Federal Pretrial: Pre-Sentencing

The PSI/PSR

A Pre-Sentence Investigation and Pre-Sentence Report (PSI or PSR) are done by the US Probation Office to make recommendations to the presiding judge about your sentence. This report can make the difference of YEARS off of a sentence if handled correctly. Knowing what it should say, should not say, and needs to contain is the single most important factor in reducing the amount of time a defendant is away from home.

PCR Consultants can review and give invaluable information to maximize the potential this document contains.

Objective Case Review

When an attorney is obtained, he or she is the only lawyer that can speak to you about your case, except if a second attorney is from the same law firm. Many people who are new to the criminal justice system are unaware that a legal “Second Opinion” cannot be given by an objective attorney who does not represent you. They can’t even tell you if your lawyer is doing a good job or not.

However, since PCR Consultants are not a law firm, we can legally give objective opinions about the status and nature of your current defense. This can mean the difference between freedom and serving prison time while appealing a conviction due to ineffective council.

About SentencingAfter Sentencing

Contact Us for a Free Consultation

Find out how we can help by calling us for a free consultation at (480) 382-9287.

For more ways to contact us, visit our contact us page for contact form and e-mail addresses.

Learn about us and how our services work on our about page.

Federal PreTrial: Sentencing

Sentencing

The process by which a federal sentence is pronounced goes in the following steps: a sentencing range is calculated by the probation officer and put into their full report to the judge. This report is called a Pre-sentence Investigation Report (“PSI” or “PSR”). Then the defense reviews the PSI for errors and submits objections to the judge.

Finally, the presiding judge reviews both the PSR and the defense objections and decides if he wants to sentence the defendant below, within, or above this sentence recommendation.

We wrote an entire series on how federal sentencing calculations are done, which give the policy-recommended ranges for any federal criminal case. Start with Federal Sentencing Explained in Plain English to begin reading the 3-part series and get a decent education in how this process all works.

What Happens After Sentencing?

You can read about the process and procedures of the events that comes after sentencing in our blog post about just this subject. Click here to read it.

Pre-Sentencing

Contact Us for a Free Consultation

Find out how we can help by calling us for a free consultation at (480) 382-9287.

For more ways to contact us, visit our contact us page for contact form and e-mail addresses.

Learn about us and how our services work on our about page.

An Interesting Case On Supervised Release

We’ve written a lot here about federal supervised release and the conditions that allow for a judge to release our clients early from their term of supervision. One of the places we get our information is from a policy document that guides federal probation departments.

Monograph 109

This document, called Monograph 109 which is a guidebook for probation departments. One of the sections in Monograph 109, namely §380.10(b), lays out a list of policy considerations that probation departments must consider for making recommendations for or against requests for early release from federal probation.

We did a review of all 9 of these factors in our post about it here.

The case that presented it’s conclusion this week, however, speaks to the outlier cases that these policy statements address.Factor #3 talks about aggravated offenses, factor #4 talks about a history of violence, and factors #8 & #9 talk about risks to victims and the public at large.

However, later in that same section it states that the existence of outstanding financial obligations per se does not adversely affect early termination eligibility (§§c), and failure to meet criteria listed should not automatically exclude an offender from further consideration (§§d), and there is a presumption in favor of recommending early termination for probationers and supervised releasees who have been supervised for at least 18 months and are not violent, drug, sex offenders, terrorists, present a risk to public or victims, and are free from any moderate or higher violations.

Armed Bank Robbery

The case that presented itself to us this week, with its conclusion, started way back in January of 2018. The case itself began with an armed bank robbery in 2006, and resulted in a 101 month prison sentence. The defendant, our client, reached out to see if he could use our help in applying for early termination of his supervised release.

He was given 5 years of supervised release and had already completed about 3.5 years of that term. He had less than $100k in restitution which stemmed from the money stolen from the bank robbery crime.1

Typically, an answer to a request for early termination is given by a judge within 2 months of the initial request being filed.  A majority of the requests are decided after about 5 weeks.

