28 U.S.C. 2255 Example – A Double Edged Sword

When it Works, Sometimes it Doesn’t

In our continuing exploration of 28 U.S.C. §2255 cases, the practice of federal habeas appeals never ceases to be amazing. And confusing.

Take, for instance, the case of Howard Handa.1 In this case, defendant Handa was sentenced for possession with intent to distribute methamphetamine in violation of 21 U.S.C. §841(a)(1) and use of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. §924(c).

In 1990 Bailey was sentenced for these crimes, then filed a §2255 petition after the Supreme Court made it’s landmark decision in Bailey v. United States in 1995. This case stated that simply because the defendant had access to a firearm does not necessarily mean that a gun was used during the commission of a crime.

This was the case with defendant Handa.

Note: this was 5 years after his original sentencing, which would normally be time-barred from being accepted. Except that prisoners have 1 year from any landmark (Supreme Court or Appeals Court) decision that could change the outcome of their sentences.2

Handa argued, successfully, that the gun found in his car when he was committing drug crimes was not loaded, and therefore a conviction for “Use of a firearm in relation to a drug trafficking crime” did not apply after the Bailey decision. He was right and his §924(c) was thrown out. Then things turned south for Handa.

Two Ways to Sentence

Before we go any further in this story, lets take a look at some procedure. This will be short, but important.

At the time of indictment the prosecutor had two choices of how to change Handa with his crimes.

  1. S/He could charge the drug crime only and enhance that sentence using the guidelines manual for the possession of a gun; or
  2. S/He could charge the drug crime and the gun crime separately.

The prosecutor in Handa’s case chose the second way, and therefore the judge sentenced Handa for both crimes together, as a “package deal”. The reason this matters will become obvious very soon.

Handa’s Re-sentencing

So Handa won. His §2255 was successful and the §924(c) charge for using a gun during his drug crimes was thrown out. Time for a victory dance, right? Wrong.

The government (prosecutor) then moved to have Handa re-sentenced using option #1 above, since option #2 was now not an option at all. Adding the sentence enhancement for the gun would increase Handa’s total original sentence, even with half of the number of charges at sentencing. If this sounds like the prosecutor wanting to have cake and it it too, you’re not wrong.

The district court, citing lots of Circuit precedent, said it had no authority to increase the original sentence beyond what it already had sentenced Handa to. But that victory, too, was short-lived. It it’s decision on the matter, the 9th Circuit said that the district court could re-sentence Handa because the “package deal” was now “unbundled”. Bad news for Handa, even with a victorious §2255 motion.

Takeaway: Be careful what you wish for, you just might get it.

  1. United States v. Handa, 122 F.3d 690, (9th Cir. 1997) []
  2. The normal tolling limits for filing is 1 year after the latest of four events. For a full discussion of when the appropriate time to file a 2255 is, go to our main page on the subject []

Direct Appeal Issues in Federal Court – Plain Error vs. Abuse of Discretion

There are lots of issues that can be raised on direct appeal from an original sentencing hearing or trial. Too many than can be established in one blog post. Lawyers who practice in federal courts spend years litigating cases and studying law at the district level and sometimes at the appeal level. This post gets pretty technical, so read on at your own pace (risk).

Direct appeals from criminal cases can bring up evidence that should have been suppressed,1 or other actions that should have been taken legally by the district court but weren’t. For example, take the case of United States v. Fricosu (read up on the case here, here, and here). In this case, the government tried to force the defendant to give up her passwords so they could prosecute her for what was (hopefully) on her encrypted hard drives. The appeals court had to determine if this violated Fricosu’s 5th Amendment protections against self incrimination.

Aside from the many issues that are unique to a case and are argued at the lowest level of courts, there are two main places where Courts of Appeal will rule on sentences and convictions from district-level judges. These handle issues of plain error and abuse of discretion.

Plain Error

Each circuit has their own set of cases that define plain error reviews, but they all tend to revolve around a very easy, common sense definition of “plain error”. If the judge makes an obvious error, then the appeals court will send it back for correction.

A good example of this is if the judge mistakenly sentences a defendant with 4 extra points added to the offense level being sentenced. Depending on where they land on the federal sentencing table, 4 points could mean the difference of 2+ years on a sentence. Say the 4-points was for a gun used in the commission of a crime, when there were no reports or evidence of guns at all. It just got added because somebody made a clerical error.

Once that sentence was pronounced by the district judge, the only place to correct the plainly erroneous sentence would be the appeals court. If a sentence or decision is made in plain error, the matter is, if explained well, a simple correction that is dictated by the appeals court.

Abuse of Discretion

Judges at the district level have pretty wide latitude to make certain decisions. Anything from re-hearing requests, motions for dismissal of indictment are posed to district judges every day and they have to make a decision on whether or not the request has legal merit. Judges, for lack of a better phrase, just use their best judgment. When this decisions go out of bounds in a bold or subtle way, the appeals courts have the job of correcting this.

The definition of these powers are set by the Circuit itself. For the 9th Circuit, they define their abuse of discretion standard this way:

The standard, as it is currently described, grants a court of appeals power to reverse a district court’s determination of facts tried before it, and the application of those facts to law, if the court of appeals forms a “definite and firm conviction that a mistake has been committed.” At the same time, the standard denies a court of appeals the power to reverse such a determination if the district court’s finding is “permissible.”

Because it has previously been left to us to decide, without further objective guidance, whether we have a “definite and firm conviction that mistake has been committed,” or whether a district court’s finding is “permissible,” there has been no effective limit on our power to substitute our judgment for that of the district court. United States v. Hinkson

If this sounds confusing, it usually is. However, the basis of the standard is simple. If the law allows for certain things at the judge’s discretion, anything outside of those certain things is abuse of discretion. If a district judge abuses his/her discretion on a simple matter, it can call into question the entire conviction. These arguments can be very nuanced, but can have very large impacts on the outcome of appeals.

That’s it for now, as a deeper discussion of abuse of discretion vs. plain error would get very VERY technical and boring. As if it weren’t already.

  1. Such as evidence gathered from an unlawful warrant, or testimony from an unreliable source []

2255 Motion to Vacate or Set Aside Sentence

How to file a §2255 Motion to Vacate?

This is a very big question to answer, but the question that needs to be answered first is, “Can and should I file a Title 28 U.S.C. §2255 Appeal?”

