Federal Defense Attorney John Teakell

In yet another interesting decision regarding federal sentencing, the United States Supreme Court dropped the hammer again and added another awkward twist to an already tangled sentencing regime.

The Decisions Below

The decision came in the case of Richard Irizarry, who threatened to kill his ex-wife and her relatives. After pleading guilty to making a threatening interstate communication, Irizarry was sentenced to 60 months in prison, which was actually 9 months longer than the federal guidelines’ maximum. The sentencing judge said the extra prison time was based on Irizarry representing a future danger to his ex-wife and family.

The judge that sentenced Irizarry also noted that the advisory status of the guidelines means federal courts are no longer required to give defendants and prosecutors advance notice. Irizarry appealed his sentence seeking relief but the Eleventh U.S. Circuit Court of Appeals agreed with the sentencing judge.

Federal Rule of Criminal Procedure 32(h) does not require Notice of Contemplated Variance

In Irizarry v. United States, No. 06-7517 (June 12, 2008), the United States Supreme Court held that Federal Rules of Criminal Procedure 32(h), which requires a sentencing court to give the parties advance notice that it is contemplating a departure from the Guidelines, does not require the court to give notice of a contemplated variance from a recommended Guideline range.

The Supreme Court further noted that Rule 32(h) was based on protecting a defendant’s expectation that his sentence would be within the applicable Guideline range. However, the Court noted that after United States v. Booker, a federal defendant no longer has the kind of “expectancy” that required notice. Furthermore, the Court was very specific to point out that Rule 32(h) itself referred to “departures” not “variances.”

In somewhat of a contradiction to the ruling, the Supreme Court did note that that district judges should consider granting a continuance of the sentencing when a party has a legitimate basis for claiming that it was illegitimately surprised by a contemplated variance.

Not all of the Justices Agree

In dissent, Justice Stephen Breyer adamantly disagreed with the majority’s decision and declared that “fairness justifies notice.” Breyer quoted Federal Rule of Criminal Procedure 32(h) which  reads:

Before the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party’s prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure.

Breyer criticized the Court’s finding that the intent of notice can produce unnecessary lengthy delays in sentencing and wrote that notice is “essential to assuring proce­dural fairness.” He further noted that the term variances are consistent with the ordinary meaning of the term “departure” and that the Court’s ruling is contrary to recent precedent.

Is it against the law to be present in a home where illegal drugs have been recovered and someone has been placed under arrest? The answer would depend on whether or not there was knowledge of the illegal activity. In most states juries are instructed that merely being present at the scene of a crime, even with knowledge that an offense is being committed, is not enough to convict a person of the crime. On the other hand, there are principles of criminal liability that can apply to people even though they are not the actual perpetrator of a crime. For example, under federal law one can be charged with misprision of a felony, which applies to a person who has actual knowledge of the commission of a felony and conceals it from the authorities. This offense, however, requires active concealment of a known felony rather than merely failing to report it.

A person may also be held criminally liable as an accessory after the fact if he has knowledge that a crime was committed and assists the offender to hinder his apprehension, or punishment. In addition, a person can also be guilty of aiding and abetting a crime if they help another person in committing an offense, with knowledge of the criminal nature of the act they are committing. However, merely witnessing a crime, without any participation in it and without providing assistance is not a crime.

The police, when deciding whether to charge an individual, usually consider certain factors such as proximity to the illegal substance. For instance, if drugs are located in an individual’s bedroom then this may prove to be very damaging. Other factors such as cooperating witnesses and physical evidence also are taken into account by the police in making a determination whether to charge someone or not. Thus, mounting a successful defense to a charge of accessory after the fact or misprision of a felony requires examining the facts on a case-by-case basis.

Drug charges cover a broad range of offenses, from the less severe, such as simple possession of a small amount of drugs, to the more serious, such as participation in the ongoing manufacturing or distributing of drugs. Even minor drug charges can be frightening and carry the risk of serious penalties upon conviction. The more serious drug charges, of course, can give rise to even graver consequences. In addition to prison time, another significant consequence can be the loss of custody of children in the household.

Issues involving child custody are very complicated especially when one or both of the parents have been charged with a drug offense. Since the issue of child custody is a civil matter, the case will generally be assigned to a family court judge. It is important to note that the case in family court can proceed against a parent even though he/she has not been actually convicted of the drug offense. The standard of proof required in family court is much more relaxed than in criminal court and there is no limitation regarding the information the judge may consider in making a determination on the custody of a child.

If either parent is contesting that the other should not be given custody or visitation then the matter can get even further complicated. When one parent has placed the child in a dangerous situation (this includes exposing the children to illicit drugs) this parent’s right of visitation can be denied and the other parent awarded sole legal and physical custody. In the alternative, the court can also order sanctions such as drug treatment and random tests to insure the safety of child.

