November 2010 Archives

November 29, 2010

Two Men Killed Committing Armed Robbery

Two local men were killed when they attempted to commit a home invasion robbery in Palmetto Bay, Florida. The two men entered into the residence unaware that the homeowner was at home at the time of the burglary. The homeowner opened fire which killed one of the intruders. The other intruder jumped from a balcony on the third floor and later died from his injuries at Jackson Memorial Hospital. The homeowner will not likely need the services of a Miami criminal lawyer as investigators say he acted in self-defense.

Both intruders had a past criminal record in the Miami-Dade County criminal justice system. One of the men had been arrested as recently as two months ago for driving on suspended license (DWLS) as a habitual traffic offender. He also had prior arrests for cocaine possession, home invasion robbery and battery. The other intruder also had a felony criminal record. The incident occurred last Wednesday, the evening before Thanksgiving, when the two defendants broke into the Palmetto Bay home only to be greeted by a hail of gunfire.

The "Stand Your Ground Defense" that became law in 2005 really does not apply in this case. Prior to the enactment of that law, homeowners never had a duty to retreat in their own residence. The new law applied to individuals outside their home and provided that citizens no longer had a duty to retreat from a deadly threat before using deadly force and have the right not to retreat if engaged in a lawful activity and is in a place where he or she has a right to be. This case is distinguishable from the March 9, 2009, when a homeowner pulled a rifle on FPL employees outside his residence. The FPL workers never entered the residence which why the new law applied to that case.

If the criminal investigation reveals the shots were fired at the intruders inside the residence, the police cannot justify an arrest of the homeowner. However, if the investigation reveals that the homeowners fired shots outside of his residence, he may very well find himself in a more precarious situation. If that is the case, the "Stand Your Ground" law will apply and the homeowner may need to hire a criminal lawyer to represent his interests. Florida jury instruction 3.69g) applies to the use of justifiable uses of non-deadly force as it applies to dwellings. Specifically, the instruction provides that if a defendant is in his or her residence, he or she has no duty to retreat if he or she has a reasonable fear of imminent peril of death or bodily injury if the victim has unlawfully and forcibly entered the residence.

Police Identify Armed Robbers Killed in Home Invasion, Miami Herald.com, November 26, 2010.

November 24, 2010

LSA Resulting in Death: Do Victim-Injury Points Apply?

The unfortunate recent death of a UM student raises a question of whether or not victim-injury points apply in a leaving the scene of an accident (LSA) case that results in death. Despite years of practice as a Miami criminal defense lawyer, it became necessary to research case law to come to a conclusion. The answer is that points may apply depending on the facts and circumstances of each particular LSA case. The case involving the UM student arose from a hit and run accident that occurred on November 13, 2010 in Coral Gables. Unfortunately, 10 days later the young student passed away as Jackson Memorial Hospital. Coral Gables detectives are continuing the investigation and believe that an arrest is imminent.

Before determining whether victim-injury points will apply at a sentencing hearing, it is important to understand the elements the prosecution has to prove to sustain a conviction for leaving the scene of an accident. First, the state must prove that the defendant was the driver of a vehicle involved in a crash that resulted in the injury or death of a person. The second element requires that the defendant knew or should have known that he or she was involved in a crash. This is sometimes a difficult element to prove for the state, unless a defendant provides a statement admitting to knowledge. Third, the state must prove that the defendant knew that a person died or suffered an injury as a result of the crash. Fourth, the defendant wilfully failed to stop at the crash scene and remain there to give law enforcement critical information.

If the state is able to prove the crime of leaving the scene of an accident, they will appear at sentencing hearing and submit a score sheet to the court. LSA involving damage to a vehicle or property is misdemeanor of the second degree and is punishable up to 60 days in jail. LSA involving personal injury to another is a third degree felony. LSA involving the death of any person is a first degree felony. The sentencing guidelines for LSA involving death is 21 months up to 30 years in prison. If it is determined that a person while driving under the influence (DUI) at the time of the accident a two year minimum mandatory prison sentence applies.

