Question regarding downward departures at sentencing. How often does the judge accept the recommendation for a downward departure made by the prosecution? I am aware that even though the prosecution is "recommending" a downward departure from the guidelines that the judge does not have to accept it. Does anyone have any sort of information as to the amount of time the judge accepts vs. does not accept the motion for a downward departure filed by the prosecution? It seems as if the prosecution is recommending it then he would take it a little more seriously than if it were merely the defense cousel suggesting it. Any professional opinions please?

Thanks!

It depends on the judge and his mood that day. It is definately not a guarantee and if he does depart it will probably not be as much as you are hoping for. Your attorney can probably give you some detailed information because they probably have had experience dealing with the judge and downward departures. Advice from your attorney about this would be more reliable information because they could be more specific about if the judge probably will depart or probably will not depart and give you an idea of what to expect if they do depart.

I always prepare myself for the worst so I am ready for him not departing at all. Of course I have already spoken with his attorney and gotten his opinion but like you said, it's exactly that, an opinion. I would really like to hear any stories about how much a judge has departed in previous cases for anyone. Anyone have a loved one or actually receive a departure before? For what? and how long?

Also, if anyone doesn't want to discuss their departure here please feel free to PM me! I need to become a more avid user of PMs anyways!

My attorney has advised me that it is extremely rare for a downward departure to be denied when recommended by the prosecutor.

this is a stupid question, but i need an answer. how can i be sure that our attorney is even in touch with the prosecutor AT ALL? i can't be sure he is advocating for us. i have no knowledge or proof....this guy can't even return a phone call, and for all i know my man's file fell off of someone's desk into the trash and nobody gives two toots.

Are you in a Rule 35 or 2255 type situation, i.e., he has already been sentenced and you are looking for a reduction post-sentencing? Your loved one can talk to the AUSA when he is called upon for help...and can be his own best advocate. Other than that, you should set up a meeting with the lawyer and go over the status, meetings etc. You might need power of attorney for him to speak openly.

this is a stupid question, but i need an answer. how can i be sure that our attorney is even in touch with the prosecutor AT ALL? i can't be sure he is advocating for us. i have no knowledge or proof....this guy can't even return a phone call, and for all i know my man's file fell off of someone's desk into the trash and nobody gives two toots.

The attorney is the employee of the defendant. He has an obligation to keep the defendant informed of what is happening. I don't mean to be rude, but he has no obligation to you, only to your husband/boyfriend. He is not obligated, or in some cases, not even allowed to discuss things with you. If your man does not feel that the attorney is doing all he is supposed to, he needs to write a letter to the attorney. If the attorney does not answer, and you hired him, put him on notice that he will be dismissed form the case if he does not start communicating with your man. If the attorney is court appointed, write a letter to the Judge. Judges hate letters like that, because it lays the groundwork for an appeal if nothing is done to address the problem,and they will have the attorney in court pretty quickly to explain themselves.

Fed PO: Regardless of who paid, the attorney's ethical obligations and restrictions run to the defendant provided s/he is at the age of majority. Realistically, she cant dismiss him /her unless the defendant agrees and, realsitically, the court will not let him/her withdraw unless a new attorney enters their appearance. Payment is not a factor in establishing the Attorney-Client relationship. Usually what should be done is that the client (defendant) gives the attorney express persmission to discuss non-privileged info with the person paying the bill and make such a condition int he retainer agreement.

JBW,

I wasn't meaning to say that if she is paying him then he works for her. What I was trying to say was actually similar to what you wrote. The attorney works for the defendant. I see how what I wrote could have been read wrong. thanks for keeping me clear.

I understand

I have researched 2 important issues with respect to Federal sentencing. The first addresses the impact of the US Supreme Ct's decision in U.S. v. Booker. Booker holds that the provision of the Federal Sentencing statute that makes the US Sentencing Guidelines mandatory is unconstitutional. Pursuant to that opinion, the Ct mus consider each of the factors set forth in 18 USC Section 3553(a) in fashioning an appropriate sentence. The guidelines must be considered and taken into account under Sec. 3553 (a), but the Ct is not bound by the Guidelines Sentence.

