inevitable; sentencing is the end of the game; disparity enters the plea bargaining, financial issues.<\/p>\n

GL<\/strong>\u00a0again sometimes government will stipulate within the states<\/p>\n

NA<\/strong>\u00a0Sitting on District bench, as a committee of one, look at the norm\/ what is fair; it is the defendant \u2018s council\u2019s job to show where your case falls within the continuum; within the guideline rubric all variances and departures are not equal; the defense attorney should work with probation; this information is helpful to the judge; looks within her own district for variances; some judges are not wanting to be a \u2018lone ranger\u2019. You will need to provide a rationale-explaining reasonableness; An appellate question\u2014are substantial challenges post Booker successful?<\/p>\n

BD\u00a0<\/strong>look at what the federal court calculates<\/p>\n

GL<\/strong>\u00a0and what is provided for departures; look at facts; substantive; why was this action followed? reversals are not common.\u00a0 agrees regarding variations; second circuit sees no overturns; only found one case which was a terrorism case; found this sentence\u00a0was too low<\/u>;\u00a0reference made to child pornography in addressing guidelines as being too severe!<\/strong><\/em><\/p>\n

Reference the aside by other panel members of similar concern, i.e. computer use; has done substantive review; must look at evidence points, etc. same is true of substantive reasonableness.<\/p>\n

CM\u00a0<\/strong>Does not meet with the probation office; tries to read recommendation from the PO within 48 hours; makes for ripe and fresh with information; does not make pre-conceived ideas; central questions are if ranges are varied between prosecutor and defense. A point of no return from families. Appreciates live presentations and efforts since arrest; enters with sentencing memorandum in advance, better how the time is spent; bring in witnesses to get judge to see the way you do.<\/p>\n

\u00a0NA<\/strong>\u00a0has a different stance; doesn\u2019t advise live witnesses; this can backfire; pick your battles; plan to your strength; advance communication is needed for going on probation; get the client to agree to the best points that can be provided. It is unusual in her world with live presentations but they need to demonstrate clearly what the defender did. i.e. Did defendant impact getting others to commit a crime?\u00a0 What about acceptance of responsibility? Try to think ahead about objections to avoid a 2255 later. DOES meet with the PO office and disclose recommendation(s).<\/p>\n

GL<\/strong>\u00a0also meets and discloses recommendations. Has an idea to avoid compulsive but not predetermining outcomes. Has ideas how a case may go, but remains open to the possibility of change.<\/p>\n

BD<\/strong>\u00a0probably sees itself as an arm of prosecution; in court, presentation and presence is important!<\/p>\n

NA<\/strong>\u00a0PO\u2019s learn predilection of judges; is valuable to meet with them; really wants to hear from the defendant; must go beyond being sorry they got caught.<\/p>\n

CM<\/strong>\u00a0Some interesting things happen\u2014will know the facts but open to decision based on what actually happens during the sentencing hearing; must be willing to remain open<\/p>\n

Comments made regarding appearance and variances and factors on which to focus.<\/em><\/p>\n

NA<\/strong>\u00a0non-responsive reply\u2014explain why your client is outside of the norm; where does your defendant place in the big picture\u2019 for example the Judge Block cocaine case regarding collateral consequences (Note: Judge Block was on two panels on Friday. Notes will reflect his rulings, etc.)<\/p>\n

BD<\/strong>\u00a0factors to focus on\u2014find out area in a person\u2019s experience that can be useful for direction; can be influenced by a number of factors<\/p>\n

CM\u00a0<\/strong>Re violations; difficulty with employment, transportation, very easily susceptible to violations; there are human components; there is ALWAYS a consequence!<\/p>\n

CM<\/strong>\u00a0regarding discussions with the PO\u2014should be open<\/p>\n

GL<\/strong>\u00a0advisory groups can be referenced for concern; confidential meetings with judge and probation can be a concern<\/p>\n

NA<\/strong>\u00a0practice previously was to NEVER turn over a recommendation; this was changed due to experience over time<\/p>\n

GL\u00a0<\/strong>Cases require the government to not always be binding<\/p>\n

    \n
  1. CM<\/strong>. PSR and sent records are two different things; defense attorney and prosecutors have access; the Middle Dist. of FL has varied practices; the discussion of seeing recommendations but on what are they based?<\/li>\n<\/ol>\n

    Concluding: Disparity exists among probation officers;\u00a0probation officers can range from social workers to being para legal with guidelines coming into place at various points.<\/u><\/p>\n

    Second Plenary session<\/strong>: Update on Federal Sentencing Law and Policy 10:15-11:45 A.M.<\/p>\n

    Session provides information regarding legislative developments in the criminal justice system. Panelists will discuss federal sentencing law and policy, including new precedents, changes in policies and procedures, and their personal opinions on sentencing issues.<\/p>\n

