Federal Criminal Defense

The United States Constitution

With The Advice And Consent Of The Senate

With the nomination and Supreme Court confirmation hearings of Judge Brett M. Kavanaugh, the Senate confirmation process of Supreme Court nominees has been much in the news.

Article II of the United States Constitution states that the President shall have to power, with the advice and consent of the Senate, to nominate Judges to the Supreme Court.  So, under the U.S. Constitution, the power to put a Supreme Court justice on the bench is shared by both the President and the Senate.

Alexander Hamilton was a proponent of dividing the power to select Supreme Court Justices between the President and the Senate.

According to Alexander Hamilton, who was a signatory to the Constitution, giving the President the sole power to put a judge on the Supreme Court would not be wise as the President “would be governed much more by his private inclinations and interest.” So, the founders wisely decided to divide this power between the President and the Senate.

In modern history, when the President nominates a person to the Supreme Court, the Senate Judiciary Committee holds hearings and questions the nominee.  This process has frequently been contentious.

Thurgood Marshall became a Supreme Court Justice in 1967, and served until 1991.

Thurgood Marshall became a Supreme Court Justice in 1967, and served until 1991.

In June of 1967, President Lyndon Johnson nominated the first African American to the Supreme Court, Thurgood Marshall.  As an attorney in 1952, Marshall, had successfully argued the landmark school desegregation case of Brown v. Board of Education before the Supreme Court.  At his Senate confirmation hearings in 1967 Marshall faced intense opposition from the chairman of the Senate Judiciary Committee, Senator James Eastland of Mississippi, who was a staunch segregationist.  Nevertheless, Marshall performed well at the hearings and the Senate confirmed him.

The Senate does not always go along with the President’s pick.  Since the Constitution went into effect, the Senate has voted to reject the President’s nominee 12 times. The last nominee to be defeated in the Senate was President Regan’s pick in 1987, Judge Robert Bork.  However, as in the case of President Obama’s 2016 nominee to the Court, Judge Merrick Garland, sometimes the Senate takes no action on a nominee, and the nominee is not confirmed.

Which justices sit on the Supreme Court has a profound influence upon the development of criminal law.

For example, from 1953 until 1969, Chief Justice Earl Warren led the Supreme Court to expand protections for criminal defendants

From 1953 until 1969, Chief Justice Earl Warren led the Supreme Court to expand protections for criminal defendants. 

For example from 1953 until 1969, such as in the case of Miranda v. Arizona, Chief Justice Earl Warren led the Supreme Court to expand protections for criminal defendants.  However from 1986 until 2005, Chief Justice William Rehnquist led a Supreme Court that narrowed some of the constitutional protections for criminal defendants that the Warren Court had established.

If you are interested in learning more about the Supreme Court and its justices, an excellent resource is the Oyez website.  There you can review short biographies of the justices, review case summaries, and listen to recordings of Supreme Court arguments.

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United States Federal Sentencing Guidelines

Understanding The Federal Sentencing Guidelines

What Are The United States Federal Sentencing Guidelines?

In 1984 a law called the Sentencing Reform Act established the United States Federal Sentencing Guidelines.

Before 1984, federal judges in the United States enjoyed a lot of discretion when sentencing defendants.  However, this discretion sometimes resulted in disparate sentences around the country for the same criminal conduct.

For example, a defendant convicted of distributing a certain amount of cocaine in one part of the country might receive a much harsher sentence than a defendant convicted of distributing the same amount of cocaine in another part of the country.  The sentencing guidelines are designed to reduce such disparate sentences among similarly situated defendants.

Why Are The United States Federal Sentencing Guidelines So Important?

If you or a loved one is facing federal criminal charges, one of the first things you will need to do is gain an understanding of the United States Federal Sentencing Guidelines.

From the very beginning of a federal case it is essential for a defendant to understand the sentencing guidelines, because the guidelines often drive important decisions like whether or not to plead guilty, whether or not to cooperate with the government, and whether or not to go to trial.

Are the United States Federal Sentencing Guidelines Mandatory?

From 1984 until 2005, the federal sentencing guidelines were mandatory, so judges were obligated to impose whatever sentences the guidelines prescribed.

