Recently in Sentencing Category

January 12, 2012

Convicted Drug Trafficker Seeking Sentence Reduction

One of the most infamous Haitian cocaine trafficking kingpins will go before a federal judge and seek a significant sentence reduction for cooperating with federal authorities. The defendant will appear with his Miami criminal defense lawyers seeking at least a 50% cut from his current sentence. Beaudoin Ketant operated one of the largest cocaine trafficking rings in Haiti until he was expelled by Jean Bertand Aristide in 2004. The expulsion from Haiti came at the request of the United States government. Federal law enforcement officers traveled to Haiti and the flew the defendant out of the country. The U.S. Attorney's Office indicted the defendant on charges of importation of cocaine and conspiracy to do the same. The indictment alleges that the defendant was responsible for the importation of in excess of 30,000 kilograms through locations such as Florida and New York.

Defendants charged in federal court will often have the ability to reduce their prison sentences by cooperating with federal prosecutors and other law enforcement officials. Prior to cooperating with federal authorities, a skilled defense attorney should thoroughly review a case, the evidence supporting the case and all discovery provided by the prosecution. After reviewing the case with the client, the decision whether or not to cooperate must be made. In the majority of cases, there is not much time to make this decision for a variety or reasons. First, federal judges move cases along at a rapid pace. Secondly, as time goes by, co-defendants will come forward to cooperate, dissipating the clients usefulness. Law enforcement wants new and fresh information that will lead to other prosecutions.

The rules for sentence reductions in federal court can be found in the United States Sentencing Commission Guidelines Manual. Section 5K1.1 provides for a sentence departure for substantial assistance to law enforcement authorities. The government must make a motion prior to a guilty plea being entered by the defendant. The motion must set forth that the defendant has provided substantial assistance in the investigation or the prosecution of another person who has committed an offense. The ultimate decision to a reduce a sentence and by how much is left up the judge. The judge will consider the significance, usefulness truthfulness and reliability of the information, the nature and extent of the assistance, and the timeliness of the substantial assistance. A defendant can also seek a reduction after a sentence has been imposed. A defendant can seek a reduction under Rule 35 for substantial assistance after a sentence has been handed down. The defendant in this case is seeking a reduction under the latter category.

According to prosecutors and defense lawyers, the defendant is going to receive a significant sentence reduction. Despite his serious involvement in drug trafficking, the defendant could see his term cut in half as his substantial assistance has led to 50 convictions of other Haitian nationals involved with cocaine trafficking and money laundering. His information has led to the successful conviction of both cocaine traffickers and individuals charges with taking bribes. The most interesting claim made by the defendant named Aristide a co-conspirator in the drug trafficking operation. The defendant purportedly paid Aristide money to allow the cocaine to travel smoothly in and out of the country. Haiti was a major hub moving cocaine from Columbia to the United States.

Haitian Drug Kingpin Prosecuted in Miami Could Get Big Cut in Prison Sentence, Miami, December 21, 2012.

December 23, 2011

Healthcare Operators Plead Guilty to $60 Million Healthcare Fraud

The Federal Bureau of Investigation (FBI) and the Department of Health and Human Services (HHS) announced that three operators of a local healthcare agency have entered guilty pleas for their involvement in a $60 billion home healthcare Medicare fraud scheme. The three defendants with the assistance of their Miami criminal lawyers entered guilty pleas before a United States district judge to one count of conspiracy to commit Medicare fraud. According to court documents, the defendants were family members that fraudulently billed Medicare for home healthcare and therapy services that were never provided. The defendants used recruiters to locate patients in and around Miami who would in turn provide their Medicare numbers to the illegal enterprise. The company would bill the federal healthcare agency and pay kickbacks to the recruiters.

