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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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.

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.

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.