Theodore J. Schaefer was convicted of possession of child pornography. He was sentenced to 97 months in prison and 10 years of supervised release. On appeal he challenged two conditions of the supervised release, Specifically he challenged provisions stating:

The defendant shall have no contact with children under the age of 18
(including through letters, communication devices, audio or visual devices, visits, electronic mail, the Internet, or any contact through a third party) without the prior written consent of the probation office.

The defendant is prohibited from places where minor children under the age of 18 congregate, such as residences, parks, beaches, pools, daycare centers, playgrounds, and schools without the prior written consent of the probation office.

Schaefer challenged the conditions on the grounds that they violated his constitutional right to parent his children and that the conditions “are not narrowly tailored, or reasonably related to his offense, his history and characteristics, or protection of the public.” He vigorously argued that his conviction was for possession and not distribution of child pornography. ¹ The Eighth Circuit Court of Appeals found that the trial court was within it discretion in imposing the special conditions. Special conditions

must be reasonably related to the nature and circumstances of the offense of conviction, the defendant’s history and characteristics, the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, and the defendant’s educational, vocational, medical, or other correctional needs. . . Second, a special condition also must involve no greater deprivation of liberty than is reasonably necessary to deter criminal conduct, to protect the public from further crimes of the defendant, and to provide for the defendant’s educational, vocational, medical, and other correctional needs. Finally, a special condition must be consistent with any pertinent policy statements issued by the Sentencing Commission. In fashioning a special condition of supervised release, a court must make an individualized inquiry into the facts and circumstances underlying a case and make sufficient findings on the record so as to ensure that the special condition satisfies the statutory requirements.

The Court found no interruption in the parenting process since Schaefer’s children would be over eighteen by the time he got out of prison. Furthermore it found sufficient evidence in the file to support the special conditions. At one point Schaefer talks about selling a friend’s daughter. He also wanted to trade the pornography and would have done so except for a computer glitch. As a result the appellate court upheld the special conditions, noting that the trial judge maintained jurisdiction to vary the conditions as necessary.

A complicated area of the law is whether to run sentences on different counts or different cases concurrently or consecutively. The issue becomes much more difficult when different judges of different courts are sentencing an individual on different charges. The Supreme Court addressed one aspect of the issue last week in Setser v. United States.

Monroe Ace Setser was charged in both Federal and state courts with methamphetamine related charges. The District Attorney also move to revoke a state probation in another case. While the Federal sentencing occurred prior to the state sentencing the Federal judge order that his 151 month Federal sentence run run concurrent with his state methamphetamine sentence but consecutive to the time he would get on his probation violation. The Texas state court threw a curve into the process by ordering the sentence on the five year probation violation to run concurrent with the ten year state methamphetamine case.

Since the state methamphetamine case runs concurrent to the probation violation it is obviously impossible to carry out the Federal sentence mandating that it run concurrent with the state methamphetamine crime but consecutive to the probation violation. The question before the Supreme Court was who gets to decide whether the Federal sentence will run concurrent to the state sentence or consecutive to it. Both Setser and the government argued that the Bureau of Prisons (BOP) should make the decision. The Bureau through its power to decide whether the the Federal sentence should be spent in the Federal Prison or the state prison can make that decision. If the Bureau credits Setser’s time in the state prison against his Federal sentence he will have a de facto concurrent sentence. Otherwise he will have a consecutive sentence.

But the Supreme Court said “no.” It held that the decision of whether a sentence should run concurrently or consecutively is traditionally a judicial decision and it upheld the lower court decision running the cases consecutive to each other.

It should be noted that Selser can challenge the BOP’s refusal to credit his time in state custody administratively and if need be through a writ of habeas corpus.

In Tapia v. United States the Supreme Court held that under Federal statutory law judges can not consider rehabilitation in determining how to sentence a defendant or the length of the sentence. The Ninth Circuit last week in United States v, Grant held that Tapia applied not only to the original sentence but also to violations of supervised release conditions.

Leon W, Grant was convicted of two counts of bank fraud. He was sentenced to two days in jail and five years supervised release. Among the conditions of the supervised release was that he abstain from alcohol and drugs. But it became apparent that he was unable to do so. Eventually the court sentenced him to two years in prison, a sentence significantly above the guidelines, in order that he could be rehabilitated. The Ninth Circuit revoked the sentence and remanded the case for resentencing.

Generally when we incarcerate a person we do it because they intentionally committed an act that violates societal rules. Leon Grant is an addict. The court found that he had no control over his behavior. While he certainly needed rehabilitation, we do not generally deprive an individual of his/her personal liberty for for long periods ¹ for acts for which were not committed intentionally.

While most prisons have rehabilitative programs,they generally do a poor job of rehabilitation. Often they do not have the resources to provide rehabilitation to everyone who needs it. There is a long wait to get into a program and rehabilitation has only a limited effect when people are in a location where they do not have access to drugs or alcohol. The real test occurs when they leave the prison. But by then they no longer have access to the rehabilitative facilities and they often relapse.