The federal government continues to crackdown on Medicare fraud. The cases being prosecuted generally occurred prior to the new changes in the billing requirements and polices related to healthcare claims. The reason for the delay in the prosecutions in these types of cases is caused by the extensive investigations and the numbers of defendants surrounding these types of organizations. Generally, the criminal investigations last between two and three years culminating in the arrests of several defendants. Once the defendants are charged in criminal court, many of them, due to the overwhelming evidence in the case decide to cooperate with federal prosecutors to avert long prison sentences. As part of the cooperation, defendants are required to disclose other individuals who were involved in the fraud. For example, clinic owners or home healthcare providers are required to give up doctors, therapists and recruiters who were also involved in the fraud.

Prior to cooperating with the federal government, defendants should seek advice from an attorney with experience in defending Medicare fraud cases in federal court. All of the documents, audio and video recordings and other evidence obtained in the case must be thoroughly reviewed before making the decision whether to cooperate or not. Entering into a cooperation agreement with the government should happen quickly if that is the decision made into how to handle the case. The more fresh information provided to investigators will increase the likelihood of a significantly reduced sentence. Delaying cooperation will allow for other defendants to come forward and provide the information. Providing information that has already been provided to the government is not as helpful when seeking a sentence reduction. In large part, the prosecution will determine the value of the information which in turn will be used to decide the amount of the reduction in the form of a 5K or a Rule 35.

Prior to the reduction, the defendant will be scored according to the United States Sentencing Commission Guidelines. Defendants will score differently depending on a couple of factors. First the amount of the loss to Medicare will significantly impact the guideline range. Other factors that will also impact the guideline range include whether the defendant was an owner or operator of the company, whether a defendant was a planner or supervisor, or whether the defendant played a minor role in the criminal offense. A defendant's level of involvement in the fraud will play a large role in determining whether levels are increased or decreased in calculating a guideline range. The key is to reduce the guideline range as much as possible before the sentence in finally reduced for cooperating with the government.

Three Guilty Pleas in $60 Million Medicare Fraud, South Florida Business, December 20, 2011.

November 30, 2011

Judge Hands Down 40 Year Sentence in Murder Case

The highly publicized case involving the stabbing death of a Coral Gables student has finally reached its conclusion with the exception of any appellate matters that they may be heard by the 3rd District Court of Appeal. Andy Rodriguez appeared at his sentencing hearing with his Miami criminal attorney. The circuit court judge presiding over the case ordered the defendant to spend the next forty years in prison. If that was not bad enough, the judge tacked on 10 years of reporting probation once the defendant concludes his prison sentence. The courtroom was packed with reporters and family members from both the victim's and the defendant's family members. While the sentence levied by the judge appears harsh at first blush, it could have been a lot worse.

The defendant was charged by information with second degree murder and convicted by a jury of the same offense. Because the defendant was not charged with or convicted of capital first degree murder, the decision on the sentencing was left up to the judge with no input from the jury. A second degree murder case is non-capital and therefore only a 6 person jury will decide whether a defendant is guilty or not-guilty. First degree murder cases which are capital offenses, which entitles a defendant to have a jury consisting of 12 jurors. The sentencing process varies a little. In cases where Defendants are convicted in capital first degree murder cases where the death penalty is being sought by the prosecution, the jury will vote on whether or not to impose the death penalty. The judge of course has the ultimate decision when the sentence is actually imposed. In all other cases, the six or twelve person will have no say in the sentence whatsoever.

In the case involving Rodriguez, the defendant decided to make a statement before the judge handed down the sentence. In all cases, a defendant is permitted to make a statement after he or she has been found guilty. Well thought out and planned statements can cause a judge to hand down a more lenient sentence than you would normally expect. In this case, the statement given to the judge at the sentencing hearing was quoted as being "tepid" and not overly heartfelt. The defendant in his statement denied the crime. Denying the crime after a criminal conviction shows a lack of acceptance of responsibility and lack of remorse which will have deleterious affect on the judge. That is why it is important for a criminal lawyer to prepare his or her client for the hearing. Another way to persuade a judge to hand down a lighter sentence is for defendant's to have his or her friends and family speak on their behalf. A good support structure goes a long way with a judge, depending on the crimes charged and convicted of, of course.

