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Favorable New Law in Ohio
(Posted 6/30/11)
On June 30, 2011, Ohio Governor John Kasich signed into law House Bill 86, signifying an ease in the draconian sentencing measures heretofore imposed upon criminal defendants in Ohio. Highlights of the bill include:
Allowing judges to order treatment instead of incarceration for certain theft offenses, including when an offender’s mental illness or mental disability contributed to the crime.
• Requiring that judges sentence offenders convicted of first-time nonviolent felonies to halfway houses or other local options rather than prison.
• Eliminating mandatory prison sentences for certain drug charges if the offender has not been convicted of the offense before.
• Raising from $500 to $1,000 the amount of money in theft cases needed to charge someone with a felony.
• Requiring the Ohio Department of Rehabilitation and Correction within three months to review the cases of all parole-eligible inmates 65 years old or older and requires the Ohio Parole Board to review those cases for possible release.
• Allowing the prison system to ask courts to release offenders with prison sentences of one year or more who have served at least 80 percent of their time. This provision does not apply to offenders serving life terms or terms for violent felonies.
• Raising maximum sentences for people convicted of certain serious and violent crimes.
• Eliminating the distinction between penalties for drug offenses involving crack cocaine and powder cocaine.
• Creating new criminal categories for offenders convicted of possessing or selling smaller amounts of marijuana and hashish and provides potentially shorter prison terms for such convictions.
The law was enacted in order to decrease the number of incarcerated individuals, thus giving taxpayers a savings in corrections cost. Given the state of the economy, it is hoped that other states will enact similar laws, in the realization that providing fair and equitable treatment to offenders is the proper manner in which to proceed, both morally and economically.
What do you think about these new developments?
Do you think other states will follow suit on similar bills?
Would you support these changes?
Tell us what you think HERE
OLDER POSTS:
CRIMINAL HISTORY UPDATE: THE "RECENCY AMENDMENT" - SENTENCING COMMISSION SENDS CONGRESS AMENDMENT TO REDUCE CRIMINAL HISTORY GUIDELINES!
(posted 10/5/10)
In a move that potentially could assist thousands of defendants receive lower sentences, the Sentencing Commission has sent Congress a set of proposed amendments to the federal sentencing guidelines that will go into effect on November 1, 2010. Proposed Amendment No. 5 will change the way criminal history is calculated and would eliminate the rule that adds two criminal history points if a crime for which the person is being sentenced is committed less than two years after release from prison. This is also known as the Recency Amendment.
I. HOW CAN THIS CHANGE HELP DEFENDANTS WHO ARE WAITING TO BE SENTENCED?
This amendment which becomes effective November 1, 2010 will enable defendants who have not yet been sentenced but who have prior criminal convictions to raise the amendment as an issue in their sentencing memoranda to help reduce their criminal history points and, their sentencing guideline range. Should you have a client that is waiting to be sentenced, NLPA can assist in the preparation of a sentencing memorandum that would address all appropriate downward departure issues as well as this important change in the calculation of criminal history to help the defendant receive a much lower sentence.
II. CAN THIS AMENDMENT HELP PEOPLE WHO HAVE ALREADY BEEN SENTENCED?
Unfortunately the Commission has not yet agreed to make this new amendment retroactive to apply to cases for individuals who have already been sentenced. NLPA strongly objects to this position as we believe it adversely impacts upon the due process rights of defendants who only, due to the time at which they were convicted and sentenced, are being discriminated against by this new favorable change to the guidelines. If you have a client who has already been sentenced and could benefit from the Recency Amendment, NLPA is happy to assist in the preparation of a timely appeal or §2255 motion to address this issue including all of the reasons why the amendment should be applied retroactively to your client.
If you are unsure what avenues may exist at this time, NLPA can also prepare a detailed case analysis to look into this as well as many other possible issues and avenues of relief for your client. If you are interested in having NLPA prepare a case evaluation, please contact us today!
