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Flashcards in Federal Sentencing - Criminal History Deck (53)
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1

Where are "Criminal History" sentencing guidelines found?

Chapter 4

2

Criminal History
What must the Gov't prove, always?

That it is the D that was convicted

3

Criminal History
What is used to compute Criminal History Category (CHC)?

1. Length of sentence;
2. Date of imposition or release;
3. Whether current offense was committed while D was under and/or had recently completed another sentence

4

Criminal History
List the Criminal History Points added

1. Add 3 pts. for imprisonment exceeding 1 yr. and 1 mt.
2. Add 2 pts. for imprisonment at least 60 days
3. Add 1 pt. for sentence not in 1 or 2 (up to 4 points)
4. Add 2 pts. if D committed instant offense while under some supervision or imprisonment
5. Add 1 pt. for crime of violence COV that didn't get a point under 1,2, or 3

5

Criminal History
How many points for recency of criminal history?

None, Commission eliminated this in 2010, because some offenses were being counted up to 3 times
Within 2 years, used to add 2 points

6

Criminal History - Prior Sentence
What is a "prior sentence"?

Any adjudication of guilt that NOT a part of the instant offense and NOT relevant conduct of instant offense
**However, prior can be ELEMENT of instant offense (i.e. felon in possession of firearm)

7

Criminal History - Prior Sentence
When does the offense have to happen for it to be a "prior sentence"?

It can be before OR after instant offense.

NOTE: there is a split if conduct after sentencing but before REsentencing counts

8

Criminal History - Prior Sentence
Can the "prior" be an element of instant offense?

YES. i.e. felon in possession of firearm.

9

Criminal History - Prior Sentence
What makes a sentence a "separate sentence" for adding points?

Separated by "Intervening Arrest"
If no intervening arrest, treated separately, UNLESS (A) sentences resulted from offenses in same charging instrument; OR (B) sentences imposed on same day.

10

Criminal History - Categorical Approach
Do you use Taylor-Shepard documents to determine offense?

NO. Because aside from crime of violence (COV), the points are determined by length of sentence, rather than charge

11

Criminal History - Minor Offenses
Which offenses are SOMETIMES counted?

Only count following if at least 30 days jail or 1 year probation:
reckless driving;
contempt;
disorderly conduct;
DWLI;
False info to Police Officer;
Gambling;
Hindering or failure to obey police;
Hot check;
Leaving scene of accident;
Non-support;
Prostitution;
Resisting arrest;
Trespassing.

12

Criminal History - Minor Offense
Which offense are never counted?

These offenses are never counted:
fish and game violations;
hitchhiking;
juvenile STATUS offenses;
local ordinance violations (other than those that are also State law violations);
Loitering;
Minor traffic offenses;
Public Intoxication;
Vagrancy

13

How are "non-traditional" sentences treated?

A diversion can be used if "finding of guilt" even if set aside
Expunged offense, not counted
Counts even if on appeal
Military counts, if court marshal
Foreign convictions, don't count

14

Habeas Corpus relief on unconstitutional sentences?

In Fed. cases, if D sentenced and later a prior that was used is invalidated, entitled to habeas relief
Not available in State court convictions - even if State appeal and writ has been exhausted

15

How has the Court treated "uncounseled" priors?

Generally, if D shows by preponderance of evidence that prior was in violation of right to counsel, then prior cannot be used

16

How is "sentence of imprisonment" calculated?

By the maximum sentence imposed
Indeterminate sentences are treated like the max
If court reduces sentence, then reduced sentence is used (i.e. shock probation)

17

What if part of a sentence is suspended, how is it treated for "sentence of imprisonment" for Chap 4 Criminal History Points?

Suspended sentence is not used

18

What is considered "imprisoned" for Chap 4 Criminal History Points?

24 hour a day confinement - prison, jail, boot camp, parole revocation treatment center
NOT home detention, NOT community treatment, NOT halfway house, NOT labor detail

19

What is the TIMING of priors for Chap 4 Criminal History Points?

3 points are assigned for "sentences of imprisonment" exceeding one year and month imposed within 15 YEARS of the instant offense OR resulting in incarceration within 15 YEARS of the instant offense
Watch for continuous parole revocations

20

What if parole revoked, and incarcerated for NEW offense?

The CRT treats it as though incarcerated for the paroled offense, and the new for purposes of the 15 YEAR Rule

21

What if instant offense is committed while D is on a criminal justice sentence?

+2 Criminal History Points

22

What is considered a "criminal justice sentence" for purposes of Chap 4 points for instant offense happening while serving sentence?

Any supervision, including non-reporting
UNLESS only sanction is a FINE
Escape while awaiting sentence = CRIM JUS SENT

23

What if instant offense is within 2 years of serving a sentence?

1. If sentence was at least 60 days imprisonment (or while escaped) within 5 YEARS then +2
Only +1 if D is also given points for instant offense being committed during sentence for SAME SENTENCE
2.

24

Issue to spot concerning WHEN instant offense occurred?

1. Conspiracy - Gov't has to prove that D was engaged in conspiracy at relevant times for the 15 YEAR trigger or the 2 YEAR trigger
2. Illegal Reentry - occurs when D is found

25

What about D that were younger than 18 at time of prior offense?

13+ month sentences count
60+ day sentences don't UNLESS imposed within 5 years
Revocation - age at time of revocation controls

26

Do juvenile adjudications count for criminal history points?

Yes. Imprisonment is if the juvenile is in custody of "state agency responsible for confining juveniles"
Revocation - age at time of revocation controls

27

How many criminal history points if:
D placed on probation for 3 separate offenses; revoked for all offense and sentenced to 10 years in each; the imprisonment is within 15 years of instant offense.

5
3 for 13+ mt. imprisonment
1 each for other convictions
CRT seeks to give greatest number of points

28

What makes a D a "Career Offender"?

1. at least 18 years old
2. Instant Offense - Crime of Violence or Felony Drug Offense;
3. D has at least 2 priors for Crime of Violence or Felony Drug Offense
MUST GET Criminal History Cat. VI (highest)

29

Is a "Career Offender" eligible for minor role reduction?

NOOO.

30

Can JUV prior be used for "Career Offender" classification?

Only D convicted as adult can be used - SO 17 in Texas counts, because convicted as adult
JUV. Adjudications do not count