The judge in this case also sentenced the defendant to 10 yeas of probation after he completes his prison sentence. Whether the matter of probation was appropriate or not has been discussed around town. Probation sentences are usually ordered for first time offenders who did not qualify for the pre-trial intervention program, most likely because of the charge. After sentencing someone to 40 years of prison, a follow-up probation sentence hardly makes sense. Just because the judge sentenced the defendant does not mean he will serve the entire prison sentence. He will about serve 85% of that time provided there are no significant infraction during the prison stay. Cases where a judge sentences someone to life or cases involving minimum mandatory sentences do not allow for the 85% (gain time rule).

Forty-Tear Prison Term for Coral Gables High Killer, Miami, November 29, 2011.

June 22, 2011

Life Sentence, No Death Penalty for Defendant

On September 30, 2010, a jury returned a guilty verdict in the trial of Coconut Grove resident Brandon Antron Rolle for the July 2006 first degree murder and robbery with a firearm of a lost Illinois tourist. The defendant remained in custody since he turned himself in on August 4, 2006. The Miami criminal defense lawyers representing the defendant were unable to secure an acquittal for the client. The sentencing phase was a little more successful, but in the end, the same jury voted 8 - 4 in a non-binding recommendation that the defendant be executed for his crimes. In accordance with state law, however, the task of making the final determination fell to Miami-Dade Circuit Judge Dennis Murphy. Generally, judges follow the penalty recommendation of the jury, and, at least according to local press reports, it was widely expected that this judge would decide in favor of the death penalty for Rolle. Unlike other felony cases, capital murder cases have two phases. The first phase determines the guilt or innocence of a defendant while the second phase will determine the punishment.

To the surprise of many, the judge's decision, issued on June 15, rejected the jury's death penalty recommendation and instead sentenced the defendant to life in prison for his role in Gentile's murder. The judge stated that this murder, while clearly a tragedy, fell short of being so heinous as to merit capital punishment, "only the worst of the worst are to be sentenced to death." The victim, a furniture salesman from Homewood, Illinois, had been visiting the Miami area to celebrate his son's 17th birthday. He had dropped off his son at the teen's place of employment at a local mall, and had planned to join him for a movie later that day. Driving a rental car in the unfamiliar city, Gentile got lost in Coconut Grove. The 54-year-old tourist stopped to ask 26-year-old Rolle for directions. Rolle, who had been out of prison only 17 days for another crime, shot and killed the tourist, and stole Gentile's wallet, a diamond ring, a gold bracelet, and a necklace in what Miami defense attorneys later characterized as a robbery gone terribly wrong. Gentile managed to exit the car and walk a shot distance before he collapsed. He was pronounced dead en route to Jackson Memorial Hospital.

Police investigators found Rolle's fingerprint on the rented Chevrolet Cobalt's driver-side door, and an eyewitness, a Liberty City convenience store clerk, testified that Rolle attempted to sell him some of Gentile's property. Rolle's then girlfriend also testified that Rolle used Gentile's mobile phone, and had her pawn some items of jewelry he had taken from Gentile. The girlfriend also provided police a picture Rollo took of himself in a nightclub with his finger making a gun-like gesture while he wore a bracelet later identified as having belonged to Gentile. Prosecutors argued to the court that Rolle deserved the maximum sentence. Rolle already had been in prison on three separate occasions and had squandered the opportunities given him to straighten out his life and amend his criminal behavior.

As noted above, Rolle's defense team rejected the prosecutor's argument, and the jury's recommendation for the death penalty, stating that execution was too severe a punishment for what amounted to a robbery that went fatally sour. The judge sided with the defense. After the judge issued his decision to impose a life sentence rather than the death penalty, Miami-Dade State Attorney Katherine Fernandez Rundle told the press that, "We respect the role of the court, which has the ability to override the jury recommendation. We did our job. He did his."

Miami Man Gets Life, Instead of Death Penalty, for Grove Tourist Murder, Miami, June 15, 2011.

