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924(c) Convictions and Career Offender Sentencing Keith A. Williams.

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Presentation on theme: "924(c) Convictions and Career Offender Sentencing Keith A. Williams."— Presentation transcript:

1 924(c) Convictions and Career Offender Sentencing Keith A. Williams

2 INTRODUCTION

3 18 U.S.C. 924(c): mandatory, consecutive sentences for using, carrying, or possessing a gun as part of a crime of violence or a drug trafficking crime Career Offender: Guideline 4B1.1: long sentences for defendants with prior convictions for crimes of violence or controlled substance offenses

4 Recent changes in the career offender guideline give MUCH longer sentences to 924(c) convictions when the defendant is a career offender A few of us have been caught unaware... leading to weeping, wailing, and gnashing of teeth!

5 SOME BRIEF HISTORY

6 The Good Old Days A 924(c) conviction got a flat, mandatory sentence of 5, 7, or 10 years, consecutive to any other sentence for any other conviction 5 if you just carried the gun; 7 if you brandished it; 10 if you shot it The Guidelines said: the Guideline sentence was the 5, 7, or 10 years given by 924(c) The Guidelines added: career offender sentencing does not apply to 924(c) convictions

7 The first change: in (c) amended to say “not less than” 5, 7, or 10 years Which meant: 5, 7, or 10 years was your minimum And life was your maximum The Guidelines were changed to say: the Guideline sentence was the 5, 7, or 10 years given by 924(c). Anything higher would be an upward departure. The Guidelines added: career offender still does not apply to 924(c) sentences.

8 The second change: in 2002 The Guidelines were amended to say: career offender sentencing DOES apply to 924(c) convictions – in an especially harsh way “Promulgation of this amendment reflects the Commission’s decision that the amendment... is necessary to comply appropriately with [the Act to Throttle the Criminal Use of Guns]”

9 PRACTICAL APPLICATION (also known as “avoiding the ineffective assistance claim”)

10 Exercise #1 Defendant is facing a two-count indictment: 1) bank robbery and 2) carrying a firearm during the bank robbery under 924(c) Defendant is a career offender, with 2 or more prior convictions for crimes of violence and/or controlled substance offenses Defendant pleads guilty to the 924(c) count, and the Government dismisses the bank robbery count. He gets 3 points off for acceptance of responsibility. What is his sentencing range?

11 Old law: 60 months (absent an upward departure). New law: months

12 2K2.4(c) - if the defendant is convicted under 924(c) and he is a career offender, the guideline sentence shall be determined under 4B1.1(c) 4B1.1(c) - the applicable guideline range shall be determined as follows:

13 (1) If the only count of conviction is [924(c)], the applicable guideline range shall be determined using the table in subsection (3) (3) Career Offender Table for 924(c) Offender If no acceptance of responsibility: then life If 2-point acceptance of responsibility, then 292 – 365 months If 3-point acceptance of responsibility, then 262 – 327 months

14 Exercise #2 Assume the same defendant pleads guilty to both the bank robbery and the 924(c) charge. What is his sentencing range? 4B1.1(c)(2) - 2 choices: Behind door #1: add 60 months to the normal bank robbery guideline range for a career offender Behind door #2: use the draconian table shown on the last slide

15 Door #1 What is the normal bank robbery guideline range for a career offender? Bank robbery has a max sentence of 25 years 4B1.1(b): for a career offender convicted of an offense with a max sentence of 25 years, use offense level 34 and criminal history category VI Minus 3 for acceptance of responsibility 31, VI = 188 – 235 months Add 60 months: 248 – 295 months

16 Door #2 4B1.1(c)(3) career offender table If no acceptance of responsibility, then life If 2-point acceptance of responsibility, then 292 – 365 months If 3-point acceptance of responsibility, then 262 – 327 months For our example: months

17 Two choices Door #1 has 248 – 295 months Door #2 has 262 – 327 months Use the one with the longer minimum Here: door #2: 262 – 327 months

18 Exercise #3 Defendant is charged with 1) conspiracy to possess and distribute more than 50 grams of crack and 2) brandishing a firearm in relation to a drug trafficking crime He is a career offender. He pleads guilty to both counts and gets 3 points for acceptance What is his sentencing range?

19 4B1.1(c)(2) - two choices: Door #1: add 84 months to the normal crack conspiracy guideline range for a career offender 84, not 60, because this is a brandishing example, not carrying; Door #2: use the table from 4B1.1(c)(3) shown earlier

20 Door #1: Adding 84 months to the normal range What is the normal crack conspiracy guideline range for a career offender? Crack conspiracy (more than 50 grams) has maximum sentence of life 4B1.1(b): for a career offender convicted of an offense with a max sentence of life, use offense level 37 and criminal history category VI Minus 3 for acceptance of responsibility 34, VI = 262 – 327 months Add 84 months: 346 – 411 months

21 Door #2: Using the 4B1.1(c)(3) career offender table: If no acceptance of responsibility, then life If 2-point acceptance of responsibility, then 292 – 365 months If 3-point acceptance of responsibility, then 262 – 327 months For our example: months

22 Door #1: Door #2: 262 – 327 Use the one with the highest minimum Final answer: 346 – 411 months

23 CONCLUSION Point: why plead guilty to this much time? Take these to trial! Counterpoint: under the 4B1.1(c)(3) table, three points of acceptance reduces the minimum sentence from 360 months to 262 months (8-year reduction) Counter-Counterpoint: 262 months is still 22 years! Depending on your client’s age, 8 more years might not make much of a difference


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