On April 9, 2008, President Bush signed the “Second Chance Act of 2007.” A summary of the Act is found at: http://www.whitehouse.gov/news/releases/2008/04/20080409-15.html.
In short, “the legislation formally authorizes key elements of the successful Prisoner Reentry Initiative (PRI), announced by the President in 2004, to help prisoners effectively reintegrate into the community. Additionally, the Second Chance Act enhances drug treatment, mentoring, and transitional services for ex-offenders through partnerships with local corrections agencies and faith-based and community organizations.” The Act allocates $360 million towards a variety of reentry programs. One of the main components of the bill is the funding of demonstration projects that would provide ex-offenders with a coordinated continuum of housing, education, health, employment, and mentoring services.
However, it will be up to Congress to appropriate the funds for this program. The success of this program, even with lofty hopes and goals, will depend on whether the Government will follow through with the necessary funding.
Monday, September 1, 2008
New Crack Cocaine Guidelines
The New “Crack Cocaine” Guidelines- an introduction
Recently, the United States Sentencing Commission amended the base offense levels applicable to cocaine base (“crack”) offenses. These amendments present an opportunity for those sentenced under the previous more punitive guidelines to petition the trial court for a reduction in sentence.
Change in guidelines
For many years, commentators have been concerned with the unwarranted disparity existing between Federal crack cocaine and powder cocaine sentences. Effective November 1, 2007, the United States Sentencing Guidelines Commission implemented Amendment 706 to the Sentencing Guidelines. Amendment 706 lowered the base offense levels applicable to cocaine base (“crack”) offenses. See http://www.ussc.gov/2007guid/appc2007.pdf.
The Sentencing Reform Act of 1984 specifically authorized the Commission to provide for retroactive effect of amendments that result in lower penalties for classes of offenses or offenders. On December 11, 2007, the Sentencing Commission voted to make Amendment 706 retroactive. See http://www.ussc.gov/PRESS/rel121107.htm. This decision became effective on March 3, 2008. Id.
Procedure
18 U.S.C. § 3582(c) provides: The court may not modify a term of imprisonment once it has been imposed except that— . . . (2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553 (a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
USSG §1B1.10 contains the policy statements concerning reduction of imprisonment as a result of amended guideline ranges. Effective March 3, 2008, a revised USSG §1B1.10 took effect. Amendment 706, as amended by Amendment 711, is now included in the list of amendments that may be applied retroactively. USSG §1B1.10 (c).
The major points included in USSG §1B1.10 are:
• In determining whether, and to what extent, a reduction in the defendant’s term of imprisonment, the court “the court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (c) had been in effect at the time the defendant was sentenced.”
• Except as provided in Subsection B, the court shall not reduce the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range determined under subdivision.
• (B) Exception. If the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing, a reduction comparably less than the amended guideline range determined under subdivision (1) may be appropriate. However, if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220 (2005), a further reduction generally would not be appropriate.
Northern District of Texas
In the Northern District of Texas, the Federal Public Defender’s Office has identified Defendants that may qualify for a reduction in sentence, and have mailed form motions to them to file pro se. It has yet to be determined if these individuals will be entitled to court appointed counsel in pursuing these reductions.
A number of these motions have been filed by both pro se prisoners and those able to afford counsel, and some have been granted. In United States v. Mosby, 3:03-CR-188-N(20), Northern District of Texas (Dallas), the Hon. David C. Godbey granted a motion to reduce the represented Defendant’s Term of Imprisonment from 57 to 46 months because of the crack cocaine guideline change over the Government’s objection. In United States v. Bell, 4:06-CR-073-A(01), Northern District of Texas (Ft. Worth), the Hon. John McBryde granted a motion to reduce a pro se Defendant’s term of imprisonment from 240 to 193 months because of the new crack guidelines. In the initial judgment, Judge McBryde had sentenced the Defendant below the applicable guideline range, and certified in his amended sentence order that the “reduced sentence is comparably less” than the amended guideline range.
It is likely that the judges will be called upon to rule on many of these types of motions in the near future. It is unknown, however, as to how many of these persons will be appointed counsel to assist in the preparation and argument of these motions and what the position of the United States Attorney will be in response to these motions.
Recently, the United States Sentencing Commission amended the base offense levels applicable to cocaine base (“crack”) offenses. These amendments present an opportunity for those sentenced under the previous more punitive guidelines to petition the trial court for a reduction in sentence.
Change in guidelines
For many years, commentators have been concerned with the unwarranted disparity existing between Federal crack cocaine and powder cocaine sentences. Effective November 1, 2007, the United States Sentencing Guidelines Commission implemented Amendment 706 to the Sentencing Guidelines. Amendment 706 lowered the base offense levels applicable to cocaine base (“crack”) offenses. See http://www.ussc.gov/2007guid/appc2007.pdf.
The Sentencing Reform Act of 1984 specifically authorized the Commission to provide for retroactive effect of amendments that result in lower penalties for classes of offenses or offenders. On December 11, 2007, the Sentencing Commission voted to make Amendment 706 retroactive. See http://www.ussc.gov/PRESS/rel121107.htm. This decision became effective on March 3, 2008. Id.
Procedure
18 U.S.C. § 3582(c) provides: The court may not modify a term of imprisonment once it has been imposed except that— . . . (2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553 (a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
USSG §1B1.10 contains the policy statements concerning reduction of imprisonment as a result of amended guideline ranges. Effective March 3, 2008, a revised USSG §1B1.10 took effect. Amendment 706, as amended by Amendment 711, is now included in the list of amendments that may be applied retroactively. USSG §1B1.10 (c).
The major points included in USSG §1B1.10 are:
• In determining whether, and to what extent, a reduction in the defendant’s term of imprisonment, the court “the court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines listed in subsection (c) had been in effect at the time the defendant was sentenced.”
• Except as provided in Subsection B, the court shall not reduce the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range determined under subdivision.
• (B) Exception. If the original term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing, a reduction comparably less than the amended guideline range determined under subdivision (1) may be appropriate. However, if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220 (2005), a further reduction generally would not be appropriate.
Northern District of Texas
In the Northern District of Texas, the Federal Public Defender’s Office has identified Defendants that may qualify for a reduction in sentence, and have mailed form motions to them to file pro se. It has yet to be determined if these individuals will be entitled to court appointed counsel in pursuing these reductions.
A number of these motions have been filed by both pro se prisoners and those able to afford counsel, and some have been granted. In United States v. Mosby, 3:03-CR-188-N(20), Northern District of Texas (Dallas), the Hon. David C. Godbey granted a motion to reduce the represented Defendant’s Term of Imprisonment from 57 to 46 months because of the crack cocaine guideline change over the Government’s objection. In United States v. Bell, 4:06-CR-073-A(01), Northern District of Texas (Ft. Worth), the Hon. John McBryde granted a motion to reduce a pro se Defendant’s term of imprisonment from 240 to 193 months because of the new crack guidelines. In the initial judgment, Judge McBryde had sentenced the Defendant below the applicable guideline range, and certified in his amended sentence order that the “reduced sentence is comparably less” than the amended guideline range.
It is likely that the judges will be called upon to rule on many of these types of motions in the near future. It is unknown, however, as to how many of these persons will be appointed counsel to assist in the preparation and argument of these motions and what the position of the United States Attorney will be in response to these motions.
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