Wednesday, February 23, 2005

United States Supreme Court bars racial discrimination in prisons!

In a controversial decision, the US Supreme Court held Wednesday that prisons may not temporarily discriminate on the basis of race with respect to its housing of inmates. In Johnson v. California, the high Court held that racial classifications for prisoners who had recently been transferred to a new prison must be subjected to strict scrutiny, as all governmental racial classifications must be after Adarand.

The Court threw out California's current system, see full text of opinion below:

Chip Venie, Esq.
(619) 235-8300

Defense lawyers: always move for judgment of acquittal.

In a somewhat narrow factual ruling, the United States Supreme Court ruled on Wednesday, Feb. 23, 2005, that the Double Jeopardy Clause of the Fifth Amendment bars a judge from re-considering guilt on a charge for the which the Court has already acquitted the defendant.

In Smith v. Massachussetts, the Court barred a judge who had already acquitted the defendant on one of three counts at his jury trial from reconsidering that judgment of acquittal.

See, full text of opinion:

This ruling appears quite narrow on its face. For defense lawyers, this means that Motions for Directed Verdicts or Judgments of Acquittal should be filed and fought in almost every case that is tried.

Sunday, February 20, 2005

Blakely Booker caselaw update central!

This website has it all regarding Booker Fanfan Blakely and their progeny:

Ninth Circuit throws out another sentence in light of Booker!

The Ninth has done it again, in this case from Feb. 18th, United States v. Moreno-Hernandez, the Ninth stated that a district court must reconsider its decision to depart 16 levels upward and impose a sentence enhancement upon an offender for a prior crime under Oregon law.

For full opinion, see below:

This opinion is important because it suggests nearly all federal prisoners in the West will be entitled to a re-sentencing or at least to ask the judge not to impose very severe enhancements. In this case, the Court held that the defendant's enhancement CAN be imposed (that is what the Court says), but it does not HAVE to be imposed (after Booker) and therefore the defendant is entitled to a re-sentencing and to argue that it SHOULD NOT BE IMPOSED. You can see, good defense counsel make all the difference in these matters. If you can get you re-sentencing (which seems easier and easier), you still need good counsel to craft an argument to reduce your sentence. At our firm, we have compiled a Motions bank of nearly 200 factors or reasons to mitigate or lower a federal prisoner's sentence. Please call us or email us today for more information.

Chip Venie, Esq.
(619) 235-8300

Saturday, February 19, 2005

Is Booker Fanfan Retroactive?

In an thorough opinion denying 2255 habeas relief, this judge sets forth the reasons why BOOKER and or Fanfan should not be found retroactively. It reads like an outline of arguments for good defense counsel to anticipate and respond to (in advance) or the Governments pleadings:

Chip Venie, Esq.

Our firm concentrates on federal and state criminal defense. Mr. Venie has handled over 130 federal criminal appeals and over 600 other felony matters.

Nationwide Booker Fanfan Blakely roundup!

Here is a quick weekly summary of rulings from the Second, Third, Ninth and Tenth Circuits:

From the Second Circuit, we get (unpublished) Booker-related dispositions in US v. Alexander, 2005 U.S. App. LEXIS 2905 (2d Cir. Feb. 18, 2005) (affirming sentence apparently based on mandatory minimum and defendant's admission), US v. Mitchell, 2005 U.S. App. LEXIS 2907 (2d Cir. Feb. 18, 2005) (rejecting Booker claim in collateral habeas attack on sentence), and US v. Bostic, 2005 U.S. App. LEXIS 2921 (2d Cir. Feb. 18, 2005) (ordering remand on the basis of Booker and Crosby).

From the Third Circuit, US v. Tyree, 2005 WL 375700 (3d Cir. Feb. 17, 2005), continues the court's pattern (previously noted here and here) of simply remanding Booker claims because, in the Third Circuit's view, they are "best determined by the District Court in the first instance."

From the Ninth Circuit, in both US v. Moreno-Hernandez, 2005 WL 387608 (9th Cir. Feb. 18, 2005), and US v. Alarid, 2005 WL 375728 (9th Cir. Feb. 17, 2005), the court remands for resentencing on the basis of Booker, although Moreno-Hernandez begins with an intricate and complicated discussion over "whether a federal defendant's previous state-law conviction is for a 'felony that is ... a crime of violence' under USSG 2L1.2(b)(1)(A)(ii)."