Again, this is a big question, but it is just as important as how to file. A motion of this type is sort of an appeal, without being a direct appeal. It is a collateral attack on the sentence of incarceration itself for constitutional issues.

First, only federal inmates can file one. The normal course of criminal cases in the federal criminal system is a direct appeal. Second, when the direct appeal didn’t work, was never filed, doesn’t have the ability to work, or simply doesn’t meet the needs of the defendant, a §2255 is the way to go.

In order to be eligible and qualified to file one of these types of appeals, a few criteria need to be met:

  1. Only federal inmates may file;
  2. Complaints cannot be made if they could have been made on direct appeal;
  3. Complaints must be an attack on the sentence itself, not issues related to confinement (such as RDAP acceptance, placement in halfway house, or holdings in Solitary/SHU);

To answer any questions you have about how to file a 2255 motion, give us a call for a free initial consultation: (480) 382-9287

Issues for Direct Appeal

For direct appeals, there are a number of issues that can be brought up. This should be discussed first, before a discussion of the issues that can be raised on 2255 filings. It’s a good way to separate the two.

For a direct appeal there are many issues that can generate a successfully filed appeal. For starters, if a sentencing judge misapplies the guidelines manual by adding or subtracting points for issues not stipulated in a plea agreement, a direct appeal is the way to go. Second, if the prosecution has withheld exonerating evidence, a direct appeal is the way to go.

Basically, mistakes in the administration of justice during an original sentencing or trial are the only issues that have merit on direct appeal. As long as the defense attorney did their job well during the original criminal penalty phase, this is usually sufficient.

IMPORTANT: Issues on direct appeal must have been raised at the district level already, but decided wrong. Appeals courts will not listen to new arguments, only ones that have been already raised at the court below them.

Issues for §2255 Motions

It is a sad fact that most federal criminal defendants cannot afford to hire adequate legal representation for themselves when charged with a federal crime. A vast majority of federal defendants are assigned a public federal defender to represent them.

Federal defenders are a amazing at their jobs, usually. However, they also have a case-load that is MUCH larger than privately hired lawyers and will often make errors or be ineffective because of it. It cannot be stressed enough that great lawyers can make big mistakes when they are overworked, and no lawyer is more overworked than a federal public defender.

With that out of the way, one of the triggers that is most often used for the basis of §2255 filings is the ineffective assistance of counsel.

**A Good Example**
One client we had in early 2017 was eligible and appropriate for a reduction in offense level points because he was a small pawn in a large criminal fraud conspiracy. A “minor role” adjustment is ready and available in the Sentencing Guidelines Manual for defendants just like him. Unfortunately, this adjustment is applied very sparingly in some districts, and liberally in others.

Our client’s lawyer did not mention or fight for this adjustment, which would have been totally appropriate and would have shaved a year or two off of his sentence. So here is where a 2255 works well, and for the following reasons:

  1. The client’s lawyer failed to argue for this adjustment at original sentence, and was therefore ineffective;
  2. The sixth amendment in the Bill of Rights guarantees effective counsel, so this issues is a constitutional one, meaning a §2255 is the right course to take;
  3. The issue could not be brought up on direct appeal because it was not raised at the original sentencing hearing; and,
  4. The issue is timely because, last year, the Sentencing Commission recognized that this adjustment was being applied unevenly between the districts and issued a clarifying amendment to encourage a more even application, triggering a “new evidence” type of claim for our client.

There are far too many issues that could trigger a §2255 to be successfully argued and accepted by the district court of sentencing, so we won’t make a big list here. However, know that anything from a sentence that goes above the statutory maximum allowed by law, or issues that should have been raised during the original prosecution by the defense counsel, but was not, are all covered under the §2255 umbrella.

To answer any questions you have about issues that can trigger a successful 2255 motion, give us a call for a free initial consultation: (480) 382-9287

How We Work

PCR Consultants is a document preparation company. We prepare solid documents that our clients can use to file for all sorts of relief in the federal criminal justice system. Anything from §2255 Motions to Requests for Early Release from Probation.

We aren’t lawyers, and we are not a law firm. That means we don’t represent our clients in court, and cannot file for them. What we do is write killer documents that will make the defendant HEARD by the district court, and include with them an application for the appointment of defense counsel.

Inmates are not guaranteed free defense attorney’s as a right during the process of a §2255, this is to protect the federal defender’s office from being inundated with work in this area. Most of these motions that are filed have little to no merit, or are dismissed for various reasons (such as the ability to raise the issue on direct appeal or no standing to argue new constitutional law in a habeas proceeding).

However, once a judge grants an evidentiary hearing on a §2255 that is found to have merit, appointment of counsel is mandatory (according to Federal Rules Governing §2255 Procedure 8(c)). Our service comes as a package deal, we write:

  1. The originating motion, supplemented with the district’s own forms (if required);
  2. A motion for an evidentiary hearing if the judge finds merit in the request;
  3. (Optional) A motion to proceed as indigent (In Forma Pauperis); and,
  4. A motion for the appointment counsel if the motion for evidentiary hearing is granted.

To answer any questions you have about how we work with clients to write a 2255 motion, give us a call for a free initial consultation: (480) 382-9287

What Happens After the Motion is Filed

After the documents are filed, we’re hands-off. Once they are filed, a chain of events will occur. It starts with the original sentencing judge, who will examine the motion for it’s merits and either dismiss the motion or order the government to file a response.

After the government responds, the defendant might want to file a rebuttal to the government’s arguments. This might be allowed under local criminal rules, or it might not. If not, the rebuttal must be submitted before the Court orders or it won’t be considered at all. Alternatively, the defendant can file a motion for leave to reply, which will give him/her more time to formulate a response.

Now is the time the judge will either grant or deny the defendant and the relief they’re seeking. In cases where facts are in dispute, the Court can grant an evidentiary hearing where, as was discussed earlier, a judge is required to appoint counsel for defendants who cannot afford one of their own.

Time Limits

Unlike direct appeals, which are required to be filed within 14 days (usually) after the pronouncement of a sentence, a §2255 Motion can be filed within a 1 year time period. That is, the defendant/inmate has to file this motion within one year of the latest of four events:

  1. The date of final judgment;
  2. The date any removal of obstacles to filing the motion by government action in violation of the constitution were removed;
  3. The date where the Supreme Court rules on a case which triggers an applicable argument to the defendant/inmate;
  4. The date where supporting facts could have been discovered through research.For clarification, in #1 above, a judgment becomes final when it is pronounced or when any direct appeal to that judgment was denied. So if the Supreme Court refuses to hear an appeal, then the date of final judgment is the date that the Supreme Court petition for hearing is denied.