This case was different. The judge in this case wanted 3-4 separate briefs and a lot of documentations from the defendant/client and the probation officer in charge of his supervision. Usually this is a good sign, as a judge who is going to deny a request like this will deny it quickly. Normally, if it takes a judge longer than 8 weeks to publish an order, the chances of that order being positive for our clients goes up drastically.

However, this wasn’t the case here.

The Decision

The judge denied our client’s request here. The denial was given two separate parts. First, the judge cited the c0-defendants in the case. 18 U.S.C. §3553(a)(6) talks about a judge’s requirement to be fair and even-handed (read: consistent) between similar defendants with similar criminal conduct. In this case the judge decided that if he were to let  this defendant out of his supervision early, he would be compelled to do the same for his co-defendants that committed the same crimes.

While this is understandable, this doesn’t account for the conduct of each defendant after their release from prison, and only considers their criminal conduct. For statutory reasons, this is shaky legal ground because the “seriousness of the original offense”2 is not one of the factors from original sentencing that is allowed to be considered for an early termination request.

The second reason was restitution, and this is a big sticking point for many judges. Because this defendant had outstanding restitution, this judge (and many others) are timid to grant early release from supervision. This is because supervised release allows dire consequences if defendants just stop paying their restitution monthly payments.

You see, while on supervision, if a defendant stops paying he can be sent back to prison as this is a violation of his/her terms of supervision. However, after supervised release is over, outstanding restitution is converted to a civil judgment and has all the force and effect of a debt being in collections.

Basically, they can come after you and garnish your wages, but can’t send you to prison for non-payment of restitution.

Conclusion

It took six months of back-and-forth with the court for this case to come to a resolution. It wasn’t the order our client wanted, but at least it is over and he doesn’t need to wait for the decision with bated breath anymore.

We here at PCR Consultants like to publish and brag about the difficult cases that we are able to get free from supervision. However, we are open and honest with our clients that it doesn’t always go that way. This was one of those cases.

  1. for completeness’ sake, this client pleaded guilty and was a first-time offender with no criminal history points and a Criminal History Category of I []
  2. §3553(a)(2)(A) []

Federal Sentencing: Criminal History Category

Calculating Criminal History Weight

The final piece to sentencing calculations takes into consideration criminal history. Everything from misdemeanor driving crimes (like driving with a suspended license) to prior major felonies, the PSI/R considers the entirety of a defendant’s criminal history.

With no criminal history at all, zero points are assigned. Every other instance of past criminality is scored in the following categories:

  1. Juvenile Adjudication(s);
  2. Adult Criminal Conviction(s);
  3. Other Minor Conviction(s);

Then the totality of a defendant’s criminal history is scored with the points assigned by each entry in the above categories.

  • Three points are added for each prior convictions that carried an actual sentence more than 1 year and 1 day;
  • Two points are added for each prior conviction carrying an actual sentence of at least 60 days of detention;
  • One point is added for each prior sentence for a criminal conviction that didn’t qualify for the first two (e.g. criminal sentences with only probation or less than 60 days of detention);
  • Two points are added if the current charge occurred while the defendant was under any current sentence for another criminal case;
  • One point is added for each prior violent crimes that weren’t scored in the above categories (usually because they were combined sentences).

*Update: The U.S. Supreme Court decision in Sessions v. Dimaya has changed what federal courts can classify as a violent crime.1

Criminal History Category

Now that we know how criminal history is scored, the second part to this calculation is what category each score falls into. There are six categories, and each one carries longer sentences than the last.

Refer back to the sentencing table found in the Guidelines Manual for a visual representation of what this category does to sentences.

  • Category I: 0-1 criminal history points. This is the lowest category;
  • Category II: 2-3 criminal history points;
  • Category III: 4-6 criminal history points;
  • Category IV: 7-9 criminal history points;
  • Category V: 10-12 criminal history points;
  • Category VI: 13 or more criminal history points;

Calculating the Final Sentence

Okay, so from the base offense level we get our starting point. Then that score is increased and decreased by the enhancement and mitigating factors we talked about in the last section. Then we get the criminal history category.