The Florida Sentencing Guidelines allow for victim-injury points for a case that involves death. In fact, prosecutors can seek to add an additional 120 points to the guideline calculations. If these victim-injury points are applied to an LSA case involving death, the bottom of the guidelines goes from 21 months to a little over 9 years. The Supreme Court of Florida in 2008 came down with a ruling that victim-injury points in LSA death cases will not apply if the death occurred prior to the LSA. Their logic relied on the theory that the death would have occurred whether or not the defendant remained on the scene. Being that the UM student died 10 days after the crime, the prosecution would have good argument that the victim-injury points will apply if the person driving the car is ever brought to justice.

UM Student Dies from Hit-Run Injuries on Coral Gables Street, Miami Herald.com November 23, 2010.

November 22, 2010

Defendant Charged with Medicare Fraud Sentenced in Federal Court

A local man appeared in federal court and received a 57 month prison sentence for his involvement in a Medicare fraud scheme involving millions of dollars. Jose Garcia was sentenced for the alleged improprieties surrounding his Miami HIV clinic. The defendant appeared with his Miami criminal attorney at the sentencing hearing before a United States District judge. Initially, the defendant received a bond at his first appearance hearing, but soon absconded. He surrendered to the FBI earlier this year and remained in custody for violating the conditions of his pre-trial release.

The indictment alleged that the defendant committed large scale Medicare fraud with other co-conspirators. The group operated a clinic called Global Med-Care Corp., Inc., which like in so many South Florida cases billed Medicare for HIV treatments that were not medically necessary or that were never provided to patients. In order to procure patients, the clinic paid kickbacks to secure their presence for treatment or for a lack of treatment. According to court documents the clinic through the defendant billed Medicare in excess of $10.9 million.

Another co-defendant received a 30 month sentence after he pled guilty to one count of conspiracy to commit Medicare fraud. Three other defendants were also indicted for their involvement. The indictment alleged that these individuals fronted the money to open and staff the clinic. These defendants were charged in a different indictment and one has already pled guilty and been sentenced. The sentences he received was much harsher at 14 years because the fraud exceeded $100 million. These defendants were also charged with money laundering. Two of the defendants have fled and are fugitives. Once apprehended the federal government will seek an extradition back to Miami for trial.

Like in all recent Medicare fraud cases, the Strike Forces compiled by the federal government were responsible for the arrest. The Strike Force continues to operate in seven districts which are responsible for the most Medicare fraud in the United States. They are responsible for obtaining indictments on 825 individuals involved in Medicare and healthcare fraud in general. Anyone being arrested for or charged with Medicare fraud should consult with a criminal defense law firm experienced in defending these matters in federal court.

Operator of Miami HIV Clinic Sentenced to 57 Months in Prison for Role in Medicare Fraud Ring, The Cypress Times.com, November 19, 2010.

November 18, 2010

Six Convicted Criminals Take Into Custody by ICE Authorities

Immigration and Customs Enforcement (ICE) is at it again by continuing to pick up illegal aliens with prior criminal records. The agency has been following the same protocol over the past year. Several Miami-Dade County residents were taken into custody for felony convictions such as drug trafficking, violent crimes such as robbery, aggravated assault and aggravated battery, and sex offenses. ICE has conducted numerous enforcement operations in order to deport convicted felons. The operation that netted the aliens yesterday was conducted by the Joint Criminal Alien Removal Taskforce or ("JCART"). The six individuals are being held in federal custody pending removal proceedings or deportation. Anyone being held by immigration authorities for prior criminal convictions should retain a Miami criminal attorney experienced in handling post-conviction relief matters in order to set aside past criminal convictions.

