Federal Drug Trafficking amendment voted unanimously to be retroactive

The United States Sentencing Commission voted unanimously to make the “drug minus 2” amendment retroactive with a single condition – no order reducing a sentencing can take effect until November 1, 2015.  So long as Congress allows the guidelines changes to stand and the legislation is in effect as of November 1, 2014.  In April of this year, the Commission voted unanimously to amend the guidelines to lower the base offense levels in the drug quantity table across drug types, which should mean lower sentences for most drug offenders going forward.

While the drug quantities for certain base offense levels were raised, some offenders will still not be eligible for relief because their drug quantities were still very high.  For example, the existing lower threshold for base offense level 38 is 150 kilos of cocaine.  With the new guideline, the minimum is raised to 450 kilos.  Unfortunately for most Panama Express Defendants, the quantities of cocaine typically are in excess of450 kilos and thus no guideline reduction will benefit them.  As with all drug offenders, statutory minimum mandatory penalties still apply.

The Commission estimates that over 46,000 offenders would have their case reviewed to see if they are eligible for a reduction.  This is very good news for all federal drug offenders across the nation.

United States Supreme Court limits search of cell phone data incident to arrest

The United States Supreme Court in a unanimous decision has held that the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested incident to a lawful arrest.  A search of digital information on a cell phone does not further government interests in officer safety and preventing evidence destruction and implicates substantially greater individual privacy interest than a brief physical search of the contents of an individual’s pockets.  That is not to say that evidence existing on a cell phone taken from an arrested person is immune to search, it is that law enforcement will have to apply and meet the requirements of probable cause to get a search warrant from a judge.

DOJ Changes Position on False Statements Prosecutions

The federal government will frequently charge individuals with a violation of 18 USC 1001 for giving a False Statement to a Government Agency.  To be convicted under that section, a person must act “willfully” in making false statements to investigators.  Recently, the U.S. Department of Justice (DOJ) has quietly adopted a more defense-friendly position on such prosecutions.  Federal prosecutors are now told that in order to prove a person acted willfully in providing a false statement to a federal agency, they must prove beyond a reasonable doubt that the defendant knew that making the statement was unlawful – not just that the statement was false.  This is a material change in the government’s charging decisions that could affect future white collar investigations and prosecutions under Section 1001.

Such prosecutions have ensnared such high-profile defendants as Martha Stewart and former Illinois Governor Rod Blagojevich.  In short, the government must now prove that the statement was false and the person making the false statement knew that making a false statement was unlawful.

 

Julie Scheckner will use Insanity Defense

On Friday, the criminal defense attorneys representing Julie Scheckner indicated their intent to use the insanity defense. Scheckner is accused of shooting and killing both of her children this past January, but her defense claims that she suffers from “bipolar disorder with psychotic features.”

An ABC Action News article claims that Scheckner told authorities she killed her children because they were being disrespectful and “mouthy”. Scheckner allegedly did not only struggle with a mental illness, but substance abuse as well.

In order for Scheckner to be found not guilty by reason of insanity, the jury must be convinced that she did not know right from wrong. Although it may be true that she suffers from bipolar disease, it has to be proven in court that because of her disease, she did not think she did anything wrong. With statements from Scheckner that she shot her children because of their behavior, her defense is facing quite a challenge to prove that she is not guilty by reason of insanity.

U.S. Supreme Court rules in DUI Case

The U.S. Supreme Court in Missouri v. McNeely held that compelling a potential drunk driver to submit to a blood test without a warrant is prohibited by the 4th Amendment protection against unreasonable search and seizures. In individual cases, exigent circumstances may permit a compelled blood draw based on the totality of the circumstances. In drunk driving cases, the natural dissipation of alcohol in the bloodstream does not constitute per se exigency sufficent to skip the constitutionally mandated step of getting a warrant. This is not to say that there couldn’t be circumstances that could compel a driver who refuses to provide a breath sample to succumb to a needle prick to take a blood draw from a vein, but it will be scrutinized much more carefully and have to have facts and circumstances to support it.