Now we have all the information that goes into the federal sentencing table (link above) that is used to figure out what sentence the Guidelines Manual recommends for a specific defendant. Looking at the sentencing table, the Offense Level is in the left hand column from top to bottom. The Criminal History Category is in the top row from left to right.

This Criminal History Category can make a big difference in sentences. A defendant with an Offense Level of 22 with no criminal history gets a recommended sentence range of 41-51 months, while a defendant with a Criminal History Category of VI gets a recommended range of more than double that: 84-105 months.

This means that doing a “deep dive” with a criminal defense attorney about each and every point scored on a PSI/R to determine Criminal History Category is vitally important. If any of these points can be successfully objected to and challenged, a defendant may save 7-19 months of their life at final sentencing.

Summary

Although this whole process can seem very complicated, it is very important to pay close attention. If a defense attorney isn’t paying close attention, MAKE THEM. From challenging the calculation of the base offense level, to challenging the applicability of enhancements, to attacking the age or application of criminal history points, each step of this process can change a sentence, and experienced eyes can make years disappear from a defendant’s sentence.

It is a documented fact that a vast majority of defendants who are charged with a crime by the federal government will be convicted and face a sentencing hearing. The days between a plea hearing (or trial) and sentencing can be the most important in a defendant’s life. Don’t skip this part!

How PCR Consultants Can Help

We are consultants and not attorneys. When an attorney is working on a case, the state Bar Association prohibits any other attorney from offering their opinion on the case. You literally cannot get a second opinion as you would if considering other life-changing decisions like major surgery.

PCR Consultants offer experienced and independent eyes that can see the case as a whole and make a difference where the most good can come of it. In this case, an analysis of sentence computations. If you’d like to talk to us more and get a totally free consultation regarding a pending sentencing hearing, give us a call or e-mail.

Phone: (480) 382-9287

Email: info@pcr-consultants.com

Or visit out Contact Us page.

Back to

Primer | Base Offense Levels | Offense Level Adjustments

  1. Importantly, the Supreme Court decided that residual clauses of 18 U.S.C. §16 and  §924(e) are unconstitutionally vague and cannot be used to define a “Crime of Violence” because they ask judges to consider the potential of a crime to turn violent, even if no violence existed in the criminal conduct. []

Dimaya Sentence Reductions via §2255

The Sentence Reduction Potential of Dimaya and Johnson

On April 17, 2018, the Supreme Court of the United States published an opinion in an immigration case called Sessions v. Dimaya. This case caused waves because the left-leaning justices split with right-leaning justices evenly at 4-4 and the deciding vote was the freshman justice Gorsuch.

In what has conservatives raging against their new justice, is really not much of an immigration issue. Well it is, because it brings some civil immigration cases into the constitutional realm of criminal cases. In this case, the question was whether or not a statute which anticipated possible/potentially violent conduct was too vague to withstand constitutional scrutiny.

No attempt is made here to take political sides or to create a partisan bias. The reason why you’re probably here reading this is to find out if Dimaya can be helpful to an inmate in federal prison. The short answer is, “Maybe.”

What did the Dimaya Case Accomplish?

You can skip this section entirely if you’re not interested in the legal analysis of this case, although it does help explain how and who this case helps.

This opinion, with dissents, is nearly 100 pages long, so there is a lot to unpack. However, the essential part that impacts federal inmates has to do with sentencing enhancements for violent crimes.

What the Dimaya case decided was that the residual clause of 18 U.S.C. §16(b) was unconstitutionally vague and violated the U.S. Constitution’s 5th Amendment, which guarantees due process.

Lets make that simpler to understand. That law above, 18 U.S.C. §16(b), is the second part of a 2-part definition of what constitutes a “Crime of Violence.” The first part says that violence has to be used, attempted, or threatened for the underlying crime to be considered a violent one.

The second part, the part we’re interested in here, says that “any other felony that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

The problem with this phrasing is that a “substantial risk” is subjective and vague. A court could assume that violence could be a result of many different types of felonies. While holding a gun, threatening to kill somebody to facilitate a robbery is certainly a crime of violence under the first definition above.

