New Crack Laws Save Defendant 10 Years – United States v. Tarsha Brooks

success(small)NLPA Helps Counsel Use New Crack Law to Reduce Defendant’s Sentence By Ten Years!

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. Tarsha Brooks, case number 2:06-cr-00126-JES-DNF-1 (M.D. Fla) demonstrates how NLPA can assist counsel in the preparation of multi-faceted sentencing research that challenges the Guideline recommended sentence at sentencing, and also after a sentence has been issued.

Mr. Brooks had pleaded guilty to conspiracy with intent to distribute 50 grams or more of crack cocaine.  Mr. Brooks’ family hired National Legal Professional Associates to assist his counsel, Charles Murray, with research and argument drafting in an effort to persuade the court to sentence him to the lowest possible term of confinement. The probation office had calculated Mr. Brooks’ Guideline range at 188 to 235 months imprisonment, based on an offense level 31 and a Criminal History Category VI.

NLPA provided draft arguments and objections to those calculations.  First, NLPA provided research to combat a two level weapon enhancement.  Second, it was argued that a downward departure under §4A1.3 was appropriate because the Criminal History Category VI over-represented the seriousness of Mr. Brooks’ prior record and the likelihood he will commit future crimes. Further, it was argued that mitigating factors should be taken into consideration under §3553(a), including: (1) the disparity created by the onerous “crack” cocaine penalties and the fact the Guidelines were to be amended November 1, 2007 in an effort to alleviate that disparity; and (2) the remorse and post-offense desire for rehabilitation and age demonstrated it was unlikely Mr. Brooks would be a recidivist.

Defense counsel presented these arguments to the court at sentencing, and the judge agreed with many of the arguments.  As a result, Mr. Brooks received a sentence of 140 months – a reduction of 4 to 8 years below the range recommended by the probation officer in the pre-sentence investigation report.

However, NLPA was not done with assisting Mr. Brooks obtain a fair sentence.  Even after NLPA has assisted an individual obtain a measure of justice, NLPA continues to monitor newly issued law and developing arguments in efforts to re-visit seemingly closed cases of our clients.  In staying abreast of relevant sentencing law, NLPA was at the forefront of conducting research once the Fair Sentencing Act was enacted.

On November 1, 2010,  the Fair Sentencing Act (FSA) became effective.  The Fair Sentencing Act replaced the 100‑to‑1 crack to powder cocaine sentencing ratio with an 18‑to‑1 ratio (28 grams will trigger a 5‑year mandatory minimum and 280 grams will trigger a ten‑year mandatory minimum) under 21 U.S.C. §841.  Although the law was not specifically stated to be retroactively applicable, NLPA assisted in the preparation of a motion for reduced sentence in Mr. Brooks’ case based upon the new law.  The district court agreed with NLPA’s position, and reduced Mr. Brooks‘ sentence from 140 months incarceration to 120 months incarceration saving Mr. Brooks‘ 20 months in prison.

Mr. Brooks also assisted in obtaining justice.  Mr. Brooks provided substantial assistance to law enforcement officials in the investigation of criminal activity.  As a result, the government filed a motion for reduced sentence pursuant to U.S.S.G. §5K1.1 and Federal Rule of Criminal Procedure 35(b) on Mr. Brooks’ behalf.  Mr. Brooks’ total offense level was reduced to 21 and his Criminal History Category was reduced to V, resulting in a Guideline range of incarceration of between 84 and 105 months.  On September 12, 2013, Mr. Brooks’ sentence was reduced to 84 months incarceration, which represented a sentence over 100 months less than the original Guidelines recommended sentence in Mr. Brooks‘ case.

As you can see from the attached letter from Mr. Murray, NLPA’s efforts were greatly appreciated.  If you or your client is facing sentencing in federal court and would like NLPA’s experienced team of attorneys on your side, please contact NLPA.

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.  This fight can and should continue even after an individual is sentenced.  NLPA has been at the forefront of attacking insidious and unfair sentences.  Should your clients find themselves in similar situations to Mr. Brooks, 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.

NLPA, WE CARE, WE LISTEN, WE GET RESULTS!

DISCLAIMER:  This informational memorandum is designed to introduce you to NLPA.  As NLPA is not a law firm, professional services are only provided to licensed counsel in all areas that involve the practice of law.

Nothing presented herein is intended to be legal advice. Such advice can only be provided by a local licensed attorney based on a full discussion of a client’s individual facts and circumstances. The contents of this document are  provided solely for general informational purposes. Always seek the advice of a licensed attorney for specific legal problems. 

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NLPA Continues Its Mission In Helping Clients And Their Attorneys Obtain Positive Results

NLPA is always proud to spotlight our victories as we continue to work hard for our clients and their counsel. We continue to lead the way in obtaining successful outcomes for our clients whether it be in challenging their federal sentencing guidelines; pursuing reductions of sentence; requesting DNA evidence; and through administrative requests for transfers, CTC placement or halfway house approvals. Here are several of our most recent victories. As you can see, NLPA continues to be a force to be reckoned with.

