Articles Posted in Sentencing

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Alcatraz09-225x300Our office had two happy results in cases in the last twenty-four hours, just in time for the Thanksgiving holiday. I won’t use names to protect client confidentiality, but here is the short version of how two men will pass a more peaceful Thanksgiving than they have in a long time.

Our first client was in prison in Virginia for years for trafficking in cocaine while he was on federal supervised release. After his Virginia prison term ended, he was brought to the Southern District of New York to face sanctions for violating his release terms. Although he had a long rap sheet, he did well in Virginia prisons, completing numerous courses and garnering praise from his work supervisors in jail. He was ready to be released, but, although he had family around the country, there was no plan for him. We nonetheless asked for time-served and the federal judge asked us to come back with a plan in a few weeks, that is, yesterday. We proposed also making a written submission to aid in sentencing and present what we learned about the client’s success in jail.

So associate attorney Victoria Medley got to work, calling around potential drug rehabilitation programs near the client’s family members in Maryland. Calls went unanswered, paperwork was required, and the whole effort seemed mired in bureaucracy. Eventually, though, a suitable program was found and told us, in principle, that he would be accepted. We submitted a detailed brief to the judge about the client’s progress in prison, and explaining the unique circumstances that caused him to go off the rails and back into drug dealing years ago. We showed up to court yesterday expecting that he would be detained through the holidays until an actual rehab bed could be secured, confirmed, paid for and, basically, guaranteed.

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adults-business-connection-1181715-300x200People who seek out criminal lawyers are human beings, in all their vast complexity. An important part of our jobs as lawyers is to reveal the full person to the court: their prior conduct, the quality of their relationships, their health and addiction issues, and their prospects for the future. If a case cannot be won at trial, then these factors make all the difference in obtaining a fair sentence at the end of the day. We have always known from our day-to-day practice that presenting the person to the court, looking beyond the crime, beyond the past, and toward the future, makes a huge difference in avoiding prison or getting a short, just sentence. Now, there is a study showing just that.

This morning the Rand Corporation and the University of Pennsylvania Law School released a study to be published in the Harvard Law Review analyzing a mountain of data tailor-made to compare the holistic approach with an approach that has less resources to present the whole person to the court. Researchers looked at clients of the Bronx Defenders and the Legal Aid Society facing charges in the Bronx over a ten-year period. The two law offices pretty much split the clients between them based on rotating shifts in court. Each office represented about half of 587,000 cases that were looked at. The two organizations’ approaches were a bit different though, with Bronx Defenders offering more “holistic” services, with lawyers leading teams that could include social workers, housing advocates, investigators and other specialists to address the client’s “wider needs.” Legal Aid put more emphasis on the traditional role of criminal defense lawyers. The study — which should not be seen to pit the two approaches against one another — concluded that “the holistic approach reduced the likelihood of a prison sentence by 16 percent, and actual prison sentence length by 24 percent.” In drug and larceny cases, the effects on sentences were even greater, 63 and 72 percent respectively.

However, Legal Aid noted in press reports that the data came from the “broken windows” era of policing in New York City when arrest rates for low-level misdemeanors were historically high and caseloads, especially for Legal Aid citywide, were crushing. Since then, arrests are down and caseloads for defender organizations have been capped. Both organizations are asked to defend clients under the most difficult imaginable circumstances with exceedingly limited resources, and rely on the public-spirited devotion of smart, hard-working — and underpaid — attorneys to, in most cases, achieve just outcomes for their clients.

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https://www.zmolaw.com/news/wp-content/uploads/2018/08/Screen-Shot-2018-08-31-at-3.19.38-PM-300x214.pngWhen Michael Cohen signed his plea agreement last Tuesday at the Southern District of New York, he was affixing his signature to one of the most important documents in recent memory: a sworn admission that he conspired with the president of the United States to violate a federal law to get him elected. But the document Cohen signed was in many ways pure boilerplate, the same language used in hundreds of pleas in the Southern District every year. Our office represents a lot of defendants in the Southern District and many of those cases end in plea deals like the one Michael Cohen received. So here is a quick primer on what the plea agreement means.