Also, keep in mind that in the past the guideline amendments have been given retroactive effect. A good example is the recent crack-cocaine amendment (Amendment 706) which reduced the base offense level for crack cocaine by two levels. This amendment was approved in 2007. In 2008, in a subsequent amendment (Amendment 713), the Commission added Amendment 706 to the list of amendments which may be applied retroactively. NLPA believes the criminal history amendment should be applied retroactively as well.
III. CONCLUSION
Based upon the foregoing, when the proposed amendment becomes effective, it should result in lower criminal history categories for many defendants who have not yet been sentenced and, thus, lower sentencing guideline ranges. However, for the time being it appears that such benefit will only extend to those sentenced after the amendment goes into effect. NLPA is proud of its winning track record. We have enjoyed success in helping defendants and their counsel obtain substantially reduced sentences as the result of the research our team of lawyers have prepared. If you or your client are in need of assistance in this matter contact NLPA today. After all, the pursuit of justice is a team approach! CRACK-RATIO BILL UPDATE
(posted 8/10/10)
Great news for crack-cocaine defendants! On August 2, 2010, President Obama signed the crack bill that significantly reduces the sentencing disparity between crack-cocaine and powder cocaine in federal cases and repeals the five year mandatory minimum associated with simple possession of crack cocaine. The bill, otherwise known as the Fair Sentencing Act of 2010, is now in effect.
SO WHAT HAPPENS NOW? Now that President Obama has signed the bill into law, the U.S. Sentencing Guidelines will be modified shortly. Once this occurs it will then be determined as to whether or not this amendment will be applied retroactively. This is a major step for this bill, as there are more than 20,000 inmates who are already serving crack-cocaine sentences. NLPA is confident that the amendment will be held to be retroactive. As with the 2007 crack guideline amendments, which were retroactively applied, it is hard to imagine this new amendment not being made retroactive when considering the significant impact it will have on thousands in the federal Bureau of Prisons and the precedent previously set in 2007.
ACTIVE CASES - If a defendant who has been charged in a crack-cocaine case is still awaiting trial, sentencing or is on appeal or timely post-conviction proceedings, this new law can be of tremendous help! NLPA can assist your counsel in raising this critical issue and any others to help you. INACTIVE CASES - For who have already been through the trial, plea, sentencing, appeal and/or post-conviction stage or who are otherwise beyond time for the filing of any of these actions, relief may be available through what is known as a §3582 motion. NLPA can assist your counsel in the preparation of this motion.
WARNING: Unfortunately for thousands of defendants, in 2007 when the guidelines were amended and applied retroactively, a system was put in place which involved the Public Defender's Office filing a standard form on behalf of thousands of defendants - many of whom were not even aware of such action being taken. Most of these "forms" were simply denied. It is unclear if the courts will utilize a similar procedure for this new amendment so it is encouraged that
you take action now to have NLPA assist your counsel in preparing this motion to reduce your sentence.HOW CAN WE HELP?
For those involved in active cases, NLPA can offer its assistance to counsel at the pretrial, pre-sentencing, appellate and post-conviction stage. Please contact us for more information concerning our services, fees and financing options.