To answer any questions you have about how court procedures work after filing a 2255 motion, give us a call for a free initial consultation: (480) 382-9287

One Shot

Defendants only get one shot at filing a §2255, except in rare cases where new evidence is found, or the Supreme Court makes a startling ruling that changes the process of similar cases. Many, many inmates get help from other inmates they are incarcerated with to file a motion like this. Some are very good, but most times this is a total waste of the one shot a defendant gets at filing a motion like this.

The moral of this story?

The 2016 Guidelines Manual Amendments

Today, the 2016 amendments to the United States Sentencing Commission’s Guidelines Manual go live. The topics of this year’s adjustments are:

  1. Compassionate Release from Prison;
  2. Animal Fighting;
  3. Child Pornography Circuit Conflicts;
  4. Immigration; and,
  5. Conditions of Probation and Supervised Release.

Obviously, here we’ll be focusing on the Conditions of Probation and Supervised release, with some later posts dealing with the changes in sentence structures for Animal Fighting, Immigration cases, and possibly Porn. To see the full press release on the amendments that go live today, click here.

Conditions of Federal Probation/Supervised Release

The section of the amendments list regarding the standard, mandatory, and special conditions of supervised release gets started this way:

Reason for Amendment:
This amendment is a result of the Commission’s multi-year review of sentencing practices relating to federal probation and supervised release. The amendment makes several changes to the guidelines and policy statements related to conditions of probation, §5B1.3 (Conditions of Probation), and supervised release, §5D1.3 (Conditions of Supervised Release).

When imposing a sentence of probation or a sentence of imprisonment that includes a period of supervised release, the court is required to impose certain conditions of supervision listed by statute. 18 U.S.C. §§ 3563(a) and 3583(d). Congress has also empowered courts to impose additional conditions of probation and supervised release that are reasonably related to statutory sentencing factors contained in 18 U.S.C. § 3553(a), so long as those conditions “involve only such deprivations of liberty or property as are reasonably necessary for the purposes indicated in 3553(a)(2).” 18 U.S.C. § 3563(b); see also 18 U.S.C. § 3583(d). Additional conditions of supervised release must also be consistent with any pertinent policy statements issued by the Commission. See 18 U.S.C. §3583(d)(3).

The Commission is directed by its organic statute to promulgate policy statements on the appropriate use of the conditions of probation and supervised release, see 28 U.S.C. § 994(a)(2)(B), and has implemented this directive in §§5B1.3 and 5D1.3. The provisions follow a parallel structure, first setting forth those conditions of supervision that are required by statute in their respective subsections (a) and (b), and then providing guidance on discretionary conditions, which are categorized as “standard” conditions, “special” conditions, and “additional” special conditions, in subsections (c), (d), and (e), respectively.

There is a deeper discussion of cases which have challenged certain restrictions that are placed on federal defendants on supervised release, which is very interesting, but too long to post here.

In essence, here are the changes that this amendment made.

  1. Court Established Payment Schedules: If the Court imposes a mandatory payment schedule for a Special Assessment, Fine, or Restitution Judgment, then that schedule is law. All this amendment really did is change the placement of Court-imposed payment schedules from the “mandatory” section to the “standard” conditions section.
  2. Sex Offenders: Ambiguity was removed from the mandatory condition of a convicted federal sex offender’s requirement to register as a sex offender in their specific state.
  3. Reporting to the Probation Officer: This, too, is simply there to relieve some ambiguity. If a defendant is released to be supervised outside  the jurisdiction of the convicting court, then they are to report to the probation officer of the local Court, then to whomever they’re directed to report to after that.
  4. Leaving the Jurisdiction: This is a good one. Standard Condition #1 is normally worded like this: “the defendant shall not leave the judicial district without the permission of the court or probation officer;” Simple, right? Sometimes, not so much. In States like California, the borders of the districts are weird. In New York, taking the subway from Manhattan to The Bronx or Queens means leaving the Southern District and traveling to the Eastern District. Fall asleep on a train? VIOLATION!
    Anyway, this amendment adds the word “knowingly” to the condition to absolve the subway sleepers and the California hikers from violating a condition of their probation if they didn’t INTEND to violate it. Problem solved.
  5. Answering Truthfully: This one has actually come up more than once with clients. Standard Condition #3 on most Judgment Orders states, “the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer;” But what if the probation officer asks a question that an honest answer could be incriminating? Does the 5th Amendment right to remain silent protect a defendant? Yes, yes it does. It always has. However, many probation officers don’t know this. A defendant on federal probation CAN refuse to answer a question on 5th Amendment protection grounds without violating their probation, and now the guidelines acknowledge this and specify it. It also prevents a probation officer from claiming a defendant “didn’t follow directions” because of an invocation of the 5th Amendment protection against self incrimination.
  6. Residence and Employment: This section changes two things. First, for full-time employment, the Commission added that full-time employment means at least 30-hours a week. This is still able to be waived for education, disability, and other reasons at the discretion of the probation officer.Second, a change of employment or residence used to require a defendant to give 10-days notice to their probation officer prior to the change. But what happens in the event a supervised defendant gets fired? Laid off? Their house burns down??? There is now added language to require the notification of 10 days, or within 72 hours of becoming aware of the change.
  7. Visits by Probation Officer: Not much change here. The commission re-asserts that a probation officer may need to visit probationers at work or at home, sometimes without notification to ensure compliance. “The revision provides plain language notice to defendants and guidance to probation officers.”
  8. Association with Criminals: This is a big one, and is a big step backward. The condition that defendants refrain from “association” with persons who they know to be engaged in criminal activity or have been convicted of a felony. That word “association” gives some leeway. Conduct at work will often put a defendant into contact with co-workers who are known to be former felons. This amendment seems to comport with, but restrict the Soltero case below.“[C]onsistent with the fundamental presumption that “prohibited criminal acts require an element of mens rea,” Vega, 545 F.3d at 750, non-association conditions prohibit only knowing contact with persons that the supervisee knows to be felons. See id.; United States v. Soltero, 510 F.3d at 867 n. 9. We further limited the meaning of nonassociation conditions by emphasizing that “ ‘incidental contacts’ ․ do not constitute ‘association’․” Soltero, 510 F.3d at 866-67 (quoting Arciniega v. Freeman, 404 U.S. 4, 4-5 (1971) (per curiam)” U.S. v. King 09-50665 (9th Circuit 2010).
    Now the association clause changes “association” with “communicating or interacting”, but also adds the word “knowingly” into the condition to make it have a specific requirement that a defendant intended to communicate with the criminal or former felon. That way, if the pizza delivery guy is also a drug dealer, but he just delivered a pizza once to a defendant, that exchange wouldn’t violate the Association with Criminals Clause. However, when it comes to professional relationships, the coverage of “association” would seem to be gone.
  9. Arrested or Questioned by a Law Enforcement Officer: This amendment only changes which section the provision goes under and makes no changes to it.
  10. Firearms and Dangerous Weapons: This amendment, or the part that matters, defines what a “dangerous weapon” is. Some clients have complained that their probation officer has ordered them to get rid of a compound hunting bow or a cross-bow because it was considered a dangerous weapon. This amendment defines a dangerous weapon as “anything that was designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus (sic) or tasers.” Rest easy. Those compound bows and cross bows don’t seem to fall under this category, as they were designed for animal hunting, not people hunting.
  11. Acting as an Informant: Nothing new here, just a change in language to improve clarity.
  12. Duty to Notify of Risks Posed by the Defendant: This third-party risk notification requirement is usually a hurdle for most defendants in their quest for employment. Many probation officers mandate that defendants tell their employer about their criminal history. This can, and usually does, limit a defendant’s ability to obtain employment. This can spill out in other areas like e-commerce for self-employed defendants and is really sticky. The amendment gives the probation officer more authority when making a determination about this notification requirement, which sucks. This tends to manifest itself in ways that are very detrimental to a supervised defendant.
  13. Supporting Dependents: The change to this condition is minimal, but fixes some vagueness. Basically this will only be applied to the judgement orders of defendants who have dependents that need support. Right now, it’s applied to everybody and is enforced if it is needed to be.
  14. Alcohol; Controlled Substances; Frequenting Places Where Controlled Substances are Sold: Here’s some good news. These conditions have been deleted so that the “excessive use of alcohol” prohibition is now gone and will be replaced with a full prohibition if it is deemed need in specific cases. Controlled substances are already covered in mandatory conditions, and frequenting places where drugs are sold is covered in the “non-association” clause discussed above.
  15. Material Change in Economic Circumstances: In basic terms, this condition requires defendants to notify their probation officer if they get fired/laid-off from their job, or if they come into a lot of money like an inheritance. Since this only matters if the defendant has a fine or restitution outstanding, the Commission has clarified that this condition is not necessary for cases where no fines or restitution judgments exist.