United States Supreme Court

In 2005, in the case of United States v. Booker, the United States Supreme Court made the federal sentencing guidelines advisory rather than mandatory.

However, in 2005, in a case called United States v. Booker, the United States Supreme Court changed the federal sentencing scheme, by making the United States Federal Sentencing Guidelines advisory rather than mandatory.  So now, while federal judges are required to calculate a defendant’s sentencing guideline before imposing a sentence, federal judges are not bound to follow the federal sentencing guideline recommended sentence.  Rather, the federal judges must now treat the sentencing guidelines as just one of the many sentencing factors to be considered when sentencing a defendant.

Some of the other factors a judge will consider when sentencing a defendant are the nature and circumstances of the offense, the history and characteristics of the defendant, the purposes of sentencing, the kinds of sentences available, the need to avoid unwarranted sentencing disparities, and the need to provide restitution.

What Types Of Punishments Do The United States Federal Sentencing Guidelines Include?

The federal sentencing guidelines instruct the sentencing judge to impose one or more of four types of punishment in every case: probation, fine, imprisonment, and supervised release.

How Do The United States Federal Sentencing Guidelines Generally Work?

The federal sentencing guidelines establish an offense level (which is intended to account for the seriousness of the offense) and a criminal history category (which is intended to account for the seriousness of the defendant’s criminal history).

The basic idea is that the higher the offense level, and the higher the criminal history category, the longer the sentencing guidelines recommended sentence.

How Is The Sentencing Guideline Offense Level Determined?

The Federal Sentencing Guidelines are set out in a manual which is written by the United States Sentencing Commission.

Base Offense Level: Each type of crime is assigned a base offense level, which is the starting point for determining the seriousness of a particular offense.  The idea is that more serious crimes have more serious offense levels. For example, distribution of 150 grams of cocaine has a higher offense level than distribution of 75 grams of cocaine.

Specific Offense Characteristics:In addition to base offense levels, each offense type normally has a number of specific offense characteristics. These are factors that can increase or decrease the base offense level.  For example, in a drug case, if a defendant possessed a dangerous weapon (including a firearm) during the offense, the offense level is increased by 2 levels.

Adjustments: Similar to specific offense characteristics, adjustment increase or decrease the offense level.

Categories of adjustments include: victim-related adjustments, the offender’s role in the offense, and obstruction of justice.

For example, in a fraud case, if the offense involved a misrepresentation that the defendant was acting on behalf of a charitable, educational, religious, or political organization, or a government agency, the offense level is increased by two levels.

Acceptance of Responsibility: If the judge finds that a defendant has accepted responsibility for the offense, the offense level may be reduced by 2 or 3 levels, depending on the facts of the particular case.

How is a Defendant’s Criminal History Category Determined: The guidelines assign each defendant a criminal history category based upon the defendant’s prior criminal history.

In general, the point system works as follows.  For each prior sentence in which the defendant was incarcerated for more than 13 months, the defendant gets 3 criminal history points.  For each prior sentence in which a defendant was incarcerated at least 60 days, the defendant gets 2 criminal history points.  For any other prior sentences not counted by the first two rules, the defendant gets one criminal history point.

Criminal history Category I is the least serious category, and criminal history Category VI is the most serious category.  The higher the criminal history category is, the longer the recommended guideline sentence will be.

An Example Of A United States Federal Sentencing Guideline in a Healthcare Fraud Case

With an offense level 19, and a criminal history category I, the advisory federal guidelines sentence would be 30 to 37 months of incarceration.

With an offense level 19, and a criminal history category I, the advisory federal guidelines sentence would be 30 to 37 months of incarceration.

Federal Statute Charged:   Health Care Fraud (18 U.S.C. §§1347 and 2)

Guideline Section:   USSG §2B1.1

Base Offense Level:   The Base Offense Level is set at 6

Specific Offense Characteristic #1: Assuming the amount of money lost during the health care fraud was $750,000, the federal sentencing guidelines require a 14 level increase in the offense level.

Specific Offense Characteristic #2: Healthcare fraud cases frequently involve a defendant using sophisticated means to carry out the fraud. In such cases, the federal sentencing guidelines call for a 2 level increase in offense level.

