Almost every prisoner should file a Motion to Re-sentence

With the death of the federal sentencing guidelines, almost all of criminal defendants sitting in Federal prisons should all writs (2255) or new appeals to address the Booker and Fanfan decisions. The article below gives a full summary of the effect of Booker and Fanfan.

http://www.abanet.org/journal/ereport/j14sentence.html

Needless to say, almost EVERY criminal defendant has important rights under the new decisions. Time is running however, the Congress will do something soon to address this huge criminal law "loophole" or "escape hatch."


Chip Venie, Esq
(619) 235-8300
chipesq@hotmail.com

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Prayer's OK at Inauguration

A federal court here in California rejected noted atheist Michael Newdow's request to keep prayers out of "W's" second inauguration. Newdow, who is the same guy who challenged the Pledge of Allegiance, made the following comments after the judge's ruling:

"To uphold the Constitution in this case, someone would be castigated beyond belief by a public that wants religion in their government," Newdow said. "That's what people want. There is an inherent bias in a case like this to see if you can find a way out."
Newdow had argued that the inauguration is perhaps the most public of all government-sponsored national ceremonies. It should not provide the president with an opportunity to make nonreligious citizens and non-Protestants feel like outsiders, he said.
"This is like the Super Bowl, the Olympics. It's a civic ceremony like no other," Newdow told Bates in a hearing yesterday. "The president will swear to uphold the Constitution and then violate the Constitution so heinously by endorsing these religious beliefs . . . and telling everyone this is a Christian nation."

To see the entire story, click on this link


http://www.washingtonpost.com/wp-dyn/articles/A9936-2005Jan14.html

White Collar Offenders will get a major break with new rules

With this week's major decision in Booker and Fanfan, white collar offenders (i.e. those accused of and sentenced for fraud offenses), will be able to escape the harsh consequences of the guidelines table.
Before Booker and Fanfan, the sentence for fraud offenses was based upon the amount of loss. White collar criminals or offenders had little room to argue for leniency, the table drove the sentences. Now, a white collar offender will not have to be locked into the table, and good defense counsel can make all of the difference.


Chip Venie, Esq.
chipesq@hotmail.com
(619) 235-8300

Sentencing changed forever!

Major change in federal sentences for crimes!

Booker and Fanfan,

The United States Supreme Court changed federal criminal sentencing and sentences yesterday when it threw out the sentencing guidelines that judges had been required to use prior to yesterday.

An excellent summary of the case is found at

http://supct.law.cornell.edu/supct/cert/04-104.html

This is the final judicial slapdown to the Ashcroft administration. The Supremes have clearly signaled a greater deference to federal TRIAL court judges, and most of all to juries, the ones who hear the facts and should be the decision makers.

The decision reaffirms that a defendant is entitled to a JURY determination of any fact used to convict or punish him, thereby reaffirming our faith in the jury system.

The decision also rejects and rebukes the Ashcroft amendments to the guidelines that allowed appellate judges to review trial judges decisions to depart. Instead of getting to completely reconsider all of the facts that the tiral judge considered in deciding to depart, appellate judges will now only get to determine if the trial judge's decision was not "unreasonable." This is significant because it puts the decision making power on sentencing departures back where it should be in the trial judges hands.

Chip Venie, Esq.
chipesq@hotmail.com
(619) 235-8300


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Booker and Fanfan: A new era in sentencing

Today, the United States Supreme Court invalidated the sentences of many federal inmates. For more information see the last post, or read the following cases


www.supremecourtus.gov/opinions/04pdf/04-104.pdf




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Ding Dong the "Witch" is Dead. . . The Supreme Court

today threw out the United States Sentencing Guidelines, USSG, making them "advisory." This is a HUGE development for Federal criminal law lawyers. The consolidated cases, United States v. Booker and United States v. Fanfan, are the final death blow to a system of mandatory guidelines that severely restricted federal judges discretion, all in the name of uniformity of sentencing. The Supreme Court today reaffirmed that anyone who is facing criminal charges must have the facts which determine his guilt, or innocence or punishment, must be decided by a jury fo his or her peers. Further the Court stated that those facts must be decided beyond a reasonable doubt and not just by a judge after a jury trial by some lesser standard of proof.
Mr. Booker's and Mr. Fanfan's cases are instructive. In Booker's case he pleaded guilty to possession of 92.5 grams of crack with intent to sell. Under those facts, his sentencing range was set at 210-262 months. Instead, after a judge led hearing, the judge found certain facts to be true by preponderance of the evidence (the standard for civil lawuits), and then imposed a 360 month (30 year) sentence. In Mr. Fanfan's case, under the terms of his conviction, he was supposed to be sentenced to no more than 78 months imprisonment. Instead, after a judge led hearing, the judge found certain facts and enhanced his sentence to 188-235 months.
The Supreme Court rejected both these enhancements, and stated that all facts that lead to conviction or enhancement of a sentence must be pleaded to a jury, and proved before a jury, and that a jury must find them beyond a reasonable doubt.

The Supreme Court also invalidated a provision that allowed appellate judges to review all of the factors that the trial judge took into account in deciding to depart. The Supreme Court stated that from, now on, a judge's decision to depart from the sentencing table (which is advisory now anyway), that the decision to depart wil be reviewed only to see if it is 'unreasonable'.

What does this mean to you? If you were sentenced on a federal crime after June 26, 2000, you have the right to a resentencing and maybe a right to a departure. The clock is ticking however, Fanfan and Booker were made applicable to caes currently in trial courts and on appeal, but you need to get the appeal filed sooner rather than later.

Chip Venie
Criminal Defense Attorney
chipesq@hotmail.com
(619) 235-8300

AOL indictments on PuchasePro, more to follow?

Today, some AOL executives were indicted for, among other things, accounting fraud. Apparently, they had forged a signature on some financing documents, as well as a variety of accounting fraud issues.
This apparently is just the beginning, Time Warner has already settled for a massive fine, and the Justice Department promises more prosecutions.
The difficulty with proving this kind of fraud is that most of the so-called "evidence" of fraud exists only in the minds of the executives, and the average jury may have a hard time with complicated financial issues.

Peterson is not guilty of first degree murder

Peterson should not get the death penalty, the reason is simple: he is not guilty of FIRST degree murder. I think he probably got mad because she confronted him about the affair with Amber and then he probably pushed her or she fell down after a struggle. At that moment, he had two choices: (a) call the police and take the charge (maybe assault with a deadly weapon, a serious felony, and strike under California Law under most circumstances), or (b) he could do something stupid and cover it up/finish her off. It makes no sense that he deliberately premeditated to kill his child, even though he may have wanted to get rid of her. If this is true, then he is guilty of at second degree murder, which is 25-to-life (25 to life) under California law.