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Old 05-29-2018, 10:57 AM
Brtorres333 Brtorres333 is offline
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Default I need some advice on my sentencing please

I am scheduled to be sentenced on Thursday with a white collar crime, one count of bank fraud. I have no prior criminal history and I have 3 young children, 1 of whom is disabled. Before my PSR I was looking at 17 months. After the PSR, the probation officer suggested they add so many enhancements, I now have 24 points which puts me at the 51 to 64 month category, plus restitution. Can anyone give me a realistic view on this. I am optimistic, but I wanted a real view on if I will do prison time? I am still praying for probation.
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Old 05-29-2018, 12:33 PM
fbopnomore fbopnomore is offline
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The PO's decision to add enhancements is only their recommendation to the judge. Your lawyer can argue against their "opinion". Many judges do sentence to the guideline range (whatever it is after the judge rules on the arguments) but they have total discretion to impose any sentence they decide on.
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Old 05-29-2018, 12:40 PM
Brtorres333 Brtorres333 is offline
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My only problem is I feel that my lawyer isn't fighting the enhancements. He said if he objected it makes me look like I am not remorseful! Without those enhancements I was more in the 17 month range and I may have served a year. Now I'm looking at 4 years cause he won't fight them. I paid my lawyer 25k and I feel like he isn't fighting for me.
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Old 05-29-2018, 01:49 PM
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Originally Posted by Brtorres333 View Post
My only problem is I feel that my lawyer isn't fighting the enhancements. He said if he objected it makes me look like I am not remorseful! Without those enhancements I was more in the 17 month range and I may have served a year. Now I'm looking at 4 years cause he won't fight them. I paid my lawyer 25k and I feel like he isn't fighting for me.
Sometimes it isn't worth fighting a lot of what is in the PSR, however, the judge will ask you if you agree with it all. Your attorney should have filed a sentencing memo and in the sentencing memo he should address the enhancements. Your sentencing memo should also go into your character, and a lot of other reasons as to why you should get a certain sentence, including below the guidelines. Many judges don't want to give probation, and your attorney, if he is a good one, should be able to tell you if your crime would have made you eligible for probation off the bat, including if you would be subject to enhancements. In fact, the prosecutor with your attorney should have been telling you that as well. If you took a plea, the plea agreement also should list what the government would think your guidelines and level is. If the prosecution also had the enhancements, there is a reason, if the PO did, you should find out what their justification is for the enhancements. If it's past behavior, then you will be stuck with those and most likely will not get probation.

My husband's guidelines were 57-71 months, he did have a 2 level enhancement for 2 categories I believe and it was not worth fighting. He also got a 3 level credit for taking a plea, so I think he was at level 25, which was the 57-71 months. He wound up with an 18 month sentence, which we were thrilled with and will only serve about 14 months.

Your attorney is right that you need to suck it up, however, if there is a strong reason why you disagree with the enhancements, and you don't feel he is fighting on your behalf, and you only have 2 days to fight this, and it is YOUR life, not his, then get him to seek a delay in your sentencing hearing (it is possible) and go talk to another attorney (or even do it ASAP tomorrow) to hear what they have to say.

