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Showing posts from March, 2012

Defendant Not Eligible for Sentence Reduction under 18 U.S.C. § 3582(c)(2) When Sentenced Under Career Offender Guidelines

In United States v. Barney, No. 11-2488, (3d Cir., Mar. 6, 2012), the Third Circuit addressed the issue it previously had left open in United States v. Flemming, 617 F.3d 252 (3d Cir. 2010).

In both Barney and Flemming, the defendants had been convicted of possession with intent to distribute crack cocaine. Both defendants had been sentenced as career offenders, but both of them had received downward departures pursuant to U.S.S.G. § 4A1.3 (overstatement of criminal history). The § 4A1.3 departures reduced the defendants' sentences to the ranges which had been calculated before the career offender enhancements had been applied. Both defendants sought further sentence reductions under 18 U.S.C. § 3582(c)(2), arguing that Amendment 706 to the guidelines would have reduced their base offense levels.

However, in Flemming, the defendant had been sentenced under the 2001 version of the guidelines. The Flemming court determined that, prior to a 2003 amendment, the guidelines addressing t…

"TRAC" Analysis of Variations in Sentencing Significantly Flawed

A recent post brought your attention to a newly released study from the Transactional Records Access Clearinghouse of Syracuse University ("TRAC Study") which has garnered much attention in its efforts to compare sentencing disparities between Federal District Courts and Judges.

A review of the TRAC study, however, raises serious questions about its validity. A fact sheet (available here on Berman's Blog) prepared by Michael Nachmanoff of the Eastern District of Virginia, identifies some very substantial problems with TRAC's methodology. Here is one: "The only similarity among the cases sentenced in each district is that prosecutors categorized them as 'drug,' 'white collar,' etc. All other case differences are ignored. Heroin or marijuana cases, involving 1 gram or 1 ton, are all called 'similar' drug cases. First-time offenders are lumped with lifetime criminals. Academic researchers studying disparity use data from the U. S. Sentencing…

Court Rejects Claims on Bill of Particulars / Duplicity / Sufficiency

In United States v. Moyer, 2012 WL 639277 (Feb. 29, 2012), Police Officer defendants were charged with covering up a racially-motivated and fatal assault committed by local teenagers. The charges included conspiring to falsify documents with intent to obstruct investigation of a matter within the jurisdiction of an agency of the United States, (18 U.S.C. § 371), and falsifying documents (18 U.S.C. § 1519). Defendant Moyer was also charged with two counts of obstruction of justice (18 U.S.C. § 1512) and one count of making false statements (18 U.S.C. § 1001).

Defendant Nestor (the Chief of Police), moved to dismiss the conspiracy and falsifying document counts and also moved for a bill of particulars seeking (1) the agency and matter within the federal government's jurisdiction and (2) the reports alleged to be false. The District Court denied the motion to dismiss and granted the bill of particulars with respect to the “federal investigation or matter under the jurisdiction” of the…

Misstatement in Plea Colloquy Narrowed Waiver; Ex Post Facto Applies to Advisory Guidelines, Overrides One-Book Rule

In United States v. Saferstein, 2012 WL 234408 (Jan. 26, 2012) (published Feb. 24, 2012), the Circuit held that (1) a District court's misstatement during the plea colloquy describing an appellate waiver more narrowly than provided by the plea agreement, had effect of narrowing the waiver; (2) retrospective application of a new guideline provision violates the Ex Post Facto Clause notwithstanding Guidelines' advisory character; and (3) “one-book rule” did not apply when doing so violated the Ex Post Fact Clause.

Saferstein pled guilty to one count of mail fraud, one count of wire fraud, and two counts of submitting false tax returns, based on his fraudulent operation of a telemarketing company over a period of seven years.

The plea agreement contained language that Saferstein “voluntarily and expressly waived all rights to appeal or collaterally attack” his conviction, subject to several exceptions. The waiver was “not intended to bar the assertion of constitutional claim…

Post-Hoc Testimony Re Tint Not Basis for Reasonable Suspicion; Tip About Firearms in Car Not Sufficient

In United States v. Lewis, 2012 WL 556065 (Feb. 22, 2012), a reasonable suspicion / traffic stop case, the Circuit held: (1) that testimony regarding the illegal tint on the windows of defendant's vehicle did not provide non-testifying police officer reasonable suspicion to justify a traffic stop, as there was no evidence that the officer observed a traffic violation arising from tint prior to initiating stop; and (2) a tip from a known source that there were firearms in a white vehicle with the numbers 181 in the license plate did not provide the police officer reasonable suspicion of criminal activity necessary to justify an automobile stop. The tip did not include any information as to whether possession of firearms was illegal or whether they were being used in a criminal manner. (Note: Virgin Islands case, not unlawful to possess firearm).

New study lists sentencing disparities between Federal District Courts and Federal District Court Judges/ Eastern District of Pennsylvania among those with highest disparities in drug sentencing

Editors Note: See update post of 3/13/2012 on TRAC report.

TheTransactional Records Access Clearinghouse of Syracuse University has released a study thatamong other things compares sentencing disparities between Federal DistrictCourts and Judges. Partsof the report made public note that the Eastern District of Pennsylvania is oneof the districts with the ten highest disparities in drug sentencing. (Fourdistricts shared the Eastern District’s ranking.) Studies of individual judges’sentencing patterns are available on a subscriptionbasis. The parts of the study that areavailable to the general public are short and best read in full, but today’s NewYork Times has a good story about it. The public site about the study andthe Times’ story (both of which are not too long) require careful reading, asthe study has its limitations, but they make interesting reading nonetheless.

Image from Constructonomics.