"Armed Career Criminal" & "Career Offender" Flashcards Preview

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Flashcards in "Armed Career Criminal" & "Career Offender" Deck (55)
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1

Doubling Minimum Mandatory (Min Mand.)
What are the requirements for the minimum mandatory sentence to be doubled (list drug amounts)?

21 USC 841
1. D manufacture, distribute, or possess with intent:
Heroin 1 kilo = 10 yrs; 100 g = 5 yrs
Cocaine 5 kilos = 10 yrs; 500 g = 5 yrs
Crack 280 grams = 10 years; 28 g 5 yrs
Mariju. 1000 k/plants = 10 yrs; 100 k/plant = 5 yrs
Meth 50 g/pure 500 g/mix = 10 5 g/pure 50 g/mix = 5yr.
2. D has one or more priors for "felony drug offense"
3. Govt must file Sec. 851 notice

2

Doubling Minimum Mandatory (Min Mand.)
Define "felony drug offense" as required for doubling the minimum?

21 USC 841
Prior "felony drug offense" = any state or fed offense classified as felony involving manufacturing, distribution, possession with intent or SIMPLE POSSESSION

3

Doubling Minimum Mandatory (Min Mand.)
Explain how the minimum mandatory sentence works with guidelines?

Min. Mand. trumps guideline sentencing range. Double min. mand. from 5 to 10 years or 10 to 20 yrs if D has prior drug felony.
If D has 2 or more, mand. life (1 kilo heroin, etc.) If no min. mand. but D has prior Gov't files Sec. 851 Notice, raises stat. max from 20 to 30 yrs.

4

Doubling Minimum Mandatory (Min Mand.)
Is doubling the minimum automatic?
What are the ways you can get less than the min. mand?

NOT AUTOMATIC: Notice before trial/plea under Sec. 851(a) must be given by Gov't. If 851 notice filed, doubles supervised release term. Only Sec. 5K1.1 motions with 18 USC Sec. 3553(e) or Rule 35 motion or safety valve will waive min. mand.
NO TIME LIMIT ON PRIORS

5

Doubling Minimum Mandatory (Min Mand.)
Code Provision - For Doubling Min. Mand.

21 U.S.C. Sec. 841 & 851

6

What is the "Career Offender" code provision?

U.S.S.G. 4b1.1 & 28 U.S.C. Sec. 944(h)

7

What is a "Career Offender"?

1. D at least 18
2. Instant offense is a felony conviction for a "Crime of Violence" or "Controlled Substance"
3. Two prior convictions for "crimes of violence" or "controlled substance offense"

8

Career Offenders
What are the Predicate Offenses to become a "Career Offender"? Define.

"Crime of Violence" any felony for burglary of a dwelling, arson, extortion, other conduct involving serious risk of physical injury or with an element or the use or threat of force. Sec. 924(c) counts as crime of violence.
"Controlled Substance Offense" any state or fed offense involving mfg., distribution, or intent to distribute. NOT SIMPLE POSSESSION; NOT PURCHASE
924(c) convictions = predicate & instant offense with BOL 37 and CHC VI

9

Besides the defined predicate offenses for "Career Offenders" what also counts as Crime of Violence for Career Offender Status?

924(c) Crime -
Crime of violence or drug trafficking crime uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm:
(i) imprisonment of not less than 5 years;
(ii) if the firearm is brandished, imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, imprisonment of not less than 10 years.

10

What're the results of being found to be a "Career Offender"?

CHC VI. Offense level determined by statutory max., which is determined depending on whether Gov't files Sec. 851 enhancement, except for Sec. 924(c) convictions

11

Is "Career Offender" automatic?
Is there a time limit on prior convictions to use for "Career Offender"?

AUTOMATIC ENH: no notice required
15 YR TIME LIMIT ON PRIORS: sentenced or served time on prior within 15 yrs of COMMISSION of instant offense. Both priors counted separately, cannot be "related cases"

12

What is an "Armed Career Criminal"?

1. Violation of 18 U.S.C. Sec. 922(g) - felon in possession of firearm.
2. Three prior convictions for "violent felonies" or serious drug offenses committed on different occasions.*
NOTE: Guideline and min. mand. enh.

13

Armed Career Criminal
What is the test for "separate offenses"?

Whether first offense was complete when second commenced; single proceeding for convictions OK

14

Armed Career Criminal
What is counted a Predicate Offense for ACC? Define.

"Violent Felony" any felony that:
i. element use, threat of use, or attempted use of force against another person; or
ii. burglary, arson, extortion, explosives used, or otherwise involves conduct that presents serious potential risk of physical injury to another.
"Serious Drug Offense" fed drug offense with 10 year + max., or state drug offense involving mfg./distribution and at least 10 year max.