The Supreme Court decided to rely on it’s criminal definition of what makes a law unconstitutional for being too vague. The definition of a violent crime is generally made by §16, as is addressed above. Criminally, however, the definition of a crime of violence is defined in §924(e)(2).

This, by the way, is why this case caused an uproar, because it treats deportation as a punishment severe enough to cross over into criminal punishment, rather than a civil process. And treating deportation as a criminal matter gives non-citizens constitutional due process rights.

But never mind that now.

The Supreme Court decided in Sessions v. Dimaya that the residual clause of the definition of a “crime of violence” from §16 is void for being too vague, just like the residual clause of a “crime of violence” for criminal prosecution from §924(e)(2) is void for being too vague, which they had decided in 2015 with Johnson vs. United States, 576 U.S. ___, ___.

How Dimaya Could Reduce Federal Sentences

Very basically, Dimaya reinforced Johnson’s decision that the residual clauses of the definition of a “crime of violence” in both 18 U.S.C. §16(b) and §924(e) were unconstitutional because they were too vague.

What this means in terms of reducing sentences for federal inmates falls out of this. If a federal inmate had his sentence increased because their crime was a “violent” one, even if there was no violence, then the basis for that sentence increase is now considered unconstitutional.

In order to get this sentence increase eliminated, effectively getting a sentence reduction, involves filing a Motion to Vacate, Set Aside, or Correct Sentence. Sometimes called a 2255,1 this allows a judge to correct a sentence for constitutional reasons (like the Dimaya decision here). However, there is a time limit.

The law that regulates the use of a 2255 motion sets a 1-year time limit on filing one. Four things can start this 1-year clock, but the relevant part here is that the Dimaya decision starts the clock for any inmate that can take advantage of it.

That means that any inmate who is affected by the Dimaya decision, meaning their sentence could potentially be decreased by using it, has until April 16, 2019 in order to file a motion to “Correct a Sentence” before they are no longer eligible to do so.

Contact Us To Find out How PCR Consultants Can Help

Find out how we can help by calling us for a free consultation at (480) 382-9287.

For more ways to contact us, visit our contact us page for contact form and e-mail addresses.

  1. because the statute allowing this is found in 28 U.S.C. §2255 []

What happens after sentencing?

Post-Sentencing in a Federal Criminal Case

Now what?

Now a defendant can feel like they are blowing in the wind without an advocate to guide them through this difficult period. Many prison consultants make a lot of money just telling people what to expect when they get to prison. We do that, too, but more importantly there is a need for somebody to help make the transition from defendant to inmate.

This transition starts well before the sentencing hearing. At sentencing, a defendant’s lawyer asks the judge to recommend a specific prison for “placement” of the defendant within the Bureau of Prisons. If that recommendation is appropriate, the BOP rarely goes against a judicial recommendation. If not, the BOP can send an incoming inmate wherever it wishes. The lawyer’s request is rarely based on a working knowledge of the Bureau of Prisons (BOP) or how the defendant will actually be seen by it. Usually it’s a gut feeling. A prediction that the lawyer has based on prior clients and their criminal history.

More information about recommendations is available at the bottom of this page.

Bad move. The BOP has a dozen different reasons why an inmate will qualify for a security level that is one-higher than (s)he would normally go. It’s a minefield that takes knowledge, practice, patience, and a knack for bureaucratic red-tape to navigate.

That’s us! We can accurately predict the security level a defendant will be classified as, show a list of prisons within the surrounding states which house that security level, and then make an APPROPRIATE recommendation for our client based on proximity, treatment needs, and programs offered. These factors are constantly changing from year to year, which is why this specialty is necessary.

For additional facts about pretrial, see a primer article about it here.

Contact Us for a Free Consultation

Find out how we can help by calling us for a free consultation at (480) 382-9287.

For more ways to contact us, visit our contact us page for contact form and e-mail addresses.

Place of Incarceration

If you take a plea bargain, the main concern of the pre-incarcerated is the location they will spend their time. What institution is better than the rest? Which is closest to home? These questions are the most basic and most frequently asked. Your sentencing judge can make a recommendation to the BOP for your placement. However, many times this recommendation is not followed. Why?