    Panelists:<\/p>\n

    Mary Price, Families Against Mandatory Minimums Washington, DC (MP)<\/p>\n

    Norman Reimer, Esq. Executive Director National Association of Criminal Defense Lawyers (NACDL) (NR)
    \nJonathan Wroblewski, Esq. Director of the Office of Policy and Legislation, Criminal Division Dept. Of Justice (JW)<\/p>\n

    Moderator: James E Felman, Esq. Kynes, Markman and Felman, P.A. Tampa Florida (JF)<\/p>\n

     <\/p>\n

    JF<\/strong>\u00a0Began with the Sessions\u2019 ( new AG under Trump) memos; in the 80\u2019s Attorney General set forth a document requesting charges for the most serious offense; in \u201989 AG guidelines under Thornburg sent constitutional guidelines; in \u201993 Reno loosened a bit; in \u201903 Ashcroft gave a MUST charge edict etc. directive; in \u201905 memo after Bourke asked for a report on any departures; in \u201910 Holder used a revision to make individual assessment\u2014that justice demands this; \u201913 added guidance to NOT use sentencing guidelines routinely. Mandatory minimums set in.\u00a0Sessions reversed ALL prior guidance except Ashcroft\u2019s \u201cshould sentencing\u2019 directive, a reversal to going back to hammering\u2019 people.<\/strong>\u00a0It was recommended we should ALL read the Sessions memo.\u00a0(Note: this was prior to the most recent president Trump\u2019s verbal attacks on AG Sessions. At this time, Sessions remains the AG)<\/em><\/p>\n

    JW<\/strong>\u00a0this makes for a politicized system; it is unfortunate so many crimes carry mandatory minimums.\u00a0 Met two weeks ago with criminal chiefs etc. they seem to be pleased with this memo. (Sessions) Think the USSC will collect data as per this memo.\u00a0 Be careful what we wish for is a caution.\u00a0 Want to squeeze out disparities with current criminal code; tendency is now to go with the highest charge.<\/p>\n

    NR\u00a0<\/strong>Referenced the Sessions memo, Holder\u2019s memo and what appears to be from Ashcroft, indicating efforts to go for everything and here in the Middle District there are already directives to try new pleas. He served in the S. Dist. of N.Y. (Cuomo, Preet Bharara and Moyenthal ( spelling>??) \u2014all were fired from this district)<\/p>\n

    For more information on fired U.S. attorneys go to: https:\/\/en.wikipedia.org\/wiki\/Dismissal_of_U.S._attorneys_controversy<\/p>\n

    JW<\/strong>\u00a0expects different implications; reference CP (child pornography) as an area of exception(s)<\/p>\n

    MP<\/strong>\u00a0Memo (re. Sessions) encourages prosecution to go for the strongest offense. Is not consistency but prosecutors\u2019 decisions based on \u2018charges\u201d can make for disparity (referenced Judge Pryor) side note- Pryor is currently the chair of the USSC<\/em><\/p>\n

    JW\u00a0<\/strong>may be able to see some of these decisions; Obama asked the USSC to gather data. Already being collected is information on CP possession, receipt, etc.<\/p>\n

    MP<\/strong>\u00a0Still won\u2019t understand how offers, etc. are available.\u00a0 Can\u2019t access all the information<\/p>\n

    JF<\/strong>\u00a0Will KNOW some info; in the Middle District of Florida, it\u2019s how the memo is read AND if it is EVER read; 924\u2018c\u2019s\u00a0 \u00a0https:\/\/www.ussc.gov\/\u2026\/Quick_Facts_Section_924c_Offenders.pdf<\/p>\n

    With Bush, there seemed to be momentum for sentencing reform<\/p>\n

    MP<\/strong>, it is unlikely we will see meaningful sentencing reform and corrections acts. Had some great bills for reform championed by Sen. Grassley.\u00a0 (R Iowa) had to be bi-partisan support; voted out of committee. The chief opponent was then senator Sessions!!!\u00a0 At the end of the day it was an election year so it wasn\u2019t even brought to the floor; hoped to return with an even better bill but this election ended it with the Sessions appointment. It takes actions to undo some reforms; there is a gearing up to be very punitive in our system; Many other bills are popping up regarding mandatory minimums.<\/p>\n

    NR<\/strong>\u00a0Agreed with Mary. We have the worst possible attorney general for our issues!\u00a0 This is an outlier but he has current authority; even had a provision for severe sentencing (Black to Blues) including ALL courtroom employees etc. but NOT for defense lawyers! Will need to beat back some really bad stuff\u2014but over reliance of prison populations. Bakker, we have a country that has to deal with the fact that we incarcerate more than any other country. Stats given: U.S. 693 out of every 100,000. In other nations the numbers are 6, 21, and 30 as examples from other nations. BUT 693 is the US average. We have gone unhinged over incarceration with NO plusses to public safety and is intensely racist!<\/p>\n