Acceptance of Responsibility: If a defendant clearly demonstrates acceptance of responsibility for the offense, and the Defendant timely notifies the Government of his intention to plead guilty before trial, the federal sentencing guidelines call for a 3 level decrease in offense level.

Criminal History Category: Let’s assume for the purposes of our example that the Defendant has no criminal history.  Therefore, the defendant’s criminal history would be criminal history category I.

Total Offense Level: Based upon a total offense level of 19, and a criminal history category of 1, the guideline imprisonment range would be 30 to 37 months of incarceration.

Remember that the federal sentencing guidelines are now just one piece of the puzzle.  A Federal District Court Judge will take other factors into account when imposing sentence upon a defendant.  For more information on how the federal sentencing process works, click here.

Where Can I Read The United States Federal Sentencing Guidelines?

If you would like to read the federal sentencing guidlines yourself, you can go to the United States Sentencing Commission’s webiste by clicking here.

Contact The Hardy Law Firm, P.A.

If you or a loved one has been accused of a federal crime, contact Board Certified Criminal Trial Attorney David C. Hardy.

Attorney Hardy began his work in the federal courts when he served as an intern with the United States Department of Justice in 1999.

Attorney Hardy began his work in the federal courts when he served as an intern with the United States Department of Justice in 1999.

In the federal courts, Attorney Hardy has handled a wide variety of cases including international extradition, drug trafficking, bank fraud, healthcare fraud, immigration offenses, identity theft, the misbranding of drugs, and firearms offenses.

Attorney Hardy has represented clients in Federal Trial and Appellate Courts in Florida, Texas, and Georgia.  For more information on Attorney Hardy’s experience, click here.

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United States Supreme Court

How Do The Federal Criminal Courts Work?

Why Do Federal Courts Exist?

The federal courts exist in order to decide disputes concerning the United States Constitution, as well as to handle cases that involve laws passed by the United States Congress, which are called federal statutes.

Federal Statutes

Federal criminal laws, also known as federal criminal statutes, are orgainzed in the United States Code Annotated.

What is Federalism?

Federalism is a system in which governmental power is shared by both the federal government and the state governments.

When they wrote the U.S. Constitution, the framers of the Constitution gave a limited number of governmental powers to the federal government, and reserved the vast majority of governmental powers to the state governments.

However, since the U.S. Constitution was ratified in 1788, sometimes out of necessity and sometimes based on the Congress’s desire for more power, the federal government’s powers have expanded.

How Does Federalism Affect Federal Criminal Law?

In order for the U.S. Congress to write a federal criminal law, the U.S. Constitution must authorize the Congress power over that subject matter.

For example it’s clear that the U.S. Congress can pass criminal laws punishing counterfeiting or piracy on the high seas, because the U.S. Constitution explicitly gives the Congress the power to do so.

However, Congress passes laws about things that the U.S. Constitution does not explicitly mention.  For example, Congress has passed laws that punish persons for distributing illegal drugs, but drugs are not mentioned in the U.S. Constitution.

Federal law prohibits the unlawful distribution of cocaine.

The federal courts have justified federal criminal laws punishing the distribution of illegal drugs based on a clause in the Constitution that gives the Congress power to regulate commerce with foreign nations and among the States. “Commerce” can be defined as the activity of buying and selling goods.  Because cocaine is produced outside of the United States, Congress claims the right to punish its distribution based on this commerce clause.

Sometimes, however, federal criminal laws appear to stretch the meaning of the U.S. Constitution beyond reason.  For example, there is a federal law that makes it a crime for a person that has been convicted of a felony to possess a firearm or bullet.  Because there is no explicit power in the Constitution giving the Congress the power to prohibit persons convicted of a felony from possessing a firearm, the Congress has relied on the commerce clause as a basis for the law.  Therefore, in order to prove a person is guilty of felon in a possession of a firearm in federal courts, the federal prosecutor must prove that the firearm, or the bullet, traveled from one state to another, or from another country to the United States.

In theory then, if the gun and bullets were all made in the State in which the Defendant possessed the firearm, the federal Government would not have jurisdiction over the case and only the State Government could prosecute the Defendant.

