New Holder Memo

On May 19, 2010, the Attorney General of the United States issued a memorandum to all federal prosecutors entitled: "Department Policy on Charging and Sentencing." (http://sentencing.typepad.com/files/holder-charging-memo.pdf)

It provides in part:

Consistent with the statute and with the advisory sentencing guidelines as the touchstone, prosecutors should seek sentences that reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford deterrence, protect the public, and offer defendants an opportunity for effective rehabilitation. In the typical case, the appropriate balance among these purposes will continue to be reflected by the applicable guidelines range, and prosecutors should generally continue to advocate for a sentence within that range. The advisory guidelines remain important in furthering the goal of national uniformity throughout the federal system. But consistent with the Principles of Federal Prosecution and given the advisory nature of the guidelines, advocacy at sentencing -- like charging decisions and plea agreements -- must also follow from an individualized assessment of the facts and circumstances of each particular case. All prosecutorial requests for departures or variances -- upward or downward -- must be based upon specific and articulable factors, and require supervisory approval.

There are no substantive changes from the status quo. It's the same old system, wrapped in a sweeter package. The most serious readily provable offense is to be charged, regardless of the insanity that is our federal drug crime scheme. Thus, 5-10 years incarceration or more for first offenders is still to be the norm. The Holder also memo makes no mention of increased use of FRCrP Rule 11(c)(1)(c) plea agreements, which would provide an agreed-to sentence to the court, and not leave it to the whims of the judge. A policy increasing the use of 18 USC 3553(e) motions to allow for sentences below the mandatory minimum is not included. Also not addressed is when 851 enhancements are specifically to be filed- another lost opportunity.

Overall, the memo adds nothing new and nothing will probably change in the policies of the offices of the United States Attorneys across the United States. This is neither bold nor warranted.

Proposed Repeal of "Recency Points" guideline in calculating criminal history

The Federal Sentencing Guidelines take into account various factors to arrive at a proposed sentencing range. One of those factors is an assessment of points to determine a defendant’s criminal history category. The higher the criminal history category (I to VI), the higher the proposed sentencing range.

The total points from items USSG §4A1.1 (a) through (f) determine the criminal history category in the Sentencing Table in Chapter Five, Part A. USSG §4A1.1 currently includes:

(e) Add 2 points if the defendant committed the instant offense less than two years after release from imprisonment on a sentence counted under (a) or (b) or while in imprisonment or escape status on such a sentence. If 2 points are added for item (d), add only 1 point for this item.

According to our friends from the Federal Defenders in the Northern District of Texas,

On Tuesday, April 13, 2010, the U.S. Sentencing Commission voted to amend the Guidelines Manual by deleting §4A1.1(e) (recency points). The presumed reason for the amendment is that recency points add nothing to the predictive quality of the criminal history score and fail to reflect meaningful differences in offender culpability, as set forth at pp. 90-98 of the Defenders’ testimony to the Commission, available at http://www.fd.org/pdf_lib/FPD_Testimony%20of%20Meyers%20and%20Mariano_FINAL.pdf

The recency amendment (along with other amendments being voted on this cycle) will be sent to Congress on May 1, 2010 and, if no further action is taken, will be adopted on Nov. 1, 2010. This does not mean, however, that courts must continue applying recency points in the interim. The court remains free under 18 U.S.C. § 3553(a) and Supreme Court precedent to disagree with any part of the guidelines on policy grounds. Defense counsel should argue that courts should not assess recency points now for the same reason that the Commission recommends abandoning them on Nov. 1st: they do not reflect either increased culpability or an increased risk of recidivism and thus do not serve any sentencing purpose.

Padilla v. Kentucky, continued

The Immigrant Defense Project has issued a helpful practice advisory for criminal defense counsel in the wake of Padilla v. Kentucky.

To find it, go to: http://www.immigrantdefenseproject.org/, and look for the link at the bottom right of the webpage.

It not only describes the duty of counsel to advise clients of the immigration consequences of criminal convictions, but provides two very handy appendices: "Immigration Consequences of Convictions Summary Checklist" and "Suggested Approaches for Representing a Noncitizen in a Criminal Case."