The second issue discussed here addresses the application of Sec 3553(a) sentencing factors to a case. Sec 3553(a) requires the Ct to impose the lowest sentence that will satisfy the purposes of sentencing set forth in that statute. The information I am sharing concludes that in a particular case, based on that case's facts and circumstances, application of Sec 3553(a)'s factors shows a sentence of 9 mos. home detention and achieves the statute's purposes in this particular case.

The Gov't or USAO does not oppose this requested sentence, although the Govt refused to offer or enter into any written plea agreement in this case. Because the Ct will be required to consult the Guidelines and the Sentencing Commission's policy statements & take them into account in sentencing the Defendant in this particular case under Sec 3553(a), issues related to the guidelines applicable to this case are addressed within the section discussing the application of Sec 3553(a). The parties in this case are in agreement regarding the application of the Sentencing Guidelines in this case, and there are no objections to the Presentence Investigation Report (PSI).

US v. Booker and 18 USC Sec 3553(a)
The decision of the US Supreme Ct in US v. Booker has rendered the Sentencing Guidelines :effectively advisory." Pursuant to Booker, sentencing courts are required to consider a Defendant's Guideline range, but may "tailor
the sentence in light of other statutory concerns as well. The effect of Booker is that Federal District Cts must consider the 7 factors set forth by Section 3553(a) in determining a sentence:
(1) the nature & circumstances of the offense & the history & characteristics of the defendant;
(2) the need for the sentence imposed -
(A) to reflect the seriousness of the offense, to promote respect for the law and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the Defendant and
(D) to provide the Defendant with needed educational or vocational training, medical care or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the applicable sentencing guidelines;
(5) any pertinent (sentencing guidelines) policy statement;
(6) the need to avooid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
Each of the above factors should be discussed and thoroughly developed by the Defendant's attorney.

Sec. 3553(a) embodies the "parsimony principle," which requires a District Ct to "assign a sentence 'sufficient, but not greater than necessary to comply with the purposes of sentencing" set forth in Sec 3553(a)(2). Exisitng case law states that "parsimony" is a "key provsion" of Sec 3553(a), vacated on other grounds, see generally ABA Standards of Criminal Justice (sentences imposed, taking into account gravity of the offense, should be no more than necessary to achieve the social purposes for which they are authorized).
Sentencing under Sec 3553(a) therefore requires the Ct to start with the minimum sentence permissible and add only so much additional punishment, if any, as is necessary to comply with Sec 3553(a) purposes. As discussed below, application of Sec 3553(a) factors to the facts of this case establishes
that a sentence of 9 mos home detention is sufficient to comply with the purposes of Section 3553.
The Application of 18 USC Sec 3553(a)
A. Factor One: The nature and circumstances of the offense and the history and characteristics of the defendant. The nature and circumstances of this offense and the history and characteristics of the Defendant, John Doe. It is helpful to discuss charges in the case and tie in any supporting material in PSI report; it is helpful to discuss Defendant's personal characteristics inclusing any adverse family traumas & acts on the defendant, adverse life experiences suffered by Defendant and who Def has persevered in the face of repeated adversities that were not of the Def's making or choosing, any treatment by a psychiatrist substantiating "diminished mental capacity" within the context of a downward departure pusuant to USSG Sec 5K2.13. It is helpful to discuss the fact, if relevant, that the Def has no prior criminal history of any kind and helpful to conclude that the nature and circumstances of the offense(s) and the history and characteristics of the defendant weigh heavily in favor of a non-incarceration sentence.

Factor 2: The purpose of sentencing - to be continued

This website and all of the people on it has been a Godsend to me -From all the support I have received thus far as a fairly new member - I feel it's time for me to give back to others as to what helped me in my own set of circumstances. This will be continued soon - any ?'s send me a PM.

John B.,

I am very much interested in this topic and would love to hear more of your thoughts. Have you compliled additional information that you would like to post. I noticed you ended the last portion with a "To be continued tag". Also, any recommended resources you might provide me along these same lines would be very much appreciated.

Keep the Faith

Michael :thumbsup:

TX. I didnt write that but I also look forward to JD's discussion of the "parsimony provision" of 3553(a) that appears to require that the court impose the least sentence possible to comply with a host of enumerated factors.