The BOP has its own policy of classifying each inmate to a specific institution and level of security. The problem is that most lawyers and judges make no effort to determine exactly what yours should be. They have a very good idea, but are often wrong.

If your judge recommends you to an institution that does not fit their criteria, the BOP will then assign you to wherever it sees fit, no matter the distance from home. However, according to BOP statistics, if a judge makes a valid recommendation, it is followed over 80% of the time. PCR Consultants can do a BOP compliant work-up on each client, match that work-up with BOP institutions that fit your needs, and give your attorney and sentencing judge the proper institution for you.

Various institutions have programs that can take up to a year off sentence time if completed plus six months to a year in a half-way house. Finding the right institution for you can mean 18-24 less months spent in prison. Up to 2 YEARS off!

Contact PCR Consultants as early as possible to affect as much of this process as you can.

Federal Sentencing: Enhancements and Mitigations

The Pre-Sentence Investigation Report

This document, written by the local Probation Department, is usually abbreviated as the PSI or PSR. Either way you hear it said, it is referring to the same document. We will pick PSI and use that for the purposes of this write-up.

The PSI is always sealed and only available to the Court, the Prosecutor’s office, the Defendant, and the Defendant’s attorney. There are lots of reasons for this, but mainly because the document has VERY personal information including the defendant’s social security number (SSN), current and past addresses, and all family relations.

About halfway through the document, the probation department takes the time to calculate everything that factors into a federal sentence recommendation. Sentence recommendations are just that, advisory. These are based on the Sentencing Guidelines Manual (U.S.S.G) discussed in the primer. Since the famous Booker case, U.S.S.G. recommended sentencing ranges are not binding and can’t be considered mandatory by judges.

In this calculation, the base offense level of the offense is stated first. If more than one conviction is present (either by guilty plea or jury verdict), the base offense levels will be grouped together and only the highest one will be used. They don’t add them together, which is a good thing.

Next the report looks at any factors that the Guidelines Manual specifies regarding base offense level. For example a drug conspiracy charge for 65 kilograms of marijuana will have a base offense level 20. For reference, at 81 kilograms the base offense level would be two points higher: 22.

Enhncements

Now the calculations take a slightly more complicated turn. Enhancements are any element to the specific crime category section that makes things more serious. In our above-drug conspiracy a few examples of this are:

  • If a dangerous weapon was possessed during the commission of the crime, add 2 points;
  • If the defendant used violence or made a credible threat, add 2 points;
  • If the intention of the drug conspiracy was to bring drugs into a jail or prison, add 2 points.

…and so on. A good example of where this can get more complicated is when multiple charges are grouped. In one financial case, a defendant was convicted of (among other things) obstruction of justice for destroying documents that were incriminating. He was still given 2 more points for an obstruction of justice enhancement because the base offense level for other grouped-convicted-counts were higher, and thus obstruction didn’t really factor into his sentence without this enhancement.

Was this legal? It’s dubious, but we’ll find out when his appeal sorts out.

Mitigations

In the same way enhancements are calculated (added points), so are mitigations (subtracted points). There are far fewer of these, but they still exist and are used in most cases.

The most common reasons to subtract points is for pleading guilty (acceptance of responsibility: minus 2 points), pleading guilty quickly (saving government resources: minus 1 point), and having a very minor role in the overall offense scheme in relation to other co-defendants (up to a 4-level reduction).

The Most Good

A good defense attorney knows that well over 90% of defendants in federal criminal cases will plead guilty. Therefore, the sentencing phase is where he can do the most good for his clients. A very thorough investigation of the PSI, elements of criminal conduct, enhancements, and mitigating factors are vitally important.

As a defendant, always double check these sections. Always make sure a defense attorney has reviewed each and every added point, and pursued each and every point-deduction possible. A brief look at the Sentencing Table where the final sentencing range will fall shows that even 2 points one way or another can mean more than a year of a defendant’s life.

In part three of this series, we’ll conclude this tutorial with a discussion of criminal history categories and how that relates to final sentence recommendations.