From the Tenth Circuit, in US v Briceno-Rosado, 2005 WL 388727 (10th Cir. Feb. 18, 2005), the court applies its important ruling in Labastida-Segura (discussed here) to order a remand for resentencing even through the defendant's case involved no Sixth Amendment violation because the court could not conclude that the application of mandatory guidelines to Briceno-Rosado was harmless.

The Courts are already starting to chip away at the scope of the Booker/Fanfanruilings. If you are a federald defedant facing chargs you need to be aware of these cases.
Some of the things that are suggested are:
(1) Judges may be able to enhance your sentence based upon your admissions (saying nothing before you speak to a lawyer is critical); however, almost all of these rulings from last week suggest that
(2) Most federal criminal defendants whose appeals are still pending, or within one year thereafter are entitled to re-sentencings.

Chip Venie
(619) 235-8300

Weekly Blakely Booker Update: List of Departure Factors!

We have compiled a comprehensive list and discussion of mitigating factors that can now be argued on behalf of federal defendants and prisoners who file appeals and receive re-sentencings.

Remember, under Booker and Fanfan, federal judges should sentences defendants (and prisoners who file appeals) under 18 USC 3553(a) which is a list of broad factors that mitigate sentences.
Here is a list of 108 mitigants that can be argued on behalf of defendants who are entitled to Blakely Booker or Fanfan relief.

Professor Douglas Berman also has provided us with an excellent summary of how judges should now sentence prisoners:

Chip Venie, Esq.
(619) 235-8300

Chip Venie is an attorney in San Diego California who concentrates his practice in criminal defense. Mr. Venie is admitted to practice in Courts throughout the United States (Michigan, California, Washington, D.C., federal courts in California, Michigan, Tennessee, Virginia, Ohio, Maryland, South Carolina, North Carolina).

Thursday, February 10, 2005

California federal prisoners will get new sentences!

In United States v. Ameline (issued on February 9, 2005) the highest federal court of appeal in the West held in that unless a federal prisoner's case is truly exceptional, he or she will be entitled to a jury trial on all of the aggravating factors used to make his or sentence worse.

This means that all federal prisoners in the West, and specifically drug offenders for Federal drug crimes in California, who were sentenced after June 26, 2000, are probably entitled to a re-sentencing. Prosecutors cannot claim that you possessed anymore drugs (and therefore cannot punish the federal inmate), than they can prove to a jury beyond a reasonable doubt. The old way of punishing a federal drug offender or defendant does not apply anymore. They cannot punish on hearsay about the amount of drugs.

But you must act quickly, the rules of procedure say that you must ask for a resentencing no more than one year after your final direct appeal is denied. (Or you must raise the issue in your direct appeal).

Chip Venie, Esq
(619) 235-8300
Offices in Washington D.C.
San Diego, California
and Davisburg, Michigan.

'Plain error' extended to the West on Booker Blakely claims!

The Ninth Circuit (the federal court of appeal for most of the Western states) ruled yesterday that "plain error" analysis is to be applied to Booker Fanfan Blakely Apprendi claims of sentencing error.

What this means is that almost ALL federal prisoners in the west who were sentenced after June 26, 2000, and whose sentences were enhanced by the judge, have a right to a new sentence, AND TO HAVE THEIR OLD SENTENCE THROWN OUT! The Court said as much in its opinion.

In United States v. Ameline, the Court echoed the Fourth Circuit, in Hughes, and held that it does not matter if you lawyer failed to object to your sentence, your former lawyer cannot be held responsible for failing to understand that you had a right to sentencing outside of the guidelines.

Mr. Ameline's case is like so many we have seen in the last ten years. Ameline had his sentenced enhanced because the judge found that he had possessed more than a kg of meth in connection with the conspiracy. Ameline disagreed about the amount of meth.

Mr. Ameline's sentence was also enhanced because his offense level was raised two levels because the judge found that he had possessed a weapon in connection with the drug possession. The judge based this finding on the hearsay testimony of a snitch that stated that Ameline had traded some meth with him for a rifle and that he had once seen Ameline threaten his son with a rifle.