I am starting to feel like a lone wolf on that issue

My man wrote a letter to this attorney who was paid A LOT of money by ME. No response in over 2 weeks. I can't just put him on notice and hire someone else! How about if he just does what I paid him to do? Or at least communicates to one of us that he is still on the case. I think a monthly update mailed to my man isn't too much to ask, even if it's just a "no update, but I'm still working on your behalf."

What group polices attorneys anyway? What recourse do I even have?

Thank you so much Juris Doctor. I wish I had paid you the $15,000.00 for my defense. LOL I just had a prosecutor that would not budge about incarceratio. A tough Judge who usually is know for his no downward departures who was trying to get her to back down a little but no go. My lawyer just had so many irons in the fire that he was wiped out. Sooooo, I will do my 5 months at camp. Is this a stupid question. Can you have your attorney go back and ask for reconsideration before you go into prison? Always hoping for a miracle. Bless you for you.

5 months? you want less?

just go and do it. for the experience. you'll be home at the end of the summer.

i'm sort of dumbfounded by people who get single digit months to do for doing something not quite right.

if nothing else, the five months you are "working abroad" will learn you some stuff.

Well, I hope some of you experts out there can help me with what in the world to do now. It's been 13 months in custody for my man, and he hasn't had ANY CONTACT WHATSOEVER from his attorney since June 2005. Who do I protest to? Where do I take my complaint for ineffective (as in NOT THERE AT ALL) counsel?

4 letters, 6 phone calls, none returned in over 5 months.

what next??

Joyce: Not really a simple answer for you. The attorney not calling you is one thing. You are not his/her client. Not calling your man is another. First, what is left to be done? Courtesy says he should call back regardless, but discourteous lawyers do not add up to a Strickland problem. If court appointed and there is a problem, the client should write to the judge who appointed the lawyer and send a certified mail copy to he lawyer explaining in detail what the issue is. If retained counsel write to Disciplanary counsel/committee of the state bar. But remember s/he is your guys lawyer not yours. Be firm, fair and detailed and you should get a response.

Frankly, I've had better service at the worst fukin Huddle House on I-95 for 1/50,000 the price, so i guess i had better figure out the next thing to do. why is it that me, a good honest woman, continually gets ripped off and FuKKed with? i thought i was saved last week, but i don't think so anymore. i give up. what a mess this world is. i am mad and unhappy. god and jesus and my lawyers won't even return a call. ugh. there is some shit i just can't deal with.


thanks for the response, it's more than i've gotten in a year from our attorneys except when i was able to reach his answering service who told me he was in the islands for 3 weeks.

My husband was having problems simalar his public defender kept asking for extensions on court dates he finally got him fired and was appointed a private attorney that visits every week and keeps informed about everything

I can only speak from actual experience.

My daughter was arrested for possession of methamphetamine with intent to deliver and she had a loaded semi-automatic pistol on the seat beside her when they found her passed out behind the wheel of her car which was up against the side of an automotive parts store in Farmer City, Texas.

She was still so hopped up when they got her to the jail that she managed to insult the federal marshals, the county sheriffs, their mothers, and the men she said may have fathered them.

What should have been, in the world of the 'lucky,' a hard slap on the wrist (first offense for the granddaughter of a highly decorated state police officer and a high ranking military officer who (her) otherwise had an immaculate record and she was only just turned 21 years old) turned into the possibility of 10 years mandatory federal time for the gun alone and even more for interstate trafficking because of her mouth and attitude when she was all doped up.

She ended up getting 51 months, and while others are outraged with that, mom (me - who happens to work with the criminal justice system) has a much different opinion. She was lucky - DAMN lucky. I feel that these factors played a LARGE part in her getting such a (in my eyes) light sentence:

1) As soon as she came 'down' from the planet she was on, she sought out and apologized, very sincerely, in writing and orally, to the federal officers she had insulted and made fools of.

2) She accepted full responsibility for her actions and wrote a detailed letter to the judge professing such ownership and making no excuses, only atonement, for her behavior. At her sentencing hearing, she verbally echoed this.

