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January 3, 2007
January 2007
DEFENDANTS SENTENCES CUT IN HALF
DEFENDANTS FREED!!!
We love giving clients hope. Its why we do what we do! In a recent case, we were able to get a reduction of sentence for three of our clients, which resulted in cutting their sentences in half, and their release from prison.
In the case of United States v. Puche, S.D. Fl, we represented 3 individuals convicted of money laundering. Our representation started at a re-sentencing in 2004. At that time, the defendants were on remand for imposition of a 3 level reduction in their Guidelines range, pursuant to USSG 2X1.1. At that sentencing, we argued that in light of Blakely, the Guidelines were invalid. The court did not agree, and imposed sentences of 108 months, 108 months, and 135 months respectively. We appealed to the Eleventh Circuit, again arguing (among other matters) Blakely. During the appeal, Booker was decided, and as a result, the Government conceded a remand.
Upon remand, the real work began. Our clients had served about 5 ½ years; therefore, they still had half of their sentence to go. Further, the Eleventh Circuit had limited the remand to a “discretion only”one; there could be no challenge to the Guidelines, which called for imposition of the same sentence. We therefore put together extensive sentencing memoranda, discussing the attributes of our clients. The Government filed their own extended memoranda, arguing how the imposed sentence was correct, and should be re-imposed. We also put forth a quantitative analysis of other similarly situated defendants in both state and federal courts, and the sentences received.
Re-sentencing occurred on January 26, 2007. At that time, the court said the words we longed to hear: “TIME SERVED”. The end result, instead of serving another 3 ½ to 5 ½ years, our clients are home with their families, today!
Of course, we cannot guarantee such results in every case in which we represent a client. However, we believe that the key to our success in this case was the willingness to continue to argue the law, and our significant preparation. If you are in need of legal representation, please contact us.
“No man is above the law and no man is below it; nor do we ask any man’s permission when we ask him to obey it.”
-Theodore Roosevelt
CUNNINGHAM: WHAT DOES IT MEAN?
By now, most of you have heard of the recent Supreme Court decision in Cunningham v. California, Case No. 05-6551, decided on January 22, 2007. Many pundits believe that it foretells the end of judicial fact-finding in the federal sentencing setting, and there is some basis for this reasoning. In Cunningham, the Court took a look at the California sentencing scheme. Under that scheme, as in the federal system, there was a broad statutory range, such as 6 to 18 years. However, the system was set up for a “presumptive” sentence of the middle of that range, unless, at sentencing, certain aggravating or mitigating factors were found by the sentencing court. The Court ruled that such a system violated the Sixth Amendment right to a jury trial. The Court reasoned that “This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. While this rule is rooted in longstanding common law practice, its explicit statement in our decisions is recent.” The Court further found “Under California's DSL . . . [] aggravating circumstances depend on facts found discretely and solely by the judge. In accord with Blakely, therefore, the middle term prescribed in California's statutes, not the upper term, is the relevant statutory maximum. . . . . Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, [], the DSL violates Apprendi's bright line rule . . .”
Arguably, this type of analysis lends itself to application to the Federal Sentencing Guidelines. Under post-Booker precedent, the federal courts have still allowed judicial fact finding as to aggravating sentencing factors which increase the Guidelines range. One could argue that Cunningham’s rationale applies to the Federal Sentencing Guidelines, and therefore requires any aggravating Guidelines enhancement to be proven to a jury beyond a reasonable doubt. Indeed, since the Booker decision, our office has advocated this position.
There are grounds for caution; however. In Cunningham, the Court, in dicta, addressed the Federal Sentencing Guidelines, seemingly to distinguish them from the California system. The Court noted “California's DSL does not resemble the advisory system the Booker Court had in view.” However, the Court promised that it would soon be addressing this concern as to the Federal Sentencing scheme.
