29 October 2004


In the morning I have two cases. The first is a client accused of having drugs in jail. The prosecution has not gotten its lab report back yet so the judge grants them a continuance. It doesn't really effect my client too much because she is serving a sentence while waiting for this trial.

The second case is an 18 year old kid accused of stealing all sorts of stuff. Not much doubt about it. There are fingerprints, stuff found by the police, stuff found by the staff of Client's halfway house, and a confession. Still, I get the prosecutor to drop three charges (three felonies get certified to the grand jury).

In the afternoon I have to attend the first day of a federal CLE which is mandatory for those who are on the federal court appointed list. It starts out with someone from the federal PD's going over Blakely. Not much said that I hadn't seen a loonngg time ago at Sentencing Law & Policy.

Then we got a lecture by the head of Pretrial services and another PD about how we should contact pretrial and our client before we first hearing. Of course, we're all sitting there thinking that this is great in theory except for the fact that most of the time the call from the clerk gives you such a short time to react that it just ain't gonna happen. The PD pointed out that there is something out there called PACER which is supposed to let us get info about our clients. I'm going to have to figure out what that is if the federal court ever gives me another case.

The next lecturer is talking about the guidelines. It's a power point presentation (which is a bad thing) but she does start out giving us some useful information like the Sentencing Commission's web site (www.ussc.gov), where you can get all the various permutations of the guidelines over the years, and the number for the helpline (202.502.4545). Then she went through various possible applications of the guidelines depending upon when the alleged crime occurred and different applications of the various upward sentencing "enhancements" (for instance, if your client walks away from a halfway house it is a crime of violence). The lecture started to go long and the room started getting really warm. I, being the idiot I am, have chosen a seat on the front row and I'm fighting like crazy to keep from falling asleep; the lady must have thought I was nuts because I kept shifting my seat and moving my head so I wouldn't doze off.

After a short break (during which somebody cranked the air) we restart with another guidelines lecture. First we are spoken to by a probation officer who knew the guidelines so well she spoke in a bunch of numbers and letters which I'm sure made absolute sense to her but left my head spinning a little. Then a lawyer got up and went over the firearm enhancements. The most disturbing part of this was being told that, at least in the 4th Circuit, the Defense must prove that the connection the drugs and guns alleged by the prosecution is improbable (can you say burden shifting boys and girls? I knew you could).

Next we were spoken to by a judge who tells us that he originally found the guidelines unconstitutional way back when they were first put in place but that appellate judges didn't agree with him. He basically asks us to bring more arguments in front of him as to various sentencing factors, in particular as to drug weight and amount of a fraud. It's a nice thought but not really all that practical considering the ability of the prosecution to punish a federal Defendant for doing such a thing.

After a short break we are addressed by a few more people about the guidelines. Another judge addresses us and tells us that he wasn't around when the guidelines came into existence but he thinks that in a number of cases they are too harsh. He outlines the Rybicki, 96 F.3d 754, 5 part analysis to see if a departure is allowed (my impression was OMG how does anybody qualify under that analysis?). He goes on to remind us all that there must be a "principled ground of departure." Basically these are criminal history departures (i.e if your client's entire prior record consisted of reckless driving and habitual offender traffic offenses), medical reason departures (which elicited from a lawyer the warning "but remember BOP will always claim it can handle any medical condition"), and the combination of factors departure (a bunch of factors, none sufficient of and by itself).

A couple more people spoke. A federal prosecutor got up and went over some enhancements. Most of it was typical stuff about guns and violence. However, one part did stick out. It's a power point presentation (again, a bad thing) and as one slide flashes up it lists a number of factors which she then tells us out loud, except for one. The last enhancement listed was 18 USC 117 "White Slavery." You've got to be kidding me?!? "White Slavery"?? The only reason I can think of that this term is still used is because it has become a term of art. That's got to be it. Either that or there's still some really interesting (and very wrong) statutes out there. I can just see the argument now: "That doesn't apply to my client, your honor, he only transported oriental women to Virginia for prostitution. There was nary an occidental woman in sight." Think I could get a strict construction of that statute?

Oh yeah, we also found out that the 4th Circuit has ruled pick-pocketing (larceny from a person) is a crime of violence for enhancement purposes.

Then came the most joyous moment of the day. A PD from the D.C. office came in and talked for a while. He called us all out. Basically he said, in a less direct manner, that we were all slacking because the rate of downward departure in our district is a third of what it is around the country. A lot of heads kind of snapped up when he said that but everybody held their collective tongues. The only person who said anything was the judge who pointed out the fact that we are in the 4th Circuit might have a lot to do with the fewer downward departures.

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