That wraps up this year’s U.S.S.C. Guidelines Manual amendments for supervised release and probation terms. Some important changes, but nothing earth-shattering this year.

Prosecutorial Misconduct Taken to A Whole New Level

Orange County, CA – Its no secret that many felons, defense attorney’s, and inmates believe that the office of the prosecutor fights unfairly and plays dirty. The reality is, there isn’t much oversight to keep prosecutors from doing so. Making matters worse, there is nearly no mechanism used to punish prosecutors who do.

Charge bargaining (plea extortion), trial penalties, and Brady violations are all common forms of prosecutorial misconduct. They are very easy to suspect, but often very hard to prove.

Hard to prove, that is, until a story like this comes out. A judge in Orange County has disqualified any prosecutors from the county District Attorney’s office from participating in a specific criminal case because of rampant corruption and civil rights violations against defendants. Shaun King over at the Daily Kos exhaustively goes over the allegations and the events leading up to the disqualification of prosecutors. His piece gets started this way:

Between San Diego and Los Angeles is Orange County, California. With more than 3 million residents, it’s larger than 21 states. If Orange County were a separate country, its economy would be the 45th largest in the world. Now known for Disneyland, the county may soon be known for having one of the most corrupt justice systems in the world. The width and depth and duration of the corruption truly boggles the mind. A case that should’ve been open and shut has blown the lid off some deep secrets.

On October 12, 2011, Orange County experienced the deadliest mass killing in its modern history. Scott Dekraai killed 8 people, including his ex-wife, in a Seal Beach beauty salon. He was arrested wearing full body armor just a few blocks away. Without a doubt, Dekraai was the perpetrator. A dozen surviving witnesses saw him. He admitted to the shooting early on. Yet, nearly four years later, the case against him has all but fallen apart.

It turns out that prosecutors and police officers committed an egregious violation of Dekraai’s rights—so much so that Superior Court Judge Thomas Goethals shocked everyone and removed the Orange County District Attorney’s Office, and all 250 prosecutors, from having anything more to do with the case.

The entire piece is worth a full read, and will make your blood boil.

Federal Pardon Application – Eligibility Requirements

What does it take to apply for a Federal Pardon?

As with all federal applications, the process seems very simple at first. The nuts and bolts of a federal pardon application, however, can get cumbersome, confusing, and downright daunting. This post is a first-step for anybody looking to apply for a federal pardon and clear their good name.

Only a few requirements exist to let a federal convict know they’re eligible to apply, and they are all found in § 28 C.F.R. 1.1 Here’s your easy checklist:

  1. You must have a federal crime you want pardoned;
  2. You must NOT be currently incarcerated;
  3. In fact, you must be free from confinement for at least 5 years;
  4. If incarceration wasn’t a part of your sentence, you have to have been sentenced to probation at least 5 years ago;
  5. You have been released from probation or supervised release, and are fully ‘free’ from the federal criminal justice system;
  6. BONUS: don’t have any more criminal convictions (local, state, or federal) since your federal conviction.

 What Does it REALLY Take??

So now that the preliminary requirements are out of the way, the real question becomes: what sets my application apart? There is no single answer to this question, but we’ll set out a few things that could really help you stand out, then add in some nuggets that we do that give it an extra push. Remember, an application like this should be treated more like a resume or college entrance application than a bland court motion or driver’s license application. Make it pop!

As anybody could imagine, there are hundreds of federal pardon applications submitted to the President every year. Whats worse, Obama has the worst pardon record of any modern president. However, with his presidency coming to a close, and more clemency/pardon grants this last 12 months than his previous 5 years, things are looking up.

