Many appellate cases involve defining words in a law. One would think that is a simple task. Look them up in a dictionary. ¹ But many words can be written to define relatively simple terms. In DePierre v United States the question is how does should “cocaine base” be defined. DePierre wants to define it synonymously with “crack cocaine.” But the clear meaning of “cocaine base” is any form of cocaine that is capable of reacting with an acid to form a salt. This includes not only crack, but also coca paste and freebase. Cocaine base can be contrasted with cocaine hydrochloride (cocaine powder), a salt.

Functionally the main difference between base and cocaine hydrochloride is that cocaine base when heated can be smoked and it works faster than the powder form.

The problem arises as a result of poor drafting in the Anti-Drug Abuse Act of 1986 (ADAA) which set a mandatory minimum of 10 years for fifty grams or more of cocaine base and a mandatory minimum of 10 years for five kilograms or more of cocaine base. (Thus it took 100 times as much cocaine salt to get the same sentence as cocaine base.) ² Furthermore, the statute refers to both cocaine base and cocaine even though they are the same thing. There is a rule of statutory construction that if Congress uses two different term it is referring to two different items. But the court found that in this case they were both referring to cocaine base and they sided with the government against De Pierre.

The Fourth Circuit Court of Appeals held that despite the significant changes in Confrontation Clause interpretation over the past several years hearsay remains admissible at sentencing.

Solomon S. Powell was convicted of mail fraud. He collected money for sale of merchandise over the internet, but he rarely delivered the merchandise. Though eight victims testified at trial at sentencing the court relied upon the investigation of Postal Inspector Evelyn Cross who testified at the hearing that he harmed over fifty people and that there was a loss of more than $200,000. This would have led to a guideline sentence of between 120 and 150 months. In an abundance of caustion the Court found that there were over 10 victims and a loss of $199,000, sentencing him to 102 months. While her report was thorough only the eight victims testified and the rest was based on hearsay.

Powell pointed to a line of Supreme Court cases, beginning with the 2004 case Crawford v. Washington limiting testimonial hearsay to cases where the witness is unavailable and where the defendant has had a chance to cross examine the witness. But the court held that once a person is convicted the right of confrontation no longer exists. The Supreme Court limited Crawford and its prodigy to evidence at trial and absent a change by the Supreme Court there was suffficient precedents to reject the confrontation clause at sentencing. It found that a wide variety of evidence is admissible at sentencing and that traditionally, as long as the evidence is reliable, hearsay has been admissible. As a result it upheld the sentence.

Cedric Henderson, Jr., Donavan Barrington McClune, and Bobby Kirkendoll were convicted in separate matters of crimes involving crack cocaine. They applied to their respective courts pursuant to 18 U.S.C. § 3582(c)(2) for a sentence reduction. Under this section inmates may apply for a sentence reduction, if following their sentencing, the United States Sentencing Commission reduces the guidelines for the offense of conviction. In 2007 the Sentencing Commission reduced by two levels the guideline for most crack cocaine offenses, in order to reduced the disparity in the law between sentences for crack cocaine and powder cocaine. The law gives judges the discretion to reduce sentences after reviewing the factors found in 18 U.S.C. § 3553(a). The section provides the factors a judge must consider in sentencing a defendant.

In resentencing the Court must follow a two step process. First it must consider the defendant’s eligibility under the statute and second it must consider the 3553(a) factors. In the cases of Henderson, McClune, and Kirkendall, all of whom received below guidelines sentences the judges on resentencing said that they had reviewed the 3553(a) factors at the time of sentencing and saw no reason to reconsider the sentence. Since each received a below guidelines sentence during the original sentencing the law allows the judge to give a similar reduction based upon the new guidelines but prior to using his/her discretion the Court must reconsider the 3553(a) factors. Therefore The Fifth Circuit remanded the matters to the trial courts for reconsideration of the factors.

Marcus Eugene Jacobs plead guilty to possessing stolen mail. As part of the plea agreement he agreed to waive his right to appeal. However an exception was allowed if the court upwardly departed from the guidelines, not requested by the government.

Jacobs’ guidelines were four to ten months. The government recommended seven months. In taking the plea the judge was very careful to make sure that Jacobs understood that he was waiving the right to appeal unless the judge granted an upward departure. But the judge did not discuss the possibility of a variance.

