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.

How Reliable are Drug-sniffing Canines?

Drug-sniffing dogs have always been used and trusted in the court of law, but last Thursday the Florida Supreme Court tossed out evidence that a canine detected. After this 5-1 Supreme Court decision, it is going to be a lot harder to get approval to use dog-sniffing evidence in cases.

In the past, dogs were judged by their experience and training but now, they are going to have to display a reliable track record.

According to an article from the St. Petersburg Times,

“The Oregon Supreme Court also set reliability criteria in a pair of rulings earlier this month, and a Chicago Tribune analysis of Illinois data in January showed the dogs are wrong more often than they are right.”

 

This relates back to a 2006 case where a man was stopped for a routine traffic violation. The canine ran to the driver’s side door after the man had refused to let the officer search his truck. The officer found many tools and pills used to make methamphetamine. Two months later, the same man was pulled over by the same officer. The canine again went to the same side of the door, but this time nothing was found in the truck.

The question arises can we always trust canines? There is an obvious language barrier and we will never be able to know what the dog is sensing.

Last week, a Florida Supreme Court judge ruled in a separate case that officials must have a warrant before using drug-sniffing canines at residences. It will be interesting to see the result of this publicity and what will happen to drug-sniffing canines reputation.

Drug Offenses- What you should know.

Drug offenses are both Federal and State statutes. If you have left Florida or your state of residence and get charged with possession, you could be charged with a US Federal statute.

In the drug offense video below, Tampa Criminal Defense Lawyer Lori D. Palmieri states that the most recent, serious drug related crime is the possession of controlled substances.

“As we sit here in 2011, the primary focus of law enforcement is the distribution and possession of controlled substances that are prescription drugs.”

But that is obviously not the only type of drug that constitutes for a drug offense. Any type of drug from crack-cocaine to marijuana will land you a drug charge.

Penalties for drug offenses will be determined by any of the following factors:

  • – Quantity of the drug?
  • – Was it simple possession?
  • – Was it possession with intent to sell, distribute, and/or deliver?
  • – Were there weapons involved?

Drug cases are very fact specific. If evidence is wrongfully obtained or there were problems with the search and seizure, the possibility to move the court in motion of suppress is there. Generally, the case will go away.

A conviction of any drug offense can result in the loss of your Florida drivers license and the length of suspension depends on the specific factors of the crime. A qualified attorney will know what can be done to avoid or minimize the loss of a license.

 

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