Ultimately, the child’s welfare is the court’s paramount consideration. Of course, the fact of the personal relationships or circumstances of the parents are going to be relevant. The court will undoubtedly want to know if the fact that a parent is involved in drug activity is going to impact upon their ability to care for the child. The overall issue the family court will focus on is how the drug offense impacts that parent’s ability to adequately care for the children.

A felony is more serious than a misdemeanor offense and is generally a crime punishable by more than a year in prison. Some common felonies include aggravated assault and/or battery, arson, burglary, embezzlement, grand theft, treason, espionage, racketeering, robbery, murder, rape, kidnapping, and fraud. Felonies have a wide range of punishment from probation, to imprisonment, to execution for the more serious crimes. In the United States, convicted felons also lose their right to vote, are excluded from certain types of jobs and obtaining certain licenses, exclusion from purchasing and possession of firearms, ammunition and body armor, and the ineligibility to run for or be elected to a public office.

Similar to misdemeanor offenses, there are different levels felonies and each carries a different degree of punishment. The lowest being a state jail felony and the highest a Capital Felony.

Types of Felonies

What is a State Jail Felony?

Common state jail felonies include credit card abuse, unauthorized use of a motor vehicle and reckless injury to a child. State jail felonies typically include a punishment of confinement for a term in a state jail from 180 days to two years and an optional fine not to exceed $10,000.

What is a Third Degree Felony?

Common third degree felonies include a third DWI (drunk driving) charge, indecency with a child, kidnapping, and possession of a firearm by a felon. The punishment usually consists of confinement for a term from two to 10 years in prison and an optional fine not to exceed $10,000.

What is a Second Degree Felony?

The punishment for a second degree felony consists of confinement for a term from two to 20 years in prison and an optional fine not to exceed $10,000. Common second degree felonies include aggravated assault, aggravated kidnapping if the victim is released unharmed, arson, robbery, and sexual assault.

What is a First Degree Felony?

The punishment for a first degree felony consists of confinement for life or a term from five to 99 years in prison and an optional fine not to exceed $10,000. Common first degree felonies include murder, aggravated kidnapping, robbery, and sexual assault.

What is a Capital Felony?

This is the most severe and serious of all felony convictions. Murder that is committed during the act of another felony such as kidnapping, rape or robbery, qualified for the capital felony charge. Punishment for a capital felony is prison for life or the death penalty. If the State decides not to seek the death penalty, an automatic life sentence is imposed upon the conviction. If the State seeks the death penalty, the jury must answer questions that will either result in a sentence of life in prison or the death sentence.

A misdemeanor is a “lesser” criminal act, carrying a less severe punishment than felonies but are more serious than regulatory offenses. Misdemeanors in the United States general have a maximum punishment of 12 months in jail, typically the local jail. Some common misdemeanors include, petty theft, prostitution, public intoxication, simple assault, disorderly conduct, trespassing and vandalism. In addition to full jail time, misdemeanor punishments include probation, community service or part-time imprisonment served on the weekends.

There are several different classes o misdemeanors that carry their own severity of punishment. The lowest level is a Class B Misdemeanor and the highest level is a Class A Misdemeanor that carries a more severe punishment.

Classes of Misdemeanor Offenses

What is a Class B Misdemeanor?

Common Class B Misdemeanor charges include one DWI charge, a criminal trespassing charge, theft by check from $50 to $500, and evading arrest or detention. The punishment of a Class B Misdemeanor typically consists of confinement for a term of up to one year in the county jail and/or a fine not to exceed $2,000.

What is a Class A Misdemeanor?

The punishment of a Class A Misdemeanor typically consists of confinement to the county jail for a term of up to one year and/or a fine not to exceed $4,000. Some common Class A Misdemeanor crimes include a second DWI (Driving While Intoxicated) charge, an assault charge, the burglary of a vehicle, and the unlawful carrying of a weapon.

When you are arrested you will most likely have the choice to either make a bond to be released or if you are unable to will remain in jail while your case is pending. In order to make a bond, you must have money to secure your release and have no holds, like an unpaid traffic ticket.

If you are free on bond, you will need to hire an attorney as soon as possible. Talk to people you know and ask if they know of any attorneys. Internet searches, like using Google, can also provide a large selection of attorneys in your area who deal with your type of case. If you are unable to afford an attorney, the court will appoint one to your case.

Likewise, if you remain in jail you may hire your own attorney. If you cannot made a bond and are indigent, the court will appoint a lawyer to your case within 24 hours. The lawyer will then contact you within 72 hours after the police file a case against you.

What If You Are Not a U.S. Citizen? In most situations, the Immigration and Naturalization Service will place a hold on you that will keep you in jail for the time being (even if you are able to make a bond). In this case, you should find an attorney who specializes in cases with immigration issues because your criminal case will directly affect your ability to reside in the United States.