Restoration of 1 Civil right not enough for Felon in Possession of Firearm

The Eleventh Circuit Court of Appeals in US v. Thompson found that in a case involving felon in possession of a firearm in violation of 18 U.S.C. section 922(g)(1), the Defendant must have had at least two of the three “civil rights” restored to not be in violation of the statute. Thus, when Thompson was charged with being a felon in possession of a firearm based on a 1994 state conviction, he defended the case claiming that his civil rights had been restored in 2005. In actuality, Thompson only regained his right to vote, but not to serve on a jury or to hold public office. The Eleventh Circuit held that because Thompson had only 1 or his 3 civil rights restored, he was still in violation of the statue for possessing a firearm.

Palmieri Law Voted Best Law Firm of North Tampa

The Tampa Tribune Reader’s Poll of 2012 has rated Palmieri Law as the Best Law Firm in its Reader’s Poll of 2012. This was a result of countless reader’s voting and confirming the hard work that Lori Doganiero Palmieri and her staff has worked hard to achieve over the last 9 years in private practice.  If you or a loved one is in need of criminal defense representation in state or federal court, why not go to the best – the expert in Criminal Trial Law – Palmieri Law.

Lori D. Palmieri wins aquittal for Iraqi War Veteran

On May 7, 2011, TP, an 8 year USAF veteran, honorably discharged, went to Ybor City with his cousin. He and his (girl)friend had a disagreement when leaving a bar. A group of men from Manatee County insinuated themselves into their argument and started disparaging the woman with obscenities and vulgar comments. She pushed one of the men. A fight nearly occurred, although the client was always trying to calm the situation and quash the violence. When the client ran to get his car from a nearby lot, the traffic was bumper to bumper. Fearful that his cousin and friend would be jumped by this group, he drove on the wrong side of the road and accidently struck the same gentleman in the argument in the street. He was charged with Aggravated Battery with a Deadly Weapon accused of intentionally running the man down in the street with his vehicle. He was immediately arrested. It took over a year to come to trial. The state’s investigation was very poor. The defense presented his two witnesses that law enforcement refused to take a statement from that night. The defense also introduced a forensic engineer who performed accelleration testing on the client’s vehicle. It was proven that his 4-cyl car could not generate the reported 35-40 mph speed in just 30 yards. The state’s witnesses statements differed from those originally taken. The client testified it was an accident as well. The jury took less than an hour to acquit him. The court excluded any testimony that the client suffered from PTSD due to his combat time in Iraq. The client was a medic in the Air Force and was studying to become a RN. There was no reason for him to retaliate against this accident victim. The court also excluded the victim’s twice the legal limit of alcohol plus cocaine and marijuana in his system.

General Violation of Probation Questions

I have a lot of folks asking general questions about Violations of Probation, which can also include Violations of Community Control or house arrest. First, once a supervising officer becomes aware of either a new law violation or a technical violation of the rules, he must report it to the court. The judge then determines if a warrant should issue for the alleged violations. That can take anywhere from a few days to several weeks depending on the severity of the allegations and the county. Once a warrant is served, the defendant generally is held without bond. That means you will sit in custody until you can get in front of a judge (other than your first appearance) to try to resolve the violation. That can last from days to weeks. The course of action that I suggest to my clients is to calendar a turn-in to the court and try to resolve the violation all in the same day. Often times there is sufficient reason to continue on supervision and avoid jail or prison time. You want someone advocating your position instead of sitting back and waiting for the system to get to you.

In Florida, felonies are scored according to written sentencing guidelines on a scoresheet. A violation results in 6 additional points, (12 for a new felony conviction) and may get a defendant in excess of 44 points that will tip the scales toward prison time. The amount of time a person could potentially get for a violation of probation is a function of their original scoresheet and how many points have been assessed. The judge is free to sentence a defendant up to the statutory maximum for the underlying charge, i.e. 3rd Degree felony up to 5 years, 2nd degree felony up to 15 years and 1st degree felony up to 30 years.

Violation sentences can be dependant on what efforts the probationer has made toward their financial and treatment obligations. The goal is to get supervision reinstated and get the probationer off supervision as soon as possible. That takes some ingenuity and talent and bit of luck.

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