Magwood, N – NLPA assisted counsel in the pretrial case of Mr. Magwood which was heard in the USDC, District of South Carolina (Charleston) (Case No.: 2:11-cr-02037-19) where Mr. Magwood was charged with Sell, Distribute or Dispense Crack Cocaine. NLPA prepared research and motions to defend his case at trial which resulted in the jury returning a NOT GUILTY VERDICT!

Britt, C – NLPA assisted the office of Charles Murray in the preparation of a motion for DNA testing to aid in the defense of Mr. Britt’s case on a post-conviction motion which was filed in the State of Florida (Hillsborough County) (Case No. 02-CF-15542). The court granted that motion permitting the DNA evidence to be retested for use in the post-conviction proceedings. Hopefully this will be beneficial to another victory with the actual post-conviction motion itself!

Bowdoin, T  – NLPA assisted the office of Charles A. Murray, Esq in the preparation of research for Mr. Bowdoin’s sentencing. His case was heard in the USDC, District of Columbia (Washington, DC) Case No: 1:10-cr-00320-1 where Mr. Bowdoin was charged with Fraud by Wire, Radio or Television; Manipulative and Deceptive Devices; Securities Violation – Sale of Unregistered Securities. Mr. Bowdoin had plead guilty and his PSI listed a guideline range of 168-210 months. However, at sentencing the court instead imposed 78 months – saving him 11 YEARS in prison!

Maldonado, S – NLPA assisted counsel in the preparation of sentencing research in the case of Mr. Maldonado which was heard in the USDC, Western District of New York (Rochester) Case No.: 6:11-cr-06166-1. Mr. Maldonado was charged with Conspiracy to Distribute Narcotics; Sell, Distribute or Dispense Narcotics; Unlawful Transport of Firearms. He plead guilty in the case and his guideline range listed him at 360 TO LIFE. However, at sentencing the court imposed a sentence of 300 months – saving Mr. Maldonado a LIFETIME in prison.

Francis, B – NLPA assisted counsel in preparing sentencing research on the case of Bonnie Francis which was heard in the USDC, District of Maryland (Greenbelt) Case No.:8:09-cr-00012-1 where the defendant had been charged with Conspiracy to Distribute and Possess with intent to Distribute Controlled Substances. The defendant entered into a plea agreement in the case and had a guideline range of 120-121 months. However, at sentencing the judge imposed a sentence of 78 months – saving the defendant more than 3 years in prison.

Gibson, C – NLPA assisted Mr. Gibson’s attorney with the preparation of research to aid at his sentencing which was heard in the USDC District of New Mexico (Roswell) Case No.: 5:11-cr-00918-1. Mr. Gibson was charged with Possession with Intent to Distribute (20 Grams or More Crack Cocaine); Felon in Possession of Firearms and had plead guilty in the case. The PSI Report listed his guideline range at 92-115 months. However, at the sentencing hearing the judge imposed a sentence of 63 months – saving Mr. Gibson more than 4 years in prison!

Sheikh, A – NLPA assisted Mr. Sheikh’s attorney in preparing sentencing research to help argue against the guideline range he was facing of 57-71 months. The case was heard in the USDC, Middle District of Tennessee (Nashville) Case No.: 3:10-cr-00260-28 where Mr. Sheikh was charge with Conspiracy to Produce, Use and Traffic in Counterfeit Devices; Conspiracy to persuade another person to alter, destroy, mutilate or conceal an object with the intent to impair the objects integrity for use in an official proceeding. Mr. Sheikh had already entered a plea of guilty in the case. However, the court agreed on a lower sentence of 48 months – saving Mr. Sheikh nearly two years in prison.

Thompson, A – NLPA assisted Mr. Thompson’s counsel in the preparation of research for use at his sentencing hearing. The case was heard in the Alabama USDC Northern District of Alabama (Northeastern) CASE #: 5:11-cr-00239, where Mr. Thompson was charged with Conspiracy to Distribute Cocaine. After entering a plea in the case, the guideline range in his PSI had him listed a sentencing range of 168-210 months. However, the court instead imposed a sentence of 90 months – saving Mr. Thompson TEN YEARS in prison!

Mackey, A – NLPA assisted counsel for Mr. Mackey in the preparation of sentencing research. His case was heard in the USDC, Northern District of Georgia (Atlanta) Case No.: 1:10-cr-00310-1 where Mr. Macky had been charged with Attempt and Conspiracy to Commit Mail Fraud; Fraud by Wire, Radio or Television; Fraud and Swindles. The defendant was convicted at trial and was facing a sentencing guideline range of LIFE. However, at sentencing the court instead imposed a sentence of 326 months – saving Mr. Mackey a LIFETIME in prison.