So what does this all mean? For the time being, the issue of what a sentencing court may rely upon to determine the Guidelines is still an open one, and we will continue to urge that the advisory Guidelines be calculated upon jury found facts only. Of course, the sentencing court will have discretion to utilize other facts in determining the sentence, but the Guidelines should be based upon jury findings. Clearly, the Supreme Court is not done with this issue, so stay tuned!
We handle all aspects of litigation: from trial to sentencing, appeals, and post conviction remedies. We have enjoyed much success in effectively litigating against the United States for the protection of our clients’ interests. Experience and knowledge in the federal arena are essential to obtaining the best result. We handle cases in any federal court in the United States. If you have friends or family who would like to know more about the affordable services we offer or are interested in having us review their case, please have them contact us at:
SCHAD & SCHAD
Attorneys at Law
1001 W. Main St. Suite F
Lebanon OH 45036
513.933.9333 fax 513.933.9375
Visit us at our Website at yourattorneys.net
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August 31, 2006
VICTORIES IN JULY!
2255 RESULTS IN VACATION OF COURT OF APPEALS OPINION
We are very happy to report that our efforts have paid off in a 2255 case, resulting in relief for another one of our clients. In the case of United States v. Martinez, (D.S.D. 2006), we filed a 2255 petition claiming, among other matters, that counsel failed to file a petition for certiorari, despite the defendant’s timely request. This issue resulted in the district court holding an evidentiary hearing. During that hearing, the evidence was very black and white: former counsel testified that the defendant never asked for an appeal to the Supreme Court (and in fact told him that he was going to file a 2255 petition), while the defendant submitted that he asked counsel several times to do so.
After the hearing, the district court took the matter under advisement. The court then issued a written opinion, in which the court sided with the defendant, and found that he did in fact request a petition for certiorari. This presented the court with somewhat of a problem, in that the “fix” for this type of ineffective assistance was not evident. The court issued an order granting the 2255, and filed that order with the Eighth Circuit. Further, in the order, the judge asked that the court recall its mandate, so that a timely petition to the Supreme Court could be filed. The Eighth Circuit agreed to this request, and we are now in the process of putting together the petition.
The ramifications of this case are significant to the client. First, the district court believed the defendant over the statements of his former counsel. Second, because we are now back on direct review, the client will obtain the benefit of Booker, in addition to his other claims.
If you believe that you have been the victim of ineffective representation which has affected your right to a fair proceeding, perhaps we can help. Please contact us.
Justice denied anywhere diminishes justice everywhere.
- Martin Luther King. Jr.
2254 VICTORY: CLIENT’S CONVICTION OVERTURNED
CLIENT TO BE RELEASED
In the case of Nash v. Eberlin, (N.D. Ohio 2006), we were able to obtain a reversal of the client’s conviction pursuant to 28 U.S.C. § 2254. The result is that instead of doing the rest of his time, the client will be on his way home.
In the case, the State charged the client with felonious assault, based upon the discharge of a firearm during a dispute with the client’s family. However, the only evidence presented was that the firearm was discharged accidently when the client’s son tried to take the firearm from the client.
After a review of the entire trial record, Judge Gwin (a federal judge in the Northern District of Ohio) determined that the conviction must be vacated, as the State failed to prove any evidence of a knowing intention to discharge the weapon. He therefore granted relief under 2254, and ordered the client’s immediate release.
Needless to say, these are the cases for which we became defense attorneys. A great injustice has been corrected, thanks to Judge Gwin’s proper assessment of the evidence.
If you are looking for counsel to file your post conviction petition, and have viable federal constitutional claims, maybe we can help. Please contact us at the number or address below.
