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  #1  
Old 10-26-2017, 03:52 PM
qtkelly21 qtkelly21 is offline
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Default Ca 2 simple possesion charges enhance sentence from level 18 to 24?

My husband is charged with a 9 22 g Firearm by felon. They started his base offense at a level 24 because of two prior controlled substance offences.
My question is can the 2 drug charges be used to enhance him to that level 24 even though the two prior drug offences were simple possesions?
The definition in the guideline manuel states that a controlled substance offense is to sell, manufacture, deliver and despense of a controlled substance or counterfit or the intent to do those.
Can they do this, make me a level 24 instead of a level 18?
Please dont tell me to ask his attorney, we are trying to fight ourselves as we all know how pd's work...... Thank you in advance for any help you can give!!!!!
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Old 10-26-2017, 06:32 PM
fbopnomore fbopnomore is offline
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If the level 24 came from a US Probation Officer's PSI report, it is just his opinion. The only opinion that matters is the one held by the sentencing judge. You and your lawyer can challenge anything in the PSIR, and the judge has total discretion to sentence you anywhere from zero, to the maximum allowed by the statutes you were convicted of violating. Sentencing Guidelines were changed from "Mandatory" to "advisory" by the US Supreme court.

Here is the complicated sentencing guideline manual,
https://www.ussc.gov/guidelines/2016-guidelines-manual

which is just as confusing to the PO as to anyone else who tries to understand the nuances. My PSI contained a number of incorrect items (and every mistake (LOL) was harmful to my case), but my expensive private lawyer said he would file objections, but never did. Since I was a pretrial prisoner in my own home, and I was restricted from following my case's progress on my computer (another sneaky way the government manipulates everyone's chances to receive a fair trial) I didn't even know what happened until after I was imprisoned.

Make sure to review your PSI with your lawyer, and formally object to any embellishments made by the PO.
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Old 10-26-2017, 07:04 PM
qtkelly21 qtkelly21 is offline
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Quote:
Originally Posted by fbopnomore View Post
If the level 24 came from a US Probation Officer's PSI report, it is just his opinion. The only opinion that matters is the one held by the sentencing judge. You and your lawyer can challenge anything in the PSIR, and the judge has total discretion to sentence you anywhere from zero, to the maximum allowed by the statutes you were convicted of violating. Sentencing Guidelines were changed from "Mandatory" to "advisory" by the US Supreme court.

Here is the complicated sentencing guideline manual,
https://www.ussc.gov/guidelines/2016-guidelines-manual

which is just as confusing to the PO as to anyone else who tries to understand the nuances. My PSI contained a number of incorrect items (and every mistake (LOL) was harmful to my case), but my expensive private lawyer said he would file objections, but never did. Since I was a pretrial prisoner in my own home, and I was restricted from following my case's progress on my computer (another sneaky way the government manipulates everyone's chances to receive a fair trial) I didn't even know what happened until after I was imprisoned.

Make sure to review your PSI with your lawyer, and formally object to any embellishments made by the PO.


Thank you so much!!!!!
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Old 10-26-2017, 07:47 PM
qtkelly21 qtkelly21 is offline
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Just want to clear up that i have no problem with federal public defenders im sure they do a great job, i just feel as family with a loved one inside we sometimes tend to dig a little deeper and go the extra mile to try and get them as little time away from us as possible.....
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Old 10-27-2017, 07:13 AM
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The Federal Defenders do a really good job, if I might say. An acquaintance of mine held up 3 banks in 2 different states (threatened them with a gun, though she did not have one,) and got 3 years yes, THREE YEARS courtesy of the diligence of her FD.
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Old 11-15-2017, 09:09 AM
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Something else you can do is get an account online at pacer and look up cases that your husbands judge has presided in and see how he ruled/sentenced defendants. I would also look at some sentencing memos (not just for cases in front of that judge) for examples of where defendants argued for a reduction of the offense level and why.

Fbopnomore is correct that you can argue against anything in the PSR. In my husband's case the Judge asked if there were any mistakes or disagreements in the PSR. So your husband's judge may ask the same. Regardless, the PSR has the offense level, the prosecution then agrees or disagrees with the offense level and comes up with their number, and the defendant does as well and their reasons.

Remember, your sentencing memo is your chance to state your reasons why the sentencing level should be 18 not 24, etc.

Even with a PD, you should not let him/her turn in any document on your husband's behalf without you first reviewing it and accepting it. We had a great lawyer, but we looked at many sentencing memos in other cases and reviewed his with a fine tooth comb and found errors, and added things we thought were helpful that we had read in other memos. I'm not sure how much it really meant in the long run, as my husband's sentencing hearing went almost 3 hours which is way longer than is typical, but he got a way below the guidelines sentence, so the key is being prepared and most importantly, know your audience. In your husband's case, the audience is the judge.

Do all the research you can about the judge, what is he likely to do regarding sentencing, the offense level, etc. If the PD doesn't have the time to do research, you should do whatever you can. There are a lot of free resources out there.

Good luck!
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Old 11-15-2017, 11:04 AM
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I would point out that there's lots you can fight about in the PSR - I had a friend who's PSR listed 4 aliases - he had never used one. Another friend, with a fairly common name, had several other crimes listed in his PSR that were committed by other people - he was a first-time offender - but the Judge looking at either of those PSRs would have been much harsher on both cases.
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Old 11-15-2017, 03:02 PM
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Quote:
Originally Posted by nimuay View Post
I would point out that there's lots you can fight about in the PSR - I had a friend who's PSR listed 4 aliases - he had never used one. Another friend, with a fairly common name, had several other crimes listed in his PSR that were committed by other people - he was a first-time offender - but the Judge looking at either of those PSRs would have been much harsher on both cases.
That's terrible and sounds like a crappy PO that didn't do their job! I guess I shouldn't be surprised. Our dumb PO sent my husband a form with someone else's name and social security number on it. God only knows if this person received his SSN and what she/he did with it! Lots of incompetence out there!
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