Articles Posted in Sentencing

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The Maryland Assembly has recently passed the Justice Reinvestment Act which is generally aimed at significantly reduces Maryland’s prison population. Our partner, Judge Joe Murphy (ret.) played a key role in formulating much of this legislation. The legislation passed the House by a vote of 122-19 and the Senate 46-0. Gov. Hogan is expected to sign the bill into law this spring.

Many major policy changes are highlighted below in this text but include a unique opportunity for inmates serving mandatory minimum sentences for drug offenses an unprecedented opportunity to return to court and ask for a sentence modification.

Some other highlights to the bill include:
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Federal criminal defense lawyers are often faced with the issue of “double counting” when dealing with white-collar crimes sentencing. Double counting occurs when “one part of the [Sentencing] Guidelines is applied to increase a defendant’s punishment on account of a kind of harm that has already been fully accounted for by application of another part of the [Sentencing] Guidelines.” U.S. v. Pena, 339 F.3d 715, 719 (8th Cir. 2003) (quoting U.S. v. Hipenbecker, 115 F.3d 581, 583 (8th Cir. 1997)). However, a trial court does not double count for purposes of the Sentencing Guidelines by enhancing an offense level for two or more reasons when those reasons “address conceptually separate sentencing notions.” U.S. v. Phillips, 506 F.3d 685, 688 (8th Cir. 2007).

Loss is broadly defined as the greater of actual loss or intended loss. U.S.S.G. § 2B1.1 commentary 3(A). Actual loss is “the reasonably foreseeable pecuniary harm that resulted from the offense.” Id. Intended loss is (1) “the pecuniary harm that was intended to result from the offense” and (2) “includes intended pecuniary harm that would have been impossible or unlikely to occur.” Id.

The commentary to U.S.S.G. § 2B1.1 defines “gross receipts from the offense” to include all property, real or personal, tangible or intangible, which is obtained directly or indirectly as a result of such offense. See 18 U.S.C. § 982(a)(4) which defines “gross receipts from the offense” in the context of criminal forfeiture. The commentary also explains that “for purposes of subsection (b)(14)(A), the defendant shall be considered to have derived more than $1,000,000 in gross receipts if the gross receipts to the defendant individually, rather than to all participants, exceeded $1,000,000.” Specifically, the defendant is only liable for gross receipts that the defendant, himself, received as a result of the criminal activity.
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As a Baltimore Maryland Criminal Defense Attorney, I routinely handle matters charged in the juvenile courts of Baltimore County, Baltimore City and throughout the metropolitan area. Last week the Supreme Court of the United States handed down its decision in Graham v, Florida, in what amounted to the most significant case concerning juvenile sentencing since it ruled that juvenile offenders could not face capital punishment.

In Graham, the Court ruled in a 6-3 decision that juvenile offenders could not face a sentence of life without the possibility of parole for crimes other than murder. The 6-3 spread is a little deceiving as Chief Justice Roberts agreed with the result in the Graham case but did not concur with the blanket prohibition on life without parole sentence adopted by the majority. Instead, Roberts opined that the sentences should be looked at on a “case by case” basis. Here are the facts of the Graham case:
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The United States Federal Sentencing Guidelines are not mandatory on sentencing courts. The Guidelines are also not presumed to be reasonable. That was the very clear and very recent message sent by the United States Supreme Court in Nelson v. United States, 129 S.Ct. 890 (2009). In so ruling , the Supreme Court made it very clear that the federal sentencing guidelines are NOT what they used to be!

The federal sentencing guidelines used to strike fear into the hearts of criminal defendants accused of federal offenses. Not only were the guidelines mandatory, but they were VERY harsh. Under the old sentencing guidelines scheme, even first time offenders with compelling personal circumstances were forced to serve large non-paroleable prison terms. Federal prison populations swelled with non-violent drug offenders incarcerated for long terms of incarceration. Judges who wished to vary from the guidelines were routinely reversed by federal circuit courts. Federal prosecutors, emboldened by the harsh mandatory guidelines, had no incentive to be reasonable. Under the mandatory guidelines system, prosecutors – not Judges –were the most powerful players in determining the fate of criminal defendants. By deciding which crimes to charge, the prosecutors could effectively dictate the result faced upon conviction. Even the most skilled defense attorneys were often powerless to stop unfairly harsh sentences. Judges were equally powerless.

The sentencing landscape has now changed dramatically. The guidelines are now just that – GUIDELINES – to be considered but not necessarily followed by federal district judges. The sea change began in United States v. Booker, 543 U.S. 220 (2005). Booker held that the then-mandatory U.S. Sentencing guidelines were unconstitutional. The only way to salvage the guidelines as a system was to make them advisory only. Even after the Court’s decision in Booker, federal appellate courts continued to treat the guidelines with reverence. For example, at least one federal appeals court had ruled that a district court judge was not free to disregard the guidelines except for “extraordinary circumstances.” Other courts held that judges could not disagree with the disparate treatment of offenses involving crack versus powder cocaine under the guidelines.

This thinking came crashing to a halt in Nelson v. United States, 129 S.Ct. 890 (2009), and Spears v. United States, 128 S.Ct. 840 (2009). In the Nelson case, the Court overruled the Fourth Circuit Court of Appeals and held that a federal district judge cannot presume that a sentence within the federal sentencing guidelines is reasonable. That is, the advisory federal sentencing guidelines are only one factor in a multi-part system of determining a sentence for a person convicted of a federal offense. http://www4.law.cornell.edu/uscode/18/3553.html A sentencing judge is free to sentence a defendant to whatever is reasonable, regardless of the sentenced called for under the sentencing guidelines.

In the Spears decision, the Court made clear that federal judges are also free to disregard Sentencing Commission policies in arriving at a fair and reasonable sentence. In that case, the Court upheld the decision of a federal judge to impose a sentence below the sentencing guidelines because the judge disagreed with the U.S. Sentencing Commission’s policy to treat crack cocaine offenses more harshly than those involving powder.

Not only can a district judge choose to not follow the guidelines, but a court can also impose a sentence that disregards U.S. Sentencing Commission policies.
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The Probation Before Judgement Statute, Criminal Procedure 6-220, was updated several years ago to allow a person to be sentenced to a period of incarceration as a condition of the Probation Before Judgement. Why you ask, would a Maryland Criminal Defense Attorney think that amending a statute to allow for someone to be incarcerated when the previous iteration of the statute did not allow for incarceration, is a good thing?

To understand the answer it is important to first understand what Probation Before Judgement is. The best way to explain what Probation Before Judgement is, is to explain what it is not. Probation Before Judgement is NOT a conviction under Maryland Law. Under the statute a judge has the authority to strike out the guilty finding in most any criminal case. (There are a few crimes for which probation before judgement is not available including first, second and third degree sex offenses, first degree murder as well as second or subsequent convictions for DUI or CDS cases if the first conviction resulted in Probation Before Judgement).
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