We handle all aspects of litigation: from trial to sentencing, appeals, and post conviction remedies. We have enjoyed much success in effectively litigating against the United States for the protection of our clients’ interests. Experience and knowledge in the federal arena are essential to obtaining the best result. We handle cases in any federal court in the United States. If you have friends or family who would like to know more about the affordable services we offer or are interested in having us review their case, please have them contact us at:
SCHAD & SCHAD
Attorneys at Law
1001 W. Main St. Suite F
Lebanon OH 45036
513.933.9333 fax 513.933.9375
Visit us at our Website at yourattorneys.net
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March 16, 2006
Client Released
We are very happy to report that we were recently able to obtain an early release for one of our defendants in the Southern District of Florida, despite an unfavorable recommendation from the Government. In our client’s case, the Government had filed a Rule 35 motion. The defendant was currently serving a 121 month sentence. The Government indicated, both in writing and at the time of the resentencing hearing, that the assistance of the defendant was minimal, and therefore, he should only receive a 10% reduction, to 109 months. This would have had our client serving an additional 3 years incarceration.
Most defendants (and their counsel) would have been happy to receive any reduction, and not put up a challenge. However, we felt that there were mitigating factors that were not taken into account by the prosecution in their recommendation. Therefore, prior to the hearing, we filed a detailed sentencing memorandum, outlining post-conviction rehabilitation, letters of support, etc. We also cited the Court to caselaw to show that, once the Rule 35 was made, the Court had discretion to impose any reasonable sentence, and was not bound by the Government’s recommendation.
The Court carefully reviewed the information we provided and agreed with our reasoning. This defendant is now home with his loved ones instead of serving the additional time. No halfway house, no further anticipation: the defendant was given a new sentence which resulted in release.
We rejoice with our clients and our families when we are able to obtain such favorable results, especially in light of the Government’s protestations. If you have a case in which you think you might need our assistance, please contact us.
CREDIT FOR STATE TIME
Recently, a client came to us and stated that he was having problems with the Bureau of Prisons, in that they were not giving him proper credit for time served while serving state detention in addition to his pre-conviction federal detention. At sentencing, the district court had indicated that the client be given “maximum credit for time served in federal custody to date . . .”. Despite this, the BOP determined that, pursuant to Guidelines § 5G1.3, the client could not be given credit for time served in state custody. The BOP went so far as to write to the sentencing court, to determine the intent of the court at sentencing, however, no answer was forthcoming.
The client then hired our firm to assist him in the filing of a 28 U.S.C. § 2241 motion, challenging the BOP’s decision. After reviewing the issue, and the BOP’s stance, we determined that we may be able to shortcut the process by filing an appearance in the criminal case, and getting clarification from the trial court.
We are happy to report that this process proved successful. In United States v. Young, CR 95-0027 (N.D. Iowa), the client, through our efforts, obtained an amended judgment which was then forwarded by the court to the Bureau. As a result, the Bureau recalculated the sentence, and reduced the client’s out time by over two years.
The interesting note about this case is that the client had fought this issue, on a pro-se basis, for several years prior to our entry into the case. The client was all prepared to litigate a 2241 petition, which may have resulted in additional years of litigation. By obtaining counsel who was able to coordinate with the court, that process was cut short, and the relief was provided. Certainly, this is not available in every case, but it shows that having counsel can make a difference, even if you are arguing the correct issues. If you are in need of representation, please contact us.
SUCCESSIVE 2255 GRANTED!
In a rare act for the Circuit, we were recently able to obtain review on a successive 2255 petition in the Fifth Circuit. In In re Yunque, 06-20048 (5th C. 2006), we argued that the client was entitled to a second 2255 petition, based upon newly discovered evidence regarding the main witnesses for the prosecution. The Fifth Circuit (along with many of the other circuits), has been notorious in limiting the ability of defendants to obtain such additional review. However, the Court issued an order on February 24, 2006, remanding the case to the district court for further proceedings.
Although this is only a first step in the process in this case, it was certainly an important one, and we share our enthusiasm with regards to the possibilities that this order brings our client. It goes to show that hope is not always lost, even if you have seemingly run out of options.
We handle all aspects of litigation: from trial to sentencing, appeals, and post conviction remedies. We have enjoyed much success in effectively litigating against the United States for the protection of our clients’ interests. Experience and knowledge in the federal arena are essential to obtaining the best result. We handle cases in any federal court in the United States. If you have friends or family who would like to know more about the affordable services we offer or are interested in having us review their case, please have them contact us at:
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