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Sentencings News
If you are still having trouble getting your judges to go to 1:1, see artcle below regarding Texas cases, attached memorandum opinion from ED Texas, and this list of cases from across the country:
United States v. Williams, 2010 U.S. Dist. LEXIS 30810 (S.D. Ill. Mar. 30, 2010)
United States v. Greer, 2010 U.S. Dist. LEXIS 30887 (E.D. Tex. Mar. 30, 2010)
US v. Gully, 619 F. Supp. 2d 633 (N.D. Iowa 2009)
US v. Lewis, 623 F. Supp. 2d 42, 46 (D.D.C. 2009)
US v. Medina, 2009 U.S. Dist. LEXIS 82900 (S.D. Cal. Sept. 11, 2009)
US v. Owens, 2009 U.S. Dist. LEXIS 70722, 2009 WL 2485842 (W.D. Pa. Aug. 12, 2009)
US v. Luck, 2009 U.S. Dist. LEXIS 71237, 2009 WL 2462192 (W.D. Va. Aug. 10, 2009)
US v. Carter, 2009 U.S. Dist. LEXIS 73094 (W.D. Va. Aug. 18, 2009)
Henderson v. US, 2009 U.S. Dist. LEXIS 83208 (E.D. La. Sept. 10, 2009)

Judges begin sentencing crack cocaine offenders same as powder

FPD Sentencing Policies Statement to DOJ

An Introduction to Federal Sentencing
Eleventh Edition
New 9th Case Opens Drug Treatment 1-Year Reductions for 922(g)(1) Cases 2.20.08
Arrington v. Daniels
The Supreme Court ruled 7-2 that the federal guidelines on sentencing for cocaine violations are advisory only, rejecting a lower court ruling that they are effectively mandatory. Judges must consider the Guideline range for a cocaine violation, the Court said, but may conclude that they are too harsh when considering the disparity between punishment for crack cocaine and cocaine in powder form. Justice Ruth Bader Ginsburg wrote the decision in Kimbrough v. U.S. (06-6330).
The ruling validates the view of the U.S. Sentencing Commission that the 100-to-1 crack v. cocaine disparity may exaggerate the seriousness of crack crimes.
Ruling in a second Guidelines case, Gall v. U.S. (06-7949), the Court — also by a 7-2 vote — cleared the way for judges to impose sentences below the specified range and still have such punishment regarded as "reasonable." The Justices, in an opinion written by Justice John Paul Stevens, told federal appeals courts to use a "deferential abuse-of-discretion standard" even when a trial sets sets a punishment below the range.

You may know already, but the Supreme Court granted cert. in three criminal
cases today, as per SCOTUSBlog,
http://www.scotusblog.com/wp/uncategorized/todays-orders-12/#more-6268 :
Docket: 07-455
Case name: United States v. Ressam
Issue: Whether 18 U.S.C. 1844(h)(2), which mandates 10 years in prison for
carrying an explosive during the commission of a felony, requires the
explosives to be carried "in relation to" the underlying felony.
This is Tom Hillier's and Laura Mate's case (W.D. Wash.).
Docket: 06-11429
Case name: Burgess v. United States
Opinion Below: Court of Appeals for the Fourth Circuit
1. Whether the term "felony drug offense" as used in federal statute
requiring imposition of enhanced mandatory minimum 20 years' imprisonment
when drug offender has "prior conviction for a felony drug offense" must be
read in pari materia with federal statutes defining both "felony" and
"felony drug offense", so as" to require imposition of minimum 20-year
sentence only if prior drug conviction as both punishable by more "than one
year in prison and characterized as a fe10ny by controlling law.
2. When the court finds that a criminal statute is ambiguous, must it then
turn to rule of lenity to resolve ambiguity?
Mr. Burgess apparently filed a pro se cert. petition, per the SCOTUS
docket (the FPD office in South Carolina did not represent on appeal; don't
know if they did in the district court). I guess the Court will appoint
someone for him. Here's a link to the Fourth Circuit's opinion:
Finally, in a case that would be of amicus interest:
Docket: 07-208
Case name: Indiana v. Edwards
Issue: Whether the Sixth Amendment grants a defendant found competent to
stand trial the right to represent himself in a criminal proceeding.
The Court has rewritten the QP to read "May States adopt a higher
standard for measuring competency to represent oneself at trial than for
measuring competency to stand trial?"