The district court enhanced his sentence based upon those two factors and that sentenced him to 150, the middle of his range of 135-168 months, based upon an total offense level of 33. This is even though the maximum that Ameline could have faced based upon what he admitted oin his plea bargain, was 16 months in prison, given a base offense level of 12.

The Ninth Circuit overturned the sentence, and remanded for a JURY TRIAL on the two sentencing factors, the gun and the AMOUNT OF DRUGS. The Court held that "Ameline was deprived of his right [under Blakely and Booker] to have a jury find beyond a reasonable doubt the quantity of drugs attributable to him. "

But the Court went even farther, they stated that unless your case was "truly" exceptional, you as a defendant would almost always be entitled to a resentencing under the new Blakely Booker holdings. And the Court said on resentencing, that the district court must apply all of the new factors set forth for resentencing and is not constrained on its ability to depart and fashion a sentence that the Court truly thinks is fair and "reasonable."

Link to the case:$file/0230326.pdf?openelement

The impact of this is staggering. Defense counsel are no longer restrained in their pleas to federal courts on behalf of their clients. Truly innovative defense counsel can now obtain low(er) sentences on almost any grounds.

Our firm concentrates solely on criminal defense matters. I have personally handled over 130 federal criminal appeals, and over 600 other felony matters.

Call or email today.

Chip Venie, Esq.
(619) 235-8300

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Saturday, February 05, 2005

Rape Lite: a Proposal to Make Consensual Sex a Crime!

This paper suggests that sex bewteen two consenting adults be made a crime if one later objects (think the Kobe Brant case, and our firm's own Romero case discussed below).

This proposal has proposed grave impacts on the state of sexual freedom in this country. Further still, the proposed law is at least paternalistic, and at most sexist. The contiuned prosecution of people in the Kobe Bryant or Carlos Romero situation is offensive to women because it once again seeks to portray women as weak, and incapable of consenting to sexual acts. It allows police and prosecutors to determine who is a "bad guy" or a dog (or Lothario) and essentially prosecute them for being "a dog" to women.

This proposed law is a disaster.

For more on the Carlos Romero case, which is a prime example of prosectuorial "white knightsmanship", click below:

Chip Venie, Esq.
(619) 235-8300

'Rape Lite': New Law for Reckless Sexual Conduct?

Two law professors have proposed a new law for "reckless sexual conduct." The propsoed new law would cover situations like the Kobe Bryant case. To convict, prosecutors would have to show beyond a reasonable doubt that a first-time sexual encounter occurred between the accused and the alleged victim, that the couple were not married to one another and that no condom was used. The accused would then have the opportunity to prove, by a preponderance of evidence, that the alleged victim consented to having unprotected sex.


This is an interesting proposal. The new law could cover cases like the one below, where a minsiter is accused of using fear of the devil to get women to have sex with him. The new law is wrong insofar as it is another encroachment of government into the bedroom.

Chip Venie, Esq.
(619) 235-8300

Friday, February 04, 2005

Our favorite client Posted by Hello

Federal Court in Utah declares sentencing guidelines unconstitutional. . .

This Court in Utah went further than any Court before it. In US v. Croxford, the District Court threw out the guidelines in their entirety. (Interestingly enough the judge in the case clerked for Scalia).

The Utah Court considered three remedies: (1) convene a jury; (2) use the guidelines apart from the defective upward departure provisions; (3) treat guidelines as entirely unconstitutional and pick a sentence between the min and the max. (see pp. 20-29.) He chose the 3d option. Interestingly, and perhaps ironically, in picking the sentence within the statutorily permissible range, the judge made factual findings (grave harm and absconding) by applying the preponderance standard. (see p. 29.) Once he got rid of the guidelines, the maximum sentence that could be imposed without any fact-finding beyond the facts admitted by the plea was the statutory maximum of 20 years. He was, thus, using the facts regarding grave harm and absconding to determine the sentence within the range permitted by the plea, not to raise the statutory maximum. So no jury trial, no proof beyond a reasonable doubt, and, in fact, no "top" or "lid" to protect the defendant. The court did sentence the defendant to 148 months, slightly below the applicable guideline range of 151-188 months.

This ruling shows creative approaches for re-sentencing of defendants after they obtain relief from appeals Courts. If you or a loved one, was sentenced after June 26, 2000 and the judge found enhancements in that case, you may be entitled to relief.

Chip Venie, Esq.
(619) 235-8300

Loved one in prison on a mandatory minimum?

