US Sentencing Commission Report on Youthful Offenders

The Sentencing Commission issued a report on demographics, charging, and sentencing of youthful offenders in the federal criminal justice system. The report defines a “youthful offender” as a defendant age 25 or younger. Even though this definition include offenders under age 18, the number of defendants under age 18 is inconsequential. Between 2010 and 2015 there were only 52 offender under age 18. You can access the report HERE.

Key findings from the report are:

– 18% of the federal offender population between 2010 and 2015 was age 25 or younger

– The majority of youthful offenders are Hispanic (57.8%)

– Almost 92% of the offenses committed by youthful offenders were non-violent offenses.

– The most common offenses that youthful offenders committed were drug trafficking (30.9%), immigration (28.6%), and firearms offenses (13.7%)

– The average sentence for youthful offenders was 34.9 months

– Youthful offenders were more likely to be sentenced within the guidelines range

– Youthful offenders recidivated at a higher rate that their older counterparts – about 67% versus 41%

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Western District of Wisconsin’s New Order on Sealed Sentencing Memos

On May 25, 2017 Judge Peterson issued an order that changes the procedure for sealing a sentencing memo. The previous order required counsel to file a redacted and un-redacted version of the memo. The complete version was filed under seal and the redacted version was filed normally. Counsel also needed to file a motion to seal, accompanied by a redacted and un-redacted affidavit in support of the motion to seal. The redacted affidavit was filed for public view and the un-redacted affidavit was filed under seal. The new rule permits counsel to simply file the sentencing memo under seal when counsel has a “good faith belief that sealing is required to ensure the safety, privacy, or cooperation of a person or entity…”. The order deals with various sorts of sealed documents, but as far as sentencing memos it provides in relevant part as follows:

IT IS FURTHER ORDERED that in criminal cases only… [sentencing memoranda] may be filed under seal without motion or further order of the court and without an accompanying redacted version provided counsel has a good faith belief that sealing is required to ensure the safety, privacy or cooperation of a person or entity, or to otherwise protect a substantial public interest.

The complete memo is set forth here.

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Dean is Off to a Bad Start in the Seventh Circuit

In a case that implicated the Supreme Court’s recent decision in Dean v. United States, — S.Ct. — 2017 WL 1199461 at *6 (April 3, 2017), this week the Seventh Circuit decided United States v. Wheeler, dkt. 16-3435, decided May 19, 2017.

Until recently, United States v. Roberson, 474 F.3d 432 (7th Cir.2007) required that the district court could not consider the mandatory minimum for the 924(c) when it crafted the sentence for the Hobbs Act robbery. That changed with Dean, where the Supreme Court held that “[N]othing in § 924(c) restricts the authority conferred on sentencing courts by § 3553(a) and the related provisions to consider a sentence imposed under § 924(c) when calculating a just sentence for the predicate count.”

Wheeler pleaded guilty to a Hobbs Act robbery in violation of 18 U.S.C. §1951(a) and to discharging a gun during a crime of violence in violation of 18 U.S.C. §924(c)(1)(A)(iii). The district court sentenced him to 108 months for the Hobbs Act robbery, plus ten years consecutive for the 924(c). The guideline range on the robbery was 84-105 months. The Seventh Circuit opinion does not go into detail about the lower court’s reasoning on the sentence, other than to note that the court imposed an above guideline sentence for the robbery (three months above the high end of the advisory guideline) and to state that the record does not suggest that the district court felt constrained by Roberson. According to the Wheeler Court, “[I]t is inconceivable that a judge who imposed a sentence above the Guidelines range for the predicate crime did so because of Roberson.”