Fresh off the scotusblog website comes the following disappointing news. The website also has a link to the actual decision for those who like to rub salt in their fresh wounds:

The Supreme Court ruled unanimously on Tuesday that the armed career criminal law's sentence-enhancement provision applies to an individual who never lost his civil rights. Thus, the exemption from such an enhancement for those whose prior conviction has been set aside is not available if an individual's status was never altered. The ruling came in Logan v. U.S. (06-6911), and was written by Justice Ruth Bader Ginsburg.
The Logan case involved the interpretation of the phrase "civil rights restored" in the federal Armed Career Criminal Act. Those who have been convicted previously of felonies and are then convicted of possessing guns are subject to a maximum sentence of ten years, but that maximum is increased to life for those who have had three prior convictions for violent felonies — including violent misdemeanors. But Congress exempted from that enhancement feature those who have had their civil rights restored. James D. Logan of Janesville, Wis., was convicted of being a felon posseesing a gun and was sentenced to 15 years in prison, based upon three prior convictions for misdemeanor battery — a crime that causes no loss of civil rights. Logan argued that convictions that carry no loss of civil rights should be treated the same as those for which rights were lost then later restored. The Court rejected that claim. "Congress did not include offenders who retained civil righs at all times in its dispensation for offenders whose civil rigths have been restored," Justice Ginsburg said. "We are not equipped to say what statutory alteration, if any, Congress would have made had its attention trained on offenders who retained civil rights." And, she added, the Court cannot "recast" the law in a way that Congress did not. 12/2007
Sixth Amendment Alert: The Supreme Court granted cert today in Rothgery v. Gillespie County, TX (case no. 07-440) to decide whether the Sixth Amendment right to counsel attaches at an initial magistrate hearing when prosecutors have no role either in the defendant's arrest or at the hearing . In this case, the Petitioner was arrested and brought before a magistrate who found probable cause to believe that the Petitioner committed the offense based upon a police affidavit and remanded the Petitioner to jail pending bail. The Fifth Circuit found that the right to counsel did not attach because prosecutors did not participate in the arrest or the magistrate hearing, Rothgery v. Gillespie County, Tex., 491 F.3d 293 (5th Cir. 2007). The Petitioner is represented by Seth Waxman at Wilmer Cutler. A Texas law firm, Graves, Dougherty Hearon & Moody, and the Texas Fair Defense Project are also on the cert petition, and 22 law professors filed an amicus in support of cert. All briefs are available at www.scotusblog.com. 12/2007
Attached are the merits brief and the amicus briefs filed on behalf of Petitioner in Begay v. US, where the issue is whether felony DWI is a "violent felony" under ACCA.

The issues argued in these briefs should be helpful and should be preserved now. The merits brief covers statutory construction. NAFD argues that the "all crimes" interpretation of the "otherwise" clause is void for vagueness, violates separation of powers, and violates the 5th and 6th amendments. NACDL says, even if it were not unconstitutional, statistics show that DWI does not create a serious potential risk of physical injury to another. FAMM does a great job with the rule of lenity.
Merits Brief, Begay NAFDAmicus, NACDL Amicus Brief, FAMMF.  11/2007
SORNA Win Order Granting Deese Motion to Dismiss 9/2007
SORNA ex post facto win.  Another win in failure to register case.  Cole Decision 9/2007
There is a new memo analyzing the Rita decision, along with a few pleadings using it, posted on the Sentencing Resource Page: http://www.fd.org/odstb_SentencingResource3.htm#SENTENCE .
Non-guideline sentences based on the absence of a fast track program in various districts. Attachment 1/2006
October 12, 2005
Amy Baron-Evans
Sentencing Resource Counsel




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