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  #1  
Old 03-17-2019, 08:23 AM
Remorseful900 Remorseful900 is offline
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Default Plea agreement, RDAP and rule 35 downward variance after sentencing?

My attorney is working out the final details of my plea agreement for a white collar crime

The way he describes the plea agreement and the outcome just does not seem right to me

The crime was securities fraud and I am getting acceptance of responsibility and cooperation credit

But my attorney tells me since in the plea agreement they are not going to put they will argue the financial “loss” number at sentencing and that the AUSA will recommend to the judge the lower range of the sentencing that the judge will just give me that number

I read all the time about judges giving lower sentences, and I tried to tell that to my attorney and he is just telling me whatever he and the AUSA agree to, is what I will serve



Also I asked my attorney about a 5k3 since i am not using government resources to go to trial. I read this is given to people who expedite the process and plead guilty but my attorney said Ohio 6th district does not have this and it does not apply to securities fraud

Also I am getting a 5k1, but has any one ever gotten a rule 35 downward variance after being sentenced

The other thing is RDAP, if I get 27 months, I read it is for people who get 24 months
If I tell the PO about alcohol and gambling addiction issues I had
Will I get in the program and when I meet case manager in prison should I tell them immediately I would like to get into rdap or do I wait

Just would like some thoughts on this
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Old 03-17-2019, 08:54 AM
fbopnomore fbopnomore is offline
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Here's a link to the RDAP program statement.
https://www.bop.gov/policy/progstat/5330_011.pdf

I bet your sentence will (hopefully) be too short to attend RDAP. Even if you do get in, I recommend that you weigh the reduced benefits against the negatives associated with the program, in prison and during supervised release. Be careful what you wish for.
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Old 03-17-2019, 09:01 AM
Remorseful900 Remorseful900 is offline
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I hear people talking about RDAP all the time from these prison consultants

Can someone just put a couple bulletpoints on the cons of rdap
I understand the biggest pro is time out of prison sentence
I
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Old 03-17-2019, 10:44 AM
bellisq bellisq is offline
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If you need treatment, then doing the RDAP program will be the most productive use of time while incarcerated. However, RDAP requires, upon release, participation in out-patient counseling and careful monitoring. I won't call these additions Cons, because this program continues to be funded because it is proven to be successful, which is a good thing.

The "time off" component cannot be predicted or guaranteed, which can be disappointing. Also, you may not qualify if you haven't used substances within 12 months of the PSR interview.

No consultant needed to access this program, the rules are simple. And the consultants are getting indicted for lying to people.
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Old 03-17-2019, 01:26 PM
fbopnomore fbopnomore is offline
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All of the 9 to 12 month RDAP program's rules are listed in the link I provided above, starting at chapter 2, page 8 (14 total pages) :2.5. § 550.53 Residential Drug Abuse Treatment Program (RDAP). You can decide if that is something you are willing to attempt for the possibility of receiving an early release of no more than 6 months for any sentence of 30 months or less.
https://www.bop.gov/policy/progstat/5331_002.pdf

The reality of RDAP is that relatively short sentences do not make it into the program because of logistics (transfer to a RDAP prison, startup date, others in line ahead of you, etc.).

You will quickly learn that an inmate wants is completely inconsequential to the bop and to the courts. They do everything their way, at their own speed. You may be eligible for many things, both at sentencing and as an inmate, but more times than not it won't matter at all. The criminal punishment system operates as it wants, with virtually no oversight. It's a different world, and the quickest way to find yourself on the wrong side of the equation is to become a "complainer".
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Old 03-17-2019, 09:46 PM
rockchalk1 rockchalk1 is online now
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As for the RDAP program, it is actually the judge that recommends you for it and there has to be evidence of a substance abuse problem in your PSR. If there isn't and you get to prison and tell your case manager that you want to go to the RDAP program, good luck with that! They won't care, nor will they give you the time of day. You're most likely going to a camp with a short sentence and if my memory serves, you need a sentence of 30 or more months to be eligible for RDAP. Also, a lot of prisons have a wait list for it even once you get there. It is not an easy program either, so even if you get in it, there are a lot of rules and it is very rigid requiring you to report on other inmates and for stupid things. You then essentially become a "snitch" and there is still a lot of bad stuff going on in the RDAP dorms.

Also, even with a plea and agreed sentence between your attorney and the AUSA, it is the judge that has the final say so the judge can very well give you a higher (or lower) sentence. The prosecution will make a recommendation and they may recommend the low end of the guidelines per what he and your attorney agreed to, but that won't mean anything.

A friend of mine had an agreement for probation with the prosecutor and the judge gave him 1 year and 1 day. Needless to say, all were stunned. So you need to seriously go in there and expect anything, because anything can truly happen.

By taking a plea, you automatically get the 3 points off for acceptance and timeliness. That is significant. My husband took a plea and his guideline range was 51-73 months. The government recommended the 51-73 months. It may have even been more than 73 months, happily I can't remember. Well thank god, the judge didn't just give him that lower number. The judge went way below the guidelines and gave him only 18 months, so if your lawyer is seriously telling you that in a plea agreement the judge will give you the low end automatically because that's what the AUSA recommends, then he doesn't know what he's talking about. You should do your research, find out what your particular judge does. No judge is bound by the guidelines and they can go higher or lower. These are only guidelines!

Also, for the loss, you want the amount of loss in the plea, not set at sentencing unless you agree with the amount the AUSA comes up with,or if you're set to argue the amount at sentencing. My husband and his attorney worked it out with the AUSA while the plea was being drafted agreed to the amount and made sure to pay his restitution before his plea. This was a positive in his favor in the eyes of the judge and no doubt helped with the lower sentence, so if you're in the position to pay your restitution before sentencing, then you should.

Expediting the process and acceptance of responsibility is part of the 3 points departure credit you get so that should be in your plea agreement, so if your points were 25, you will go down to 22. That will be laid out in the government's sentencing memo.

It is possible, but they don't usually consider gambling for getting into RDAP and again, if you don't have evidence of having a drug or alcohol problem in your PSR you won't be able to get into RDAP so easily in prison, and again the recommendation needs to come from the judge. THere is also more scrutiny into this recently, due to the recent cases of the prison consultants and the fraud they were committing into getting people into rdap who didn't have problems, etc. If you google it you will see what I'm talking about.
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Old 03-18-2019, 02:26 AM
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The key to getting in to RDAP is to have a recent substance abuse problem (any substance) documented in your presentence report. The bop considers anything a judge says (except the sentence of course) as a "recommendation", not an order. That's better than nothing, but the PSI is the bop's Bible.
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Old 03-18-2019, 08:45 AM
bellisq bellisq is offline
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[quote=rockchalk1;7768592]As for the RDAP program, it is actually the judge that recommends you for it and there has to be evidence of a substance abuse problem in your PSR.

No external input has any effect on RDAP acceptance, including a judge's recommendation. The one place a judge's recommendation has an impact is with designation to a specific Bureau Of Prison facility. Judge's rec is granted about 75% of the time.
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