I think Wheeler takes too conservative of an approach to the question of whether Roberson impacted the sentence. First, the question is not whether the judge imposed the sentence because of Roberson. The question is whether the court would impose a different sentence in light of Dean. Second, it is conceivable to me that a district judge could decide that a robbery with a shooting requires a sentence above the advisory guideline range, but after consideration of the 3553 factors, the same situation merits less than the total of the robbery sentence, plus 10 years. After all, Roberson required the district court to impose the robbery sentence without consideration of the 924(c) sentence. That means that the judge was supposed to impose a sentence for the total package and then add the 924(c) sentence. If the court took this requirement to heart, it would have no reason to comment on what the total package would be in the absence of Roberson. For all we know, the district judge in Wheeler thought that in consideration of all of the 3553 factors, the robbery (including the firearm discharge) merited a sentence of 108 months and she imposed the 120 month consecutive sentence because Roberson required her to add the 924(c) sentence to the complete robbery sentence. The bottom line is that the only way to find out what the judge would have done without the constraint of Roberson is to remand.

In any event, at this point it looks like the Seventh Circuit may only grant remands in cases where there is a suggestion in the record that the court felt constrained by Roberson.

Posted in Federal Sentencing, Federal Sentencing Guidelines, Seventh Circuit Court of Appeals | Comments Off

New Rule for 924(c) Sentences

Section 924(c) provides for a mandatory consecutive sentence for use of a firearm during a crime of violence or drug trafficking crime. If the firearm was merely possessed, it is a five year mandatory minimum, plus the punishment for the underlying crime of violence or drug trafficking crime. If the weapon was brandished, it is a seven year minimum, plus the punishment for the crime of violence or drug trafficking crime. If the weapon is “discharged” the minimum jumps to ten years. Until recently in the Seventh Circuit, the district court could not consider the mandatory minimum for the § 924(c) when it crafted the sentence for the underlying crime of violence or drug trafficking crime. See United States v. Ikegwuonu, 826 F.3d 408 (7th Cir.2016). That meant that the district court could not impose one sentence for the total package. Instead, the court had to decide what the crime of violence or drug trafficking crime was worth and impose five, seven or ten years on top of that for the § 924(c). That all changes with Dean v. United States, — S.Ct. — 2017 WL 1199461 at *6 (Apr. 3, 2017), wherein the Supreme Court holds that “[N]othing in § 924(c) restricts the authority conferred on sentencing courts by § 3553(a) and the related provisions to consider a sentence imposed under § 924(c) when calculating a just sentence for the predicate count.”

Dean should require a remand for resentencing for any factually applicable case still on or before direct appeal. The Seventh Circuit holds that it is procedural error for the district court to misapprehend the authority conferred under sec. 3553. See United States v. Powell, 576 F.3d 482, 499 (7th Cir. 2009). In my view, that is what occurred if the district court applied the now overruled directive set forth in Ikegwuonu.

Posted in Federal Sentencing, Federal Sentencing Guidelines, Seventh Circuit Court of Appeals | Comments Off

Investigator and Paralegal Skills Workshop, July 27-29, 2017, New Orleans, LA

Registration is now open for the Federal Defender Paralegal and Investigator Skills Workshop in New Orleans, LA on July 27th-29th, 2017.

Register here – https://etrak.fd.org/Login.aspx

The Paralegal and Investigator Skills Workshop is a hands-on program providing intensive training in several skills (e.g., interviewing, case management/organization, locating records and witnesses, analyzing documents) that are essential to the daily work of paralegals and investigators in federal defender offices or assigned to CJA panel cases. The program is designed to give participants the opportunity to learn by doing, using a combination of plenary sessions and interactive small group breakouts. In the small groups, participants practice the skills introduced in the plenary sessions, using the facts of a model case.

Because the workshop emphasizes essential skills, it is particularly valuable to new investigators and paralegals. Those with more experience will find it to be a useful refresher and an opportunity to share their knowledge with others. Please note that, due to the workshop format of this program, participants will be required to attend all sessions. Registration is limited to 70 participants. First priority in registration will be given to those who have never attended the
workshop in the past.

In order to attend this workshop, participants must be employees with paralegal and/or investigator duties in a federal defender office, or regularly perform such duties in conjunction with federal CJA panel attorney appointments.

For questions about the substance of the workshop, please contact Ubong E. Akpan at Ubong_Akpan@ao.uscourts.gov; for questions about registration or
other logistics, please contact Heidi Capati at Heidi_Capati@ao.uscourts.gov.

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CJA eVoucher unavailable from 7:00 p.m. on May 19 to 6:00 a.m. on May 22, 2017.