The new Supreme Court ruling in Booker may help get him or her out of jail. Booker and Fanfan themselves were drug defendants, and the United States Supreme Court threw out the guidelines in their cases.

In United States v. Hughes, published just a week ago, the Fourth Circuit (the top Court for federal appeals in Virginia, West Virginia, South Carolina, North Carolina, and Maryland), went even further. That Court applied the "plain error" test to this issue, and bascially stated that defendants cannot be held responsible for their lawyers' failure to object at the time of sentencing.

This is an excellent resource on how the new ruilings may impact your loved on serving a mandatory minimum for a federal drug crime or offense:

If you loved one is serving time in federal prison for a federal drug crime, please call today, we may be able to help.

Chip Venie, Esq.
(619) 235-8300

Thursday, February 03, 2005

"COPS" like car chases causing accidents cannot be murders under California Law.

Last week, in People v. Howard, the California Supreme Court threw out a second degree murder conviction for Mr. Howard and his life sentence as well, and ruled that he COULD NOT be convicted of murder after a 'COPS'-like chase through rural parts of Fresno County.

Mr. Howard, who had marijuana, cocaine, heroin and methamphetamine in his system when tested after the crash, took off from police in a high speed pursuit after they attempted to stop the stolen SUV which he was driving. Howard ran a red light after police broke off pursuit and hit a car in an intersection killing one of the car's occupants.

The court held that not all evading cases are inherently dangerous to human life. The Court stated that the prosecution could not rely upon the second degree felony murder doctrine, which allows for conviction of murder if someone is killed in the course of commission of a felony. The prosecution will now have to prove that someone acted with "malice", not just in reckless disregard for life and limb.

Chip Venie, Esq.
(619) 235-8300

evading evade car car chase car law murder accident car accident evading offense crime criminal

Marijuana and gun offender given 55 year reduction in sentence!

This is a very interesting case out of Utah. The judge is actually the same man who argued for the reveral of Miranda in Dickerson. The judge calls out President Bush to do what is right for the defendant.

Chip Venie, Esq.
(619) 235-8300

Booker Fanfan Booker Fanfan drug crimes

Will it apply to drug offenders in Virginia?

In United States v. Hughes, the Fourth Circuit Court of Appeals in Richmond, Virginia stated that the new sentencing rules announced in Booker will be applied for plain error.

What that means is that Mr. Hughes, who is a white collar offender, could have been sentenced to 0-6 months instead of the 46 that he got under his applicable range (41-51 moths).

Federal drug offenders are entitled to the same relief. There is no reason to distinguish between Mr. Hughes, who got an erroneous sentenced based upon 'amount of dollar loss' findings, and a drug offender who got a greater than authorzied sentence because of 'drug amount' findings.

It is my firm's belief that drug offenders who were sentenced after June 26, 2000 in Virginia, West Virginia, Maryland, North Carolina, and South Carolina, may be entitled to drastic reductions in their prison time.

Mr. Venie has handled over 130 appeals before the Fourth Circuit, the Court you must ask for help if you are a federal drug offender in Virginia, West Virginia, Maryland, North Carolina or South Carolina.

Chip Venie, Esq.
(619) 235-8300

White Collar Criminals in New York getting lesser sentences!

In this twin set of cases, we see federal Courts more open to giving relief and re-sentencing to white collar offenders

US v. Ranum

Facts: Ranum was a bank officer who made a series of loans to a promising shipping company, but lied to the bank committee about the company’s reserves. Opinion at 7. He was charged with misapplication of funds and false statements. Id. at 8. After conviction at trial, he faced a guideline range of 37-45 months in custody. Id. at 9. Before sentencing, Booker was decided.Issue(s): How does a federal court sentence a defendant after Booker?Held: "In Booker, the Supreme Court held that Blakely v. Washington applied to the federal sentencing guidelines, and that the Sixth Amendment’s jury trial guarantee prevented judges from finding facts that exposed a defendant to increased prison time. As a remedy, a different majority of the Court excised the provision of the Sentencing Reform Act that made the guidelines mandatory, 18 U.S.C. § 3553(b). The remedial majority held that district courts must still consider the guideline range, 18 U.S.C. § 3553(a)(4) & (5), but must also consider the other directives set forth in § 3553(a). Thus, under Booker, courts must treat the guidelines as just one of a number of sentencing factors." Id. at 1-2. "I determined that the factors set forth in § 3553(a) fell into three general categories: the nature of the offense, the history and character of the defendant, and the needs of the public and the victims of the offense. I analyzed each category and in so doing considered the specific statutory factors under § 3553(a), including the advisory guidelines." Id. at 10."In the present case, after carefully considering all of the evidence and applying all of the § 3553(a) factors, I declined to follow the guidelines and instead imposed a sentence which was sufficient, but not greater than necessary, to satisfy the purposes of sentencing." Id. at 5. "I impose[] a sentence of twelve months and one day, followed by five years of supervised release." Id. at 13.

