Unites States Sentencing Commission votes to provide Guideline Amendments to Congress

Yesterday, the U.S. Sentencing Commission voted to promulgate sentencing guideline amendments to Congress by May 1, 2010. These proposed amendments will recommend departures for individuals in need of drug, alcohol, or mental health treatment. District courts will be given the options of sentencing our clients to home or community confinement as opposed to straight incarceration. The Commission agreed to broaden Zones B and C to provide for these sentencing alternatives.

The Commission also voted to amend the guideline policy statements to allow judges to consider a defendant's age, mental and emotional conditions, and military history in accordance with 18 U.S.C. Section 3553(e). Further, as we posted eariler, the Commission voted to delete the "recency" provision of the criminal history computation. The proposed amendments also include new guideline provisions for hate crimes and crimes against United States servicemen and women.

Lastly, the Commission will recommend that the current sentencing guildlines pertaining to the sentencing of organizations be amended to encourage adoption of rules creating compliance and ethics officers for defendant-organizations.

Unless Congress objects to the proposed amendments, they will become effective on November 1, 2010.

-RCS

Defense counsel earns acquittal against major drug trafficking conspiracy charges!

On April 8, 2010, Attorney Page Pate, a private practitioner and member of the CJA panel, earned an acquittal for his client who was charged in a major drug trafficking conspiracy. The government alledged that his client, pilot Donald Fontana, knowingly transported large quantitites of cocaine from a city near the Texas/Mexico border to a Peachtree City airport aboard his private plane. Mr. Fontana has been a licensed pilot since 1966 and has conducted business in real estate and oil in that area for several years.

According to federal agents, they observed Mr. Fontana land this plane at Falcon Field on August 29, 2009. He and two passengers, (co-defendants who later entered guilty pleas), exited the plane carrying several bags. The agents followed the men to local hotels. Later, one of the co-defendants was arrested after a high-speed car chase. The agents recovered hundreds of kilos of cocaine in his vehicle. All of the men were indicted on conspiracy charges and one was charged with a weapons offense.

Mr. Fontana maintained his innocence and several character witnesses testified that he was an honest business man and a family man with high moral standands. Although the government argued that he "turned a blind eye" to the conduct of his co-defendants, including the fact that he was paid in large sums of cash for his services, he was exonerated by a Newnan jury following 1 1/2 hours of deliberation.

Congratulations, Page!

-RCS

Winning Strategies Seminar in Chicago, Illinois June 17-19, 2010.

Register now for the Winning Strategies Seminar in Chicago, Illinois to take place June 17-19, 2010.  Drawing its faculty from the ranks of federal judges, defenders and practitioners, Winning Strategies presents legal techniques for use in securing pretrial, trial, sentencing and appellate relief in a wide variety of federal cases. The seminar will employ both plenary and break-out instructional sessions to present “nuts and bolts” defenses to firearms, drugs, child pornography and immigration prosecutions – as well as to present defenses to more novel prosecutions such as mortgage fraud, identity-theft, etc. Winning Strategies additionally provides important guidance and insights concerning the new post -Booker sentencing landscape now facing federal defense attorneys. Participants will receive analysis of the Supreme Court’s recent criminal law decisions and insights into that Court’s pending criminal cases. They will also hear forecasts from the Sentencing Resource Counsel’s representatives on proposed guideline amendments and will learn strategies to better advocate for – and achieve – just sentences.

-SAK

SENTENCING ALERT: COMMISSION VOTES TO ELIMINATE RECENCY POINTS.

On Tuesday, April 13, 2010, the United States Sentencing Commission voted to amend the Guidelines Manual by deleting 4A1.1(e) (recency points).  4A1.1(e) adds 2 points to the criminal history score if the defendant committed the instant offense ....  The presumed reason for the amendment is that recency points add nothing to the predictive quality of the criminal history score and fail to reflect meaningful differences in offender culpability.

The recency amendment along with the other amendments being voted on this cycle will be sent to Congress on May 10, 2010 and, if no further action is taken, will be adopted on November 1, 2010.  This does not mean, however, that courts must continue applying recency points in the interim.  The court remains free under 18 USC 3553 and Supreme Court precedent to disagree with any part of the guidelines on policy grounds.

Defense counsel should consider arguing that courts should not assess recency points now for the same reason that the Commission recommends abandoning them on November 1, 2010.  They do not reflect either increased culpability or an increased risk of recidivism and thus do not serve any sentencing purpose.

The Commission will announce all of the pending amendments on its website, www.ussc.gov.

-LBF