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.

Saadiq Ibn Shabazz was convicted and sentenced to 21 months imprisonment and two years’ supervised release ¹ for conspiracy to utter and possess counterfeit securities.

He violated his supervised release and the court revoked the release. It then sentenced him to two years in prison and another year on supervised release. He violated his second supervised release and the court gave him another two years in prison. ²

On appeal he argued that two years was the maximum supervised release for the crime and therefore he could not be given a second two year period.

Prior to 2003 18 USC § 3583(e)(3) stated “that a defendant ‘may not be required to serve more than’ an enumerated number of years in prison based on the class of the underlying offense.” But the PROTECT Act changed the law to read: “that a defendant ‘may not be required to serve on any such revocation more than’ the relevant term of imprisonment for the underlying felony.” The Fifth Circuit ruled that the only possible reason the amendment was to allow courts to was to to give the maximum sentence on each violation without worrying about the aggregate total of violations.

Section 3583(h) states that the court:

may include a requirement that the defendant be placed on a term of supervised release after imprisonment. The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release.

Shabazz interpreted this to mean that the aggregate sentence, for all violations of supervised release could not exceed the maximum sentence for the offence which in this case is two years. But the court held that the limit in the above sentence only affects the maximum that can be imposed for any one violation of the supervised release. Otherwise the 2003 amendment would be meaningless.

Jamaal Williams plead guilty to possession of a firearm by a convicted felon. A semiautomatic firearm was found and he was charged with possession of the weapon.

The prior conviction occurred in 2002. He was arrested in 2002 after the vehicle he was driving was reported stolen. After he was handcuffed the police car burst out in flames and in the commotion Williams attempted to escape. He was soon caught.

The Presentence Report (PSR) and the trial court set a base offense level of 22 on the basis that the prior conviction for attempted escape was a crime of violence. In determining whether a crime is a crime of violence a court must first look at the statute as a whole and determine whether it penalizes violent behavior. The Nebraska statute under which Williams was convicted penalizes both escape and the failure to return from a leave from a penal institution. The court is allowed to consider the statute and certain neutral court documentsion determining whether the specific incident lead to Williams’ arrest was a crime of violence. Specifically it cannot consider the police report or any document based upon the police report. In this case the trial court based its information on the PSR which was based upon the police report and therefore unuseable to determine the violent or nonviolent nature of the prior conviction. Under Supreme Court precedent, escape from a penal institution is a crime of violence and the failure to return after a leave of absence is not a crime of violence.

When a statute governs both violent and nonviolent behavior “a modified categorical approach” is used. Since the “the charging document, the terms of a plea agreement, jury instructions, or comparable judicial records” do not specify what behavior the plea was based upon the court must find that it involved nonviolent behavior. As a result the Eighth Circuit Court of Appeals remanded the case for resentencing.

A Texas mother is accused of sexting a sixteen year old son of a friend. It is alleged that Lori Darling David texted two nude pictures of herself to the young man. For this she is facing twenty years in prison.

Find Law makes light of what I and I suspect most people would consider an outrageous sentence by pointing out that most people in the woman’s situation enter into a plea bargain under which they do not spend any time in prison. Well of course, if we consider the woman to be innocent until proven guilty as we must under our system of law, she is put into an impossible situation. She can either plead guilty, knowing that she is innocent and not be sent to prison or she can throw the dice and go to trial knowing that if she is found guilty she might get twenty years. If convicted at trial and perhaps even if she enters into a plea bargain she might be facing a lifetime registration requirement which may come with residential limitations preventing her from living anywhere near a school or a park where children play.

The Texas legislature is considering legislation that will make sexting a misdemeanor with a maximum sentence of one year in jail. But this law may not help David since it will be aimed only at minors. While it may be more offensive when adult sext minors it is still not worth twenty years in prison and the law should be changed for all.

In its first criminal justice decision of the 2010-1011 session, Abbott v. United States the Supreme Court tackled a split in the circuits over 18 U. S. C. Section 924(c). Section 924(c) criminalizes possession of a weapon while being involved in a violent or drug-related offense. It states in pertinent part:

(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime -
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years. . .