What Are The Different Types Of Federal Courts

The federal courts have three levels: the District Courts, the Circuit Courts, and the Supreme Court of the United States. Levels of Federal Courts

What Are the Federal District Courts?

The Federal District Courts are the courts in which federal trials take place. There are 94 federal district courts in the United States.

Federal district Court Judges are appointed by the President and confirmed by the U.S. Senate for a life term.

Federal Magistrate Judges handle some of the work in the Federal District Courts. Federal Magistrate Judges are not appointed by the president and confirmed by the Senate.  Rather, the District Court Judges appoint the Magistrate Judges to help them handle their caseload.

In criminal cases, Magistrate Judges can handle federal misdemeanor criminal cases, issue search warrants and arrest warrants, conduct initial hearings, set bail, conduct change of plea hearings, and hear motions to suppress evidence.

What Are The Federal Circuit Courts?

In the federal court system, the Federal Circuit Courts are the first level of appeal.  In an appeal, a defense attorney may complain to the Appellate Judges that a Federal District Court Judge made a mistake during a trial or at sentencing that prejudiced a Defendant.

A panel of three Circuit Court judges decides appeals to the circuit courts. Attorneys on both sides of a case will file briefs with the judges, arguing why the trial court’s decision should be affirmed or reversed.

There are 13 Federal Circuit Courts in the United States.  

There are 13 Federal Circuit Courts in the United States.

Twelve of the Federal Circuits divide the country into different regions. The Eleventh Circuit, for example, includes the states of Florida, Georgia, and Alabama.  Cases from the District Courts of those states are appealed to the United States Court of Appeals for the Eleventh Circuit, which is headquartered in Atlanta, Georgia. Additionally, there is a 13thfederal circuit court called the Federal Circuit Court of Appeals.  That court has nationwide jurisdiction over certain types of cases, such as patent cases.

What is the United States Supreme Court?

The United States Supreme Court is the final level of appeal in the federal system. It is based in Washington, D.C.

The Justices on the Supreme Court are appointed by the President and confirmed by the Senate.

The Justices of the United States Supreme Court in 2018.

The Justices of the United States Supreme Court in 2018.

In the Federalist Papers, which were a series of newspaper articles designed to argue for the various States to ratify, or adopt, the United States Constitution, Alexander Hamilton called the United States Supreme Court  “The Least Dangerous Branch”, perhaps because at the time, the Supreme Court was seen as the least powerful of the 3 proposed branches of Government.

However, the United States Supreme Court has developed into an extremely powerful and co-equal branch of Government.  The Supreme Court has the power to declare both presidential and congressional actions unconstitutional and therefore void.

The number of justices on the U.S. Supreme Court is set by the Congress, and has varied over time. In 1789 there were six Justices; in 1863 there were 10 Justices; in 1869 the number of Justices was set at nine, where it stands today.

The Supreme Court is the most important court in the United States, because it has the final say on legal questions.

Associate Justice of the United States Supreme Court Robert Jackson

Associate Justice of the United States Supreme Court Robert Jackson.

As Associate Justice of the United States Supreme Court Robert Jackson once said, “We [the Supreme Court] are not final because we are infallible, but we are infallible only because we are final.

If You Or A Loved One Has Been Charged With  A Federal Crime, Contact The Hardy Law Firm, P.A.

Attorney Hardy began his work in the federal courts when he served as an intern with the United States Department of Justice in 1999.

If you or a loved one has been accused of a federal crime, contact Board Certified Criminal Trial Attorney David C. Hardy.  Attorney Hardy began his work in the federal courts when he served as an intern with the United States Department of Justice in 1999.

In the federal courts, Attorney Hardy has handled a wide variety of cases including international extradition, drug trafficking, bank fraud, healthcare fraud, immigration offenses, identity theft, the misbranding of drugs, and firearms offenses.  Attorney Hardy has represented clients in Federal Trial and Appellate Courts in Florida, Texas, and Georgia.  For more information on federal criminal cases, click here.

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Federal Criminal Cases v. Florida Criminal Cases

Federal criminal cases are very different from criminal cases in Florida state courts.  Below are examples of some of the differences.

The Manner of Investigation

FBI Agents remove evidence from an office after executing a search warrant.

