I have represented hundreds of people facing federal charges and can help you navigate the complex and bewildering process attendant to federal prosecution.
Many federal criminal practitioners act as though federal defense is impossible, and will do anything to avoid a fight with the U.S. Attorney’s Office. They will try to bully you into taking the first terrible plea offer they get. I’m not like that. If we need to fight your case, I’m prepared to go the distance.
In my career I have handled all sorts of cases and I have pushed them as hard as I can. I’ve litigated scores of dispositive pre-trial motions, come up with new and unique ways to attack charges and taken cases to trial before juries. Here are some common types of cases I have handled, along with some of the many unique challenges that each type brings.
Federal Drug Offenses
These are some of the most common federal charges, and often originate in state court. In Philadelphia, for example, many such cases begin as investigations by local police officers who are cross-designated as special Drug Enforcement Agency agents. As comes to many people as a surprise, you can be charged in state court and later charged with the same act in federal court. You can even be convicted in court courts and given separate sentences.
In federal drug cases, potential penalties are hug. First, without factoring in criminal history, there are certain mandatory minimum sentences that apply to federal drug charges under 21 U.S.C. Sections 841 and 846. Depending on the controlled substance that is involved and the weight, these can be either five or 10 years in prison. If you have a prior conviction for certain drug offenses the prosecutor can file an enhancement under 21 U.S.C. Section 851 that doubles the mandatory minimum (10 or 20 years now). If you have two prior convictions, they can be doubled again (20 years or Life).
Those are just mandatory minimums. The sentencing guidelines (discussed below) also recommend very high sentences for drug crimes. In one particularly nasty provision, if you have two prior convictions for either drug crimes or crimes the commission views as violent (which actually includes a lot of non-violent stuff), you get an automatic recommendation of at least 15 years in prison under the Career Offender Guidelines (Section 4B1.1).
These penalties have a lot to do with what cases end up in federal court. Federal law enforcement and federal prosecutors are notorious for selecting cases just because they have applicable mandatory sentences and then using the threat of a life sentence to coerce a guilty plea. This is reprehensible, and the last Attorney General claimed to put a stop to it. But it still happens.
What this all means is that you have to be very careful when you are facing federal drug charges. Your attorney needs to know exactly what he or she is dealing with and you need to fully understand the situation.
I have tried federal drug cases before juries and won, and I have also successfully challenged the applicability of Draconian Career Offender designations. I can fairly evaluate your case, let you know what your options really are, and, if it is appropriate in your case, I will put the Government through the ringer.
Federal Gun Charges
It is a federal crime to possess a gun or ammunition if you are a “prohibited person” under 18 U.S.C. Section 922. This includes anyone with a felony conviction, although the way “felony” is defined, it actually includes lots of people with only misdemeanor convictions. This also includes people with misdemeanor crimes of domestic violence, even if those convictions were for non-violent things like stalking or telephone harassment or even violations of protective orders. This list even includes people who have never committed any crimes, but were once treated at a mental hospital. It also doesn’t matter how long ago any of this happened.
Just like with drug cases, the possible penalties are outrageous. Under the Armed Career Criminal Act (ACCA), 18 U.S.C. Section 924(e), if someone has three prior convictions for certain crimes and then possesses a gun or ammunition, he faces a mandatory 15-year prison sentence. Similarly, if someone has a gun with him while committing a federal drug offense, even if he is not a prohibited person, he can face a mandatory consecutive sentence on top of what he might get for the drug charge. Under 18 U.S.C. Section 924(c), depending on what happened and your criminal history, these mandatory sentences can range from an extra five years tacked on to your sentence to a mandatory life sentence, after you finish, whatever sentence you got for the drug case.
But all this terrible news doesn’t mean being faced with a federal gun charge is hopeless. For example, here in Pennsylvania the courts have pushed back against prosecutors for bringing gun charges against people with minor criminal records. As I discussed here, some of these prosecutions may be susceptible to a Second Amendment challenge. Furthermore, creative lawyers around the country (including me, but not just me), have been fighting ACCA sentences, 924(c) enhancements and other sentencing provisions with some great success. A good lawyer can turn your situation around.
Criminal Immigration Offenses
Most reasonable people are horrified to learn that it is a federal felony offense to re-enter the United States following a prior removal. But it is a felony under 8 U.S.C. Section 1326. Worse, people convicted of this offense can spend up to 20 years in prison, and the United States Sentencing Guidelines routinely recommend sentences of as many as 8 years in prison for defendants with prior criminal convictions.
In order to prove a charge of re-entry, the Government just has to show that a defendant (1) is present in the U.S.; (2) was previously removed from the U.S.; and (3) does not currently have legal authorization to be in the U.S. This is, generally speaking, a very easy charge for the prosecution to prove. As a result, most defense attorneys don’t even bother to attempt to defend against these charges. They just have their clients plead guilty at the first opportunity.
Contrary to popular belief though, there are ways to fight these charges. For example, some people can claim what is called derivative citizenship. No one who is a citizen of the United States can be charged or convicted of illegally re-entering the country after deportation. But some people are citizens and don’t even know it. If you are born on American soil, you’re a citizen. That’s easy. But if you are born abroad, you still can be a citizen automatically depending on the status of your parents. Here’s an easy example, if both of your parents are natural-born U.S. citizens who have lived in the U.S. for their whole lives and you happen to be born while they are on vacation in Canada, you’re automatically a citizen too. There are lots of rules governing this kind of citizenship, and they depend on a bunch of different factors, so I won’t go in to them now. But, suffice it to say for now, many people who were born abroad have legitimate claims to citizenship even though they might have even been deported in the past. A careful lawyer understands this and can identify when this defense is in play.