The question deals with the first phrase. Kevin Abbott and Carlos Rashad Gould in separate cases were convicted inter alia with violations of Section 924(c) Each argued in the trial courts and on appeal that the first phrase prevented them from being punished for violating the section. They claimed that since they were convicted of other offenses that mandated a minimum sentence of over five years they could not be punished for a violation of Section 924(c). After all the statute says, ” Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law.” Gould argued that the ten year mandatory sentence he received for possession of narcotics with the intent to distribute it prevented the court from imposing Section 924(c)’s five year mandatory minimum sentence and Gould argued that his fifteen year mandatory minimum sentence for possession of a weapon by a convicted felon also prevented imposition of the 924(c) sentence.

But the Supreme Court unanimoulsly ¹ruled that the “other provision of law” clause referred only to statutes that outlawed conduct identical to Section 924(c). It pointed out that the questioned language was added to the section in 1998 as part of an effort to strenghthen the law and accepting the defendant’s argument would weaken the law. Accepting the defendant’s interpretation would allow some defendants not to be punished at all for possessing a gun where they have a higher mandatory minimum under other provisions of law. Also because those convicted only of lesser crimes would get the additional five years and those convicted of greater crimes would not in some case those who are guilty of only lesser crimes might do more time than those guilty of greater crimes.

Considering these factors the Supreme Court decided that Congress could not have wanted the five year mandatory minimum to apply only to those not convicted of any other offense with a mandatory minimum of five years or less.

The Ninth Circuit upheld a marijuana cultivation case and refused to apply an entrapment by estoppel defense where there was no evidence that the defendants relied upon a Federal official’s claim that the grow was legal.

Entrapment by estoppel occurs when

(1) an authorized government official, empowered to render the claimed erroneous advice, (2) who has been made aware of all the relevant historical facts, (3) affirmatively told [the defendant] the proscribed conduct was permissible, (4) that [the defendant] relied on the false information, and (5) that [the] reliance was reasonable.

Dale Schafer and Marion Fry are a husband/wife team. She is a doctor and a cancer patient. He is a lawyer. They live in Cool, California. ¹ After she was diagnosed with breast cancer and received a doctor’s recommendation that she use marijuana they began to grow marijuana. Eventually they grew more and a dispensary was formed. Throughout the period they kept local law enforcement officer informed of their activities and were assured that there actions were legal.

But they were eventually arrested on Federal charges by the DEA. Unlike California state law, Federal law does not allow for medical marijuana.

Prior to trial the District Court granted a motion made by the United State Attorney to prohibit Shafer and Fry from using an estoppel defense at trial. The Court ruled that even if the local agents could be considered Federal agents there was no evidence that Shafer and Fry relied upon their word in deciding to grow marijuana. In fact, Fry’s written recommendation that she gave to patients recommending the use of marijuana specifically warned that marijuana was not legal under Federal law. Therefore they can not be said to have relied upon the local officers’ alleged statements telling them that the grow was legal.

A second argument made by Shafer and Fry was that they are the victims of sentencing entrapment. Sentencing entrapment occurs when law enforcement agents encourage individuals to grow more marijuana or to sell more drugs in order to increase their possible sentence. But here there was no evidence that any agent or officer encouraged Fry and Shafer to grow more marijuana. Even if the local sheriffs told them that their grow was legal it does not mean that they encouraged Shafer and Fry to increase the size of the grow.

Of course one lesson to be learned from Shafer and Fry is not to be greedy. As any California medical marijuana grower knows, the Feds generally do not become involved in a case unless there are 100 plants or more. Shafer and Fry were growing over 100 plants.

Johannes Mehserle was sentenced to two years by Los Angeles Superior Court Judge Robert Perry for the Oakland killing of Oscar Grant on News Years Eve 2009.

Mehserle, the former Bay Area Rapid Transit police officer killed Grant after Grant complied with a police order to lay face down on the platform at the Fruitvale Station after a number of young people were involved in a fracas on the train. He was convicted of involuntary manslaughter by an all white Los Angeles jury after the trial was moved from Oakland. The jury also found true an enhancement for the use of a gun which could have added ten years to the sentence but the trial judge dismissed the enhancement since there was no evidence that Mehserle intended to use the gun. The involuntary manslaughter charge carried a possible prison sentence of two, three or four years.