Discretionary Use of § 851 Enhancements

If a person accused of a drug offense in federal court has a prior felony drug conviction, the existence of this prior conviction or convictions can double the sentence (or more) for that offender.

For example, a defendant who pleads guilty to the offense of conspiracy to distribute, and possess with the intent to distribute five (5) grams or more of a mixture or substance containing a detectable amount of cocaine base (“crack”), a Scheduled II controlled substance, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B), is facing a mandatory minimum of five years and a maximum of not more than 40 years. However, if this defendant has a prior conviction for “a felony drug offense,” than his or her mandatory minimum is 10 years, regardless of the drug amount. See 21 U.S.C. § 841(b)(1)(B).

However, in order for this enhanced mandatory minimum to take effect, the Government must file a Notice of Enhancement under 21 U.S.C. § 851(a)(1). That statute provides: “No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.”

It is crucial to note that the Government has the discretion not to file this enhancement. The United States Attorneys’ Manual (USAM 9-27.300(B)) indicates that § 851 notices should be filed, but not where: “(1) the failure to file or the dismissal of such pleadings would not affect the applicable guideline range from which the sentence may be imposed; or (2) in the context of a negotiated plea[.] . . . . The reasons for such an agreement must be set forth in writing. Such a reason might include, for example, that the United States Attorney's office is particularly overburdened, the case would be time-consuming to try, and proceeding to trial would significantly reduce the total number of cases disposed of by the office. The permissible agreements within this context include: (1) not filing an enhancement; (2) filing an enhancement which does not allege all relevant prior convictions, thereby only partially enhancing a defendant's potential sentence; and (3) dismissing a previously filed enhancement.” See http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/title9.htm

My experience in practicing in different federal districts is that the Government’s implementation of USAM 9-27.300(B) varies widely. I have had an AUSA in one jurisdiction offer to not file an enhancement if my client pled guilty, and had an AUSA in another jurisdiction file an enhancement even when my client pled guilty, cooperated and the Government later filed a 5k Motion for a downward departure!

It makes no sense to file § 851 Notices when a defendant is pleading guilty. Federal drug laws are very harsh, and a defendant‘s criminal history is already a factor in determining that defendant’s federal sentencing guideline range. It is my hope that the Department of Justice will revisit USAM 9-27.300(B) to reach a uniform, just result.

Federal Mortgage Fraud Conviction against lawyer in Washington State

On April 3, 2010, the following report was posted on the Internet regarding how a lawyer was convicted for mortgage fraud in Washington State:

Bothell's Robert Ernest Brandt, 42, a former Kirkland attorney and escrow officer, was convicted in U.S. District Court in Seattle April 1 of conspiracy and four counts of wire fraud. The jury deliberated approximately one day following an eight-day trial. When sentenced by U.S. District Judge Richard A. Jones on June 25, Brandt faces up to 20 years in prison and a $250,000 fine. The Washington State Bar Association disbarred Brandt in 2006 after concluding he had allowed the improper use of his client trust account in the mortgage fraud scheme, and had improperly engaged in transactions in which he had a conflict of interest.

The federal case was indicted in June of 2008, as part of "Operation Malicious Mortgage," and the overall investigation was conducted jointly with the Washington State Department of Financial Institutions, the King County Prosecuting Attorney’s Office and the Kirkland Police Department. According to records in the case and testimony at trial, more than a dozen people, including Brandt, were linked to an extensive mortgage fraud scheme operating in 2004 and 2005. Those who have already pleaded guilty in the scheme include a former bank employee, mortgage brokers, as well as the owner of shell companies involved in “flipping” dozens of properties as part of the fraud.

