Reduction of Sentence

Reduction of Sentence

US v. F. Wilson – Obtaining a reduction in sentence based upon age and family responsibilities – another NLPA Victory!

Often, NLPA is contacted by attorneys who represent federal criminal defendants who are in need of sentencing assistance, given the wide array of arguments that can be made in favor of sentences below what is called for by the United States Sentencing Guidelines. The case of United States v. Freddie Wilson, Jr., case number 4:11-cr-02161-TLW-14 (D. S.C. 2012) demonstrates how NLPA can assist counsel in the preparation of multi-faceted sentencing research that challenges the Guideline recommended sentence, as well as presents mitigating arguments for a lesser sentence.

Mr. Wilson pled guilty to conspiracy to possess with intent to distribute 28 grams or more of crack cocaine in violation of 21 U.S.C. §841(b)(1)(B). After the conviction, the United States Probation Office prepared a Pre-Sentence Investigation Report (PSR). The report issued a base offense level of 28 pursuant to U.S.S.G. §2D1.1 based upon Mr. Wilson’s alleged involvement with 132.9 grams of crack cocaine and 16.01 grams of powder cocaine. Mr. Wilson received two criminal history points based upon two prior convictions. As a result of receiving two criminal history points, Mr. Wilson was placed in criminal history category II. With an offense level of 28 and a criminal history category of II, Mr. Wilson’s Guideline range of incarceration was determined to be between 63 and 78 months. Facing such a long sentence, and needing assistance in the preparation of research challenging the harsh Guideline sentence, Mr. Wilson contacted NLPA to conduct research upon possible means to avoid an unduly harsh sentence.

NLPA conducted research on the potential sentence faced by Mr. Wilson, as well as the possibility of avoiding the harsh sentence put forth in the PSR, in conjunction with Mr. Wilson’s attorney, Joseph N. Connell, who was appointed to represent Mr. Wilson. NLPA’s research first focused on challenging the Guideline recommended sentence. NLPA first challenged the drug amount attributed to Mr. Wilson, noting that several of the factual allegations as put forth in the PSR report were simply not true. In conjunction with said argument, NLPA argued that any discrepancy between crack and powder cocaine at sentencing was improper in light of reasoning behind passage of the Fair Sentencing Act. NLPA also challenged the imposition of criminal history points, as Mr. Wilson was not represented by counsel during the proceedings leading to his prior convictions.

NLPA next focused on potential mitigating factors. According to 18 U.S.C. §3553(a), district courts are required to impose a sentence “sufficient, but not greater than necessary,” to comply with the four purposes of sentencing set forth in §3553(a)(2): (a) retribution; (b) deterrence; (c) incapacitation; and (d) rehabilitation. United States v. Phelps, 366 F.Supp.2d 580, 587 (E.D. Tenn. 2005). In determining the sentence minimally sufficient to comply with the §3553(a)(2) purposes of sentencing, the court must consider several factors listed in §3553(a). These factors include: “(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (3) the need for deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed educational or vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities; and (10) the need to provide restitution to victims.” See 18 U.S.C. §3553(a) (2007); see also, Rita v. United States, 127 S.Ct. 2456, 2463-65 (2007). Accordingly, even though specific mitigating factors may not be listed in the Guidelines, as the Guidelines are only advisory and are subject to the limiting provisions of §3553, criminal defendants are free to raise an almost limitless number of mitigating factors at sentencing.

In Mr. Wilson’s case, it was argued that his age, remorse, and post-offense rehabilitation made it unlikely that he would be a recidivist. It was also argued that Mr. Wilson’s familial responsibilities and substance abuse history should result in a lesser sentence. Mr. Wilson had three minor children, all under the age of six year sold. The children resided with Mr. Wilson until his arrest. Further, Mr. Wilson had a long history of drug and alcohol use, which started with marijuana use at the age of fifteen years. Mr. Wilson also exercised initiative and chose to cooperate with law enforcement officials. As a result, the prosecution moved for a downward departure pursuant to U.S.S.G. §5K1.1.

Based upon a combination of all of the above factors, the district court for the District of South Carolina issued a below Guidelines sentence to Mr. Wilson. As a result, Mr. Wilson received a sentence of 41 months incarceration. Such represented a sentence almost two years below the minimum recommended Guideline sentence.

The bottom line is that just because an individual faces an overwhelming Guideline sentence does not mean that all attempts at securing a lesser sentence must be abandoned in deference to the Probation Office or the federal prosecutor. Instead, by being aware of all possible options, attorneys can challenge the imposition of sentencing enhancements and improper Guideline calculations that lack a sound basis in fact and law. From challenging the procedural mechanisms of imposing a Guideline sentence to arguing the lack of factual support for sentencing enhancements to presenting mitigating arguments, NLPA has been at the forefront of attacking insidious and unfair sentences. Should your clients find themselves in similar situations, NLPA stands ready to assist you in the research and preparation of any motions and/or research necessary to assist you in the vigorous defense of your clients.

IMPORTANT NOTICE: Although National Legal Professional Associates (NLPA) is owned by The Criminal Defense Firm, LLC (a law firm), National Legal Professional Associates is NOT a law firm and does not provide legal advice. Accordingly, the retention of National Legal Professional Associates does not create a client-lawyer relationship. National Legal Professional Associates’ research and writing services are provided under the direction and control of the defendant’s own legal counsel.

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