Rigsby, R – NLPA assisted Mr. Rigsby in the preparation of an administrative request for CTC / Halfway House placement. Mr. Rigsby had been convicted in the USDC, Southern District of Ohio (Columbus) Case No.: 2:10-cr-00083 and sentenced to sixty (60) months plus five (5) years supervised release. Based upon the request filed, the Bureau of Prisons agreed that instead of reviewing Mr. Rigsby for placement into a CTC / Halfway house facility 6 to 12 months prior to his release date, that they would review him for such at 17 to 19 months prior to his release date.

Federal Drug Charges

Federal Drug Charges

Remedies Available to a Defendant who has been Convicted of a Conspiracy when there was Insufficient Evidence to Support the Conviction – Another NLPA victory!

Virtually every day we are contacted by both defendants and legal counsel who raise the complaint that they or their clients have been convicted at trial in a conspiracy case where there was essentially no evidence to support the conviction returned by the jury. The case of United States v. Richards (Case No. 89-10264, 9th Cir. 1991) is an excellent example of this type of situation and the remedies that are available to a defendant who faces this dilemma.

Mr. Richards was convicted in a jury trial in United States District Court for the Eastern District of California of conspiracy to import marijuana and cocaine, aiding and abetting the importation of marijuana, possession of marijuana with intent to distribute, and traveling in foreign commerce to promote unlawful activity. Approximately 2 ½ years after the alleged crimes occurred, the DEA obtained a series of search warrants to search Mr. Richards’ residence. During the course of the search of his residence, agents found hidden in a fake vent in the wall of the den four kilograms of cocaine and triple beam scale. During the course of trial, the government was unable to produce any evidence to prove beyond a doubt that Mr. Richards knew of the existence of the cocaine being hidden in the vent or that it was his cocaine. Nonetheless, the jury found Mr. Richards guilty and he was subsequently sentenced to a term of confinement of 35 years.

Subsequent to his incarceration, Mr. Richards then contacted NLPA and asked that NLPA assist his counsel in the research and preparation of the appeal of his conviction. NLPA prepared the appeal brief which was then filed by Mr. Richards’ counsel in the Court of Appeals for the Ninth Circuit. The primary issue raised on appeal was whether or not there was sufficient evidence to justify Mr. Richards’ conviction.

On January 28, 1991, the Court of Appeals for the Ninth Circuit reversed Mr. Richards’ conviction. In its decision, the Court of Appeals agreed that “The evidence produced at trial was that the search of the house occupied by Richards and his wife revealed four kilograms of cocaine in a vent in the wall. There was no evidence that either Richards or his wife knew of the presence of the cocaine. The government suggests no evidence indicating any control or knowledge of the cocaine on the part of Richards… There is not sufficient evidence that Richards possessed the cocaine. We reverse.”

As the result of NLPA’s assistance, Mr. Richards has been saved the hardship of serving a 15-year term of confinement.

If you or your client are facing a situation where you believe that the government has obtained a conviction in a conspiracy case where there was insufficient evidence to support a conviction and you desire to have assistance in pursuing your post-conviction rights, contact National Legal Professional Associates.

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.

Another NLPA Victory! Career Offender Sentence Vacated

Many of you are aware of the serious damage at sentencing that can result from a court’s application of the Career Offender enhancement under § 4B1.1 of the United States Sentencing Guidelines. An even greater concern arises when the enhancement is incorrectly applied. Recently, National Legal Professional Associates, working with counsel, successfully challenged a defendant’s status as a career offender under 28 USC § 2255 thereby reducing its client’s sentencing exposure by 20 years.

Section 4B1.1 provides that:

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

The Section then provides for an increase in the criminal history category and an upward adjustment in the offense level if those three factors are satisfied. In the case of United States v. Dudley, U.S.D.C. Ala. (1995), the probation office relied upon two previous drug possession convictions to support the career offender enhancement. As a result, the defendant’s sentence for the controlled substance offense, which formed the basis of his current conviction, was increased from the otherwise applicable sentencing range of 21-27 months to 262-327 months.

However, § 4B1.2 of the guidelines limits the definition of a “controlled substance offense” as one under federal or state law which prohibit “the possession of a controlled substance with intent to manufacture, import, export, distribute, or dispense.” NLPA’s research revealed that the defendant’s simple possession convictions could not satisfy the guidelines’ definition, and that the career offender enhancement was erroneously applied in the defendant’s case. Working with counsel, NLPA included this argument as a due process violation in the defendant § 2255 motion. After the attorney filed the motion with the district court, both the government and the court agreed that defendant should be resentenced absent the career offender enhancement. Accordingly, when the defendant appears for resentencing in November, 1995, approximately 240 months of his sentence will be vacated.

