Articles Posted in Eastern District of Texas

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Recently the United States Supreme Court decided, in the case of Sessions v. Dimaya, that that the federal definition of the term “crime of violence” is unconstitutionally vague.  That phrase is defined in 18 U.S.C. Section 16 (b) and may be found here.  Readers may note that the definition struck down as unconstitutionally vague is identical to the definition of “crime of violence” found in 18 U.S.C. section 924, which criminalizes the act of possessing a firearm in furtherance of “drug trafficking crime” or a “crime of violence.”

The Court in Dimaya was following up on their 2015 opinion in Johnson v. United States, which struck down  so called “residual clause” of the Armed Career Criminal Act on the grounds of vagueness.  The Armed Career Criminal Act’s residual clause defined the term “violent felony” in such a way so as to render it void for vagueness.  The Dimaya court extended that rationale to the “crime of violence” definition embedded in federal law at 18 U.S.C. Section 16(b).

Though the U.S. Supreme Court in  Dimaya did not expressly rule or consider a constitutional challenge to the 924(c) provision criminalizing the possession of a firearm in furtherance of a crime of violence, the reasoning employed clearly raises significant questions as to the continued vitality of that section of 924(c).  It would appear it may offer relief to people indicted in Federal Court or those convicted but whose have not become final.  The question as to whether it will be the basis on which to file a post conviction habeas writ for those whose convictions have become final will be the topic of a future post

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In 2014, the United States Sentencing Commission approved an Amendment to the United States Sentencing Guidelines (The Guidelines).  The Guidelines are the mechanism by which people are ordinarily sentenced in Federal criminal cases.  The Amendment lowered the so called Base Offense Level for many types of drugs by two points and it became effective on November 1, 2014.  The United States Sentencing Commission promulgated a policy statement making the reduction retroactive. The fact that the amendment is retroactive allows for those already sentenced to in a federal drug case come back to the Court and request a sentence reduction.

What does this mean?  It means that  many individuals sentenced in federal drug conspiracy cases prior to November 2014 received a lengthier Guidelines sentence than they would receive now.  This is due to the two point base offense level reduction authorized by the Sentencing Commission and approved by Congress.  The law allows for people sentenced prior to the November 2014 amendments to petition the U.S. District Court to reduce their existing sentence based on the changed base offense level.  The two point reduction may sound almost insignificant, but a two point reduction can results in a sentence lowered by many months or even years.

Do I qualify?  Does a family member qualify?

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The United States Court of Appeals for the Fifth Circuit recently issued an opinion that may significantly impact the way that Federal drug prosecutions are carried out in Texas.  On October 15, 2015 the Court decided United States v. Haines, No. 13-31287, 2015 WL 6080523. The Haines Court held that the Sixth Amendment to the U.S. Constitution requires that a  jury make a defendant specific finding, beyond a reasonable doubt,  of the drug quantity to each individual defendant to establish the  statutory minimum sentence.

Under the law as it existed prior to Haines, the only question for the jury to decide concerning drug quantity was the amount involved in the overall scope of the conspiracy.  The question of the amount applicable as to each individual defendant was a sentencing question for the Court on a lower standard of proof.  In the post Haines world, if the Government seeks to convict someone of  federal conspiracy to possess with the intent to distribute drugs in an amount that carries enhanced statutory minimum sentences, the Government must prove that the individual person involved is personally responsible for an amount of drugs that triggers the statutory enhancement.  For example, under 21 United States Code section 841(b)(1)(A), a conspiracy involving 5 kilograms or more of  a cocaine mixture subjects a person to a mandatory statutory minimum of ten years imprisonment.

Prior to Haines, to subject someone to that mandatory minimum sentence, all the Government would need to prove is that they were guilty of a conspiracy to possess with the intent to distribute, and the the overall scope of the conspiracy involved 5 kilograms or more.  Now, to subject someone to that mandatory minimum, they must proved not only guilt as the the conspiracy, but also that the individual person is personally responsible for an amount sufficient to trigger the enhanced minimum penalty.

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972 369 0577

Derk Wadas

The  Federal Drug Conspiracy laws establish a so called “mandatory minimum” of a certain number of years in prison upon conviction and sentencing. depending upon the amount of drugs involved.  For example, 5-40 years in prison with a minimum of five or 10 years to Life in prison   Essentially, it means that if one is convicted of a dug conspiracy, one is required to serve the mandatory minimum without regard to applicable sentence under the U.S. Sentencing Guidelines

Is the mandatory minimum really “mandatory.”  For many, the answer is clearly, no.  There are several mechanisms built into the law that allow people to avoid, in some cases, the mandatory minimum requirements.

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972 369 0577

A Federal criminal case is very different than a state criminal case.  There exists a separate set of laws and processes that must be understood and carefully considered.