In most instances, the only way to get a relative or loved one out of immigration custody is to prove to an immigration judge that the conviction has been successfully vacated and the charges dismissed. The first step to successfully proceeding with a motion for post-conviction relief is locate the file at the clerk's office to determine if a plea colloquy is in the file. If the plea colloquy is not in the file, it must be ordered from the court reporter who was present in court when the plea was taken. The arrest affidavit must be evaluating to determine the severity of the crime. A prosecutor will be somewhat sympathetic if the charges or not serious or involve crimes of violence.

The next step in vacating a plea is to evaluate the colloquy. Fortunate defendants were not advised of the possibility of being deported by the judge. As long as a defendant is in deportation proceedings, and the plea was taken less than two years ago, a motion for post-conviction relief will most likely be successful. The Supreme Court of the United recently handed down a decision that affirmative mis-advice from a criminal defense lawyer regarding the immigration consequences is also a basis for vacating a plea. The appellate courts within the State of Florida are deciding whether this defect can be cured by a judge's plea colloquy. Just because a case is vacated does not mean that charges will be dismissed, unless an agreement can be worked out with the prosecutor. However, the older the case, the more difficult it is for the prosecutor to prove the case and in all likelihood will decide not to proceed with the prosecution.

Keep in mind that drug trafficking charges, violent crimes and sex offenses are not the only offenses that can get an illegal alien deported. Two convictions or even withholds of adjudications for simple marijuana possession can form the basis for being deported. In many instances, defendants accept plea to seemingly harmless charges only to find themselves in immigration custody years later. The best course of action for a person who is illegally in the United States or is a resident alien and is charged with a crime is to seek out a criminal defense law firm who will fight the charges and hopefully obtain a dismissal of the charges. This is the only measure that can guarantee staying in the United States.

ICE Arrest 6 At-Large Convicted Criminal Aliens in Miami, BorderFireReport.net, November 18, 2010.

November 17, 2010

Local Resident Avoids Felony Charges Under "Stand Your Ground" Law

A circuit court judge absolved a property owner of serious felony charges under Florida's controversial "Stand Your Ground" law. The defendant was charged with two counts of aggravated assault with a firearm, one misdemeanor count of improper exhibition of a firearm, and misdemeanor count for unlawful discharge of a firearm. Aggravated assault with a firearm is a third degree felony and carries a three year minimum mandatory prison sentence. Ernesto Che Vino was accused of pointing a rifle at two Florida Power and Light workers who entered his property to shut of his power for failing to pay the bill. The judge granted the defendant immunity for the first three charges, but left the illegal discharge offense in place. The Miami criminal attorney representing the defendant was pleased with the result.

The "Stand Your Ground Defense" was added to the books in 2005 and provided that citizens no longer had a duty to retreat from a deadly threat before using deadly force. On March 9, 2009, Vino, a former navy sniper, pulled the rifle on the FPL employees after he had been awaked by his barking dogs. The FPL workers testified that they identified themselves as employees of the local power company. The defendant testified that he was unaware of what they were doing on the property and he was fearful because he had previously been the victim of a violent burglary with a battery. Vino escorted the men off of the property at gunpoint and then fired a shot in the air. The unlawful discharge offense was left in place because the defendant was no longer facing a deadly threat.

Prosecutors from the Miami-Dade County State Attorney's Office have not yet decided to appeal the ruling. Since the law went into effect, this is the second ruling in a defendant's favor issued by a judge in Miami-Dade County. Prosecutors and Florida Power and Light officials are concerned that employees could be at risk as a result of the ruling. State law allows FPL employees to enter private prior to disconnect power. The Florida Supreme is currently deciding whether judge or juries are better suited to decide a person's fate.

To prove the charge of aggravated assault, the prosecution must show that the defendant intentionally and unlawfully threatened either by word or act to do violence to a victim, the defendant had the apparent ability to carry out the threat, and the victim had a well-founded fear that violence was about to occur. If a firearm was used during the commission of crime the three year sentence will attach. The 'Stand Your Ground" law provides a defense to many violent crimes in addition to aggravated assault, such as, aggravated battery and manslaughter.

