BLOG BULLETS:   The child pornography guideline can be deconstructed through extensive express judicial criticism in multiple opinions, a history of amendments based almost completely on Congressional directives rather than empirical research, and the Sentencing Commission’s own report recognizing problems with the guideline. The career offender guideline can be deconstructed based on its original creation […]

BLOG BULLETS:   The empirical evidence the Sentencing Commission claims to have relied on in formulating the guidelines is “past practice,” i.e., the sentences typically given on average prior to the guidelines. But there’s a dirty little secret – namely, that the Commission completely excluded probationary sentences, which were 38% of all sentences, from its […]

BLOG BULLETS:   Supreme Court case law has recognized that the Sentencing Commission is supposed to be an entity that can conduct empirical studies of sentencing and the guidelines are supposed to reflect that empirical study. Multiple Supreme Court cases recognize the possibility – and the actual fact – that some guidelines don’t fit this […]

BLOG BULLETS:   The government can’t cure a breach – even if it’s an honest mistake – by correcting its recommendation at some later point in the proceedings. Harmless error analysis doesn’t apply to breaches of plea agreements, so it doesn’t matter if the court says the breach didn’t affect it and it wasn’t going […]

BLOG BULLETS: The government can’t unilaterally decide you or your client has breached a plea agreement; it has to seek a ruling from the court. The defense is entitled to an evidentiary hearing on the question if there are disputed facts. The defense breach has to be “substantial,” or “material”; a mere technical, de minimus […]

BLOG BULLETS: Remember that it’s you doing the government a favor when you offer a conditional plea, not them doing you a favor by accepting the offer. A new guidelines amendment overrules a bad Ninth Circuit case and states that the government can’t withhold the third acceptance of responsibility point simply because a defendant won’t […]

BLOG BULLETS:   Instructions on affirmative defenses aren’t given automatically; you do need some evidence to get one. The way the cases have phrased it is that you need “more than a scintilla” of evidence for a theory of defense instruction, but that threshold is “slight indeed.” The court can’t weigh the evidence but must […]

BLOG BULLETS:   The Ninth Circuit has long held that what is called “sentencing entrapment” – meaning inducement of a defendant into selling a type and/or larger quantity of drugs than he was predisposed to sell – allows a sentence below the statutory mandatory minimum for that drug type and/or quantity. The Ninth Circuit has […]

BLOG BULLETS:   There’s more district court opinions out there holding the existence of an ICE detainer doesn’t preclude a court from granting bond to a defendant who’s in the country illegally. Two of these opinions also consider the issue of whether ICE can then hold the person in immigration custody without removing him and […]

BLOG BULLETS:   There’s a government “watch list” for citizens crossing the border whose property (including laptop computers) they want to search. The few cases that exist tend to suggest this pretextual targeting probably doesn’t by itself prevent a suspicionless, warrantless search under the border search exception. But there may be a claim that the […]