January 24, 2011

Justice System Fails

The recent death of two local police officers has everyone up in arms regarding the individual that shot them while they were attempting to execute an arrest warrant. The criminal justice system's goals are two-fold, punishment and rehabilitation. Johnny Simms, a twenty-two year old Miami resident shot and killed two Miami-Dade police officers last week. The arrest warrant stemmed from a murder allegedly committed by Simms. Simms had been in and out of the state criminal justice system from the time he was a juvenile. The Miami criminal defense attorneys representing Simms over the years had kept him from serving a long prison sentence. In most cases, judges allowed for lenient sentences because of his youth.

In 2005, Simms was arrested and charges with felony offenses including cocaine possession, armed robbery and auto theft. In 2006, facing the 10-20-life statute, he accepted a plea that required him to complete the boot camp program. Florida's 10-20-life statute attaches to certain offenses committed with firearms, such as armed robbery and aggravated battery. Anyone charged with an enumerated offense while in actual physical possession of a firearm faces a 10 year minimum mandatory prison sentence, a 20 year minimum mandatory sentence applies if the firearm is fired, and a 25 year minimum mandatory applies if someone is actually shot during the commission of an enumerated offense. Anyone charged with type offense can avoid these minimum mandatory penalties if they are sentenced as a youthful offender. To qualify as a youthful offender, a defendant must be 21 years of age or younger at the time offense was committed.

Typically youthful offender pleas are offered in combination with boot camp pleas and a defendant is sentenced to two years of community control followed by four years of probation. The majority of community control is completed during the boot camp and aftercare process. There are other advantages to a youthful offender plea other than avoiding minimum mandatory sentences. Defendants accused of a technical probation violation face a maximum of 6 years in prison while adult violators can be sentenced up to the statutory maximum. However, even youthful offenders face the maximum statutory sentence if charged with a new criminal offense.

While the deaths of the officers is completely unfortunate, the boot camp program provides an invaluable contribution to our community. The majority of the offenders who successfully complete the boot camp program rarely return to a life of crime. Inmates enrolled in boot camp gain discipline from the physically demanding program. The defendants are also assisted in finding employment upon completion of the program. While there is no guarantee that an event like this will not occur in the future, the benefits of the program certainly outweigh the negatives.

Cop Killer was Given Breaks, Squandered Them, The Miami, January 23, 2011.

January 5, 2011

Mother Gets Probation in Case Involving Son's Death

A local women entered a guilty plea in criminal court to one count of aggravated manslaughter. In exchange for her guilty plea, the state offered a five-year probationary plea. The Miami criminal lawyer representing the defendant told reporters that he was pleased with the result. Satisfied with the plea offer, the circuit court judge presiding over the case ratified the plea. All pleas must be ratified or be amenable to the judge hearing the case above and beyond any agreement between the prosecutor and the defense lawyer. The judge also approved the defendant receiving a withhold of adjudication.

While staying out of jail or prison was important to the defendant, the withhold of adjudication can also be equally as important. A withhold of adjudication is critical, as a defendant who receives this benefit, does not have a criminal conviction on his or her record. A criminal conviction causes individuals to lose their civil rights such as the right to vote or carry, possess or own a firearm. A withhold of adjudication is very important for another reason. A withhold of adjudication will allow a defendant to avail himself or herself of the sealing and expungement process. There is a caveat that only certain criminal offenses are eligible for sealing or expunging. For example, burglary to a structure can be sealed while a dwelling burglary cannot. Cocaine possession charges can be sealed while cocaine trafficking charges cannot. In this case, the defendant will not be able to seal her record because she was charged with manslaughter.

The defendant received an excellent plea deal for a number of reasons. While a normal manslaughter charge is a second degree felony punishable up to 15 years in prison, aggravated manslaughter is a first degree felony punishable up to 30 years in prison. Manslaughter is elevated to aggravated manslaughter when the death involves an elderly person, a child under the age of 18, or the case involves the death of a police officer or firefighter. Despite the fact that the defendant was facing 30 years in prison, she only received a 5 year probationary plea. It should be noted that if the defendant violates probation and a probation violation hearing is set, she is facing the original 30 year prison sentence.