Armed Owner is Cleared In FPL Face-Off, The Miami Herald.com, November 17, 2010.

November 15, 2010

A Guide to Probation Violations

Probation violations are a common and very serious problem for defendants lodged in the criminal justice system. The jails and prisons are replete with people who violated the terms of their probation. Any Miami criminal attorney will tell you that defending probation violations is a difficult task. First and foremost, probation violation cases can arise from substantial or technical violations. Substantial violations are by far the most serious of the situations. A substantive violation exists when a person currently on probation is arrested for a new offense. A technical violation arises when a defendant fails complete the conditions set forth that need to be completed during the length of probation. Technical violations include failing to pay restitution, failing to complete community service hours, failing to complete court ordered programs or failing to pay court costs. In either case, a defendant is subjected to maximum sentence he or she was facing for the charges on which the original plea was entered.

When a probation officer becomes aware that a defendant violated probation, he or she will file a probation violation affidavit and have the judge presiding over the case execute an arrest warrant. If a defendant becomes aware that a probation violation affidavit has been filed, the best course of action is to hire a criminal defense law firm that regularly handles these types of cases. An experienced criminal lawyer will place the case on calendar and attempt to resolve the case with the prosecution before an arrest is made. If an arrest warrant is served the probationer will be taken into custody and appear at a bond hearing. The judge presiding over the bond hearing will set the case in front of the court that initially placed the defendant on probation. The defendant will be brought before that court where one of two things will happen. The case will resolved on that date or case will be set for a probation violation hearing.

A probation violation hearing is completely distinguishable from a jury trial. In a jury trial, a jury is made up of six or twelve members of the community who will be the trier of fact and determine a person's guilt or innocence. A judge is the trier of fact in a probation violation hearing and determines a person's guilt or innocence. The standard of proof in a jury trial is beyond a reasonable doubt, while the standard in a probation violation only requires the evidence to shock the conscience of the court. The judge only has to have good faith basis that a probationer violated the terms and conditions of probation. Probation violations are serious because judge can sentence a defendant to the maximum to the charges initially pled to in court. For example, if a defendant entered a guilty plea to burglary with an assault of battery or armed cocaine trafficking, a judge could potentially sentence a defendant to life in prison for violating probation.

Substantive violations are far more severe than technical violations. A sentence will be far more harsh for a defendant on probation for grand theft who then gets arrested for another crime of dishonesty. In the case of technical violations, courts are more lenient and may only require the defendant to extend their probation to complete the special conditions. On many occasions, probationers test positive for cocaine or marijuana. The severity of the punishment will many times depend on the county where the original crimes were committed. For example, in Miami-Dade County, defendants are often reinstated to probation while in other counties, prosecutors seek jail sentences. In sum, all probation violations are serious and the best way to defend these types of cases is early intervention by experienced defense lawyers.

November 11, 2010

Recent Arrest Shows South Florida Source of Percocet and OxyContin Trafficking

South Florida is again linked to an arrest made in a drug trafficking case involving Percocet and OxyContin. Law enforcement authorities made an arrest after intercepting a package containing approximately 3,000 Percocet and OxyContin pills with a street vale in excess of $100,000.00. Two Miami-Dade County residents wee arrested in Massachuseets and were arraigned last week. Both defendants appeared at their bond hearing and received a $50,000 and $10,000 cash bail. If either defendant is able to come up with the bail money, the judge presiding over the case ordered that they remain on house arrest until the case is concluded. While people view painkillers as different than cocaine or marijuana, any Miami criminal lawyer experienced in defending drug trafficking charges will tell you that the punishment for oxycodone trafficking is more severe than the penalties for cocaine trafficking.