15

Armed Career Criminal
What happens if you're found to be an "Armed Career Criminal"?

CHC IV.
Offense Level 33 or 34.
Under Sec. 924(c), 15 year min. mand.

16

Is "Armed Career Criminal" automatic?
What are the ways to get below min. mand. for Armed Career Criminal?
What is the time limit for prior offenses?

AUTOMATIC: No notice needed. Only S.G. 5K1.1 motions with 18 U.S.C. Sec. 3553(e) or Rule 35 motion with waive 15 yr. min. mand.
NO TIME LIMIT ON PRIORS: must be separate prios

17

What is the Sentencing Guideline and requirements for "Substantial Assistance to Authorities Departure"?

Sec. 5K1.1
Gov't says D provided "substantial assistance" in the investigation or prosecution of another person CRT may depart from the guidelines.
Reasons may include:
(1) the court's evaluation of the significance and usefulness of the defendant's assistance, taking into consideration the government's evaluation of the assistance rendered;
(2) the truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
(3) the nature and extent of the defendant's assistance;
(4) any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;
(5) the timeliness of the defendant's assistance.

18

What's required for the 3 Strikes law?

1. Instant offense must be "serious violent felony" (SVF)
2. Two prior convictions for SVF or one prior SVF + one prior "serious drug offense"

19

Define the priors for the 3 Strikes Law?

SVF murder, sex crimes, kidnapping, extortion, arson, firearms use, attempts/conspiracy thereof, or any offense punishable over 10 years with force as element or which by its nature involves substantial risk of physical force being used.
"Serious Drug Offense" anything punishable under 21 U.S.C. Sec. 841(b)(1)(A); 1K herion, 5K cocaine, 280 g crack, etc.

20

What is the result of the 3 Strikes Law?

Mandatory Life
Note that 18 USC Sec. 3582 may provide relief to defendants over 70 who have done at least 30 years

21

Is the 3 Strikes Law automatic?
What is the time limit on priors?
Are there exceptions for 3 Strikes Law for SVF?

NOT AUTOMATIC: Gov't must give written 851 Notice
NO TIME LIMIT ON PRIORS
Robbery doesn't count if no dangerous weapon used
Similar exception for arson

22

What is the notice provision for the 3 Strikes Law?

21 USC § 851 NOTICE
Proceedings to establish prior convictions
Cannot increased punishment for one or more priors, unless before trial, or before entry of a plea of guilty, the Gov't files an information with the court (and serves a copy on the person or counsel for the person) stating in writing the previous convictions to be relied upon.

23

What can be used to attack prior?

Based on Taylor, Shepard, and Descamps

24

Name the provisions for the 2 types of "Safety Valves"?

U.S.S.G. 5C1.2 & 18 U.S.C. Sec. 3553(f)

25

What does the Safety Valve do?

Waives min. mand. found in 21 U.S.C. Sec.
841 mfg, disp, dist. CS
844 possession CS
846 attempt or conspiracy CS
960 trafficking CS
963 attempt or conspiracy to traffic CS
"without regard to statutory minimum sentence"

U.S.S.G. 2D1.1(b)(11) will get additional 2 levels off

26

What are the qualifications for the safety valve?

1. 0-1 criminal history points
2. No violence or guns
3. Offense didn't result in death or serious injury
4. Not a leader or organizer under USSG B1.1 or CCE
5. Before sentencing, provide Gov't with information about offense and relevant conduct

27

What is the result of qualifying for the safety valve?

Can reduce any drug sentence, with 2 additional levels off, including any mandatory minimum statutory term to guideline sentencing range

28

How does the D trigger the "Safety Valve"?

NO MOTION REQUIRED
Waives min. mand. - Court must grant if D meets criteria. CRT decides if truthful.

29

Safety Valve
Where is the criteria located?
What is the criteria?

S.G. 5C1.2.
18 U.S.C. § 3553(f)(1)-(5)
(1) D doesn't have more than 1 criminal history point;
(2) D did not use violence or credible threats of violence or possess a firearm or other dangerous weapon;
(3) the offense did not result in death or serious bodily injury to any person;
(4) D was not an organizer, leader, manager, or supervisor of others;
(5) not later than the time of the sentencing hearing, D has truthfully provided to the Gov't all information and evidence D has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan

30

Safety Valve
When D provides truthful information, BUT what if the Gov't already knows the info?

the fact that the defendant has no relevant or useful other information to provide or that the Gov't is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirements of SV