For those with inactive cases, NLPA can assist counsel in one of two ways:
1) §3582 Motion $2,500.00
2) Evaluation of How New Crack Law Can Help You $1,000.00
3) Supplement to Pending PCR or Appeal Raising Crack Issue $1,750.00
NLPA is proud of its winning track record. We have enjoyed success in having the reduced crack ratio applied already. Now we stand ready to have our team put to work in defending this matter to ensure that you or your client are fairly considered for this significant reduction. If you or your client are in need of assistance in this matter, please contact NLPA today. After all, the pursuit of justice is a team approach! CRACK-RATIO BILL UPDATE (H.R. 3245)
(posted 9/23/09)
Since the April 29, 2009 hearings in the Senate, several district courts have announced that they will no longer follow the Guidelines and that they have categorically rejected the punishments applied to crack cocaine offenders. See, United States of America v. Gully, 2009 U.S. Dist. LEXIS 42888 (N.D. Iowa May 18, 2009)(the court has the authority and the duty to reject crack cocaine penalties and the use of a 1:1 crack-to-powder ratio is the appropriate sentencing methodology in crack cocaine cases); United States v. Rodriguez, 2009 U.S. Dist. LEXIS 53290 (N.D. Ill, June 23, 2009)(court finds the crack penalty to be greater than necessary and government does not oppose sentencing court’s decision to disregard the "crack" cocaine Guidelines and sentence defendant below range dictated by those penalties); United States v. Lewis, 2009 U.S. Dist. LEXIS 48081 *13 (D.C., June 9, 2009)(noting that the crack cocaine penalties are presumptively unjust and that "this Court will apply the 1-to-1 ratio in all crack cocaine cases and then will separately consider all aggravating factors applicable in any individual case, such as violence, injury, recidivism or possession or use of weapons.") Although courts have already begun sentencing based upon the 1:1 crack ratio as set forth in President Obama's Proclamation, legislation is now pending in the House to officially make this the "law of the land". H.R. 3245 eliminates the crack to powder ratio and treats both substances the same, applying the law currently in effect for powder to all forms of cocaine including base. This bill is also known as the "Fairness in Cocaine Sentencing Act of 2009" and was introduced on July 16th. It has already won approval of the House Judiciary Committee on July 28, 2009 in a 16-9 vote and now moves on, hopefully to approval from the full House of Representatives sometime this fall. However, it has not yet been scheduled for a vote. DEVELOPMENTS THAT COULD HELP DEFENDANTS INVOLVED IN 924(c) & CAREER CRIMINAL CHARGES
(posted 2/5/09)
In 2008 court developments in the U.S. v. Whitley case have made a determination that could potentially effect many defendants who are involved in 924(c) and career criminal enhancements. In June, the United States Court of Appeals for the Second circuit decided a case that could have significant positive impact on individuals serving sentences for carrying, brandishing or discharging a firearm under 18 U.S.C. § 924(c) who were also sentenced as armed career criminals based on the same firearm. United States v. Whitley, 529 F.3d 150 (2nd Cir. 2008). Whitley participated in an armed robbery of a delicatessen in the Bronx in November 2004, during which he emptied the store's cash register, pointed a gun at employees, and inadvertently discharged the firearm, injuring himself in the face. The indictment charged three counts. Count One charged a Hobbs Act robbery, in violation of 18 U.S.C. § 1951. Count Two charged using, carrying, and possessing a firearm that was discharged during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). Count Three, the armed career criminal offense, charged possessing a firearm after having been convicted of at least three violent felonies or serious drug offenses, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The jury ultimately returned guilty verdicts on all three counts. Whitley’s pre-sentence report ("PSR") calculated an adjusted offense level of 34, based on a grouping of Counts One and Two, which, in Criminal History Category VI, yielded a sentencing range of 262 to 327 months. The PSR recommended a consecutive 120-month sentence on Count Two. Judge Casey sentenced Whitley to concurrent terms of 262 months on Counts One and Three, plus 120 months consecutively on Count II.
The validity of Whitley's 10-year consecutive term depended on the proper construction of the language contained in 18 U.S.C. § 924(c)(1)(A). The Second Circuit determined that the "except" clause of 18 U.S.C. § 924(c)(1)(A) should have been read literally. If the "except" clause of 18 U.S.C. § 924(c)(1)(A) meant what it literally said, the 10-year minimum sentence required by 18 U.S.C. § 924(c)(1)(A)(iii) of that subsection for discharge of a firearm, which had to run consecutively by virtue of 18 U.S.C. § 924(c)(1)(D)(ii), did not apply to Whitley because a greater minimum sentence was otherwise provided by law, namely, 18 U.S.C. § 924(e), which subjected him to a 15-year minimum sentence. Thus, the clause exempted Whitley from the consecutive 10-year minimum sentence for discharging a firearm because he was subject to the higher 15-year minimum sentence provided by 18 U.S.C. § 924(e). Accordingly, the case had to be remanded for resentencing.