Now seems to be the time to apply and get in line for his last days of office, where most past presidents have made the most pardons.

Staying Out of Trouble Isn’t Enough

While being crime/conviction free for at least five years is a good start, you’ll be one amongst many. The process for applying for a pardon is short, but designing your life and activities (think volunteerism and philanthropy) around the idea of applying for a pardon could take time.

If you don’t have any selfless acts to put on your application, it can seem a bit anemic. Volunteer to serve food at your local homeless shelter, or donate blankets. It doesn’t take much to become a part of something like this. Think of your local VFW, who are always looking for volunteers for some function or another.

Restitution order in your case? Make sure its paid off. Fines? Make sure they’re paid too unless you intend to apply for a pardon of just the financial sanction.

Find Three People to Vouch for you

Any group of people are just fine to write letters vouching for your character, but it takes more than that to make an impression. People who know you personally, and are in a position of power (privately or in government) are optimum choices for Character Reference Letters. You need three of these, as the title of this section states.

Try finding two close, personal relationships that would be more than willing to write a letter attesting to your spotless integrity. Then save the last letter for a big name. Contact your U.S. Congressman, your U.S. Senators, state governor, lieutenant governor, mayor, state legislators, or the head of your state democratic/republican parties (whichever way you lean)

Applicants to the military service academies are required to get letters like this to go there. Or at least they used to be required. Anyway, requests for letters like this are not uncommon at a congressperson’s office, and their staff will tell you just what you need to do to make the request, and maybe even get it. How would your pardon application look with a Senator’s name pushing it?

Be Creative

Your life, outside the criminal justice system, is uniquely yours. Crafting the application’s pages to make you as sympathetic and ‘human’ as possible goes a long way. Defense lawyers spend most of their energy at sentencing hearings ‘humanizing’ their client so the presiding judge remembers that the years behind bars he is about to pronounce actually affect a real, live person.

Your pardon application works in the same way. Make your self a real, live person to the first faceless bureaucrat who sees your application and you will be ahead of the game.

Put the Power of PCR Behind your Pardon Application!

Contact PCR Consultants for a free consultation on federal pardons.

e. Info@PCR-Consultants.com

p. (480) 382-9287

Federal Supervised Release is not Punishment

The Seventh Circuit on Federal Supervised Release

A few years ago, the Seventh Circuit published an order clearly showing their views on the imposition and purpose of federal supervised release. That circuit is back at it again with an opinion regarding three separate cases, challenging their supervised release conditions.1  Thanks to the Federal Criminal Appeals Blog for the head’s-up on this one.

There are some key points made by this ruling that anybody interested in the nuts-and-bolts of federal supervised release should be aware of. If you are on supervised release, or interested in the subject at all, the entire opinion is a must read.

The Purpose of Supervised Release

To start off with, the Circuit posted a history and usage overview of supervised release. The most interesting part of this section of the order is below:

“The purposes of supervised release have been variously described as rehabilitation, deterrence, training and treatment, protection of the public, and reduction of recidivism.”2(Citations omitted and footnoted)

The real meat of this point is clarified a little later.

“Supervised release was not intended to be imposed for the purposes of punishment or incapacitation, “since those purposes will have been served to the extent necessary by the term of imprisonment.”3…see also 18 U.S.C. § 3583(c) (directing a court contemplating the imposition of supervised release to consider most sentencing factors set forth in 18 U.S.C. § 3553(a), except the need for the sentence to provide just punishment for the offense). The Supreme Court has described supervised release as “the decompression stage” between prison and full release.”4 (Citations omitted and footnoted))

What this says is simple. The goals of supervised release are not to further punish the defendant, since that is what incarceration is for. The factors courts must consider when contemplating a term of federal supervised release all almost the same as the one’s they consider when imposing prison time. The only difference is that court’s cannot consider the need for supervised release to provide just punishment for the offense.

The Meaning Behind the Purpose

Let us look at this from the perspective of one who wishes to gain early release from federal supervised release. If, 1) the purpose of supervised release is not to inflict more punishment for the underlying crime; and 2) the “decompression state” between prison and full release is accomplished, then there is no reason to keep a defendant on supervision any longer.

The trick is proving that this decompression stage is over. From lots of prior 7th Circuit decisions, we have these factors that mark this decompression and satisfy that requirement. From the first quoted section, these five purposes of supervision are:

  1. Rehabilitation: have you completed all treatment and aftercare?
  2. Deterrence: are you effectively deterred from committing future federal crimes?
  3. Training and Treatment: do you have enough treatment and education to stay clean from crime and to keep stable employment? Stability of home and job is a key indicator to judges that you pose a low risk to commit new crimes. Sometimes it just matters how busy you are. Job? Kids? Wife/Husband? All these keep a person busy, and no idle time means no time to devote to criminal behavior. “Idle hands are the Devils’ playground” and all…
  4. Protection of the public: Again, this lends to treatment, stability, and reduced risk of committing new crimes.
  5. Reduction of recidivism: At this point it gets redundant, but explicit. What is your quantifiable risk to commit new crimes. If you have zero criminal history, this part is easy!

That’s All For Now

So far, we’ve only viewed about 6 pages of this 68-page opinion. However, this is plenty to digest for now. If you’re looking to get early release from federal probation or federal supervised release, consider the purpose of supervision and ask yourself if you’re finished with its intended goals. If so, you could be a prime candidate!

  1. U.S. vs. Kappes, U.S. vs. Crisp, and U.S. vs. Jurgens; Nos. 14-1223, 14-2135, & 14-2482 respectively and decided April 8, 2015. []
  2. United States v. Johnson, 529 U.S. 53, 59-60 (2000); United States v. Siegel, 753 F.3d 705, 708 (7th Cir. 2014); United States v. Evans, 727 F.3d 730, 733 (7th Cir. 2013) []
  3. S. Rep. No.98-225, at 125; see also Johnson, 529 U.S. 59 (“Supervised release fulfills rehabilitative ends, distinct from those served by incarceration.”) []
  4. Johnson v. United States, 529 U.S. 694, 709 (2000). []

AG Holder Remarks on Criminal Justice Reform

While United States Attorney General Eric Holder announced six months ago that he would be leaving his office, he is still serving and waiting for his replacement to be confirmed and take control of the US Department of Justice. In the meantime, he has not let up on his belief that criminal justice reform is a very pressing issue forAttn. General Holder Testifies At Senate Judiciary Hearing On Justice Dept Oversight the DOJ.

