The following are notes from The Twenty-Sixth Annual National Seminar on Federal Sentencing 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)
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:
Plenary session: A View From the Bench Thursday, June 29th 8:30-10:00 A.M.
Federal judges discussed their personal views on federals sentencing policy and procedure. The panel also discussed current events and topics in Federal Sentencing law.
Honorable Nancy Atlas, US District Court, Southern District of Texas (NA)
Honorable Bernice B. Donald, U.S. Court of Appeals for the Sixth Circuit’ (BD)
Honorable Gerard Lynch, U.S. Court of Appeals for the Second Circuit (GL))
Honorable Carlos Mendoza, U, S. District Court, Middle District of Florida (CM)
Moderator: Morris “Sandy” Weinberg, Jr. Esq. of Zuckerman Spaeder, LLP Tampa Florida (SW)
NOTE TO READER: comments are referenced by the initials of the various speakers as noted in the panel list above.
GL Was 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’s, the guidelines DO influence (question regarding pre-Booker— response noted by BD)
BD Was 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;
NA Went 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.
CM All one’s 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.)
GL agrees. Some guidelines distance them from sentences but it is intense and difficult; in one way guidelines made it ‘easier’ but added to the stress!
BD Doesn’t miss sentencing as she is now in the appellate court!
NA Statutory 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.
CM Defendant should really fight to provide for a case with thorough addressing of guidelines (my thought—how is a defendant to know to do this?)
GL Law 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’t ignore the guidelines!
BD agrees; it is important for defending attorneys to get involved; to provide well-resourced information for presentencing report.
Post Booker allows for variations anchored within guidelines; this is important; can reference a later break out session by Roger Handberg
BD Thinks some disparity is inevitable; sentencing is the end of the game; disparity enters the plea bargaining, financial issues.
GL again sometimes government will stipulate within the states
NA Sitting on District bench, as a committee of one, look at the norm/ what is fair; it is the defendant ‘s council’s 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 ‘lone ranger’. You will need to provide a rationale-explaining reasonableness; An appellate question—are substantial challenges post Booker successful?
BD look at what the federal court calculates
GL and what is provided for departures; look at facts; substantive; why was this action followed? reversals are not common. agrees regarding variations; second circuit sees no overturns; only found one case which was a terrorism case; found this sentence was too low; reference made to child pornography in addressing guidelines as being too severe!
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.
CM 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.
NA has a different stance; doesn’t 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? 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).
GL also 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.
BD probably sees itself as an arm of prosecution; in court, presentation and presence is important!
NA PO’s 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.
CM Some interesting things happen—will know the facts but open to decision based on what actually happens during the sentencing hearing; must be willing to remain open
Comments made regarding appearance and variances and factors on which to focus.
NA non-responsive reply—explain why your client is outside of the norm; where does your defendant place in the big picture’ 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.)
BD factors to focus on—find out area in a person’s experience that can be useful for direction; can be influenced by a number of factors
CM Re violations; difficulty with employment, transportation, very easily susceptible to violations; there are human components; there is ALWAYS a consequence!
CM regarding discussions with the PO—should be open
GL advisory groups can be referenced for concern; confidential meetings with judge and probation can be a concern
NA practice previously was to NEVER turn over a recommendation; this was changed due to experience over time
GL Cases require the government to not always be binding
- CM. 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?
Concluding: Disparity exists among probation officers; probation officers can range from social workers to being para legal with guidelines coming into place at various points.
Second Plenary session: Update on Federal Sentencing Law and Policy 10:15-11:45 A.M.
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.
Mary Price, Families Against Mandatory Minimums Washington, DC (MP)
Norman Reimer, Esq. Executive Director National Association of Criminal Defense Lawyers (NACDL) (NR)
Jonathan Wroblewski, Esq. Director of the Office of Policy and Legislation, Criminal Division Dept. Of Justice (JW)
Moderator: James E Felman, Esq. Kynes, Markman and Felman, P.A. Tampa Florida (JF)
JF Began with the Sessions’ ( new AG under Trump) memos; in the 80’s Attorney General set forth a document requesting charges for the most serious offense; in ’89 AG guidelines under Thornburg sent constitutional guidelines; in ’93 Reno loosened a bit; in ’03 Ashcroft gave a MUST charge edict etc. directive; in ’05 memo after Bourke asked for a report on any departures; in ’10 Holder used a revision to make individual assessment—that justice demands this; ’13 added guidance to NOT use sentencing guidelines routinely. Mandatory minimums set in. Sessions reversed ALL prior guidance except Ashcroft’s “should sentencing’ directive, a reversal to going back to hammering’ people. It was recommended we should ALL read the Sessions memo. (Note: this was prior to the most recent president Trump’s verbal attacks on AG Sessions. At this time, Sessions remains the AG)
JW this makes for a politicized system; it is unfortunate so many crimes carry mandatory minimums. 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. Be careful what we wish for is a caution. Want to squeeze out disparities with current criminal code; tendency is now to go with the highest charge.