First, even though there is an agreement, no one knows what Cohen’s sentence will be. He is out on bail and he is probably hoping never to see the inside of a prison cell. There are sentencing considerations set forth in the agreement (much more on those below), but they do not bind the judge. Unlike in state court, federal defendants almost always plead guilty without knowing what their punishment will be.

Second, the document Cohen signed is not a cooperation agreement. A cooperation agreement is an agreement where the defendant promises to plead guilty and cooperate fully with the government, providing information and making himself available whenever prosecutors want to speak to him (in federal practice, we use the term “government” to mean the prosecutors). In return, the prosecutors promise to file a “5K motion” — a letter that allows the sentencing judge to avoid any applicable mandatory minimum sentence and may urge the judge to sentence below the sentencing Guidelines. In Cohen’s case, there is no mandatory minimum, so the 5K motion will not be as significant as it would be in, say, a drug trafficking case. When a mandatory minimum is charged, and the defendant is convicted (either by guilty plea or after trial), the only way to avoid the minimum sentence is by getting the government to file a 5K letter. In other words, because the crimes that Cohen was charged with do not carry a mandatory minimum, Cohen can still cooperate and get the full benefit he would have received with a cooperation agreement, but with fewer obligations. He might very well be cooperating, just without an agreement. If he is, he is putting his trust in the office prosecuting him. Seven government attorneys were listed on the plea agreement. He is trusting them to urge the judge to lower his sentence if he is helpful to the government. That’s fine, as long as everyone gets along as they work together to build a case against the president of the United States.

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Former Congressman Anthony Weiner was just sentenced to 21 months in prison for sexting with a 15-year-old. At sentencing, his lawyer asked that he be sent to FCI Schuylkill in Pennsylvania. That seems to have been a mistake: Schuylkill is a medium-security prison, filled with violent offenders and replete with restrictive rules. Schuylkill has a satellite camp, but as a sex offender, Weiner is not eligible (he gets the “Sex Offender Public Safety Factor” and therefore must go to a secure facility). There are low-security federal prisons that would be far more pleasant and conducive to the year-and-a-half or so of introspective atonement that Weiner will endure while he waits to go to a halfway house. The New York Times wrote about Weiner’s placement in federal prison, but, unfortunately, just about everything in their story was wrong.

The bottom line is that “designation” to a particular federal prison is a complicated process with far-reaching consequences. Experiences in federal prison vary widely. Camps like the ones at Schuylkill and Otisville are unsecured and generally not unpleasant places to be. Contrast that with the “ADX” at Florence, Colorado, which is reserved for the most dangerous criminals in the United States and drives many of its residents mad. The Bureau of Prisons decides where you will go in the weeks after sentencing at a central facility in Grand Prairie, Texas. They rely on the Presentence Investigation Report (known as the PSR) for facts about you and plug those into a formula that determines your security level. It is essential that the information in the PSR is accurate as any mistake could change which facility you end up in. There is a small industry of experts who keep up with the daily changes in conditions within the Bureau of Prisons and can advocate for a particular designation. The process is laid out in this 108-page BOP policy.

The New York Times missed most of this in talking about Weiner, whose situation is not too different from many first-time federal offenders, including people convicted of child pornography. Being a former congressman and pledging himself to “a rigorous curriculum of rehabilitation and therapy” probably make no difference at all. Whatever his lawyer may have believed (and it does not seem like they thought about it beforehand), there is zero chance he would have been assigned to a prison in New York City: the three federal jails in New York are reserved for inmates who are awaiting sentencing or witnesses for the government, plus a small cadre of trusted inmates near the end of their terms who work in the local jails.

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In a decision that could have a wide-ranging effect on people convicted of child pornography offenses, the Second Circuit last month struck down a 225-month sentence imposed on a man convicted of having illegal material on his laptops and a thumb drive as he tried to drive into Canada. Joseph Jacobs was 39 years old and headed to his parents’ vacation home in Quebec when Canadian officials stopped him. He failed to show up for court in Canada, so charges were brought in the U.S. for “transporting” his personal collection of child pornography, which carries a maximum sentence of twenty years in prison. Other than that, his conduct was not remarkable: there was no evidence he produced child pornography, shared illegal photos, used a file sharing system, or tried to solicit a child. What he did do, though, was annoy the sentencing judge. He testified at his own trial and lied, then was rude and obnoxious at the sentencing hearing, showing no empathy for the victims or regard for the legal system.