The Ranum Court gave the white collar offender 12 months instead of the required 37-45. White collar offenders are beggining to benefit from the Booker/Fanfan ruling. It gives judges the discretion to depart from the very strict "amount of loss" guidelines, and "level of sophistication" enhancements that are routinely imposed in white collar crimes.

See also: * United States v. West, 2005 WL 180930, 2005 U.S. Dist. LEXIS 1123 (S.D.N.Y. Jan. 27,2005) (Sweet, J.) (in wire fraud case, where stipulated Guideline range was 57-71 months, sentencing defendant to 60 months, the statutory maximum; following Ranum (supra), in that Guidelines are only one factor to consider; notably, stating that “[n]othing in Booker appears to suggest that such fact-finding, as limited by the principles of Apprendi and its progeny, is inappropriate. Accordingly, this Court will sentence West based upon the facts admitted in connection with his plea and upon those facts found by the Court in the context of analysis under subsection 3553(a), as limited by Apprendi and Booker”)

Many white collar offenders from New York City, Connecticut and surrounding areas can benefit from these cases.

Chip Venie
(619) 235-8300

Mr. Venie maintains a criminal defense practice in San Diego, California, and Washington, D.C. A graduate of the University of Virginia School of Law, Mr. Venie was a Staff Attorney for the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has defended over 600 state criminal matters and over 130 federal criminal appeals.

White Collar Criminals getting relief from Booker

Federal Judge reverses first sentenced based on Booker!

It has happened! A federal appeals Court in Richmond, Virginia has held that the applying the federal sentencing guidelines after Booker is PLAIN ERROR, in other words an error so fundamental that the sentencing must be re-done in almost all cases which were sentenced after June 26, 2000.

See, * United States v. Hughes, ___ F.3d ____, 2005 WL 147059, 2005 U.S. App. LEXIS 1189(4th Cir. Jan. 24, 2005) (finding plain error in sentencing of defendant under mandatory guideline scheme and remanding for resentencing under advisory scheme)


Mr. Hughes, a white collar criminal, was convicted of bankruptcy fraud and perjury, (traditionally considered white collar crimes). The District Court had applied five different enhancements, raising Mr. Hughes offense level from a 6 to a 22, and taking him from a range of 0-6 months imprisonment to 41 to 51 months. Ultimately the judge sentenced this white collar offender/criminal with no prior convictions to 46 months in prison.

The Fourth Circuit, a court not exactly known for its leniency to convicted criminals reversed. In a remarkable decision, the Court held that "PLAIN ERROR" had occurred. In other words, that the denial of Mr. Hughes's Sixth Amendment rights was so substantial that he could not be faulted for failing to object at the time of sentencing.

What does this all mean? The Plain Error ruling of the Fourth Circuit is huge in terms of impact of federal prisoners and specifically, white collar offenders. Many white collar offenders and other federal prisoners' lawyers failed to object at the time of sentencing to judges enhancing their sentences. (This is not meant to criticize those lawyers, it is reasonable to assert that no one could have seen the Apprendi/Booker revolution comming).


If you are a federal prisoner, the Hughes ruling can help in a very dramatic fashion. It can persuade a judge to give you another chance at sentencing, and it can help the judge reduce your sentence.

Mr. Chip Venie was a former Fourth Circuit Staff Attorney and is intimately familiar with the procedures for obtaining resentencing relief in that Court. In addition, Mr. Venie is a member of the Ninth Cicruit bar and can help you pursue your federal appeal in almost all western states. Mr. Venie has handled over 130 Federal Criminal Appeals and Habeas Petitions.

Chip Venie
(619) 235-8300

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