NR Referenced the Sessions memo, Holder’s 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>??) —all were fired from this district)
For more information on fired U.S. attorneys go to: https://en.wikipedia.org/wiki/Dismissal_of_U.S._attorneys_controversy
JW expects different implications; reference CP (child pornography) as an area of exception(s)
MP Memo (re. Sessions) encourages prosecution to go for the strongest offense. Is not consistency but prosecutors’ decisions based on ‘charges” can make for disparity (referenced Judge Pryor) side note- Pryor is currently the chair of the USSC
JW 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.
MP Still won’t understand how offers, etc. are available. Can’t access all the information
JF Will KNOW some info; in the Middle District of Florida, it’s how the memo is read AND if it is EVER read; 924‘c’s https://www.ussc.gov/…/Quick_Facts_Section_924c_Offenders.pdf
With Bush, there seemed to be momentum for sentencing reform
MP, it is unlikely we will see meaningful sentencing reform and corrections acts. Had some great bills for reform championed by Sen. Grassley. (R Iowa) had to be bi-partisan support; voted out of committee. The chief opponent was then senator Sessions!!! At the end of the day it was an election year so it wasn’t 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.
NR Agreed with Mary. We have the worst possible attorney general for our issues! 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—but 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!
NP Kushner is a wild card maybe for optional reform! (Again, the political changes at the executive levels is VERY uncertain at this time.)
JW More 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 South Carolina) Sensenbrenner worked with Bobby Scott; also in impacting case law—a bill to be voted on has no mandatory minimum; re; Black to Blue—will likely have a mandatory minimum, the vast majority of these cases will likely be prosecuted in state not federal courts.]
MP agrees with comment made about reform minded law makers.
JF 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—What out there is being proposed?
JW 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. Centrist reforms? The don’t have them for child pornography.
MP Re Pryor- note that the USSC is NOT mandatory but advisory; Referenced the PROTECT ACT (2003) as getting rid of many options
JW Explicit 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
JF Sees a political play
NR 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
JF 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. Need to look at exact variances. Another model might be to simplify culpability and serve as advisory, i.e. there have been studied ‘fraud’ sentences. We need to look at the ABA site. (provided in introduction)
NR Re: clemency—steering 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.)
MP Last 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. FAMM is looking at prison reform, programs, etc.
SW look for opportunities to rescind
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’s history) What we now have is NOT working. 3553 a factor of prior —is important to be a consideration
Contact: Laurie Draper Jones landstar727 @ yahoo
WAR 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.
Concurrent session: Booker: A Review of The First 10 years of Sentencing Data
Presenter: Roger Handberg, Esq. Assistant U.S. Attorney, Middle District of Florida
Speaker referenced he does primarily white-collar crime (Interestingly, he was the prosecutor in our family member’s case!) He 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’Conner) Two things at sentencing:
- uniformity—a concept that is not to be depended upon and
- individual circumstances could be considered
Speaker also talked about the nature of the defense. So, his goal was to step back and see what past 11 years of post-Booker had created. He wrote an article in the Florida Bar. He is not supporting nor is he opposing the ruling. Material can be obtained from the seminar site.
Mr. Handberg presented an analysis of variances (factors to convince judges to go below the guidelines) Also provided an analysis of trends in mandatory minimums. Referenced U.S. v Bork 543 U.S.220 (2005) and looked at 3553 factors.
**Noted that reversals are uncommon in the 11th Circuit (only 13 were reversed as being unreasonable.)
Looked at fiscal year from Oct. through Sept.
District courts have substantial opportunity to go outside the guidelines so arguments should be made at the time of sentencing. (ref. 2009 Blakely—saw that this case could impact Sentencing Guidelines)
His graphs showed national trends AND 11th circuit; referenced the substantial assistance motion
** What to do if cases are related to child pornography—indicated that the USSC collects such data- gave various offense of reasons for variances. States that CP CASES WERE DIFFERENT FROM OTHERS!
Looks at one particular 2621— category that sees the largest decrease of variances (57%) Reasons—the protection of the public-unwarranted sentencing disparities, criminal history, highest % of variance median is 40 months.
He has seen attorneys getting very good at the district patterns, as many judges are using this data as a starting point, **EXXCEPT FOR CP) the difference being if you have a hands-on offense. Emphasized that the guidelines are important!
The next part of his presentation regarded mandatory minimums; after Booker, 194 statutes as of2011 regarding Mandatory Minimums; also spoke of controlled substance cases; the fair sentencing Act signed in 2010
Phentonyl is the scariest-50 times more powerful that heroin; mostly made in china and often is taken without anyone’s knowledge.
