Sentencing

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					                           SENTENCING RESEARCH
                                      By Ashley Webb

PURPOSE

        The purpose of this guide is to provide information for attorney’s who do not
specialize in criminal law, but may have a client who comes into trouble in the criminal
area. It is also a guide for criminal attorneys who need to show their clients something to
explain the process.
        This guide will take a look at the process for both State criminal charges and
Federal criminal charges.

STATE LEVEL CRIMES

Process:

   I.      The first thing as an attorney and/or client is to look at the complaint or the
           indictment.
           a. If the defendant has already been indicted, then read the indictment. If the
               defendant has not been indicted then go ahead and proceed by looking into
               the complaint or whatever materials are available that describes what to
               anticipate

   II.     Look at the statutes for the crime to see what level of offense is being charged.
           a. NOTE: Some crimes have variations of the level based on certain
              characteristics of the crime. This is especially true for crimes involving
              drugs. The amount of drugs will factor into what level of offense is being
              charged.
           b. See RSMo §57.016 to see all the possible classifications:
                    i. Class A Felonies;
                   ii. Class B Felonies;
                  iii. Class C Felonies:
                  iv. Class D Felonies;
                   v. Class A Misdemeanors;
                  vi. Class B Misdemeanors;
                 vii. Class C Misdemeanors
                viii. Infractions
           c. If the offense is not classified see RSMo § 557.021 for further guidance to
              what classification the offense should be.

   III.     Now that you know what level is being charged, figure out what that means
           for sentencing purposes.
           a. See RSMo §558.011
                   i. Class A felony = a term not less than 10 years, and not to exceed
                      30 years or life.




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                ii. Class B felony = a term of years not less than 5 years, and not to
                    exceed 15 years.
              iii. Class C felony = a term not to exceed seven years.
               iv. Class D felony = a term not to exceed four years.
                v. Class A misdemeanor = a term not to exceed 1 year.
               vi. Class B misdemeanor = a term not to exceed 6 months.
              vii. Class C misdemeanor = a term not to exceed 15 days.

IV.     Next, look into what is the minimum percentage that is required to be served
        with that classification.

V.      Then, calculate a ballpark figure of how much prison time the defendant is
        potentially looking at.

VI.     Finally, it is time to talk to the prosecutor and use your negotiation skills.
        Things to think about:
        a. Is there some other way to make both sides happy:
                 i. For example there are things called Suspended Imposition of
                     Sentence (S.I.S.) and Suspended Execution of Sentence (S.E.S.)
                          1. These are where the defendant pleads guilty to the crime
                             charged and agrees to be incarcerated for 120 days. At the
                             end of 120 days a report is sent to the judge and if the
                             report comes back positive the defendant is released on
                             probation.
                                  a. The difference in an S.I.S. is that after the defendant
                                      is released they no longer have a conviction on their
                                      record. (It’s called a 120 day shock). With an
                                      S.E.S. the conviction stays.
                                           i. See RSMo 559.036 for information on
                                              parole.

VII.    Other things to think about
        a. Is the client being charged with more than one crime?
                i. If so, figure out the sentencing if the sentence is to be served
                   concurrently or consecutively.
                       1. This can also be negotiated with the Prosecutor.
        b. REMEMBER: a plea bargain is still up to the judge. The judge does not
           have to follow the plea bargain, but will have to give the defendant the
           option to withdraw his plea if it is decided not to follow the agreement.

VIII.   Example:
        a. Client comes into your office with an indictment he received for violating
           the RSMo 195.214 (Distribution of a controlled substance near schools).
           According to the Probable Cause statement your client sold 7 grams of
           cocaine to a confidential informant in the playground of a school.
               i. Look at the statute.



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                       1. According to the statute the classification of this offense is
                            a Class A Felony because it was done near a school.
              ii.   Look at RSMo § 558.011 to find out what the minimums and
                    maximums are.
                       1. According to the statute a Class A felony is a term not less
                            than 10 years and not more than 30 years or life.
             iii.   Look to the Missouri Official Manual or the “Blue Book” to see
                    what the percentages are for a Class A felony.
                       1. According to the Blue Book a defendant convicted of a
                            Class A Felony must serve at least 85% of the sentence.
                       2. So, if your client receives the 10 year minimum then they
                            will serve at least 8 ½ years at a minimum.
              iv.   Talk to the Prosecutor and start negotiating.
                       1. If your client is a first offender see if the Prosecutor would
                            be willing to look into doing a 120 shock with an S.I.S. or
                            an S.E.S.
                       2. See if the Prosecutor would be willing to use your client as
                            a confidential informant in order to agree to a plea bargain
                            of the minimum sentence.
              v.    Talk to your client and let them see these formulas and how much
                    time they are looking at,
                       1. There is a reason why over 90% of cases never go to trial,
                            and that is because most of them plea bargain out before it
                            gets that far.

FEDERAL INDICTMENT

I.     Start off the same with looking to see what the charges are.
       a. With a federal crime sometimes a client may simply receive a notice that
           they are under investigation and sometimes they will be given notice that
           they have been indicted.

