FAQ’s about the Federal 2011 Retroactive Crack Guideline Amendment

Overview: In 2010, Congress passed the Fair Sentencing Act (FSA) which increased the amounts of crack cocaine that triggered the mandatory minimum sentences for federal crack cocaine crimes. The effect was to lower crack cocaine sentences. The FSA also narrowed the ratio between the powder and crack cocaine offenses from 100:1 to 18:1. Under the old law, a five (5) year mandatory minimum sentence was in place for possessing with the intent to distribute 5 grams of crack or 500 grams of powder cocaine. Under the new law, 28 grams of crack and 500 grams of cocaine triggers the five (5) year minimum mandatory sentence.

Q. Will the 2011 crack cocaine guideline amendment be retroactive?

A. Yes. On June 30th, the Commission voted unanimously to make the amendment retroactive. This means approximately 12,040 federal crack offenders sentenced under the sentencing guidelines (U.S.S.G.) before November 1, 2010, may be eligible for sentence reductions.
Q. When does the retroactive crack amendment go into effect?

A. November 1, 2011

Q. How can federal prisoners serving time for crack cocaine offenses benefit from the amendment?

A. No one gets a sentence reduction automatically. A motion under 18 U.S.C. 3582©(2) must be filed in the court that sentenced the prisoner. The court will likely give the prosecutor the opportunity to oppose the reduction. The court can give all, part or none of the requested sentence reduction. There is no guarantee that any prisoner will receive a sentence reduction.

Q. Who is eligible to seek a sentence reduction based on the retroactive crack guidelines:

A. Prisoners are eligible to seek a sentence reduction if they:

  • were convicted in federal court – it will not benefit people convicted in state court for state violations of crack offenses
  • were sentenced before November 1, 2010
  • are serving a guideline sentence for crack cocaine – it will not benefit those serving a mandatory minimum sentence of five or ten years without any additional time under the sentencing guidelines.
  • are not on supervised release
  • are not in a federal halfway house – if you are already in a half-way house, you are likely to be released before the retroactive amendment goes into effect.

Q. Are career offenders eligible for sentence reductions?

A. Most likely no. Career offender sentences depend largely on the charge the person faced and the statutory maximum penalty that charge carries. A separate guideline section USSG 4B1.1 controls career offender sentences and was not reduced by this amendment.

Federal prisoners convicted for crack offenses and sentenced prior to November 1, 2010 should contact a federal criminal defense attorneyin the district where they were sentenced to see legal representation to determine if they are eligible to see relief under this retroactive crack guideline amendment.

Casey Anthony’s Defense Stated in Opening Statements

The public tuned in Tuesday for the opening statements of the Casey Anthony trial where Anthony finally stated her defense. Back in 2008 this case was showcased on news outlets everywhere, leading many to believe that Casey Anthony murdered her 2-year-old daughter Caylee.

During the opening statements we heard two different stories. The prosecutors claimed that Caylee suffocated from duct tape placed on her nose and mouth while defendants argued that Caylee drowned in the family pool. To complicate this trial even more, the autopsy was not able to determine how Caylee died.

An article in Seattle pi quotes Casey Anthony’s criminal defense attorney, Jose Baez saying that

“Casey should have called 911. That’s what she’s guilty of, she’s not guilty of murder. This is not a murder case.”

The article goes into more specifics as to what the defense is arguing in favor of Anthony including accusations that the police performed a “botched investigation” to feed the media a story of a murdering mother.

To further explain Casey Anthony’s bizarre behavior following her daughter’s disappearance, the defense contends that Casey was sexually molested by her father from the time she was 8 years old. This was a very dysfunctional family that had secrets, dirty secrets. The defense made specific challenges to the evidence the state will likely introduce and better be able to back up those claims through cross-examination or in their own case. One thing is for sure, Casey Anthony is going to have to take the witness stand after that opening statement.

Can Police Now Enter Homes Without a Warrant?

We’ve all seen it in the movies; “cop” bangs on door, people inside scatter and hide weapons/drugs, someone answers the door and “cops” search the home. Pretty standard right? This is not what happened in a recent case in Kentucky…

According to an article from the Orlando Sentinel, Kentucky police were following a man who they believed to be a drug dealer. The man went into an apartment building but the law enforcement officials lost track of which unit he entered. The police smelled marijuana coming from one door and knocked on it. They heard rummaging and announced they were coming in. They did not find the drug dealer but instead found Hollis King with marijuana and cocaine. King convicted of drug trafficking but later his conviction was overturned by the Kentucky Supreme Court accusing the officers of violating his 4th Amendment (unreasonable search and seizure). The U.S Supreme Court then heard an appeal from prosecutors and reversed the ruling. Justice Samuel A. Alito Jr said

“…the police conduct in this case ‘was entirely lawful,’ and they were justified in breaking down the door to prevent the destruction of the evidence.”