Go to the the Intro/Primer | Go To Part 1 | Go to Part 3

About PCR Consultants

PCR Consultants started 8 years ago as a small consulting and document preparation firm specializing in federal criminal cases. Specifically, we started helping clients who couldn’t afford, or didn’t want, a private defense attorney to help them apply for early release from federal probation.

Today we help clients in all phases of federal prosecution, from arrest to probation. We even do pardon applications. For a free consultation about federal sentencing questions, e-mail us at info@pcr-consultants.com or give us a call at (480) 382-9287.

Federal Sentencing: The Base Offense level

Part 1: Base Offense Levels

The first part of this series will focus on the foundation of a federal sentence. It is referred to as the “Base Offense Level” and is where the calculations of a federal sentence recommendation starts. This is, by a wide margin, the most simple piece to federal sentencing. All federal crimes come with a base-number that starts the calculations for a basic sentencing recommendation.

Different crimes have different minimum standards that must be met before a crime is able to be prosecuted. For example, a Wire Fraud prosecution must have elements of deceit, use of electronic payment transfers, and a few other elements of interstate commerce before it can be considered a federal crime.

The Base Offense Level considers what, at a minimum, a punishment should be if a conviction is secured against a defendant for that specific crime. Therefore, the base offense level is the starting point. The point at which the prosecutor can start building a higher sentence upon.

For most offenses, a Base Offense Level will start with a single-digit number. For Wire Fraud and many other financial crimes, the base offense level is either 6, or 7 (if the specific crime carries a possible maximum sentence of 20 years or more).

Sound confusing yet? It gets very complex the further into the subject you get. But, for base offense levels, there is usually a mid-single-digit number that is associated with the crime category (financial, drug, immigration, etc.) that starts the sentence computation.

In Part 2 of this series, the adjustments to the base offense level are explored in detail.

 

Go to the the Intro/Primer 
Go to Part 2: Offense Level Adjustments 
Go to Part 3: Criminal History Category

About PCR Consultants

PCR Consultants started 8 years ago as a small consulting and document preparation firm specializing in federal criminal cases. Specifically, we started helping clients who couldn’t afford, or didn’t want, a private defense attorney to help them apply for early release from federal probation.

Today we help clients in all phases of federal prosecution, from arrest to probation. We even do pardon applications. For a free consultation about federal sentencing questions, e-mail us at info@pcr-consultants.com or give us a call at (480) 382-9287.

Federal Sentencing Explained in Plain English

Federal Sentencing Primer

After a plea deal is signed, which happens in well over 90% of federal criminal prosecutions, the next phase in a case is sentencing. Most first-time offenders really don’t know exactly how this sentencing is done or considered by federal courts, prosecutors, and judges.

While defense attorney’s are supposed to do a thorough job explaining this process, and most do their best, the process is still mystical in the minds of most defendants. This 3-part series is going to dive into the meat of what is held in the Sentencing Guidelines Manual, and how sentences are handed down in federal criminal court.

The Sentencing Guidelines Manual

What is the Sentencing Guidelines Manual? It is a great big book that explains in excruciating detail every possible crime and factor that can be associated with all those crimes when contemplating a sentence.

To explain a little better, say a defendant pleaded guilty to a drug dealing crime. That right there is 8 points. Then the quantity of the drug adds more points. Then a firearm that was carried during the drug deal adds more points. Then the prior convictions of the defendant get factored in and, voila, a range of 110-128 months is the final outcome.

The purpose of this series is to explain just how all of this works. From the simple to the complex, after reading all three parts to this series, the basic process will be easy to follow and, hopefully, take some of the mystery and fear away from a few defendants and their families out there in America.

Part 1: The Base Offense Level
Part 2: Offense Level Adjustments
Part 3: Criminal History Category

********************

About PCR Consultants

PCR Consultants started 8 years ago as a small consulting and document preparation firm specializing in federal criminal cases. Specifically, we started helping clients who couldn’t afford, or didn’t want, a private defense attorney to help them apply for early release from federal probation.

Today we help clients in all phases of federal prosecution, from arrest to probation. We even do pardon applications. For a free consultation about federal sentencing questions, e-mail us at info@pcr-consultants.com or give us a call at (480) 382-9287.

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 []