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Federal General Prison Talk, Introductions & Chit Chat Topics & Discussions relating to the Federal Prison & the Criminal Justice System that do not fit into any other Federal sub-forum category. Please feel free to also introduce yourself to other members in the state and talk about whatever topics come to mind that may not have anything to do with prison.

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  #1  
Old 11-28-2006, 11:31 PM
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Default appeal open affects criminal history points, how do i find out if an appeal is open

My fiance is in the stage of pre-sentencing for illegal reentry, His criminal history points have already been calculated. Im under the impression that if there is an open appeal on a conviction that the conviction under appeal cannot be used in calculating points. There is an appeal motion in his court file and several motions and orders after the appeal but there is no dismissal or final order. He was essentially deported because of the last conviction he was appealing. I cannot find anywhere in his file as to what the status of the appeal was. His attorney does not even believe there was an appeal because her "investigator" didn't find one. But there definelty is an appeal that was started. This would negate his criminal history points to 2, and basically drop his sententcing from 40 or more months to 3-6 months, which he has already served. Any guidance would be great. I would love to send his attorney not only the appeal that was filed, but proof that the appeal is still open. She might have to swallow her pride a little, but at least my fiance will come home.
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Old 11-29-2006, 05:49 AM
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The answer to your question is in 4A1.2(l) of the sentencing guidelines manual. It specifically addresses sentences which are on appeal.

"Prior sentences under appeal are counted except as expressly provided below. In the case of a prior sentence, the execution of which has been stayed pending appeal, 4A1.1(a), (b), (c), (d), and (f) shall apply as if the application of such sentence had not been stayed; 4A1.1(e) shall not apply."

The only adjustment under criminal history that does not apply to a case on appeal and whos exectution of sentence has been stayed pending the appeal is 4A1.1(e), the adjustment for committing the offense less than two years after release from imprisonment.
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Old 11-29-2006, 07:22 AM
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Default Help

Fed PO: i don't understand what that says. I don't even understand it enough to ask a good question. so what does it mean?

Last edited by bellisq; 11-29-2006 at 07:24 AM..
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Old 11-29-2006, 04:00 PM
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Basically states that barring a few exceptions (4A1.1(a), (b), (c), (d), and (f)), if you are convicted... the points count irregardless of pending appeals.

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Old 11-29-2006, 08:10 PM
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in a nutshell,

If the execution of sentence in the case has not been stayed pending appeal, the sentence counts, no matter what. In other words, say you appeal a 5 year sentence and the imposition of the 5 years is not stayed during the appeal. The sentence will count as if there was no appeal

If the execution of the sentence was stayed during the appeal, 4A1.1(e) will not apply. In the same example, let's say that the execution of the 5 year sentence is stayed while you are on appeal. You had been in custody during the trial, but during the appeal process, the Judge lets you out. The sentence will count as a three point conviction under 4A1.1(a), but you will not receive an additional 2 points under 4A1.1(e) for being released from imprisonment within 2 years of the federal offense.

Hope that makes a little more sense.
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Old 11-29-2006, 09:35 PM
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it's a good thing you are here Fed PO, i would never have understood that policy no matter now many times i read it. THANKS>
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Old 12-01-2006, 10:26 PM
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Default United Statesn v. Glen 418F.3d 181<<<Fed please explain

Note to Defense Lawyers: Check All Prior Convictions Because Non-Final Prior Convictions Do Not Count Towards The Calculation Of Criminal History Score No Matter How Old They Are


United States v. Glen, 418 F.3d 181 (2d Cir. 2005)
Glen was convicted of two felony drug possession counts in 1977. Glen filed timely notices of appeal, but never perfected his appeals as statutorily required. The State of New York, however, never sought to dismiss Glen's appeals despite his non-compliance with the statutory requirements for perfecting his appeal. Thus, Glen's appeals were never dismissed and, thus, were still pending when he was sentenced for his participation in a conspiracy to distribute more than 50 grams of crack cocaine. On appeal, the Second Circuit found that the two prior felony convictions could not be used in determining Glen's criminal history score because they were still pending at the time of sentencing. Or, as described by the Second Circuit, "an avenue of appeal remains open to [Glen because] his 1977 convictions are not final and [therefore] cannot be the basis for a mandatory minimum life sentence under 21 U.S.C. 841(b)" -- notwithstanding that the Government viewed Glen's "non-finality as a quest for a legal windfall
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Old 12-01-2006, 11:28 PM
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Jeauell:

You're mixing apples and oranges. I'll do my best to explain.

The Glen case deals with prior convictions being used as predicate offenses to be used as an enhancement under 21 USC 841(b)(1)(A). this statute provides that if there are two prior drug trafficking crimes, a third conviction results in a mandatory minimum of life imprisonment. In order to give that sentence, that statutory provision has specific definitions and conditions that must be met to enact that enhancement. To quote the Glen case:

"That section provides that if a person is convicted under it “after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release.”
Id. § 841(b)(1)(A).
“[A] prior conviction is final for purposes of recidivist sentencing when all avenues of direct appellate review have been exhausted.”

I bolded and underlined the important phrase there. Recidivist sentencing, or the enhancement requireing a life sentence in the drug trafficking statutes. You're not dealing with that for normal criminal history scoring, which is governed under chapter 4 of the sentencing guidelines as I described earlier.

You mentioned earlier that your lived one is charged with illegal re-entry (a violation of 8 USC 1326), so Title 21 (dealing with drugs) doesn't seem to be applicable to his case.

I hope this cleared it up some. If not let me know. It can be pretty confusing when you are trying to read cases and apply them to statutes when you don't do it that often, and as Bellisq stated, the guidelines are often as clear as mud.
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Old 12-01-2006, 11:43 PM
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Default Still not clear

The headline of that article is what is baffling me: "Check All Prior Convictions Because Non-Final Prior Convictions Do Not Count Towards The Calculation Of Criminal History Score No Matter How Old They Are"
So are you saying this statement is only apllicable in the circumstances you describied?

Another thing puzzling me; When I asked my fiance's attorney about this, she never said this would not apply to him, Her concern was whether or not there was ever an appeal filed for that conviciton. Apparently her investigator did not report back with that information, but the motion for the appeal was in his court file. She did not have that motion, which I have since sent to her. I am waiting to hear back from her as to whether or not the appeal was dismissed or had a final order, which is what the attorney seemed to be using to determine whether or not this would be grounds to recalculate his criminial history.

Thanks for your repsonses......you are a God send!!
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Old 12-02-2006, 09:47 AM
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I don't know what the rest of that article is about, but I did go back and read the original source material, the case cited in the article. It's very clear that what they are talking about are the priors required under 21 USC 841 to enact the enhancement for a life sentence, not criminal history scoring for guideline purposes.

Admittedly, I am not at the office right now, and don't have all of the resources that I would have there, but I did a fairly thorough search for about 40 minutes or so this morning here at home, and was not able to find anything that would lead me to think that a sentence under appeal would not be counted as a conviction for guideline purposes.

As for why your attorney was unconcerned, I don't know. I will say that this is not a common issue when computing criminal history scores (I have writtenaround 800 PSI's and have only come across this a handful of times). I am not saying anything about your particular attorney, but often attorneys who do not do lots of federal work are unfamiliar with the ins and outs of guideline sentencing. Apparently alot of it is counter intuitive to what they practice in many state courts.
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