South Florida has long been known as one of the regions where it is easiest to obtain prescription pain killers. Miami-Dade and Broward County are replete with clinics that distribute pain killers for cash. The clinics also called "pill mills" are notorious for distributing oxycodone and other variances of pain killers. The clinics are not regulated because they operate as cash businesses that do not involve insurance companies. In 2008 alone, Broward clinics distributed more than 9 million pain killers. Oxycodone trafficking has become a serious problem and the legislature is attempting to implement a prescription drug monitoring program.

The Florida Statutes provide that any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or is in either actual or constructive possession of more than a certain amount of any morphine, oxycodone, opium, hydrocodone, etc. can be charged with a trafficking amount. Along with these narcotics, heroine also falls into the same statute. That is the reason why the punishments for these offenses are so severe. Heroine has long been known to be one of the most addictive illegal substances to ever hit the streets. Oxycodone and its relatives are considered to be manufactured heroine, hence the stiff punishments.

Trafficking in oxycodone between 4 and 14 grams carries three year minimum mandatory sentence. Oxycodone trafficking between 14 and 28 grams carries a fifteen year prison sentence. The same punishment is doled out to those convicted in multi-kilo cocaine trafficking cases. Anyone convicted in oxycodone trafficking in excess of 28 grams faces 25 years in prison. You do not have to caught seeling mere possession of oxycodone that exceeds the amounts set forth in the statue is enough to get a significant prison sentence. Keep in mind that 28 grams does not make up a lot of pills. The pills usually have a street value of about $20 -$30 per pill. Do the math, the money made in dealing prescription pain killers is not worth the effort. South Florida prosecutors are aware of the pill mills and the problems they cause. Unless there is a strong defense or a glaring weakness in the prosecution's case, they are unlikely to significantly offer pleas below the aforementioned guidelines.

Florida Pipeline a Major Local Source for Illegal OxyContin and Percocet, Enterprisenews.com, November 9, 2010.

November 8, 2010

Judge Denies Motion for New Trial for Convicted Cops

A circuit court judge denied a motion for a new trial submitted by police officers recently convicted by a South Florida jury. The trial received a huge amount of media attention. Each Miami criminal attorney representing the defendants filed the motion based on alleged juror misconduct. One of the jurors was accused or reading articles about the case on the internet while the other juror allegedly contacted his father who is in the legal field in another country. The judge believed the information provided to her, but did not find that the accusations did not rise to the level of misconduct.

The accused police officers were members of the Miami-Dade County crime suppression team and were accused of grand theft, burglary, criminal mischief, aggravated assault and battery. One of the officers was convicted of official misconduct, aggravated assault and criminal mischief. The other officer was convicted of only one count of burglary. Both defendants were acquitted on false imprisonment and grand theft charges. Both defendants are awaiting sentencing pending the completion of their pre-sentence investigation reports. Each defendant was being held in custody, until the judge released one of the defendants for medical reasons.

Under Florida Rule of Criminal Procedure 3.600, a judge must grant a new trial if he or she finds that the jurors determined the verdict by lot; the verdict rendered was contrary to the weight of the evidence; or new and material evidence, if introduced at trial, would have probably resulted in a not guilty verdict and the defendant could not have discovered the new and material evidence using reasonable diligence. The judge must also grant a new trial if the defendants rights were substantially prejudiced by showing the defendant was not present at a material proceeding of the criminal process; the jury received other evidence not admitted by the court; the jurors separated during deliberation without the court's permission; a juror was guilty of misconduct, the prosecutor was guilty of misconduct; the judge failed to read an instruction as required under the law; or for any other reason that did not allow for a fair trial.

Defense counsel argued in their motion for a new trial that the jurors actions must be construed as misconduct thereby allowing for a new trial. The judge after taking testimony found that the jurors actions while inappropriate, but did not amount to misconduct and therefore denied the motions for a new trial. With that being said, the defendant convicted of aggravated assault with a firearm, official misconduct and criminal mischief is facing 15 years in prison with a 3 year minimum mandatory. The other defendant is facing 21 months to 15 years in prison for burglary of an occupied dwelling.