A defendant facing prosecution under Section 1326 can also, in certain circumstances, challenge the basis of his original deportation. One of the few things the Government must prove in these cases is that you were deported properly. However, few things happen properly in immigration proceedings, and chances are there were mistakes in the underlying removal proceedings. If you can show the right kind of errors happened, you can challenge a re-entry prosecution later.
White Collar Crimes
Offenses on Federal Territory
The unfortunate reality of federal practice is that most defendants are found guilty of something, either by a jury or following a guilty plea. Instead of treating this as the status quo, I consider this the worst-case scenario. However, I would be doing my clients a disservice if I wasn’t ready to handle federal sentencing proceedings.
The Sentencing Guidelines
For all federal felony offenses the United States Sentencing Guidelines Manual sets a proposed sentence. These guidelines are written by the United States Sentencing Commission, which is an administrative agency that is overseen by congress. Every year the commission proposes changes to the guidelines, which are then reviewed by congress. If congress does not object to them, they become the new sentencing rules.
When the guidelines were first established by the Sentencing Reform Act of 1984, federal judges were required to follow them. The idea was that the commission would reduce punishment to an actuarial formula based on all sorts of data sets. This was supposed to be apolitical and fairer. The idea was to take mandatory sentencing to the nth degree and take the judges out of the equation entirely.
The operation of the guidelines is pretty complex, but here’s how it generally works. You start with the crime of conviction, which has a base offense level. That’s just a number that the commission has given the offense based on perceived severity. Some crimes that the commission thinks are minor get low number, like an 8, while some crimes get numbers like 36 if the commission thinks they are really bad. The guidelines then make provisions for enhancements and reductions based on a bunch of different factors. For example, if the crime was done in a particularly dangerous way, the guidelines would add levels. Or if you fought your case and went to trial, they might add more. The enhancements vastly outnumber the reductions. Once you do all this math, you get the adjusted offense level, which is the final level of severity. Then you figure out a criminal history score. This is another number based on the number and type of prior convictions you might have. Also, you should keep in mind that prior history also gives you enhancements in the offense level as well, so people with criminal histories will be subject to lots of repetitive enhancements. Once you get an adjusted offense level and a criminal history score, you consult the federal sentencing table, which recommends a sentencing range. Two things are noteworthy about this range, first there are essentially no recommended sentences that omit prison terms, and second, for some insane reason, the commission decided that all federal sentences should be set in terms of months, not years.
Under the old system, the judge would calculate your guidelines, and had to give you a sentence within the range set by the chart. If it said 151-188 months and the judge felt you really deserved probation, he had to give you 151 months.
Fortunately, the Supreme Court eventually found the mandatory guideline scheme to be unconstitutional in United States v. Booker. According to the Court, congress can’t reduce sentencing just to simple math.
Even though the guidelines are now advisory, they still rule the show. Federal judges still have to calculate the guidelines first, and then decide if they want to follow them or not. Real or perceived, many judges feel that if they do not follow the guidelines there is a danger that the sentence might be reversed on appeal. Many judges also have served since before the guidelines were made advisory, and have ingrained ideas about the need to follow the book.
Because of all of this, the first step in any federal case is to understand what the possible guideline range is, and figure out how to reduce it as much as possible. Many lawyers roll over on guideline calculations because they figure they can just ask the judge to disregard the guidelines after Booker. This is a big mistake. The guidelines set the tone, and it is always easier to convince a judge to give a sentence that is closer to what the guidelines recommend. Therefore, a good lawyer will object to various enhancements and ask for various reductions first.
I never assume the sentencing range proposed by the Government is correct. I always fight the guidelines and do everything possible to start at the lowest range available.
Once the guidelines are set, and everyone knows the lay of the land, the difference between a long sentence and a short one often comes down to sentencing advocacy.
I don’t mean to say that a lawyer is able to get a particular sentence for his client, or even that what a lawyer says to the judge is the most important part of the case. A good lawyer helps his client present the right information to the judge to allow him or her to make the right decision about the client.
If you go to federal court and watch a typical sentencing you almost surely will see a lawyer say something like, “Judge give my guy a break. He works hard, he’s got kids, he doesn’t deserve to go to prison.” This is bad advocacy.
Good advocacy doesn’t ask the judge for something, it shows the judge why he or she ought to decide that the client deserves a break. Good advocacy does things like demonstrate the good things a defendant does, by showing how he interacts with his family and what he does with his kids. Good advocacy tells a story about the kind of person the defendant is, and shows why he isn’t just another defendant. Good advocacy shows how a client’s children will suffer if their mom goes to prison because she is the one who gets them ready for school and helps them do their homework.
Needless to say, I care about good sentencing advocacy. When one of my clients is facing a federal sentencing hearing, I work with them and their family well in advance and I do everything I can to help them present the correct information to the judge. I refuse to let a federal judge consider sending someone to prison before they know the person who stands in front of them.