Under the Guidelines a three-part framework exists. First the court

(1) calculates the advisory sentencing range; (2) considers the specific offender characteristics and grounds for departure enumerated in the Guidelines; and (3) weighs the applicable factors in 18 U.S.C. § 3553(a) as a whole

A variance is a sentence outside the guideline structure. It is based on 18 U.S.C. § 3553(a). which sets forth a number of characteristics that a court should take into consideration in sentencing. Subdivision 3553(a)(1) states “the nature and circumstances of the offense and the history and characteristics of the defendant;” At sentencing the judge pointed out Jacobs’ significant criminal history. Section 3553(a)(2)(B) lists “to afford adequate deterrence to criminal conduct;” and at sentencing the court pointed out the failures of shorter sentences in the past to deter criminal behavior.

Variances and departures are treated differently. Departures require the court to give prior notice of its intention to depart. Variances do not require notice. ¹

I am willing to bet that prior to signing the plea agreement Jacobs’ attorney discussed with him the nature of an upward departure but did not discuss the possibility of a variance. It would surprize me if Jacobs understood prior to entering into the plea agreement that the judge may vary from the guidelines. In this case the final sentence was 260 per cent of the upper guideline. Assuming, I am correct, the waiver cannot be considered “knowing and voluntary.” In this case a habeas for incompetence of counsel will probably follow.

This Guidelines are very complicated. A lawyer representing a defendant in a Federal case must go over any plea agreement with a fine toothed comb and make sure that the defendant understands every detail of the agreement. In this case the lawyer should have insisted that the agreement preserve the right to appeal if the sentence exceeded the guidelines instead of limiting the right to appeal to cases in which an upward departure was granted.

The Supreme Court ruled, yesterday, in Pepper v. United States that following an appeal that requires a resentencing the trial court can consider the defendant’s post trial rehabilitation.

Jason Pepper plead guilty to participating in a methamphetamine conspiracy. Although the guidelines were 97 to 121 months the court sentenced him to 24 months based upon his giving substantial assistance to the government. The prosecution only recommended a 15 per cent reduction and it appealed to the Eighth Circuit Court of Appeals. The appellate court granted the appeal and ordered the trial court to resentence Pepper.

By the time of the resentencing Pepper was out of custody. He testified that he was going to a junior college and that he had made straight A’s. He also had a job where he was doing quite well. His father testified that he had not seen Jason for five years prior to his conviction but that Jason was more mature now and that they were getting along well. His parole officer also testified that Jason was doing well and that 24 months satisfied the goals of incarceration. Furthermore while Jason was in prison he completed a 500 hour drug program and he was no longer using narcotics.

The Court again sentenced him to 24 months based upon a 40 per cent reduction from the guidelines for substantial assistance and a 59 per cent reduction for inter alia post sentencing rehabilitation. The government again appealed. The Eighth Circuit again reversed finding that use of post conviction rehabilitation is inappropriate.

On the third sentencing he was sentenced to 65 months and he appealed. The Eighth Circuit affirmed and the Supreme Court granted certiorari. It sent it back to the Eighth Circuit for consideration of Gall v. United States, 552 U. S. 38 (2007). The Eighth Circuit found Gall inappropriate and returned the case to the trial court for resentencing. He was again sentenced to 65 months and appealed. The Eighth Circuit affirmed and the Supreme Court again granted certiorari.

This time it ruled that there is a long history of allowing trial judges to use a broad range of evidence in sentencing and 18 USC 3577 states:

No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.

Despite the fact that 18 U. S. C. §3742(g)(2) limits evidence at a resentencing to the evidence considered at the original sentencing the Supreme Court found that evidence of rehabilitation can be used at resentencing. Section 18 U. S. C. 3742(g)(2) along with the guidelines was part of the Sentencing Reform Act of 1984. While the mandatory nature of the guidelines and some sections were found unconstitutional in Booker the Booker Court did not discuss Section 3742(g)(2). However the same reasons apply and Section 3742(g)(2) can lead to unconstitutionally high sentences and therefore it must be found unconstitutional.