The only other United States Circuit Court of Appeals to address the issue has been the Fifth Circuit. See United States v. Kyles, 2008 U.S. App. LEXIS 25908 (5th Cir. Tex. Dec. 19, 2008). The Fifth Circuit found that any sentencing error (which was nearly identical to the error addressed in Whitley) was not clear or obvious based on other circuit decisions rejecting the same argument put forth in Whitley. Specifically, the Fifth Circuit cited three decisions that are contrary to Whitley's interpretation of the statute: United States v. Jolivette, 257 F.3d 581, 586-87 (6th Cir. 2001), United States v. Studifin, 240 F.3d 415, 423-24 (4th Cir. 2001), and United States v. Alaniz, 235 F.3d 386, 387-89 (8th Cir. 2000). Moreover, the Fifth circuit had previously agreed with the Fourth, Sixth, and Eighth Circuits' interpretation, although only in an unpublished decision. See United States v. Collins, 205 F. App'x 196, 198 (5th Cir. 2006) (per curiam).
One other Circuit Court and several United States District Courts have addressed claims based on Whitley, but as of yet none of them have actually reached a decision on the issue, deciding the respective cases on other grounds without analyzing the Second Circuit’s logic. See United States v. Parker, 2008 U.S. App. LEXIS 24215 (1st Cir. N.H. Nov. 26, 2008); Davila v. Grondolsky, 2008 U.S. Dist. LEXIS 62160 (D.N.J. Aug. 11, 2008); Blackstock v. United States, 2008 U.S. Dist. LEXIS 66985 (E.D. Va. Sept. 2, 2008); Randolph v. United States, 2008 U.S. Dist. LEXIS 101558 (M.D. Fla. Dec. 5, 2008).
The Whitley decision could prove to have broad ranging impact on individuals serving sentences under 18 U.S.C. § 924(c). This is especially true if they were also sentenced as armed career criminals. We can only speculate at this time what the full scope and impact of the Whitley decision will ultimately be. However, it could potentially benefit thousands of federal inmates.
PANEL SAYS 19,500 CRACK INMATES CAN SEEK REDUCTIONS IN THEIR SENTENCE!
(posted 12/20/07)
WASHINGTON (AP) — The U.S. Sentencing Commission voted unanimously Tuesday to allow some 19,500 federal prison inmates, most of them black, to seek reductions in their crack cocaine sentences. The commission, which sets guidelines for federal prison sentences, decided to make retroactive its recent easing of recommended sentences for crack offenses. Roughly 3,800 inmates could be eligible for release from prison within a year after the March 3 effective date of Tuesday's decision. Federal judges will have the final say whether to reduce sentences. The commissioners said the delay would give judges and prison officials time to deal with public safety and other issues. U.S. District Judge William Sessions of Vermont, a commission member, said the vote on retroactivity will have the most dramatic impact on African-American families. A failure to act may be taken by some as particularly unjust, Sessions said before the vote. The seven-member commission took note of objections raised by the Bush administration, but said there is no basis to treat convicts sentenced before the guideline change differently from those sentenced after the change. Inmate family representatives and other advocates had said a Supreme Court decision on Monday could only improve chances the commission would address the long-criticized disparity in sentences for crack and powder cocaine offenses. Crack is predominantly used by blacks; powder cocaine, predominantly by whites. The administration restated its opposition to the easing on Tuesday before the commission voted. Our position is clear, said Attorney General Michael Mukasey at a news conference. We oppose it. The attorney general said the convicted crack offenders were sentenced under an existing standard and to change that standard retroactively dismisses any mitigating factors the sentencing judge considered when deciding how long a prison term to set.
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