While the judge worked within guidelines set by state law which prevented him from sentencing Grant to the maximum sentence of fourteen years, many were shocked by the minimal two year sentence. Mehserle’s defense to the murder charge was that he did not intend to use his gun. Rather he meant to use the laser. There is support for this in that witnesses heard him say that he was going to use the laser. But calling the use of the gun a “mistake” as the judge did and as some in the press have, minimizes what was a major error, showing extreme recklessness resulting in the death of a young father who was handcuffed and lying face down on the floor. It is understandable that Grant’s family and many people in the community are upset and feel that the judge placed too little value on the life of an African American man to protect a White police officer from serving a longer prison term.

The Eighth Circuit’s decision in United States v. Brewer is rather meaningless and for the most part unworthy of comment. There is a decent search issue but it is based upon confusing testimony in the District Court and once the Court of Appeals settles the evidentiary question or thinks it has settled the question the decision to uphold the search is predictable. The other issues raised by the defendant such as the sufficiency of the evidence or the failure of the trial court to inform the jury of the possible sentence in the case are clearly inane and equally unworthy of comment.

But Judge Bright’s dissent on the 370 month sentence for sales of 150 grams (5 plus ounces) of rock cocaine are compelling and something that more people ought to understand. Judge Reade who was the sentencing judge sentenced the defendant to 370 months in compliance with the advisory Sentencing Guidelines. If the case happened on the other side of the freeway which runs through the Northern District of Iowa it would have been assigned to Judge Bennett. Judge Bennett generally, using the discretion assigned to Federal judges by the Supreme Court in Kimbrough and treats rock cocaine the same as powder cocaine. Judge Reade, to the contrary used the 33:1 ratio found in the Guidelines at the time Brewer was sentenced. At the time of the sentencing Brewer would have been sentenced to 240 months (including a 20 year mandatory sentence that has now been reduced to 10 years) when treating rock and powder cocaine the same. Under 18 U.S.C. 3553(a) Federal judges are supposed to consider the sentences imposed by other judges in similar cases in order to prevent significant disparity in sentencing for defendants who commit similar crimes. Yet this apparently does not happen in the Northern District of Iowa or in a number of other jurisdictions.

As Bright points out that although Whites use drugs more often that African Americans it is African Americans who get prosecuted for crack cocaine and get the higher sentences.

The guidelines for crack cocaine are plainly unreasonable. They are the same as the guidelines for second degree murder. In fact the average Federal prison term for crack is greater than the average sentence for murder.

Furthermore at the current cost of imprisonment it will cost the Federal government $780,000 to keep Brewer in prison throughout his term. If he lives to complete the term the government will then have to pay for ten years of supervised release.

This makes no sense. Brewer will be imprisoned until he is approximately 60 years old and studies have shown that few people commit major crimes when they are 60 years old. The lengthly prison sentence is not necessary to protect society. Nor is it an appropriate for punishment. The message it gives is that a series of relatively small sales of rock cocaine to a government agent is more horrendous than murder. I doubt we want to give that message. The other message it gives is that we prefer to lock up significant numbers of African American men for relatively small sales of crack than deal with the race problems in this country.

The irrationality of our sentencing laws promotes lack of respect for out criminal justice system and actually increases the amount of crime. Knowing that regardless of what they do African American men are likely to end up in prison, for long periods of time, only encourages them to use and sell drugs. Yet they still use it less frequently and in smaller numbers than Whites who are not targeted by law enforcement and are less likely to be incarcerated.

The Tenth Circuit Court of Appeals reversed a District Court decision that the failure of counsel to either attend a presentence meeting between his client or to prepare the defendant for the meeting was not incompetence of counsel.

Patrick E. Washington was found guilty by a jury of crack cocaine related offenses. His counsel did not attend the presentence meeting between Washington and the probation officer. Nor did he prepare Washington for the meeting by telling him that his sentence could be increased for relevant conduct. Relevant conduct involves, in this case, crack cocaine related activity other than the specific incidents for which he stood trial. During the meeting with the probation officer Washington told the officer about prior crack cocaine sales. As a result he pushed the quantity up beyond 4.5 kilograms, the maximum for a two level reduction under the 2007 Crack Cocaine Amendments.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his [sic] defense.” The right to counsel is available at all critical stages of the prosecution. The sentencing process is a critical stage and the failure of counsel to be aware of the importance of the nature of relevant conduct and the importance of the probation interview falls below the expected conduct of attorneys in Federal trials. As a result , Washington’s counsel was guilty of incompetence of counsel and Washington was hurt as a result thereof because he was not available for the level discount under the Crack Cocaine Amendments.