    NP\u00a0<\/strong>Kushner is a wild card maybe for optional reform!\u00a0(Again, the political changes at the executive levels is VERY uncertain at this time.)<\/em><\/p>\n

    JW<\/strong>\u00a0More nuanced; administration has cross currents; within the house, justice dept., Grassley spoke (this week of conflict) about the cross currents in the administration and is committed to sentencing reform; thinks the judiciary would pass reforms; ALSO, Sensenbrenner is named the House judiciary committee chair replacing G Rep Gowdy ( R\u00a0 South Carolina) \u00a0Sensenbrenner worked with Bobby Scott; also in impacting case law\u2014a bill to be voted on has no mandatory minimum; re; Black to Blue\u2014will likely have a mandatory minimum, the vast majority of these cases will likely be prosecuted in state not federal courts.]<\/p>\n

    MP\u00a0<\/strong>agrees with comment made about reform minded law makers.<\/p>\n

    JF\u00a0<\/strong>Future of guidelines referenced Blakely law. It has been suggested to have a new system; then came the Booker ruling; there are those unhappy with the guidelines as they now stand. Question asked\u2014What out there is being proposed?<\/p>\n

    JW\u00a0<\/strong>Pryor, acting chair of USSC, wants to simplify the sentencing guidelines; has presumptive force (further that a starting point but less than mandatory, ordo away with mandatory minimums; in this planning year with be other priorities; framework is from Pryor; mandatory minimums can create distortions in the Sentencing Guidelines system.\u00a0 Centrist reforms?\u00a0 The don\u2019t have them for child pornography.<\/p>\n

    MP\u00a0<\/strong>Re Pryor- note that the USSC is NOT mandatory but advisory; Referenced the PROTECT ACT (2003) as getting rid of many options<\/p>\n

    JW<\/strong>\u00a0Explicit suggestions to the USSC for room to depart in certain guideline factors (can be called mandatory or preemptions) Congress can be rewriting some of the language<\/p>\n

    JF\u00a0<\/strong>Sees a political play<\/p>\n

    NR\u00a0<\/strong>sees it leading to greater sentences; is also concerned all aggravating factors will be charged; need to look at the impact; if committee would just minimize reliance on many factors, i.e. criminal history<\/p>\n

    JF\u00a0<\/strong>it is a challenge to find a way to lower sentences which is NOT the politics of the present! 90 percent of sentences are outside of guidelines but HOW FAR out of the range shows a problem that exists in treating different people similarly.\u00a0 Need to look at exact variances.\u00a0 Another model might be to simplify culpability and serve as advisory, i.e. there have been studied \u2018fraud\u2019 sentences.\u00a0 We need to look at the ABA site. (provided in introduction)<\/p>\n

    NR<\/strong>\u00a0Re: clemency\u2014steering committee is challenging the extraordinary people who got draconian sentences with no violation; is determined to 1) get back to options of early release, parole, etc. and 2) Trial (disappearances) for all that makes the chance of going to trial impossible (need is to eliminate the penalty for rejecting a plea and going to trial.)<\/p>\n

    MP<\/strong>\u00a0Last 8 years have been formative (past administration) and congress really stepped up. Also 2010 the beginning of memos, federal prison population dropped; we need to be mindful going forward.\u00a0 FAMM is looking at prison reform, programs, etc.<\/p>\n

    SW look<\/strong>\u00a0for opportunities to rescind<\/p>\n

    SCOTUS to hear more arguments after this decision on crimes of violence; issue will be opened to address crimes of violence (importance is whether there is a crime of violence in one\u2019s history) What we now have is NOT working.\u00a0 3553 a factor of prior \u2014is important to be a consideration<\/p>\n

    Contact: Laurie Draper Jones\u00a0\u00a0 landstar727 @ yahoo<\/p>\n

    WAR\u00a0<\/strong>lunch extra session attended by about 12 persons; two members gave testimonies; very touching; wish more could have attended but this was the only time for lunch for the group.<\/p>\n

    _______________________________________________________________________________________<\/p>\n

    Concurrent session: Booker: A Review of The First 10 years of Sentencing Data<\/p>\n

    Presenter: Roger Handberg, Esq. Assistant U.S. Attorney, Middle District of Florida<\/p>\n

    Speaker referenced he does primarily white-collar crime\u00a0(Interestingly, he was the prosecutor in our family member\u2019s case!)<\/em>\u00a0He is interested in what happens at sentencing as far as getting the guidelines right. he found not much advocacy at sentencing but this all changed with the Booker ruling. (referenced O\u2019Conner) Two things at sentencing:<\/p>\n