Federal Defense Attorney John Teakell

The United States Sentencing Commission has recently voted to amend several sentencing guidelines, commentary and policy statements. The amendments were sent to Congress on May 1, 2008 and, assuming Congressional approval, will take effect on November 1, 2008.

Introduction to Chapter One

In this amendment, the Sentencing Commission characterizes the role of the guidelines, their evolution, and their relevance in light of recent Supreme Court rulings in Booker, Rita, Gall, and Kimbrough.

Immigration Guideline (USSG §2L1.2)

This amendment alters the definitions of “crime of violence” and “drug trafficking offense” as described in §2L1.2. The amended definition of crimes of violence added an explanation to the definition of forcible sex offenses which reads “including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced.” The amendment also adds to the definition of drug-trafficking an “offer to sell.” It is believed that both amendments run afoul to several court of appeals decisions. In addition to the changes in definitions, the amendment also includes an upward or downward departure for situations where the guideline offense level overstates or understates the seriousness of the enhancing prior conviction.

Disaster Fraud (amending USSG §2B1.1)

This amendment makes changes to §2B1.1 as it relates to fraud offenses involving disaster relief or emergency benefits, and adds a downward departure provision where a defendant is also a victim of a major disaster or emergency.

New Crack-Marijuana Equivalency Table (commentary to USSG §2D1.1 and §1B1.10)

The amendment to §2D1.1’s commentary changes a section that was created by the former Amendment 706. It proposes a change to the drug equivalency table to provide that 1 gram of crack cocaine is equal to 20 kilograms of marijuana, and then calls for a two-level decrease in the resulting offense level. The Sentencing Commission also proposes that this change be retroactive.

Additional Guideline Amendments

The Commission proposed five additional amendments:

·        It voted to reference offenses under the new 18 U.S.C. § 227 (part of the Honest Leadership and Open Government Act of 2007) to §2C1.1.

·        It implemented the Animal Fighting Prohibition Enforcement Act of 2007 (which creates a new offense and increases penalties for existing offenses) by creating an additional offense level and setting forth a new ground for upward departure in §2E3.1

·        It implemented the Court Security Improvement Act (which creates two new offenses) by adding enhancement provisions to §2A6.1 and §2H3.1. It also adds upward departure and cross-reference provisions to §2A6.1, and cross-reference and definitional instructions to §2H3.1.

·        It created in §2N2.1 an enhancement applicable when a defendant has a prior conviction for an offense under either the Federal Food, Drug, and Cosmetic Act or the Prescription Drug Marketing Act. It also amended this guideline provision to recommend an upward departure where the offense “created a substantial risk of bodily injury or death.”

·        It proposed a number of technical corrections to various guidelines.

For those that have been convicted of a crime, release from prison often times will bring about more obstacles than many ex-offenders may actually realize.  Once the prison door opens an ex-offender may receive little more than a bus ticket and spending money for a day or two.  After this they are on their own and faced with establishing a place of residency and employment. This can prove to very difficult due to their felon status. In addition, this daunting challenge has been proven to be one of the major reasons that ex-offenders commit future crimes upon release and eventually return back to prison.

In a recent shift in attitudes about incarceration, many states have experimented with re-entry programs to help released prisoners fit back into their communities and avoid new crime. Recognizing the challenges ex-offenders face upon re-entry to society, Representative Danny Davis (D-Ill) introduced a bill titled the Second Chance Act of 2007 (HR1593). The measure, sponsored by Davis in the Senate, easily passed both houses of Congress and was signed into law by President George Bush on April 9, 2008.

Davis noted that the United States imprisons more citizens than any other nation on Earth, and releases 700,000 offenders from state and federal prisons annually. Davis further noted:

“These men and women deserve a second chance. Their families, spouses and children, deserve a second chance and their communities deserve a second chance. A second chance means an opportunity to turn a life around. A chance to break the grip of a drug habit. A chance to support a family, to pay taxes, to be self-sufficient.”

The Justice Department estimates that nearly two-thirds of released prisoners will find themselves in trouble with the law at some point in the future. The Act is designed and intended to reduce that recidivism rate. The Act will also help connect people released from prison and jail to mental health and substance abuse treatment, expand job training and placement services, and facilitate transitional housing and case management services. Additionally, the Act authorizes a number of other programs aimed at offenders, including treatment programs as an alternative to incarceration.

Now that the Second Chance Act has been signed into law what does all this mean for the ex-offender? The opportunity to obtain grants for housing is a goal of the act. Financial assistance will provide a significant boost to those reentering with hopes of finding residency. Furthermore, ex-offenders may also receive assistance in education, vocational training, and job placement services. Student loans once not available to convicted felons may now be available. This will help reintegrate the ex-offender into society while they develop the skills and a foundation necessary to avoid recidivism.