The are several mitigating factors that led to the exceptional plea deal offered to the defendant. The defendant had no prior criminal record to speak of. The reports indicated that she was a hard working and dedicated mother. There is no indication that the defendant had any prior record for child neglect or child abuse. The defendant allegedly forgot to take the child to school before going to work. The child was inadvertently left in the car and died from excessive heat. The prosecution explained the plea by saying the worst penalty the defendant could face was the loss of her child. The case is an example of how mitigation and extenuation can allow a defendant to avoid prison or jail.

Miami-Dade Mother Gets Probation in Toddler Son's Death, The, January 1, 2011.

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 November 23, 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,, October 29, 2010.

October 18, 2010

Lawyer's Assistant Sentenced in Federal Court on Fraud Charges

The former assistant to a currently jailed attorney was sentenced in a Broward County federal courtroom for her involvement in one of the largest Ponzi schemes ever unraveled in South Florida. Debra Villegas appeared with her criminal defense lawyer to be sentenced on racketeering charges for which she pled guilty earlier in the year. The federal judge presiding over the case sentenced her to 10 years in prison for her alleged involvement in the massive scheme to defraud. According to the indictment and accompanying court documents, Villegas was Scott Rothstein's right hand in the investment scheme. Along with a 10 year prison sentence, the judge ordered the defendant to pay restitution in the amount of $363 million to the 300 plus victims of the Ponzi scheme.

The defense attorney representing Villegas put on testimony at the sentencing hearing in an effort to persuade the judge to reduce her sentence and in fact requested that her sentence be served as home confinement so she could care for her children. Her estranged ex-husband is facing murder charges for which her children will be called as witnesses. The judge was unmoved by the argument and sentenced her to the maximum sentence allowed under the law. While as dire as the situation may seem, the judge allowed the defendant to surrender to serve her sentence beginning June 2011. According to reports, Villegas has cooperated with the federal law enforcement and prosecutors to assist in nabbing the rest of those allegedly involved in the fraud. The imposition of the sentence was probably delayed at the request of the prosecution and the defense for several reasons.

While the defendant apparently did not receive a break for her cooperation at the sentencing hearing, federal law allows for a sentencing departure at any time after the sentence is imposed under a Rule 35. Sentence reductions for cooperation with the authorities can occur at the sentencing hearing under what in common parlance is called a 5K. A 5K will be offered by the government if a defendant provides substantial assistance in the investigation or prosecution of another person who has committed a criminal offense. Of course, any agreement of this nature between the government and the defense, will require the court to make a final determination of percentage decrease in the sentence. The court will evaluate the significance and usefulness of the assistance provided; the truthfulness, completeness and reliability of the information provided by the defendant; the nature and the extent of the defendant's assistance; and the timeliness of the defendant's assistance.

A Rule 35 will probably be more beneficial to the defendant in this particular case than a 5k because she will be able to continue cooperating prior to the date she must surrender. In some cases, a defendant can receive a 5k and a Rule 35 as part of a sentencing reduction. A reason to rest her departure on a Rule 35 and not 5 K is to let time pass where the case will not be so fresh and the pubic's and the court's mind. Despite the defendant's cooperation with the FBI and IRS, the judge rejected her defense attorneys request for 7 years of house arrest. Maybe after further cooperation with the government, the defendant's sentence may reduced by the court.

Rothstein's Right-Hand Man, Debra Villegas, Sent to Prison, Miami, October 8, 2010.

October 6, 2010

Tainted Confessions End Up in Long Prison Sentences

Many defendants that have been sentenced to long prison sentences on sexual battery and rape charges based on alleged confessions made to law enforcement officers. The advent of DNA evidence in recent years has revealed that defendants have been sentenced to lengthy prison sentences based on the strength of tainted confessions in many cases. While any Miami criminal attorney will tell you never to make nay statements to law enforcement, some individuals either do not follow the simple instruction of do not have the mental capacity to withstand questioning by the police.