In a speech to the Bipartisan Summit on Criminal Justice Reform, a long speech, there was a section that should be posted loud, clear, far, and wide. It speaks to the heart of what true criminal justice reform means and some of the reasons why it is necessary. The section is posted below:

“We must reject the notion that old practices are unchangeable, that the policies that have governed our institutions for decades cannot be altered and that the way things have always been done is the way they must always be done. When the entire U.S. population has increased by a third since 1980, but the federal prison population has grown by almost 800 percent, it is time – long past time – to look critically at the way we employ incarceration. When the United States is home to just five percent of the world’s population but incarcerates almost a quarter of its prisoners, it is time – long past time – to reexamine our approach to criminal justice. And when estimates show that a staggering 1 in 28 American children has a parent behind bars and that the ratio for African-American children is 1 in 9, it is time – long past time – to take decisive action in order to end a vicious cycle of poverty, criminality and incarceration that traps too many individuals, degrades too many families and devastates too many communities.

That means more state legislatures must end felon disenfranchisement – and so many other barriers to reentry – for individuals who have served their sentences and rejoined their communities, and invest in alternatives to incarceration like drug courts – something I’d like to see in the next five years in every federal district in America. It means Congress must act to restrict and refine those crimes to which mandatory minimums apply and extend the Fair Sentencing Act so that no one is serving a sentence based on a disparity in punishment between crack cocaine and powder cocaine offenses that Congress, the President and the Attorney General have all declared unjust. And it means gatherings like this one must continue to bring together leaders and advocates, academics and public servants, from all backgrounds and circumstances, to renew our commitment to this vital cause.”

The full text of Holder’s speech can be found at the DOJ’s website, and is definitely worth the time it takes to read in full.

Tsarnaev Verdict – Guilty Counts Explained

Boston Bomber Guilty on all Counts

April 8, 2015 – The trial of Boston Bomber suspect Dzhokhar Tsarnaev has been closely watched by the nation, and around the world. Although the trial itself is well outside the purview of what we do here, federal criminal law is all we focus on (in general).

Bomber Tsarnaev convicted

Boston Bomber

By now, most interested Americans know that a jury returned a verdict of “guilty” today on all 30 counts against Tsarnaev.1 What is uncommon, and clumsily explained by the main media outlets reporting on it, are the specifics of the charges, and what penalties each carry.

Tsarnaev caused the deaths of four innocent people: Krystle Marie Campbell,2 Officer Sean Collier,3 Lingzi Lu,4 and Martin Richard. (Richard’s family page regarding information on him and the rest of the Richard family can be found on Tumblr here)) The sections below are an exhaustive list of the charges against the Boston Bomber, Dzhokhar Tsarnaev, short details directly from the federal indictment against him, and the penalties that coincide with them.

A quick note: Under the penalties below, when “any term of years” of prison time is allowed by law, the United States Sentencing Guidelines Manual. is used to calculate those years. “Any term of years” doesn’t mean the judge can give as little or as much as he wants with limitless discretion.5

Charges Against Tsarnaev

 

Count 1: Conspiracy to Use a Weapon of Mass Destruction Resulting in Death

A violation of 18 USC §2332a(a)(2)

Paragraph 11 of the federal indictment6 starts the detailed description of the acts that constitute a conspiracy between Dzhokhar and his brother, Tamerlan. This conspiracy resulted in the death of four people, a run from law enforcement, and a shootout that ended in his capture. Here’s a short quote from the indictment document.

[They] “knowingly conspired…to use a weapon of mass destruction, namely, a destructive device as defined by [18 USC §921] without lawful authority, against a person and property in the United States…”

Penalties: A defendant convicted of a violation of this statute “shall be imprisoned for any term of years or for life, and if death results, shall be punished by death or imprisoned for any term of years or for life.”

Count 2: Use of a Weapon of Mass Destruction Resulting in Death; Aiding and Abetting

A violation of 18 USC §2332a(a)(2) and 18 USC §2

Paragraph 41 of the indictment against Tsarnaev cites this statute as his role in aiding his now-deceased brother to carry out the bombing. 18 USC §2 is a general statute that details the acts that constitute aiding and abetting any crime under federal criminal law.

“…DZHOKHAR A. TSARNAEV and Tamerlan Tsarnaev produced explosive bombs from pressure cookers, low explosive powder, ball bearings, nails, adhesives, electronic components, and other materials, then Tamerlan Tsarnaev, aided and abetted by DZHOKHAR A. TSARNAEV, placed and detonated one such bomb…in the vicinity of 671 Boylston Street in Boston Massachusetts, which resulted in a premature end to the Boston Marathon and damage to Marathon Sports and other property.”

Penalties: Aiding and Abetting for Count 1 carries the same penalties. A prison term up to life, and eligibility for the death penalty.

Count 3: Possession and Use of a Firearm During and in Relation to a Crime of Violence Resulting in Death; Aiding and Abetting

Violations of 18 USC §924 (penalties in (j)); 18 USC §2

Paragraph 44 begins the description of how Tsarnaev used a firearm in furtherance of a crime of violence. The “firearm” here is the bomb he used, not a gun. The result of death for this count is the murder of Krystle Marie Campbell.

Penalties: Any person who is convicted of using a firearm during a crime of violence and causes death can “be punished by death or by imprisonment for any term of years or for life.”

Count 4: Use of a Weapon of Mass Destruction Resulting in Death; Aiding and Abetting

Identical to count 2, except charged separately for the murders of Lingzi Lu and Martin Richard. Penalties are the same as count 3, namely, prison time or death.

Count 5: Possession and Use of a Firearm During and in Relation to a Crime of Violence Resulting in Death; Aiding and Abetting

Identical to count 4, except for the use of the second bomb, which caused the murders of Martin Richard and Lingzi Lu. Penalties are prison time or death.

Count 6: Conspiracy to Bomb a Place of Public Use Resulting in Death

A violation of 18 USC §2332f(a)(1)

Paragraph 57 of the indictment changes the scope and angle of the charges. The title of this section of §2332f is “Bombings of places of public use, government facilities, public transportation systems and infrastructure facilities.” The resulting death in this charge refers to all four murder victims.