But one has to wonder if evidence of rehabilitation can be used to reduce the sentencing on resentencing after an appeal why not allow a defendant, after they have completed a significant part of their sentence, to apply for a reduction if they show evidence of rehabilitation. Why not allow rehabilitated convicts to return to court while completing their sentence or while on supervised release to show that they have been rehabilitated and no longer need to be incarcerated or under supervision? If they are no longer likely to reoffend and they are no longer a danger to society they should be released. This is particularly true if they can show that they have learned coping and employment skills that will allow them to survive without committing future crimes. By shortening incarceration periods it will also save tax dollars. This will give convicts a considerable impetus to get job skills, stop using drugs, and become rehabilitated. Eventually they will be released anyway and if they can prove rehabilitation we will all be safer.

Lindsay Lohan is in a difficult position. She is facing both a hearing on whether she violated her probation and a felony trial for grand theft. She is on misdemeanor probation for a third DUI. She could get up to a year on the probation violation since it is a third DUI with credit for the time she has done on prior violations and she could get up to three years in prison for the felony. More likely she will be placed on felony probation but she could do up to a year in jail as a condition of the probation.

As to the felony she is entitled to a trial where in order to convict her twelve jurors will have to find that beyond a reasonable doubt she is guilty of the grand theft. But on the probation hearing she is not entitled to a trial. She gets a hearing before a judge who can send her to jail if he/she finds by a preponderance of the evidence that she violated her probation.

Lohan has been offered a plea bargain which presumably ¹ will cover both the probation violation and the grand theft charge.

If she does not accept the plea bargain she is facing a hearing. The hearing will serve as both a preliminary examination in the felony case and a probation violation in the DUI. During the hearing the judge will be put to the difficult task of applying two different standards of proof. As to the probation hearing he/she will use a preponderance of the evidence standard. That means that to find her in violation of her probation the judge must find that there is more evidence that she violated her probation than there is evidence that she did not. But as to the felony the judge need only find that there is probable cause that she committed the felony to hold her for trial. ² Probable cause means that there is reason to believe that a crime was committed and that the defendant is the one that committed the crime. It is a much lower standard than preponderance of the evidence.

Furthermore the probation violation hearing and the preliminary examination have different evidentiary rules. Hearsay is admissible in the preliminary examination but not in the probation violation hearing. Thus a judge must keep track of what evidence comes in for what purpose.

The better practice according to the California Supreme Court is to have separate hearings for the two cases but at least according to the Associated Press article a single hearing will be held.

To make matters worse for Lohan, she could be sentenced immediately after the hearing to a jail term on the probation violation but the felony trial, even if she does not waive time could be ten weeks later. ³Thus she could be in jail prior to her trial and if she is found guilty at trial she could be sentenced to a jail period consecutive to the time she is doing on the probation violation. Of course by accepting a plea bargain she will be sentenced to only one period in jail for both the violation and the felony. She will not have to worry about a consecutive sentence. However she will lose her right to a trial.

Federal sentencing is a complicated area of law. The Guidelines which are voluntary but must be considered consist of a numerical evaluation of the person’s criminal history and of the crime. In United States v. Conca the Second Circuit Court of Appeals faced a few of the problems found in determining criminal history.

Marc Conca plead guilty to failure to register as a sex offender when traveling from one state to another state. He traveled from Texas to Oklahoma to New York and probably a few other states in between without notifying the Texas authorities of his addresses in each and without registering in each state. The base level for the offense is 19. The probation Department in its Presentence Report recommended that twelve points be given for Criminal Possession of Stolen Property (3 points), False Written Statement (1 point), Aggravated Unlicensed Operation (1 point), Burglary (2 points), Petit Larceny (1 point), Felony Sexual Assault (3 points), and Unauthorized Use of Motor Vehicle (1 point). In addition it recommended that he receive another two points since the offense occurred within two years of his being released from prison. This put him in criminal history category six with a range of 63 t0 78 months. The court imposed a 78 month sentence.

On appeal he challenged the possession of stolen property allegation which occurred when he was sixteen and which was adjudicated as a youthful offender and a six level enhancement (part of the base level points) for committing a rape while in failure to register status.

He objected to the rape because at the time of the sentencing charges were pending in Oklahoma and he had not been convicted. Two police officers testified at the sentencing. While the evidence was hearsay the appellate court upheld the District Court’s decision that their was sufficient evidence to convince the District Court of the rape. As to the possession of stolen property his probation had been revoked and he had been sentenced as an adult. As a result the court was within its power to consider the prior as an adult prior and assess him criminal history points.