Not sure where you are, but $25k doesn't sound like an outrageous amount to pay an attorney for a white collar crime, not sure how much your bank fraud was, so maybe you need to move up the ladder if you're looking for someone more feisty.
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Old 05-29-2018, 01:57 PM
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What were the enhancements for? I just got sentenced on the 16th and had 2 enhancements that added two levels each and the prosecutor and my attorney came to an agreement to only go with 1 of them. After my PSR was reviewed the Probation office found yet another enhancement which I also got stuck with but fortunately it was only one level. A 17 month to a 57 month sentence is ALOT- sounds like they are hitting you with lots of enhancements and your attorney ought to be able to negotiate those with the prosecution.
I will tell you that my dollar amount was over $600k and with the two enhancements and then the 3 level downward departure for cooperating, my sentence ended up being 27 months and 5 years of probation with restitution.
Best of luck to you dear!!!
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Old 05-29-2018, 01:58 PM
Brtorres333 Brtorres333 is offline
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That is great advice thank you. I am going to talk to my lawyer today at 5pm. I will ask him if objected to the enhancements. Thank you again!
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Old 05-29-2018, 02:03 PM
Brtorres333 Brtorres333 is offline
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They added enhancements for the victims loss, the hologram marking on the check, and being in a position of trust. That bumped me 24 points with 51 to 64 months. I was always under the assumption I would be around 17 months and then the PSR put me at 24 points. Mine was $300k. I am remorseful for the victim, but in his statement he said he is financially suffering. But I have kept up with him and his wife on social media and they just bought a 700k home, 200k RV, new trucks and built a pool in there backyard. I don't understand how he can say he is suffering.
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Old 05-29-2018, 04:41 PM
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Marseille Marseille is offline
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I don't understand how he can say he is suffering.

Ummm.... I probably would avoid saying something to this effect to the judge.
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Old 05-29-2018, 10:21 PM
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Originally Posted by Brtorres333 View Post
They added enhancements for the victims loss, the hologram marking on the check, and being in a position of trust. That bumped me 24 points with 51 to 64 months. I was always under the assumption I would be around 17 months and then the PSR put me at 24 points. Mine was $300k. I am remorseful for the victim, but in his statement he said he is financially suffering. But I have kept up with him and his wife on social media and they just bought a 700k home, 200k RV, new trucks and built a pool in there backyard. I don't understand how he can say he is suffering.
The victims will have a chance to speak at your sentencing and unfortunately, the fact that they are spending all this money and may not really be suffering financially at least, isn't something that you're going to be able to use in your defense. In your allocution statement, you are going to have to be as remorseful as possible and make the point that you are doing what you can to pay them back and will do whatever you can to make them whole. My husband got the 2 point enhancement for the position of trust, which I think they basically give to everyone, and he had one more 2 point enhancement for complexity of the scheme (scheme is another word they like to use), even though he wasn't the creator of or made money off this so-called scheme. It just is what it is. His first attorney said they can probably fight that enhancement, but I don't remember why ultimately he didn't. The key to the lower sentence, is what you've done in the time since you were indicted to plea to sentencing to show remorse, and help yourself. With guideline sentencing of 57 months, you are eligible for RDAP if you show a history of alcohol or any sort of substance abuse history. But, with sentencing on Thursday, it is way too late to go there now. Character letters should count and be incorporated into your defense sentencing memo. But like I said, most importantly is just own up to what you did, don't try to justify it, apologize to the victims, your family, etc. and mean it.

Assuming you have no priors and have a low base level 0 or 1, I forget what it starts at, you'll most likely end up at a camp. The camp is manageable. But, I am surprised you are only finding all this info out now. We knew the guidelines and expectations and enhancement info within a month after my husband was indicted (Oct, 2014) and his plea wasn't until Sept, 2016 so we had 2 years to be ready, and then the PSR work began, so we had a lot of time to prepare and get ready also for sentencing, and gather all the information and get his crap together. I can only imagine how frustrating this is for you. His restitution was just under 400k. That was the other reason he got only 18 months. He paid his restitution in full, soon after his sentencing, as his attorney told us that is the #1 most important thing to do come hell or high water, get it paid no matter what and borrow the money if possible. The judge definitely took that into consideration.