Still, the appeals court said that a sentence near the statutory maximum was far too high in these circumstances: “A sentence of 225 months for a first-time offender who never spoke to, much less approached or touched, a child or transmitted explicit images to anybody is unreasonable.” The opinion provided several reasons for the panel’s decision which could be used in other cases. It noted Jacobs was already 39 at the time of the crime and that recidivism is lower in offenders that old, as compared to younger offenders. It provided statistics from the U.S. Sentencing Commission showing that 225 months was longer than almost all child pornography possession sentences. It reiterated the holdings and reasoning of U.S. v. Dorvee, which had found that the main sentencing guideline for child pornography was “irrational” and “eccentric” because its many enhancements (“specific offense characteristics” in Guidelines terms) were present in virtually every case. It noted that since Dorvee, that concern had only become stronger because the Sentencing Commission had since “effectively disavowed” the flawed guideline and “the latest statistics on the application of sentencing enhancements confirm that the enhancements Jenkins received under this Guideline are all-but-inherent.”

These are powerful words coming from the appeals court that oversees all sentencing in the Southern and Eastern District of New York. Throwing out a sentence based on “substantive reasonableness” is rare — it happened last year in another child pornography case, but that was a summary order with little precedential weight. People facing sentencing on child pornography charges would be well advised to carefully consider the arguments presented by the panel in U.S. v. Jacobs and apply them to their own cases.

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United States Attorney General Jefferson Sessions put out a tragic new policy today that, if it is followed, will ruin countless lives through the unyielding weight of the federal law. Under the policy, which is outlined in this memorandum “for all federal prosecutors,” the government will “charge and pursue the most serious, readily provable offense.” This means U.S. attorneys no longer exercise discretion, but instead will pursue people with the highest penalties, i.e. the longest Guidelines sentences and the harshest mandatory minimums, that they can. The new policy is a sea change, especially in drug cases, where prosecutors were previously directed to seek mandatory minimum sentences only against the most serious offenders (in case there was any confusion, Attorney General Sessions specifically rescinded that policy, known as the Holder Memorandum).

In child pornography cases, the new policy means that virtually all offenders may be charged with a mandatory minimum sentence of five years for “receipt” of illegal child pornography. While fraud cases generally do not carry mandatory minimums, it may mean that more defendants are charged with aggravated identity theft, which carries a two-year mandatory minimum sentence consecutive to any other sentence imposed. If individual prosecutors do not charge these “most serious, readily provable” offenses, they will have to get approval from the U.S. attorney for the district or an assistant attorney general, or their designee. Reasons not to charge must be “documented in the file.”

Defenders of over-criminalization in the federal system point to prosecutorial discretion as a counterweight to the thousands of acts that Congress has defined as federal offenses. Prosecutors, they argue, need to be able to bring serious charges in order to obtain cooperation from defendants and to force fair guilty pleas. But the Sessions memorandum, if read literally, would seem to turn that approach upside down: it directs prosecutors to charge as harshly as possible, no matter how extreme or unusual the law is. Of course, the U.S. Department of Justice has a long tradition of decentralization, leaving many crucial decisions and policies to local U.S. attorneys. Again, that ought to be a bulwark against overreaching under the federal criminal code. But the Trump administration seems intent on breaking down many of the customs that have kept the federal system, on balance, relatively fair. If the Sessions memo is followed, it spells tragedy for families gathered up in its broad, thoughtless net.

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Does the jury’s opinion matter at sentencing? Almost never. But last week, a Sixth Circuit panel said that a trial judge did not go too far by polling the jury about their opinion on sentencing in a child pornography case and considering their answer under 18 USC 3553(a). The below-Guidelines sentence was affirmed in U.S. v. Collins.