A recent study out of the University of Virginia revealed that in 250 rape and murder cases where the defendants were eventually exonerated as a result of DNA testing, 40 individuals had confessed to a crime or crimes they did not commit. Three examples of recently exonerated, wrongfully accused defendants convicted of violent crimes come out of Broward County. Don't kid yourself, defendants charged in Miami-Dade County and across the State of Florida are doing hard time for crimes they did not commit. The lucky defendants are the ones that are released because DNA existed to prove their innocence. Crime scene technicians try to collect DNA from crimes scenes that involve homicides and sexually motivated offenses. However, crime scene technicians are rarely called out to burglary of auto theft scenes. While these crimes are not a serious per se as murder and rape charges, convictions for these types of charges can land certain types of offenders in prison for up to forty years.

Many career criminal statutes have been passed over the last couple of decades to put away defendants with extensive criminal records. Enhanced sentences can and will be handed down by state criminal judges for defendants that are classified as habitual offenders, violent habitual offenders, violent career criminals and prisoner releasee re-offenders. These enhancement are used to double prison sentences and even carry minimum mandatory sentences. For example a defendant convicted of a dwelling burglary that is classified as a violent career criminal can be sentenced to 40 years in prison with a 30 year minimum mandatory. A first time offender is likely to receive probation for the same type of offense. The problem is that defendants sentenced to lengthy sentences for lesser felonies do not have DNA to exonerate them.

Many burglary cases are made on the strength of a confession provided by defendant. No DNA evidence, eyewitnesses, or physical evidence of any kind are required to prove the case. The prosecution can prove a burglary case with an admission and the fact that a burglary was committed. That is certainly not much evidence to put a person behind bars for forty years. A skilled Miami criminal lawyer must be able to convince a jury that many confessions and admissions are obtained through coercion, threats or force. Cases with oral confessions are certainly easier to defend that cases where taped confession have been taken by the police. Again, the best advice to any arrested for any crimes is to invoke one's right to remain silent and the right to have any attorney present for questioning. Take advantage of your rights and do not make the case against you any stronger than it already is.

Report: Broward County Not Alone in Coaxing Confessions, The Miami, Septepber 19, 2010.

July 27, 2010

South Florida Lawyer Sentenced in Federal Court

A well-known lawyer and forensic accountant was sentenced to 8 ½ years in federal court on theft related charges. Lew Freeman, a former lawyer and accountant was accused of stealing millions of dollars from his clients. The Miami criminal defense lawyers representing Freeman portrayed their client as a Dr. Jekyll and Mr. Hyde. They argued that the person who stole approximately $2.6 million from clients also was a philanthropist that gave to and supported many charities. The United States District Judge agreed with the Freeman's counsel that his crimes allowed him to live an upscale lifestyle, but also used the money to help people.

The pre-sentence investigation (PSI) report drafted by a federal probation officer initially calculated Freeman's sentence at between 12 and 15 years. Government prosecutors argued for a sentence within that range, but the judge recalculated the guidelines when the government could not prove the number of victims of fraud set out in the PSI. In addition to the 8 ½ years, the judge order the defendant to complete 21 months of house arrest with the condition that he perform 1,700 hours of community service during that time.

The judge immediately ordered Freeman into custody to serve his sentence. On some occasions, judges permit defendants to receive their sentence and surrender at a later date to begin their sentence. This was not the case, either by the choice of the judge or the defendant. Freeman apologized to his family, the court and his victims. The facts of the case were stunning in that the defendant, trusted by South Florida courts over 30 years to act as a receiver in many high stakes bankruptcy and fraud cases, became involved in fraud himself. The judge presiding over the sentencing hearing was moved by defense counsel's arguments, but also found that Freeman had violated the trust of many and dealt a blow to the entire system.