Penalties: A defendant convicted of a violation of this statute “shall be imprisoned for any term of years or for life, and if death results, shall be punished by death or imprisoned for any term of years or for life.”

Count 7: Bombing of a Place of Public Use Resulting in Death; Aiding and Abetting

A violation of 18 USC §2332f(a)(1) from count 6, with 18 USC §2 added

A short section of the indictment charging Tsarnaev of aiding his brother in the furtherance of the conspiracy to bomb a public place. Penalties for this charge again include the death penalty.

Counts 8 & 13: Possession and Use of a Firearm During and in Relation to a Crime of Violence Resulting in Death; Aiding and Abetting

A violation of 18 USC §924 and 18 USC §2

This is a 924 charge specifically for the death of Kristal Marie Campbell for bombs number 1 and 2.

Count 9: Bombing of a Place of Public Use Resulting in Death; Aiding and Abetting

A violation of 18 USC §2332f(a)(1) from count 6, with 18 USC §2 added

This is a 2332f charge specifically for the deaths of Lingzi Lu and Martin Richard, using bomb #2.

Counts 10 & 15: Possession and Use of a Firearm During and in Relation to a Crime of Violence Resulting in Death; Aiding and Abetting

A violation of 18 USC §924 and 18 USC §2

This is a 924 charge specifically for the deaths of Lingzi Lu and Martin Richard, using bomb #2.

Counts 11 & 12: Conspiracy to Maliciously Destroy Property Resulting in Personal Injury or Death

A Violation of 18 USC §844(i) and (n)

From paragraph 81 of the indictment:

“The Grand Jury…charges that the offense resulted in personal injury to at least one person; specifically it resulted in personal injury to many persons who were participating in, viewing, and passing by the Boston Marathon.”

“The Grand Jury further charges that the offense…resulted in the deaths of Krystle Marie Campbell, Officer Sean Collier, Lingzi Lu, and Martin Richard”

Penalties under subsection (i):

“…if death results to any person, including any public safety officer performing duties as a direct or proximate result of conduct prohibited by this subsection, shall also be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment”

Count 14: Malicious Destruction of Property Resulting in Personal Injury and Death; Aiding and Abetting

In Violation of 18 USC §844(i) and 18 USC §2

Similar to counts 11 & 12, but for the actions, not the conspiracy to commit those actions. Penalties remain the same, as above.

Counts 16 -18: Possession and Use of a Firearm During and in Relation to a Crime of Violence Resulting in Death; Aiding and Abetting

A violation of 18 USC §924 and 18 USC §2

This is a 924 charge specifically for the death of Officer Sean Collier for a Ruger P95 9mm semiautomatic handgun. Two of these charges latch to the conspiracy to create and place the two bombs, and 17 is specifically for the possession and use of the Ruger.

Penalties remain prison time or death.

Count 19: Carjacking Resulting in Serious Bodily Injury; Aiding and Abetting

A violation of 18 USC §2119(2) and 18 USC §2

From paragraph 117 of the indictment, Tsarnaev:

“…with the intent to cause death and serious bodily harm, knowingly took and attempted to take from the person and presence of D.M., by force and violence, and by intimidation, a motor vehicle that had been transported, shipped, and received in interstate and foreign commerce, that is, a 2013 Mercedes ML350 bearing Massachusetts license plate 137N71 and VIN 4JGDA5HB1DA193885.”

This charge specified the theft of victim “D.M.” who remains anonymous in the indictment, and the injury caused to Officer Richard Donohue.

Penalties for this charge include prison time, calculated by the sentencing guidelines, but a maximum of 25 years in prison.

Count 20: Possession and Use of a Firearm During and in Relation to a Crime of Violence; Aiding and Abetting

A violation of 18 USC §924(c) and 18 USC §2

This count specifies Tsarnaev’s carrying and brandishing of his Ruger handgun during the carjacking from Count 19, that resulted in the injury to Officer Richard Donohue.

Penalties for this count carry a minimum sentence of 7 years in federal prison.

Count 21: Interference with Comerce by Threats and Violence; Aiding and Abbetting

A violation of 18 USC §1951 and 18 USC §2

From paragraph 123 of the indictment, Tsarnaev,

“…committed a robbery that in some way and degree obstructed, delayed, and affected commerce, to wit, DZHOKHAR A. TSARNAEV unlawfully took and obtained personal property consisting of eight hundred dollars from the person and in the presence of D.M., against his will, by means of actual and threatened force, violence and fear of injury, immediate and future, to his person and property, by forcing D.M. to provide his Bank of America Automatic Teller Machine (“ATM”) debit card and personal identification number (“PIN”) to DZHOKHAR A. TSARNAEV, who then and there used the ATM card and PIN to obtain eight hundred dollars from the Bank of America branch located at 39 Main Street in Watertown, Massachusetts.”

This charge carries no minimum prison sentence, but a maximum of 20 years in prison.

Count 22: Possession and Use of a Firearm During and in Relation to a Crime of Violence; Aiding and Abetting

A violation of 18 USC §924(c) and 18 USC §2

This charge was levied from the actions detailed in count 21, while Tsarnaev was in possession and brandishing his Ruger.

As in Count 20, the minimum penalty for this charge is 7 year in prison.

Count 23: Use of a Weapon of Mass Destruction; Aiding and Abetting

A violation of 18 USC §2332a(a)(2) and 18 USC §2

This details the construction of another bomb and its use against pursuing law enforcement…

“against law enforcement officers in the vicinity of Laurel Street and Dexter Avenue in Watertown, Massachusetts, resulting in damage to property used in an activity that affects interstate and foreign commerce and in the closure of businesses, as the Governor of Massachusetts and other public officials asked residents in Watertown, Boston, and elsewhere in Massachusetts to assist law enforcement by remaining indoors while the officers attempted to apprehend DZHOKHAR A. TSARNAEV.”

Penalties for this charge, again, include a prison term (up to and including life) and the death penalty,

Count 24: Possession and Use of a Firearm During and in Relation to a Crime of Violence; Aiding and Abetting

A violation of 18 USC §924(c) and 18 USC §2

Tsarnaev used his third bomb while brandishing both it and the Ruger while law enforcement was in pursuit.

Punishment for this charge is another 7 years, minimum.