Of course, there is nothing like my finding out recently, that the court has not released the restitution money and my receiving letters that it hasn't been paid. That's the fun stuff that people on the outside have to deal with when the government are complete morons. The left most often has no clue what the right is doing! My guy paid restitution in Nov 2016, had to prove it when he SS in Dec 2017, and then to find out that they haven't made the payment and released the money is beyond irritating and incompetent, but of course, there is no recourse for those jerks..just us real people! Sorry, my point on that is..make sure you get receipts and records of everything because I wound up having to be the one to prove yet again he paid it. So, keep everything!!!
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Old 05-30-2018, 09:11 AM
99mtg00 99mtg00 is offline
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Default Restitution

My LO paid his (thankfully small) restitution before he went in. Then, his [lazy? incompetent?] unit counselor told him they were going to put him on a payment plan for it. Showing the counselor a letter from the court, stating that his restitution had been paid in full didn't persuade him, "since it wasn't a receipt".


Moral of the story? Get used to dealing with lazy, vindictive and incompetent petty bureaucrats when you enter the BOP. And remember, just because you're right, don't expect to win any arguments. Best advice? Try to minimize interactions with these people.
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Old 05-30-2018, 10:54 AM
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Quote:
Originally Posted by Brtorres333 View Post
They added enhancements for the victims loss, the hologram marking on the check, and being in a position of trust. That bumped me 24 points with 51 to 64 months. I was always under the assumption I would be around 17 months and then the PSR put me at 24 points. Mine was $300k. I am remorseful for the victim, but in his statement he said he is financially suffering. But I have kept up with him and his wife on social media and they just bought a 700k home, 200k RV, new trucks and built a pool in there backyard. I don't understand how he can say he is suffering.
If someone has financial means it doesn't mean its ok for them to become a victim of crime or suffer as a result of it.
As others have said please do not try and use this arguement in court it is not justifiable and may alienate the judge against you.
The victim isnt at fault here.
Speak to your attorney and get as much advice as you can , show remorse, but don't blame the victim.
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Old 05-30-2018, 12:05 PM
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Your lawyer has decided that fighting those enhancements would not succeed, and would possibly anger the judge enough to increase your sentence. That's why you are paying him, for his experience with that court.

Blaming any of what happened on the victim is probably the worst thing you could do at sentencing. All they want to hear from you is how sorry you are for the awful mistakes you made, and it will never happen again.
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Old 05-30-2018, 01:58 PM
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My LO paid his (thankfully small) restitution before he went in. Then, his [lazy? incompetent?] unit counselor told him they were going to put him on a payment plan for it. Showing the counselor a letter from the court, stating that his restitution had been paid in full didn't persuade him, "since it wasn't a receipt".


Moral of the story? Get used to dealing with lazy, vindictive and incompetent petty bureaucrats when you enter the BOP. And remember, just because you're right, don't expect to win any arguments. Best advice? Try to minimize interactions with these people.
For sure! After sentencing my husband went to pay his $200 fine. They wouldn't give him a receipt saying that below a certain amount they no longer give receipts. He told them there was no way in hell he was leaving without the receipt. Thank god, they went and got a manager and he got a receipt, especially in light of all the issues we've now had. He also had to prove in the camp that he had paid the restitution and his fine, but the whole system is a joke and full of incompetent people, it just blows me away.
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Old 05-30-2018, 03:06 PM
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I can't imagine not fighting any enhancement if you have the evidence or reasons to do so. Making the judge mad is not an issue, because if the judge makes a mistake, you have the right to appeal, and emotions are irrelevant in this process. I hope your lawyer has organized medical information about your children in order to request a downward variance. That is an obvious move in your case.


I've never fully understood why the career enhancement applies. But it does seem to. It feels like double punishment to me.
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Old 05-30-2018, 06:29 PM
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The enhancements he got can certainly be argued, but winning the arguments is a completely different animal. The loss to the victim might be able to be reduced, but there obviously was a loss. I don't know what evidentiary standards are necessary to prove the hologram enhancement, but why else would it be put on the fraudulent checks except to make them look more realistic? He either was in a position of trust, or he wasn't.

There just doesn't seem like there is much room for reversing those three enhancements sufficiently to reduce his sentence, but if he doesn't trust his lawyer, he should get a different one.
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