Freeman garnered a lot of support from friends, family and other members of the community. Prior to the sentencing hearing, the judge received 277 letters from supporters. The majority of the letters condemned his actions, but all applauded him for his charitable efforts on behalf of the University of Miami, Miami Children's Hospital and Miami Children's Museum, among others. While the letters, support and charitable efforts were well-represented to the judge, the court had to contend with the breach of trust and the numerous victims that lost money. The court also made a point that the defendant spent hundreds of thousands of dollars on clothing, vacation, home renovations, and restaurants. The defense attorney's representing Freeman put together an outstanding presentation, but the number of victims and the underlying offense were to much to overcome a significant prison term.

Miami Accountant Lewis Freeman Gets 8 ½ Years in Prison for Fraud, The Miami Herald, July 24, 2010.

May 17, 2010

Prison Populations in Florida Continue to Grow

As time passes on, the prison population in the State of Florida continues to grow. The costs are growing to astronomical numbers, while the money being used for education and construction projects continue to dwindle. Not only do the taxpayers and the citizens of Florida pay for the exorbitant costs that accompanies a growing prison population, but the defendants who are overpopulating the jails are also paying a price. In 1995, the state spent $1.6 billion running its penal system, while in 2010, the budget calls for $2.4 billing in spending. Despite the decrease in crime across the state, the prisons are being overwhelmed by two factors. The first is the growing population in Florida, while the second is the sentencing enhancements that continue to be drafted and passed by the legislature. While the crimes of cocaine trafficking, mortgage fraud, marijuana possession and aggravated assault have been on the books for many years, the legislature continues to add more offenses punishable under the penal code. While the prisons become more populated, Miami criminal lawyers have never been more busy defending their clients in state court.

Prior to the late 70's and the early 80's, the judges sitting on circuit court benches had a wide discretion in determining sentences for defendants who entered pleas or who were found guilty after trial. Under those sentencing guidelines, there were no minimum mandatory penalties, no career criminal statutes, parole existed and prisoners usually did about 25% of their sentence prior to being released. In the 1990's, the legislature took discretion regarding sentencing away from the circuit judges by implementing sentencing guidelines. With the guidelines came offense levels and the offense severity ranking chart. As time has passed, the legal reasons for sentencing departures available to judges has also been diluted. As a result of all of these changes, the State of Florida is expected to have a prison population of 115,000 by 2015. According to reports, the 20% increase in population will require the state to build nine new prisons at an estimated cost of $862 million.

The drug trafficking minimum mandatory sentences should be revisited by the legislature. The minimum mandatory sentences came to fruition in the 1980's in an effort to combat the ongoing cocaine trafficking problem in Miami that gained national attention. Not only were trafficking minimum mandatories created for cocaine, but also for heroine and other dangerous narcotics. Eventually, the legislature included man made drugs such as oxycodone in the minimum mandatory structure. Anyone in possession of in excess of 28 grams of oxycodone pills will be charged with oxycodone trafficking and is facing a 25 year minimum mandatory sentence. Until recently minimum mandatories for marijuana trafficking did no exist. Any experienced criminal attorney in Miami could guarantee a client probation no matter the amount of marijuana being trafficked. However, with the rise of the marijuana grow house, anyone in possession of more than 25 pounds of marijuana is facing at least a three year minimum mandatory.

After the trafficking minimum mandatories were created, the career criminal statutes were passed piece meal over the years. Some of the sentencing rules allowed for the doubling of prison sentences, while other statutes imposed lengthy minimum mandatory and life sentences. The law changed that set forth the premise that life meant life. Parole was no longer available, and if a defendant was sentenced to life, he or she left jail in a pine box, unless he or she was lucky enough to win some type of post-conviction relief motion or appeal. While an argument can be made for the enhanced sentenced handed down for violent crimes, out of fairness to some defendants, and in ane effort to decrease the state's budget, some of the minimum mandatory laws need to be relaxed and more discretion must be give to our elected judiciary.

Florida Prison Population: Growing by Leaps and Bounds, The, May 17, 2010.