Note: While no elaboration was made in references to CP please take notice that there were mentions which give us evidence of a need to pursue the disparity between levels of culpability in CP cases.)
Friday A.M. Concurrent session 8:30-9:30
CHILD PORNOGRAPHY AND SEX OFFENSES Presenter: Troy Stabenow, Esq. Assistant Federal Defender, Western district of Missouri
Began by stating he was not going to go deep into case law: can be reached at: [email protected]
In 2005 his case load hit federal sentencing; slides provided were excellent. Prior to 87 nothing was given; things escalated until 2004 with 42-51 months sentence average; then reference increases that amounted to an average of gasoline going from $3 a gallon to $7.50 and more. He looked for the logic behind this but the rulings came from congress in response to the 2003 PROTECT ACT led by Sensenbrenner and Tom Feeny
Question? How we got to this?? The USSC in 2004 said this was crazy! No guidelines in federals sentencing that makes LESS sense!
2 federal judges wrote an article regarding this
In 2012 USSC asked for an update as there was variance found in 44% of CP cases (reference the 2012 USSC site)
The DOJ admits some enhancements make no sense in drug possession. But the guidelines have NOT changed. There are ‘us’ crimes and CP is a ‘them’ crime. No one will stand up FOR possession of CP so now we have flawed guidelines which is even worse THAN ACTUAL Guidelines (opinion. Note: his presentation style was very matter of fact and rather tastefully colorful which was very entertaining even given the severity of the topic!)
He recommends a 5-part plan for presenting a case:
- know what happened
- Dig into the evidence
- Demystify the guidelines
- Deconstruct common assumptions
- Present a principled alternative to undo sentencing and conditions of release
# 1, evaluate email to internet PTP –is it deep web or dark web meaning is it something used every day or specialized information. Is it seen by others or is it encrypted which means it is NOT inherently evil.
At this point his presentation got technical to this person. He discussed whether the evidence followed a circuitous route, referenced MICHAUD United States Court of Appeals, Ninth Circuit.
UNITED STATES of America, Plaintiff-Appellee, v. Michelle Lyn MICHAUD, Defendant-Appellant. No. 99-10440. Decided: September 25, 2001)
Cases have been thrown out rather than someone from the government being forced into outing their sources.
#2 KIK has to do with connecting the world through chats where one can remain anonymous BUT IP CAN be traced especially through a cell phone usage so the MAIN point that I gathered was that one needs to understand the platform being used. It is important to NOT believe forensic reports as they are not to be trusted!!! Note this fact was also substantiated in another presentation)
As for the identification of the ages of the ‘victims” this too is up for debate. In one case, it was determined that the prosecution had manipulated the images so one should have their defense see for themselves as EXPERT reports, again, are not to be trusted.
#3 Deconstruct; determine what is safe to argue
#4 ‘All viewers are molesters’ is a phrase that is used as a catch phrase. What happens becomes a question of status quo. Regarding lifetime supervision ‘every case is presented as the worst case ever!” can be traced back to 1975 where there have always been extremes but you must look at the evidence. Butner redux— 131 minimum to over 1400 contacts ‘revealed.” Regarding this study—it was NEVER peer review; the 131 subjects were ‘selected ‘from 12,000. How were they chosen? Incentives were given to ‘self-report,” ref. U.S. v Johnson (point being that subjects were NOT randomly selected) and basic of a sound research and U.S. v Phinney
Referenced Seto and Eke (2005 and Endrass 2009)
U.S. Probation Report—just how dangerous are these possessors? See https://www.ussc.gov/sites/default/files/pdf/news/congressional-testimony-and-reports/sex-offense-topics/201212-federal-child-pornography-offenses/Chapter_10.pdf
#5 Provide principled alternative to a sentence AND to conditions of release.
Re; Insignificant risks
Set a starting point for comparison
Compare to 18 U.S.C. 24229b) Federal Register: 42 Fed. Reg. 24229 (May 13 … – Library of Congress https://cdn.loc.gov/service/ll/fedreg/fr042/fr042093/fr042093.pdf
Gave example of 50-year-old writing to a 13-year-old. Compared to guys looking at pictures there is a definite qualitative difference. Ref: market for CP say it is bigger than the entire Hollywood industry. Trades for Fees contribution is encouraging more of the product.
Facts: Need for supervision, where one resides, no porn, no contact
The issue of residency the social media is very restricted (referenced the recent Packingham ruling) This will be litigated as to how this applies in various cases
No computer usage
No contact for anyone under age 18 (should be more than incidental)
If one is given no hope, then what is one to do
The Polygraph is bull shit! Tests only what is stressed and can lead to post polygraph admission as one is led to believe.