3) She began a methamphetamine recovery/support group in the jail where she was being kept. She also began an exercise program and helped the many young girls there who had no one learn basic nutrition and set them on the path to further their education and start self-help counseling groups of their own to continue after she left.

4) I wrote to the judge and told him that I expected no favors, and begged no release for her; she had a debt to pay to society and I fully expected her to do it - frankly, I demanded it. All I asked was that she not be made an example of; that her sentence be fair and just, and that he recommend the RDAP program as she was very adamant about her rehabilitation.

5) I also went in person to reiterate to the judge that I fully expected her to spend time doing time, and not only expected it, but thought it was necessary for the crime she had committed.

As a result, the prosecution dropped the GUN charge and the interstate trafficking and turned it to a possession with intent. The prosecution also recommended, wholeheartedly after reviewing her record, her behavior while awaiting sentencing and her words, a downward departure as well. The judge, reviewing all of this, accepted it and instead of more than 10 years she ended up with 51 months, and I am thankful for that.

All I can say is, you cannot simply pay lip service. And you cannot beg mercy with no good reason. Nor can you simply say that the felon 'deserves' a downward departure or leniency because of age or relative innocence up until this incendent.

This was my daughter's first offense. But face it; MURDER can be a 'first offense.' In reality, as I told the judge, it took her 5 solid years of incredibly poor decision making, regardless of the fact that she was a gifted, intelligent, "well-bred" young lady from a 'good family.' She damn well deserved to do time.

Regarding nonresponsive attorneys and even responsive ones, IT IS IMPORTANT for you and the accused to do as much of your own investigation and research as possible. For in the end, it you who do the time. We had PD also, but I was up on the website, paid INS attorneys for consultation on the federal charge, read, read, read, search, search, etc. This way I was informed enough to question and inquire about specifics such as downward departure WHICH WE RECEIVED from a judge who doesn't often depart (most of them don't, better since Booker.)

Also remember after sentencing, which facility. YOu need to research BEFORE the judge signs papers, as it is out of judge hands and now with the BOP And that is an act of god to get a transfer.

PD only has so much time for a vast array of cases. YOU need to research, let them do the legwork. If you PD disagrees with you, listen get other attorney opinions and if you must, do it yourself. This happened with me on the facility selection, PD somewhat intimidated by this judge so didn't want to ruffle her features. Well that has more to do with him his OVERALL case loads. IF the received a "favor" as such they try and pick which case best for their on career.

Well I am only concerned with OUR case. So I wrote the judge myself, noticed PD of intention, cc him so he wouldn't get in trouble. Judges secretary called me and she got it done BEFORE paperwork required to leave judges office after sentencing.

What I am trying to say, is I feel alot better with some knowledge not to take over the attorney's role thats why you either pay or he is paid. BUT ITS YOUR CASE YOUR TIME YOUR LIFE...so get informed so you can better participate and support your counsel and yourself.

DOWNWARD DEPARTURES ..... again RESEARCH also research results of your judge. how many for what reasons. I even went and sat in on 10 or more case trials of the judge to watch how she rules, what she reacted to. I also research her, her background, was she prosecutor before, corporate. Even her past cases and rulings. What charities, how many kids, (in her bio)

Listen in many ways the court trial is a sales presentation...and in order to sell the best you need to know your buyer. The more you know the more you can tailor your "specific delivery" to get best result.

Just some of my thoughts. Lois

this sounds like good advice for anyone facing the federal court system...

do you know what an "A"35 means

If one is incarcerated for that lenght of time before trial, you need to consider a motion to dismiss based on lack of a speedy trial. The Speedy Trial Act requires trial within 70 days of indictment unless continuances or other certain types of time "excusable" from the 70 day limit, such as trial or conviction pending on the state level, are present. See the receont Supreme Court decision in Zedner v. U.S.
"35" probably applies to rule 35(a) and (b), of the Federal Rules of Crim. Procedure, which permit a reduction of sentence after sentencing (not a downwrd reduction at time of sentencing), usually due to "substantial cooperation" given in the prosecution of another. It usually must be done within one year of sentencing, and is at the sole discretion of the prosecutor to even make such a motion before the court. It cannot be initiated by the inmate.