After an Ohio jury found defendant Ryan Collins guilty of receiving and distributing child pornography, Judge James S. Gwin asked the jurors what the defendant’s sentence should be. The average recommended sentence among jurors was 14.5 months, with individual responses ranging from 0-60 months.

Under the federal sentencing guidelines, the defendant’s recommended sentence was 262-327 months, more than eighteen times the average sentence recommended by the jurors.

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Finding a possibility that the sentencing judge had a “clearly erroneous understanding of the facts,” the Second Circuit Court of Appeals last week sent back a sixty-year child pornography sentence for another look by the district court. In United States v. Brown, the defendant had pled guilty to three counts of producing and two counts of possessing child pornography under 18 U.S.C. § 2251(a) and § 2252A(a)(5)(B). The trial court sentenced him to sixty years: effectively a life sentence.

In sending the case back to the sentencing court, Judge Rosemary Pooler noted the difference between producing child pornography and other, more serious crimes such as torture and murder.  As the Supreme Court has said, there is a categorical difference between defendants who “kill, intend to kill, or foresee that life will be taken” and those who harm others without causing or intending death. “This is because life is over for the victim of the murderer, but for the victim of even a very serious non-homicide crime, life is not over and normally is not beyond repair. Although an offense like robbery or rape is a serious crime deserving serious punishment, those crimes differ from homicide crimes in a moral sense.”

The circuit court also reasoned that an effective life sentence for a non-homicide offender could “frustrate the goal of marginal deterrence.” Prison sentences should, the court reasoned, be imposed as a way to deter individuals from re-committing the same crime.  In fact, defendants in child porn cases are generally less likely to re-offend as they get older. Finally, because the defendant would be subject to a lifetime term of supervised release and be required to register as a sex offender, there is an even lesser chance of him re-offending. The case was sent back to the district court for re-sentencing.

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Last month, the Supreme Court ruled against a defendant’s appeal of his child pornography sentence in the Eastern District of New York, upholding a ten-year mandatory minimum based on an obliquely-worded statutory enhancement found in 18 U.S.C. Sec. 2252(b)(2). The mandatory minimum applies only if the defendant has previously been convicted of a crime related to “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” The defendant had been convicted of sex abuse of his 53-year-old girlfriend eleven years earlier. The question was, does sex abuse against an adult trigger the minimum? Judge Sterling Johnson held that it did and the Supreme Court agreed, reasoning that the “rule of the last antecedent” settled the matter.

Here’s how it works. In the sentence in quotes above, the defense argued, the phrase “involving a minor or ward” seems to apply to the whole sentence, so that the three different crimes — aggravated sexual abuse, sexual abuse, and abusive sexual conduct — only ought to trigger the ten-year minimum if they involve a minor or a ward. Makes sense right? Child pornography is about abuse of children, not sexual abuse generally which in New York can be very broad, applying to all non-consensual sexual contact and sometimes not even requiring sex offender registration if no child is involved. Why would sex abuse increase the sentence by ten years unless it was sex abuse against a child?

Not so fast, said the Supreme Court: “the phrase ‘involving a minor or ward’ modifies only the phrase that it immediately follows: ‘abusive sexual conduct.’ … [T]he phrases ‘aggravated sexual abuse’ and ‘sexual abuse’ are not so constrained.” To come to this conclusion, six justices dusted off the “timeworn textual canon” that the last phrase only modifies its immediate predecessor in a statute.

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Video, transcripts and other information about principal attorney Zachary Margulis-Ohnuma’s testimony at the U.S. Sentencing Commission’s public hearing on November 5 is now available. The testimony, on behalf of the National Association of Criminal Defense Lawyers, endorsed a proposed amendment to the Sentencing Guidelines to eliminate the “residual clause” portion of the Guidelines’ definition of “crime of violence.”

NACDL also advocated for making the change retroactive, so that people serving long sentences based on the unconstitutionally vague language would be able to ask a judge to have another look. Here are links to the testimony and the video. Mr. Margulis-Ohnuma’s testimony is found in Part 3, starting around 17:20.

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