Once again, NLPA has demonstrated its ability to identify key elements of an individual’s sentence or conviction which are susceptible to constitutional challenge, research the controlling case law, and draft the argument in such a way to obtain substantial relief for your client. At NLPA, we will pleased to apply our expertise and dedication to your client’s case to ensure that your client serves only that sentence which is actually authorized by law.

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.

Another NLPA Victory! Career Offender Sentence Vacated

Another NLPA Victory! Career Offender Sentence Vacated

Many of you are aware of the serious damage at sentencing that can result from a court’s application of the Career Offender enhancement under § 4B1.1 of the United States Sentencing Guidelines. An even greater concern arises when the enhancement is incorrectly applied. Recently, National Legal Professional Associates, working with counsel, successfully challenged a defendant’s status as a career offender under 28 USC § 2255 thereby reducing its client’s sentencing exposure by 20 years.

Section 4B1.1 provides that

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

The Section then provides for an increase in the criminal history category and an upward adjustment in the offense level if those three factors are satisfied. In the case of United States v. Dudley, U.S.D.C. Ala. (1995), the probation office relied upon two previous drug possession convictions to support the career offender enhancement. As a result, the defendant’s sentence for the controlled substance offense, which formed the basis of his current conviction, was increased from the otherwise applicable sentencing range of 21-27 months to 262-327 months.

However, § 4B1.2 of the guidelines limits the definition of a “controlled substance offense” as one under federal or state law which prohibit “the possession of a controlled substance with intent to manufacture, import, export, distribute, or dispense.” NLPA’s research revealed that the defendant’s simple possession convictions could not satisfy the guidelines’ definition, and that the career offender enhancement was erroneously applied in the defendant’s case. Working with counsel, NLPA included this argument as a due process violation in the defendant § 2255 motion. After the attorney filed the motion with the district court, both the government and the court agreed that defendant should be resentenced absent the career offender enhancement. Accordingly, when the defendant appears for resentencing in November, 1995, approximately 240 months of his sentence will be vacated.

Once again, NLPA has demonstrated its ability to identify key elements of an individual’s sentence or conviction which are susceptible to constitutional challenge, research the controlling case law, and draft the argument in such a way to obtain substantial relief for your client. At NLPA, we will pleased to apply our expertise and dedication to your client’s case to ensure that your client serves only that sentence which is actually authorized by law.

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.

Remedies Available to a Defendant who has been Convicted of a Conspiracy when there was Insufficient Evidence to Support the Conviction – Another NLPA victory!

Virtually every day we are contacted by both defendants and legal counsel who raise the complaint that they or their clients have been convicted at trial in a conspiracy case where there was essentially no evidence to support the conviction returned by the jury. The case of United States v. Richards (Case No. 89-10264, 9th Cir. 1991) is an excellent example of this type of situation and the remedies that are available to a defendant who faces this dilemma.

Mr. Richards was convicted in a jury trial in United States District Court for the Eastern District of California of conspiracy to import marijuana and cocaine, aiding and abetting the importation of marijuana, possession of marijuana with intent to distribute, and traveling in foreign commerce to promote unlawful activity. Approximately 2 ½ years after the alleged crimes occurred, the DEA obtained a series of search warrants to search Mr. Richards’ residence. During the course of the search of his residence, agents found hidden in a fake vent in the wall of the den four kilograms of cocaine and triple beam scale. During the course of trial, the government was unable to produce any evidence to prove beyond a doubt that Mr. Richards knew of the existence of the cocaine being hidden in the vent or that it was his cocaine. Nonetheless, the jury found Mr. Richards guilty and he was subsequently sentenced to a term of confinement of 35 years.

Subsequent to his incarceration, Mr. Richards then contacted NLPA and asked that they assist his counsel in the research and preparation of the appeal of his conviction. NLPA prepared the appeal brief which was then filed by Mr. Richards’ counsel in the Court of Appeals for the Ninth Circuit. The primary issue raised on appeal was whether or not there was sufficient evidence to justify Mr. Richards’ conviction.

On January 28, 1991, the Court of Appeals for the Ninth Circuit reversed Mr. Richards’ conviction. In its decision, the Court of Appeals agreed that “The evidence produced at trial was that the search of the house occupied by Richards and his wife revealed four kilograms of cocaine in a vent in the wall. There was no evidence that either Richards or his wife knew of the presence of the cocaine. The government suggests no evidence indicating any control or knowledge of the cocaine on the part of Richards… There is not sufficient evidence that Richards possessed the cocaine. We reverse.”

As the result of NLPA’s assistance, Mr. Richards has been saved the hardship of serving a 15-year term of confinement.

If you or your client are facing a situation where you believe that the government has obtained a conviction in a conspiracy case where there was insufficient evidence to support a conviction and you desire to have assistance in pursuing your post-conviction rights, contact National Legal Professional Associates.