 

The Supreme Court passed a ruling allowing law enforcement to enter homes without a search warrant. If law officers knock loudly on the door and hear suspicious noises coming from inside, they can enter the home without a warrant or consent. Before this ruling, the law stood that officials could only enter the home without a search warrant if they had consent from the owner or if there was an emergency situation.

In the article, Justice Ruth Bader Ginsburg argues

“the court’s approach arms the police with a way routinely to dishonor the 4th Amendment’s warrant requirement in drug cases. She said the police did not face a ‘genuine emergency’ and should not have been allowed to enter the apartment without a warrant.”

 

This new law could potentially complicate the job of criminal defense lawyers because in the past, there was a logical defense when police didn’t have the explicit right to enter the home of the suspect. Now, we may come across the gray area of what was thought to have been heard and what the accused says happened. The line of violating the 4th Amendment could become blurred.

The Supreme Court arrived at an 8-1 decision allowing law enforcement officials to enter without a warrant if they are in pursuit of someone with drugs, knock loudly and can hear the destruction of evidence.

So the police didn’t read you your rights…

This doesn’t mean your case will go away. All this means, is that any incriminating statements that you had made cannot be used against you in court. If the officer wants to ask you questions other than your name and address, s/he will then read your rights. At this time, you do not have to answer any questions because they will be used against you in the court of law.

A tactic that law enforcement sometimes use is asking you questions before reading you rights, getting you to admit something and then reading you your rights and asking the questions again. For the most part, the person under question would assume since they already made a confession or incriminating statement, the officers already know the truth so how else could it hurt them? This is false. Since they got you to admit something after reading you your rights, all statements thereafter will be used against you. Anything you say before your rights are read cannot and will not be used as incriminating evidence. The most important thing you can do while being investigated after an arrest is to call a criminal defense lawyer and make no statements before doing so.

Facebook Aids to Fighting Crime

Facebook is everywhere these days and is not just being used as a personal way to stay connected to friends. Sheriff’s offices around the country have been utilizing Facebook as another way to get information out to the public, and for the public to relay information back to Crime Stoppers.

On Monday morning, the Polk County Sheriff’s office posted on Facebook a video of a man stealing at 75 year old woman’s wallet in a local laundromat. Two hours later an anonymous source contacted Crime Stoppers and reported who the man was and where he worked. Sure enough, it was the right suspect and the man was charged with petty theft. Bay News 9 covered the story and that video can be found on their website.

Although this was a smaller crime, think about the power that Facebook and social networking has. Not only do crimes get solved thanks to fan pages, but since Facebook is so accessible, everyday citizens can act as crime stopping heroes.

Polk County Sheriff’s office updates the page daily and have said that this is not the first crime that Facebook fans have helped them solve. They send all press releases and Crime Stopper bulletins to Facebook where they have over 7,000 fans.

Other Sheriff’s offices also have Facebook pages including Hillsborough County. The Florida Fish and Wildlife commission stated that they made over 100 arrests through Facebook.

If you are looking for Legal advice, Tampa Criminal Defense Lawyer Lori D. Palmieri also has a presence on Facebook.

Proposed Legislation Could End Minimum Mandatory Penalties for Drug Charges

As you may know, criminal defense lawyers are faced with the particularly difficult challenge of defending clients who are accused ofdrug charges because both State and Federal statutes call for minimum mandatory penalties, based on the circumstances of each particular case (for example, the quantity of drugs, the presence of weapons, etc.).

New proposed legislation, arguably being driven by the ailing economy and the rising cost of Florida’s criminal justice system, seeks to end minimum mandatory penalties, allowing judges more latitude to decide penalties based on the individual circumstances of each case. In a March 10, 2011 article by News Service Florida, Sen. Ellyn Bogdanoff draws the distinction between drug offenders who suffer from a “life of crime” versus those that are plagued by a “life of addiction”, arguing that those suffering from addiction can be helped so that they are transformed into law-abiding, taxpaying citizens.

If passed, the proposed legislation broadens the possible outcomes faced by those accused of drug charges and adds a new element to be considered by their criminal defense lawyers.

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