Motion for News Trial Denied in Convicted Cops Case, CBS4.com, November 8, 2010.


November 4, 2010

Defendant Sentenced to Maximum for Theft of Patient Records

A defendant appeared in federal court for his sentencing hearing having already pled guilty to an indictment alleging the theft of patient records from Jackson Memorial Hospital. The defendant, elderly and infirm, sat in a wheel chair with his Miami criminal attorney at his side when the sentence was imposed by a United States District Court judge. The judge sentenced Ruben Rodriguez to the maximum sentence of 11 years despite his age and medical conditions. His defense lawyer argued for a sentence of 6 years, while government prosecutors asked for a 12 year sentence. The judge, unmoved by the defense's arguments, sentenced the defendant to maximum penalties under the law.

The indictment alleged that the defendant stole records belonging to more than 3,000 patients and sold the records to third parties. According to the pre-sentence investigation, Rodriguez obtained the names, addresses, phone numbers and medical records of patients and allegedly sold them to personal injury lawyers. The defendant would a pay a hospital employee $1,000 a month in exchange for records belonging to slip and fall, car accident, and stabbing and shooting patients. The employee received a total of about $27,000 between 2008 and 2009. The employee received a 10 month prison sentence for her involvement in the theft. The FBI is continuing to focus on Miami-Dade lawyers who received the records.

Rodriguez and his wife, who was also involved to a lesser extent, were charged with aggravated identity theft and conspiracy. The defendant's wife was prepared to plead guilty earlier in the year to her involvement in the theft of the records, but the judge refused to accept the plea. As in all plea agreements in both state and federal court, a judge can refuse to accept a plea offer if he or she does not think the facts merit a particular sentence. The employee received a minimal sentence because she cooperated in the prosecution of the husband and wife. She undoubtedly received a 5K from the government which allowed the court to deviate from the sentencing guidelines.

Another fact was less than helpful for the defendant at his sentencing hearing. Rodriguez was originally granted bail at his initial appearance and bond hearing. At some point in the case, the defendant was allegedly involved in witness tampering and had his bond revoked for obstructing justice. The judge who handed down the sentence said that the defendant acted out of greed and obtained money at the expense of vulnerable victims. Included in the prison sentence was a $100,000 fine. The real target of the investigation are the lawyers that paid Rodriguez hundreds of thousands of dollars in kickbacks in exchange for the information.

Theft of Patients' Records Nets the Max in Prison, The Miami Herald.com, October 26, 2010.

November 2, 2010

Local Man Sentenced to 40 Years on Sexual Battery Charges

A former chef entered a guilty plea into numerous sexual battery and attempted sexual battery charges. The defendant was accused of committing multiple rapes on Miami Beach between 2006 and 2008. The Miami criminal defense lawyer representing Arturo Ortiz-Soto originally negotiated a 30 year sentence between the defendant and the Miami-Dade County State Attorney's Office. After hearing the plea agreement, the circuit court judge presiding over the case refused to accept the deal as being to lenient. The judge offered 40 years to resolve the defendant's case which was immediately accepted. While it is not typical for a judge to reject a plea offer, judges always have to ratify any plea deals between the state and the defense. The nature of the charges involved with this case plus the media attention probably led to judge to reject the original agreement.

The information(s) accused the defendant of committing several violent rapes on South Beach. In state court, the information is the charging document which sets forth the number of and the types of charges a particular defendant is facing. The defendant at the time he allegedly committed the rapes worked as a sushi chef on Miami Beach. The first information accused the defendant of committing a sexual battery against a women in an alley on the beach. A second information alleged another sexual battery committed in an alley. The third and fourth information(s) alleged attempted sexual batteries which also occurred in alleyways on Miami Beach.