Due to an upgrade of the CJA eVoucher application to Version 5.0, eVoucher will be unavailable from Friday, May 19 at 7:00 pm – Monday, May 22 at 6:00 am.

Posted in CJA Rates and Reimbursement | Comments Off

National Federal Sentencing Seminar, Tampa, Florida, June 28-30, 2017

The Tampa Bay Chapter of the Federal Bar Association, along with The National Association of Criminal Defense Lawyers, The American Bar Association Criminal Justice Section, and The Federal Bar Association Criminal Law Section, will present a comprehensive federal sentencing guideline seminar June 28-30, 2017 in Tampa, Florida. This year’s topics include:

Introduction to Sentencing Guidelines (Wednesday only, optional)
A View from the Bench
An Update on Federal Sentencing Law and Policy
Departures and Variances
Bureau of Prisons Issues
Child Pornography and Sexual Offenses
Drug Offenses
Firearms Offenses
Fraud and Theft Offenses
Plea Bargaining
Role and Chapter Three Adjustments

Tuition for Government attendees is $359 if postmarked by May 28, 2017; $399 if postmarked on May 29, 2017, or later. Tuition for Non-Government attendees is $499 if postmarked on or before May 28, 2017; $549 if postmarked after May 29, 2017. Members of NACDL, FBA, or ABA CJS receive a $50 discount. Contact Katherine Earle Yanes at KYanes@kmf-law.com for information on group discounts or any questions about the seminar.

Hotel Reservations: Reservations can be made by calling the Sirata Beach Resort directly at (800) 344-5999 (please mention the Tampa Bay Chapter of the Federal Bar Association – Federal Sentencing Seminar to receive the group rate). Rates are as follows: Traditional Hotel Room $169; Studio Room $189; King, Bay View One Bedroom Suite $199-224 (varies based on view and amenities in room); and Queen, Gulf View, One Bedroom Suite $259.

For questions about this program, contact Program Co-Chairs Katherine Earle Yanes at Kynes, Markman & Felman, P.A., at (813) 229-1118 or KYanes@kmf-law.com or Gus Centrone at Centrone & Shrader, PLLC, at (813) 360-1529 or GCentrone@centroneshrader.com.

Posted in Federal Sentencing, Federal Sentencing Guidelines | Comments Off

Déjà vu all over again

Federal prosecutors are back to a policy of charging the most “serious readily provable offense.” On May 10, 2017, the Attorney General issued a memorandum to all federal prosecutors that asserts that from now on “prosecutors should charge and pursue the most serious, readily provable offense.” If there is any question about how to reconcile this policy with previous charging polices, the memo informs us “that any inconsistent previous policy of the Department of Justice relating to these matters is rescinded, effective today.”

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CJA Rate Increase to $132.00 Effective May 5, 2017

Defender Services has sufficient fiscal year 2017 funding in the “Consolidated Appropriations Act of 2017” to increase the Criminal Justice Act (CJA) panel attorney hourly rates from $129 to $132 for non-capital work and from $183 to $185 for capital work performed on or after May 5, 2017. The new rates apply to CJA work on or after May 5, 2017. Because the non-capital rate went up, the case compensation maximums go up as well. The case compensation maximum for a felonies goes up to $10,300.

E-voucher automatically applies the new rate and case compensation maximums for work done on or after May 5, 2017.

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May 23, 2017 at 10 a.m. – Webinar on Defending Noncitizens Using 1326(d) Motions

The Training Division is presenting a free Webinar called “Strategies for Defending Noncitizens Using 1326(d) Motions”. Title 8, sec. 1326(d) refers to a collateral attack on the prior deportation. In the defense of a reentry after deportation case, winning a collateral attack on the underlying deportation means victory in what might otherwise be a hopeless situation. How to evaluate the merit of 1326(d) motion is definitely something that counsel needs to understand in the defense of a federal illegal reentry case. The webinar will review numerous collateral challenges used in several districts and teach counsel how to take advantage of the resources available through the 1326(d) motions bank on the new fd.org.

You may register through the “Upcoming Training Events” section on the home page of www.fd.org.

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