Colin Spotted Elk and Flint Thomas Red Feather, along with fourteen others,were convicted of participating in a conspiracy to sell drugs on the Pine Ridge Oglala Sioux reservation in South Dakota.

Spotted Elk was originally convicted on a number of charges including using a firearm in a drug trafficking crime. While his appeal was pending the Supreme Court held that the statute did not apply to people such as Spotted Elk who traded drugs for guns. The case was remanded and he was resentenced. When he was resentenced the court enhanced his sentence for using a dangerous weapon and in the current appeal he challenged the use of the enhancement.

As a result of the enhancement he was sentenced to 352 months. Sometimes it seems like it’s not worth appealing but the appellate court ruled that the trial court was within its discretion to add the enhancement on resentencing even though it had not been originally used.

As to Flint Thomas Red Feather the trial court, in applying the guidelines, used a guideline for one who conspires to sell between five and fifteen kilograms of cocaines and sentenced him to 151 months. Red Feather argued that he only sold 3 kilograms 14 ounces before he moved off the reservation and withdrew from the conspiracy. But the appellate court ruled that the question was not how much cocaine Red Feather sold but rather how much it was foreseeable that he would sell during the pendency of the conspiracy. Looking at it this way the appellate court agreed with the trial court that he should be sentenced as if he had sold five kilograms.

Gary Cossey plead guilty in the Northern District Court for the State of New York to possession of child pornography. He was sentenced to 78 months and he was placed on supervised release for the rest of his life. At his sentencing hearing reports from two psychiatrists were introduced. They found him unlikely to reoffend. The judge said that he did not trust such evidence and that he expected that within fifty years a gene would be discovered that proved that the possession of child pornography was genetic and could not be changed. There was no evidence to back up this claim.

The Second Circuit Court of Appeals overturned the sentence and remanded the case. It took the unusual step or ordering that the sentencing be assigned to a different District Court judge.

Even though Cossey’s attorney did not object at the time of sentencing the appelate court found plain error in the fact that the sentence was based upon unsupported claims affecting Cossey’s substantial rights and it seriously affected the fairness, integrity, and public reputation of judicial proceedings.

Otis Jones plead guilty to various drug offenses and he was sentenced to 151 months in prison. He appealed the sentence to the Eighth Circuit Court of Appeals.

First, he argued that the District Court improperly aggravated his sentencing guidelines by adding two levels to his Guidelines for having a gun in connection with a drug offense. Two people testified at his sentencing hearing regarding his use of a gun in connection with his drug deals. While one of the witnesses was unsure about the type of gun Jones possessed both witnesses were sure that he used a gun. Furthermore the witnesses were expecting to receive consideration at their sentencing hearings in exchange for their testimony. The trial judge found the witnesses to be credible and therefore the appellate court ruled that the trial judge properly aggravated the sentence for possession of a gun in connection with a drug offense.

Jones’ second argument was that the court should have given him credit for time he spent in a local jail prior to his sentencing but after his arrest and indictment. The indictment followed the Jones’ arrest on a state probation violation for which he was sentenced to between three and six years in prison.

The District Court judge sentenced Jones pursuant to Section 5G1.3(c) of the Sentencing Guidelines. Section 5G1.3(c) allows a judge to impose a sentence that runs “concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment.” Guidelines section 5G1.3(b), allows a judge to credit a defendant for a period of imprisonment served on an undischarged term of imprisonment if the undischarged sentence “resulted from another offense that [1] is relevant conduct to the instant offense of [federal] conviction . . . and that [2] was the basis for an increase in the offense level for the instant offense.” While the state prison term was for possession of a weapon by a convicted felon it was not relevant conduct for the Federal conviction and therefore the appellate court ruled that the District Court, correctly, did not sentence him under Section 5G1.3(c) and therefore he was not eligible to receive concurrent credits for the period that he was in state custody prior to being sentenced in the Federal case.

When a defendant has both Federal and State cases time the sentencing of each is a tricky and difficult task for the lawyer. It is not something that can always be controlled but it is important to try to time the sentencing so that the defendant gets sentenced to concurrent time and so that he/she gets placed in the best facility.