The last attack allegedly committed by the defendant was caught on video tape. After committing the last attack, Miami Beach police officers apprehended the defendant wearing a blood soaked shirt. After being arrested, the defendant purportedly admitted to all the crimes for which he was charged. DNA evidence came back positive on two of the cases. With the strength of the evidence, the defendant made the logical choice of entering a plea because he was facing up to 140 years in prison for his sex crimes. If the defendant had chosen not to accept a guilty plea, the prosecution would have had the opportunity to try him on 4 separate occasions. The judge would not have granted a motion to consolidate the cases as they all occurred on separate dates and at separate locations.

Another problem the defendant was facing if he went to trial would have been that the prosecution would have attempted to introduce the facts of all the cases to support a conviction in one of the sexual battery cases. Rule 404(a) prevents the prosecution from admitting evidence of other crimes, wrongs, or acts to prove the bad character of a defendant or propensity to commit the crime. However, the prosecution can use other evidence to prove motive, opportunity, intent preparation, plan knowledge, identity or absence of mistake. Based on the fact that the offenses were committed in a similar fashion, all the cases would have been heard to support a conviction in the primary case. Prior to other evidence of wrongdoing being admitted at trial, the court will hold a pre-trial hearing to determine if the evidence being sought to be admitted is proper.

Sushi-Chef Rapist Sentenced to 40 Years in Prison, The Miami Herald.com, November 2, 2010.

November 1, 2010

Sentencing Guideline Amendment to Help Seniors

Harsh sentences handed down in federal court against seniors have caused the legislature to scrutinize the federal sentencing guidelines. In recent years, many elderly defendants charged with white collar crimes or other fraud related financial crimes have received sentences which are tantamount to life in prison. Miami criminal lawyers will be able to use this amendment to better represent their clients at federal sentencing hearings. Prior to the amendment which went into effect today, the federal sentencing guidelines stated that a defendant's age is "not ordinarily relevant". The amendment now sets forth that age may be relevant in calculating potential sentences.

The amendment to the sentencing guidelines became necessary as many older defendants charged with white collar crimes have died in prison or will eventually die in prison. Statistics have shown that white collar defendants tend to be older than defendants charged with other crimes in federal court. For example, almost fifty percent of the defendants charged with tax crimes are over the age of 50. Over 25 percent of the defendants charged with money laundering were over the age of 50. Twenty-two percent of the elderly charged in theft and larceny cases are over the age of 50. Not only can the departure be used to help the elderly, the amendment can also assist in receiving sentencing departures on youths.

The federal sentencing guidelines were transformed from mandatory to advisory in 1987. Despite the change in the law, more than half of all defendants sentenced in federal court were sentenced within the guidelines. The newest change in the law came as a result as a result of famous defendants receiving sentences tantamount to life in prison for committing financial crimes. In the past, federal appellate courts have overturned reduced sentences handed down by United States District Courts for defendants with health or age issues. It is too early to tell how effective the amendment will be to assist defense attorneys in seeking reduced sentences for their clients. However, the amendment will provide more fodder to an attorney arguing on behalf of their client at federal sentencing hearings.

Hopefully, the amendment will be as effective as the sentencing departure permitted under state law allowing the court to significantly depart from the guideline sentences under the Youthful Offender Statute. Judges may sentence defendants below guidelines that are under the age of 21 at the time the sentence is imposed. The statute does not apply for defendants charged with capital offenses or life felonies like kidnapping or armed cocaine trafficking. However, young defendant charged with armed robbery or car jacking can avail themselves of the statute if the court is willing to go along with the defense attorney. The youthful offender statute allows the court to sentences a defendant up to a maximum of 6 years. The six years can include prison, community control or probation. On many occasions the only requirement is to complete the Miami-Dade County boot camp program. Hopefully the change in the federal law will be somewhat as affective as the state guideline departure rule.

White Collar Criminals in U.S. May Invoke Age to Seek Lighter Sentences, Bloomberg.com, October 29, 2010.