Ten members of the scheme were charged, six in federal and four in state court. All of the charged defendants pleaded guilty, except for Brandt. A number of the charged co-conspirators testified at trial. The conspirators would identify houses and would use shell companies or third parties to purchase the homes, again according to records and testimony. At the same time, they recruited “straw buyers” who would enter into a purchase agreement to buy the same home from the conspirators at an inflated price (a “flip”). The conspirators assisted the straw buyers with phony paperwork for the home loans, making it appear that they were qualified for the mortgage loans and planned to occupy the houses. Members of the conspiracy allegedly falsified numerous documents including appraisals, verifications of deposits, employment verification and closing documents. The conspirators split the proceeds from the fraudulent mortgages, and the straw buyers defaulted on the loans after pocketing as much as $20,000 for their fee. The homes were foreclosed and financial institutions and mortgage lenders suffered substantial losses, estimated to exceed $7 million dollars.

For his part, according to records and testimony, Brandt ran a company called “Escrow Authority,” which closed all of the sales of the flipped properties. He permitted other members of the scheme to use money out of his lawyer’s trust account to acquire properties. The same properties were then quickly resold to straw buyers for significantly higher prices, and fraudulent loans were obtained to finance the fictitious resales. Brandt also helped create shell companies used as part of the scheme, and signed off on fraudulent settlement statements (HUD forms) provided to lenders that failed to disclose the fraudulent nature of the transactions.

http://www.seattlepi.com/sound/417834_sound89795637.html

Padilla v. Kentucky

In PADILLA v. KENTUCKY, No. 08–651, 550 U.S. __ (March 31, 2010), the SCOTUS held: “when the deportation consequence is truly clear, as it was here, the duty [of that person’s attorney] to give correct advice is equally clear.” This language perhaps clears the way for collateral attacks by resident aliens (“green card holders”) who have been deported based on guilty pleas to crimes in which they were not advised such pleas would result in immediate deportation. A review of the opinion, [http://www.law.cornell.edu/supct/html/08-651.ZO.html] written by Justice Stevens, raises some interesting points:
• The Supreme Court seems to have at least partially discarded the familiar legal axiom that immigration consequences as a result of a guilty plea are a “collateral matter” and thus not the basis for post-conviction relief on the basis of ineffective assistance of counsel. The Padilla Court held: “We . . . have never applied a distinction between direct and collateral consequences to define the scope of constitutionally ‘reasonable professional assistance’ required under Strickland, 466 U. S., at 689. Whether that distinction is appropriate is a question we need not consider in this case because of the unique nature of deportation.” 550 U.S. at __, slip op. at 7-8.
• The Supreme Court seems to have laid out a bright-line rule – if a resident alien is charged with “a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States or a foreign country relating to a controlled substance … , other than a single offense involving possession for one’s own use of 30 grams or less of marijuana,” (See 8 U. S. C. §1227(a)(2)(B)(i)), the defense attorney must advise that resident alien that a plea to such a charge will make him or her “eligible for deportation.” Certainly, as in Padilla, an attorney must refrain from making “false assurances that his conviction would not result in his removal from this country.” 550 U.S. at __, slip op. at 11.
• Relief may not be available on every occasion that a Defendant is not accurately advised of the immigration consequences of a particular plea. The Padilla court noted: “Immigration law can be complex, and it is a legal specialty of its own. Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.” 550 U.S. at __, slip op. at 11-12.

Texas Judge grants motion to treat crack the same as powder

From the Federal Public Defenders of the Eastern District of Texas:

"This past Tuesday, March 30, 2010, in a case of first impression in the Eastern District of Texas, Judge Leonard Davis granted the Defendant's Motion to treat crack the same as powder cocaine for those sentenced for crack offenses. [In United States v. Sheldon Greer, No: 6:09-CR-20 (E.D.Tex.Tyler 2010,] Judge Davis adopted the current national trend toward equalization of the two forms of the same drug, rejected the Guidelines in their current form, and declared that beginning today and from this point forward, he will sentence Defendants convicted of Federal crack cocaine offenses the same as if the form of the cocaine was powder. Kimbrough was of enormous benefit to the Court in his decision. This decision had and will have a profound impact in that the first two Defendants went from 70-87 months down to 24 months and from 108-135 months to 60 months on the second (mandatory minimum prevented further reduction)."