Count 25: Use of a Weapon of Mass Destruction; Aiding and Abetting

A violation of 18 USC §2332a(a)(2) and 18 USC §2

“DZHOKHAR A. TSARNAEV and Tamerlan Tsarnaev used an explosive device constructed from a section of pipe, low explosive powder, and other materials (“pipe Bomb #1″) against law enforcement officers in the vicinity of Laurel Street and Dexter Avenue in Watertown, Massachusetts, resulting in damage to property used in an activity that affects interstate and foreign commerce and in the closure of businesses…”

This bomb was a pipe bomb used against law enforcement, not a pressure cooker bomb, like in earlier (single-digit) counts. Different bomb, different location. Same penalties.

Count 26: Possession and Use of a Firearm During and in Relation to a Crime of Violence; Aiding and Abetting

A violation of 18 USC §924(c) and 18 USC §2

This count was charged because of the possession and brandishing, and this time for discharging, of the Ruger and bomb #1 in count 25.

Because the firearm(s) was/were possessed, brandished, and discharged, the minimum penalty for this charge is 10 years in prison with no maximum.

Count 27: Use of a Weapon of Mass Destruction; Aiding and Abetting

A violation of 18 USC §2332a(a)(2) and 18 USC §2

“DZHOKHAR A. TSARNAEV and Tamerlan Tsarnaev used an explosive device constructed from a section of pipe, low explosive powder, and other materials (“pipe Bomb #2″) against law enforcement officers in the vicinity of Laurel Street and Dexter Avenue in Watertown, Massachusetts, resulting in damage to property used in an activity that affects interstate and foreign commerce and in the closure of businesses…”

This is a second pipe bomb, but the same base charge as count 25. Same penalties.

Count 28: Possession and Use of a Firearm During and in Relation to a Crime of Violence; Aiding and Abetting

A violation of 18 USC §924(c) and 18 USC §2

This count was charged because of the possession and brandishing, and this time for discharging, of the Ruger and pipe bomb #2 in count 27.

Because the firearm(s) was/were possessed, brandished, and discharged, the minimum penalty for this charge is 10 years in prison with no maximum.

Count 29: Use of a Weapon of Mass Destruction; Aiding and Abetting

A violation of 18 USC §2332a(a)(2) and 18 USC §2

“DZHOKHAR A. TSARNAEV and Tamerlan Tsarnaev used an explosive device constructed from a section of pipe, low explosive powder, and other materials (“pipe Bomb #3″) against law enforcement officers in the vicinity of Laurel Street and Dexter Avenue in Watertown, Massachusetts, resulting in damage to property used in an activity that affects interstate and foreign commerce and in the closure of businesses…”

This is a third pipe bomb, but the same base charge as count 25 and 27. Same penalties.

Count 30: Possession and Use of a Firearm During and in Relation to a Crime of Violence; Aiding and Abetting

A violation of 18 USC §924(c) and 18 USC §2

This count was charged because of the possession and brandishing, and this time for discharging, of the Ruger and pipe bomb #3 in count 29.

Because the firearm(s) was/were possessed, brandished, and discharged, the minimum penalty for this charge is 10 years in prison with no maximum.

  1. this will open the door to an entirely new type of trial. A jury decision on imposing the federal death penalty []
  2. view her tribute facebook page here []
  3. view his tribute facebook page here []
  4. view her tribute facebook page here []
  5. Federal judges are subject to a standard called “reasonableness” []
  6. docket document #58 []

Criminal Defense Booms When Everything’s a Crime

Criminal Defense – A System of Perpetuation

Criminal defense is a lucrative business. Lawyers spend years in a prosecutor or public defender’s office working long hours for low pay (and huge case-loads) just to get the experience in the trenches of criminal trials to finally switch to private practice. That’s where the real money is.

Many people realize that the American system of criminal justice is badly broken, and the criminal defense industry along with it. Ever wonder why defense attorneys don’t

Criminal Defense boom

“I can get you a plea for only 3 years in prison!”spend big bucks for lobbyists to change the laws that ensnare so many of their clients? Because that would mean fewer paying clients.

Did you know that Correctional Officer’s unions pay top dollar for lobbyists to get harsh punishment laws passed like California’s now-infamous “Three Strikes” law. Laws like this mean more jobs and more union dues.

Criminal defense is lucrative, so less criminal defendants means less money. On the other side of sentencing, less inmates means few correctional officer jobs.  The system is designed to have a continual flow of criminal defendants and inmates to feed it.

Is Everything a Crime Now?

As sarcastic as the titles of this section may seem, America is really becoming a society that is ciminalizing everything. There was a book published a few years ago titled, “Three Felonies a Day” by Harvey Silverglate, and recently we’ve been following @CrimADay on Twitter.

We’ve all seen the online galleries detailing whacky laws in different states. But what about real laws that carry real prison time, and are enforced? Here are a few:

  • 16 U.S.C. §§45e, 60 & 62 make it a federal crime to carry around a dead bird in Yosemite National Park.
  • 40 U.S.C. §§5014(d), 5109(b) & 2 U.S.C. §1963 make it a federal crime to use the US Capitol Grounds as a playground and injure the grass.
  • 18 U.S.C. §1701 makes it a federal crime to slow down a mailman.

In an article entitled The Crimes of the Century, Matt Kaiser details a recent case that shows that these aren’t just whacky laws that don’t get enforced.

As an example, let us consider a recent case from the Western District of Pennsylvania.

According to a recent press release from that office, a woman was indicted for theft of United States Mail. (Because it seems awfully mean to make her more Google-able, I’m not going to use her name here.)

Apparently, she looted a greeting card that was being sent to someone in Cranberry Township.

The article goes on to describe the prosecution of this crime, that resulted in the theft of two crisp $20 bills. Maximum penalty? 5 years and up to a $250k fine. Over $40. How much has the government already spent prosecuting this case? How much has she paid her attorney for her criminal defense? Who knows…

The Bigger Picture

When everything can be made criminal, two things happen. First, prosecutors can prosecute anybody and begin to do so selectively. This means that prosecutors could target political enemies, and with absolute power comes absolute corruption (eventually). Another effect from the fallout of this is the booming criminal defense industry, feeding lawyers to strive for more clients. That leads to the second point.

Second, the class system evolves from this. Lawyers and workers inside the criminal justice system, and civilians. Have you ever noticed how many politicians are also lawyers? Those that benefit from the laws are making them!