Restitution 18 U.S.C. 2259 U.S. v Hanlon Middle Dist. FL Jan. 23, 2015
Concurrent Session 110:50-11:50 A.M.
Honorable Frederick Block, U.S. Dist. Court Eastern Dist. of New York (FB)
Lauren King, Esq. Staff Attorney, Criminal Justice Section (LK)
Professor Jenny Roberts, Associate Dean for Scholarship, American University, Washington, DC (JR)
Moderator LT Lafferty, Esq. Holland And Knight, LLP Tampa Florida (LL)
Note: Block has written two ‘novels” The first is ‘Race to Judgement” and a 2012 memoir “Disrobe” Judge Block has authored a very prominent opinion regarding collateral consequences which was referenced more than once at last year’s seminar.
JR introduced the topic.
Referenced Mendoza remarks from yesterday’s session (see 8:30 Plenary session, Thurs. June 29th)
Collateral consequences typically begin in the interview where “safety’ is stressed rather than punishment (Writer notes that THIS is of key issue as far as the registry goes!) In brief, Collateral Consequences are anything that are Not sentence imposed. They’re often hidden or enmeshed but collateral consequences are very real. In criminal convictions, there are related laws and policies and MANY are embedded within Federal law. Example is a mandatory sex offender registration and also frequent in the arena of meth production. There are permanent and temporary consequences. Relief is rare; No federal pardons or waivers of a consequence. There are 70 million U.S. citizens with criminal records and over 45,000 collateral consequences.
LK The ABA, CRIMINAL JUSTICE Section IS A GREAT RESOURCE UNDER THE Criminal Justice Section. *** Be aware of all collateral consequences; question to ask is ‘does a prior consequence have a nexus to the original offense?’ (Again, the writer sees a connection with the various probation violations that are caused by strict residency restrictions, ankle monitoring, etc.)
One should reference the ABA policy where possible!
FB Why is this important? Read the book ‘The New Jim Crow”. Criminals do not have a supportive constituency so they REALLY need the ABA! HE WAS SHOCKED AT LARGE IMPACT OF COLLATERAL CONSEQUENCES. There is a BLACK HOLE! In FL, there are 78 collateral consequences that affect employment alone! Twenty-nine affect benefits; 49 affect civic engagement and on and on! The remedy is within the legislative body. (points to the need of activist groups!) No commitment there so we need to develop public awareness. A sentence should be a balance between defendant and the nature of the crime. He gave a homework assignment to lawyers to find out what collateral consequence are. He stated that ALL collateral consequences MUST be considered. The probation and the defense lawyer should pay attention! They also have to accurately present the information to the client and address various pertinent state statutes. The question is whether to take a plea or follow a constitutional obligation to do provide all information before doing so. There is a U.S. attorney manual for big corporate cases and various collateral consequences. It is the responsibility of the lawyer to apply collateral consequences at the time of sentencing so there is ‘some’ recourse that MAY lead to a change under the 6th amendment. Referenced the NACDL (national Association of Criminal Defense Lawyers) and the recent Packingham case rulings. Judge Block continued to say that EVERYBODY involved has the responsibility to address collateral consequences. Many Coll. Consequences are NOT mandatory but discretionary. Defendant has little opportunity to ask at the time of sentencing for relief from any collateral consequences. He also referenced internet Child Pornography: SCOTUS did a reversal based on the 1st amendment in SCOTUS also resolved circuit splits and could be in the action on this issue.
Final Concurrent Session: DEPARTURES AND VARIANCES
Rob Gristci, Esq. of Salter Felbe, P.A. Gainesville FL (RG)
Marjorie j Peerce, Esq. Ballard Spahr, LLP New York, NY (MP)
Honorable Frederick Block, U.S. Dist. Court Eastern Dist. of New York (FB)
Moderator: Katherine Earle Yanes, Esq. Kyles, Markman and Felman P.A. tamps FL (KY)
FB spoke of the lack of uniformity of collateral consequences (reference previous session) the 6th, 7th and 10th circuit decisions are varied so it depends on where you are within the U.S. A variance is effective when used with a combination of factors. Once should raise ALL arguments with probation officer who is considered as your ‘first’ judge. He recommends a written submission to show the seriousness of purpose; letters from friends and family especially employer(s). How the defendant behaved after being charged; He likes to see family members in court and forensic reports; the pre-Sentence Report should show rehabilitative efforts!
RG asked about financial retribution and referenced the case U.S. v KIM written by Susan Black.
FB In some ways, judges are compliant in sentencing, taking into consideration what impact a sentence may have on one’s ability to capture additional ‘fish’! Much depends on the guidelines range. He advocates that judges must remember there is a human being in front of you! He also spoke of diversionary options but admits they are few and far between.