Federal criminal investigations are generally proactive, while state criminal investigations are generally reactive.

Federal law enforcement agencies generally investigate a matter for some time before they make an arrest.  In fact, by the time a person realizes that they are under federal investigation, federal law enforcement agents may have been investigating them for many months.  In contrast, Florida law enforcement officers generally begin their investigation at or near the time of arrest.

Federal Prosecutors Can Pick Their Cases

Sometimes, the federal criminal courts and the state criminal courts both have jurisdiction over a case.  In these situations federal prosecutors have a choice – they can take the case themselves, or they can leave it to the state prosecutors.  The federal prosecutor’s decision on whether or not to take the case will be based on the priorities of their U.S. Attorney’s Office, but they generally pick cases that they believe are going to be easy to prove.  State prosecutors, on the other hand, don’t have this luxury.  If a crime takes place in their jurisdiction and the federal prosecutors don’t take it, they have to deal with it.

Federal Grand Juries v. State Grand Juries

In Federal Court, the 5thAmendment to the U.S. Constitution requires that persons accused of a felony (a crime that can be punished by more than a year in prison) must be charged by a Grand Jury Indictment, unless the person voluntarily waives that right.  In Florida Courts, the Florida Constitution requires only that those persons accused of a capital crime (a crime punishable by death) must be charged by a Grand Jury Indictment.

In both the Federal and Florida systems, when the charges don’t require an indictment, the prosecutor can charge the case in a document called an information.

The Federal Government Has Extensive Resources

Cases in federal court are investigated by agencies such as the FBI, DEA, Homeland Security, and Secret Service.  These agencies, along with the United States Department of Justice, have large budgets, and essentially limitless resources with which to investigate alleged criminal activity.  State agencies, on the other hand, generally have fewer resources at the disposal to investigate alleged criminal activity.

The Rules of Criminal Procedure Are Different

The rules of criminal procedure in federal court are different from the rules of criminal procedure in Florida State Courts.

For example, in Florida courts the rules of criminal procedure allow for a defense attorney to depose (interview under oath) all of the witnesses that the state prosecutor intends to call at trial before the trial.  In the federal system, however, the defense attorney generally is not allowed to depose witnesses before trial, and often doesn’t even know who the witnesses will be until the first day of trial.

Federal Criminal Sentencing Law is Different From Florida Criminal Sentencing Law

The rules for federal criminal sentencing are completely different than the rules for Florida criminal sentencing.

Federal District Court Judges must take into consideration The United States Sentencing Guidelines when sentencing a defendant.

Federal judges, when deciding what sentence to impose, will consider a variety of factors, including the United States Sentencing Guidelines.  The United States Sentencing Guidelines provide a suggested sentencing range of imprisonment, house arrest, or probation for the judge to impose.  The length of the sentence the guidelines suggest is based on the severity of the offense (for example, in a drug case the weight of the drug), the defendant’s role in the offense, and the defendant’s criminal history.  Federal judges take other factors into account, including the nature and circumstances of the offense, the history and characteristics of the defendant, and the need to avoid unwarranted sentencing disparities.  As long as the charged offense does not have a minimum mandatory sentence, federal judges have a tremendous amount of discretion in their sentencing decisions.

In contrast, as stated by the Florida Legislature, the primary purpose of sentencing in Florida state courts is to punish the offender.

The Florida Statutes set out a system for sentencing in the Florida Courts.

When deciding what sentence to impose, Florida circuit court judges use a system called the Florida Criminal Punishment Code.  That system assigns a certain number of points to the current charges, as well additional points for any prior criminal history.  Once a certain number of points are reached, the general rule is that the judge must sentence the offender to Florida state prison – the more points, the more prison time.  Florida law does allow Florida Judges to sentence a defendant below the prison sentence required by the Florida Criminal Punishment Codein some circumstances.  For example, if the judge finds that a defendant requires specialized treatment for a mental disorder unrelated to substance abuse, or that the need for payment of restitution to the victim outweighs the need for a prison sentence, or that the victim was an initiator, willing participant, aggressor, or provoker of the incident, then the judge can impose a probationary sentence rather than send the defendant to prison.

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