Jose Alvarado-Tizoc, Antonio Duran, and Noe Duran, were convicted of conspiracy to distribute more than 400 grams of substances containing
a detectable amount of fentanyl and more than a kilogram of substances containing a detectable amount of heroin. Fentanyl is a prescription synthetic narcotic sold on the streets in a diluted form as a substitute for heroin.

Sentences ranged between 121 and 200 months.

The defendants obtained significant quantities of the drugs and wholesaled them to street vendors who diluted them to usable strengths by adding neutral substances.

One of the factors considered under the Federal Guidelines the in drug cases is the weight of the substances possessed or sold. When it came time to sentence the defendants the judge determined the weight of the drugs as sold on the street to determine the sentence. The defendants appealed claiming the weight of the Fentanyl that they sold to the street dealers was a lot less than the weight of the substances combined with the fillers sold on the street. The Seventh Circuit Court of Appeals agreed and remanded for resentencing.

Defendants won–right? Well not exactly.The court ruled that the sentencing judge could augment the sentence due to the additional potency of fentanyl as compared to heroin. I’m willing to bet that by the time of the resentencing the defendants get approximately the same sentence they got on they initial sentencing. It doesn’t pay for winning!

Warren Jeffs, the head of the Fundamentalist Church of Jesus Christ of Latter-day Saints, finally ended his silence at his trial for the rape of two young girls, Friday. He claimed that the two girls, one 12 and the other 14 were his spiritual wives.

Jeffs, who fired his lawyers and is representing himself let go with a 55 minute rant when the prosecutor attempted to place into evidence a list of Jeffs’ wives. ¹ He objected to his religion being put on trial and he continued to interrupt the trial with claims that the court was violating his religion. During the defense case he put on one witness–a member of his church who he questioned for four hours about church doctrine until the judge forced Jeffs to end his examination finding that witness’ testimony was not relevant.

Well none of Jeffs’ antics helped him. Among the evidence was a picture of him passionately kissing a 12 year old, DNA evidence that he fathered a child by a 14 year old, and an audio recording of him raping the 12 year old. He was given 30 minutes for closing. Most of the time he stood mute before the court, interrupting his silence, only to say, “I’m at peace.” He was found guilty. At sentencing he faces up to 119 years. In Texas the jury decides the sentence. Immediately after he was found guilty a sentencing hearing began. The prosecution expects to put on two days of testimony. I do not know whether Jeffs plans to put on witnesses. According to the prosecutor the evidence in the sentencing phase will show that Jeffs had 78 illegal wives, including 24 underage wives, that he either performed or had been involved in 67 illegal underage marriages, that he participated in more than 500 bigamous marriages, that he had illegal sex ²with six different people and he participated in the breaking up of 300 families “by splitting up marriages or reassigning ‘wives,’ sometimes to himself.”

William Freeman entered a “C” plea in Federal Court to possession of crack cocaine. A “C” plea is a guilty plea pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. Under Rule 11(c)(1)(C) the defendant and the government agree on a particular sentence and once the judge agrees to the plea the judge is required to go along with the stipulated sentence.

The agreement between the parties stated that Freeman would get 106 months and that the figure was based on the Guidelines. When the judge sentenced him to 106 months he stated that it was a Guidelines sentence.

Three years after the sentencing the Sentencing Commission retroactively reduced the Guidelines for crack cocaine in an attempt to reduce the disparity between crack and powder cocaine sentences. Freeman applied for a reduced sentence. The government objected on the grounds that he had stipulated to his sentence.

The Supreme Court ruled that the reduction applied to Freeman because while he stipulated to the sentence the stipulation and the sentence was based on the Guidelines so the retroactive change in the Guidelines apply to him.

Alejandra Tapia was convicted in Federal Court of smuggling unauthorized aliens into the United States. The sentencing guidelines indicated a sentence between 41 and 51 months. In sentencing Tapia to 51 months the court stated that it wanted her to serve a sentence long enough for her to be admitted into and to complete the Bureau of Prison’s (BOP) Residential Drug Abuse Program (known as RDAP or the 500 Hour Drug Program).

On appeal the issue was whether the trial court had the authority to lengthen the sentence based upon the need for rehabilitation.

The governing law is the Sentencing Reform Act of 1984. In determining a sentence the courts are mandated to consider four factors:

“(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

“(B) to afford adequate deterrence to criminal conduct;

“(C) to protect the public from further crimes of the defendant; and

“(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.”

But the courts are also mandated to recognize “that imprisonment is not an appropriate means of promoting correction and rehabilitation.” ¹ While the term “recognize” may be rather weak the Supreme Court found that it was mandatory.

But perhaps the best argument against extending sentences to accommodate rehabilitation is the story of Alejandra Tapia, herself. Despite the judge’s giving her an extended sentence ² in order that she could complete the RDAP program during her interview with BOP staff after she was sentenced she stated that she did not want to enter the RDAP program and she was not assigned to the program.

It is certainly possible, as Justice Sotomayor suggested that on resentencing that she will get the same 51 month sentence.

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.

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.