II.    Go to the statutes just as in a state case. Look to see what degree of crime is
       being charged.

III.   Look to see what that classification of the offense’s maximums and
       minimums are in Federal court.
       a. 18 U.S.C.A. § 3559classification of offenses
               i. Class A felony = life imprisonment, or the maximum penalty is
                  death
              ii. Class B felony = 25 years or more
             iii. Class C felony = 25 years but 10 or more years
             iv. Class D felony = Less than 10 years but 5 or more years
              v. Class E felony = less than 5 years but more than 1 year
             vi. Class A misdemeanor = 1 year or less but more than 6 months
            vii. Class B misdemeanor = 6 months or less but more than 30 days



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          viii. Class C misdemeanor = 30 days or less but more than 5 days
            ix. Infraction = 5 days or less
             x. NOTE: Statute also has more information whether the crime was a
                 violent felony.
      b. 18 U.S.C.A. § 3553describes the things that are supposed to be
         considered when imposing a sentence:
              i. the nature and circumstances of the offense and the history and
                 characteristics of the defendant;
             ii. the need for the sentence imposed
            iii. the kinds of sentences available;
            iv. the kinds of sentence and the sentencing range established
             v. any pertinent policy statement
            vi. the need to avoid unwarranted sentence disparities among
                 defendant with similar records who have been found guilty of
                 similar conduct; and
           vii. the need to provide restitution to any victims of the offense.

IV.   You must also look to the Federal Sentencing Guidelines. The following is a
      brief rundown of how do figure it out:
      a. Find the crime charged in the guidelines. The crime will be given a base
          level of the offense.
      b. Go to the front chart and look at that level.
               i. See if the level will go up based on prior offenses.
                      1. Chapter 4 of the Federal Sentencing Guidelines gives the
                          formula for this:
                              a. Add 3 points for each prior sentence of
                                  imprisonment exceeding one year and one month.
                              b. Add 2 points for each prior sentence of
                                  imprisonment of at least sixty days not counted
                                  above.
                              c. Add 1 point for each prior sentence not counted
                                  above up to a total of 4 points.
                              d. Add 2 points if the defendant committed the instant
                                  offense while under any criminal justice sentence,
                                  including probation, parole, supervised release,
                                  imprisonment, work release, or escape status.
                              e. Add 2 points if the defendant committed the instant
                                  offense less than 2 years after release from
                                  imprisonment on a sentence counted under (a) or (b)
                                  or while in imprisonment or escape status on such a
                                  sentence. If 2 points are added for item (d), add
                                  only 1 point for this item.
                              f. Add 1 point for each prior sentence resulting from a
                                  conviction of a crime of violence that did not
                                  receive any points under (a), (b), or (c) above
                                  because such sentence was considered related to



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                                  another sentence resulting from a conviction of a
                                  crime of violence, up to a total of 3 points for this
                                  item. Provided, that this item does not apply where
                                  the sentences are considered related because the
                                  offenses occurred on the same occasion.

V.      Now you have your starting level
       a. NOTE: With a federal offense you do not have percentages to be served
          based on the classification of the offense. Basically, in Federal Court
          whatever sentence you get, that is the sentence you will serve.

VI.    RACE TO THE U.S. ATTORNEY’S OFFICE
       a. With federal cases (especially drug cases) it is a race to get our client in
          the door in order to get a proffer interview.
               i. A proffer interview is when the defendant signs an agreement to be
                  COMPLETELY honest with the FBI agents assigned to the case.
                  If needed, the defendant agrees to testify in court against any co-
                  defendants.
                       1. In return the FBI agents agree to not increase the charges or
                           add any charges based on the conversation. The U.S.
                           Attorney agrees to cut the base line of sentencing in half.
                                a. That amount could increase the more the defendant
                                    helps. So, if the defendant testifies in court against
                                    a co-defendant, the amount of time cut increases. If
                                    the defendant helps introduce the FBI agents to a
                                    drug ring, then amount of cut increases.
                                b. PLUS this throws the Statutory maximums and
                                    minimums out the window.
              ii. It is almost always in the best interest of the defendant to cooperate
                  with the Feds.
VII.   Example:
       a. Client walks into your office with an indictment where he has been
          charged with selling 1 kilogram of “crack” cocaine to a confidential
          informant. Your client has been convicted 1 time before and sentenced to
          1 year in prison, but has no other criminal history.
               i. Look at the indictment and see what exactly is being charged.
              ii. Go to that statute to find out what classification of crime it is.
                       1. 21 U.S.C.A. § 841 states that anyone caught distributing 50
                           grams or more of a mixture or substance which contains a
                           cocaine base will be sentenced to a term of imprisonment
                           which may not be less than 10 years or more than life.
             iii. Go to the sentencing guidelines.
                       1. According to the drug quantity table the amount charged
                           fits into the category of more than 500 grams but less than
                           1.5 KG of a cocaine base. This has a base level of 36.




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                           2. Now you must look to the criminal history. According to
                               that formula 2 points must be added because the client has
                               a prior sentence of imprisonment of at least sixty days but
                               not more than one year and a month.
                           3. Now go to the table and go down to level 36 and over to 2
                               points.
                                   a. 210-262 months. (17 ½ years- 22.8 years)
                   iv. You, your client, and the U.S. Attorney must decide whether you
                       are going to do a proffer interview. If so this amount is cut in ½
                       and the statutory minimums go out the window.
                           1. That means the client would not longer have to serve a
                               minimum of 10 years and could be looking at between 8-9
                               years.

CONCLUSION

        By doing this trial you should be able to get a basis to help your client. I would
strongly recommend however that you seek advice from a local criminal defense
attorney. Typically the prosecutors and U.S. Attorney’s in the area are used to dealing
with these attorneys and it may help to have one on your side who does this for a living.
Also this is just the base procedure. Things like whether they can be considered a career
offender and thus there minimums and maximums automatically go up or whether the
state has a 3 strikes policy (which is similar to career criminal.) Thus, this is not a be-all
end-all research trial, but a starting point.




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