April 26, 2010

Harsh Sentencing Laws Getting a Second Look in Florida

For the past 30 years, the Florida Legislature has enacted various laws regarding sentencing which are among the toughest in the United States. Florida uses a series of minimum mandatory and habitual offender sentencing laws that has caused the state's prison population to explode. Florida currently houses in excess of 100,000 inmates which is only exceeded by Texas and California. In certain jurisdictions, including Miami-Dade County, repeat of offender (ROC) courtrooms have been established to deal with the habitual offenders. While some believe the habitual offenders should be sentenced to long prison sentences to keep our communities safe, their havebeen discussions that certain minimum mandatory sentences outside of the habitual sentencing laws are Draconian in nature and need to be repealed or amended. Miami criminal lawyers practicing in state criminal circuit court are aware of the pitfalls of the minimum mandatory sentences.

Minimum mandatory sentences apply to a variety of charges including drug trafficking and firearm charges. The minimum mandatory sentences take all discretion away from the trial courts with a few exceptions. A judge can waive the minimum mandatory sentences if defendants are sentenced as youthful offenders or the defendant provides substantial assistance to law enforcement or prosecutors regarding other cases. The minimum mandatory sentences that apply to drug trafficking cases are part of the problem. In the 1980's, Miami and South Florida became known as the drug trafficking capital of the United States. As a result, the Florida legislature implemented drug trafficking minimum mandatory sentences for offenses such as cocaine trafficking and heroine trafficking. Minimum mandatory sentences were all passed for illegal pills such as oxycodone, as well as other non-prescription pills.

Examples of minimum mandatory drug trafficking sentences:

Drug Trafficking Offense

25 to 2,000 pounds/ 3 years
2,000 to 10,000 pounds/7 years
10,000 pounds or more/15 years

28 to 200 grams/3 years
200 to 400 grams/7 years
400 grams or more/15 years

4 to 14 grams/7 years
14 to 28 grams/15 years
28 grams or more/25 years

4 to 14 grams/7 years
14 to 28 grams/15 years
28 grams or more/25 years

In 1999, the Florida Legislature passed the 10/20/life law which created minimum mandatory sentences for defendants possessing firearms during the commission of an offense. If a defendant possesses a firearm during the commission of an offense the 10 year minimum penalty applies. If a shot is fired from the firearm a 20 years minimum apples. If someone is shot by the defendant at the time of the offense, that person can be sentenced for 25 years to life in prison. Opponents of the legislation claim the prison overcrowding and high budgets are a result of these potential sentences, while proponents claim that the crime rates in Miami-Dade County have decreased as a result of these harsh penalties. Due to the harsh sentences that apply to these types of charges, it is imperative to hire a qualified and experienced criminal defense law firm to defend these cases. While minimum mandatory sentences apply to certain cases, a good defense team can break down a case to force the prosecution to waive the minimum mandatory sentence that is applicable to a specific case.

Given Florida's Budget, Some Look to Ease Sentencing Laws,, April 26, 2010.

April 12, 2010

Key Witness Faints During Marijuana Trafficking Sentencing Hearing

The lead investigator in a marijuana trafficking case fainted during a hearing in federal court. While being cross examined during the sentencing hearing, the lead DEA agent fainted on the witness stand. As a result, the United States District Court Judge presiding over the case rescheduled the sentencing hearing. The case involves a four co-defendant marijuana trafficking ring out of Port St. Lucie and Hobe Sound, Florida. The Miami criminal defense lawyer representing one of the four co-defendants, Kobie O. Gary, was cross examining Special Agent Darren Singleton when the agent slumped over and fainted, causing the judge to clear the Miami courtroom.

The four co-defendants, including Gary have previously entered guilty pleas to the charges and are currently awaiting sentencing. Gary is facing between five and forty years in a federal prison for his alleged involvement in the conspiracy to traffic marijuana case. Along with Gary, Stephen Shepherd, Scott Gibson and David Grant are also facing charges. The indictment stems from the creation and operation of a marijuana grow house in Port St. Lucie and Hobe Sound. As a result of an executed search warrant, 237 fully grown pot plants were seized from the residence. Despite the fact that all of the co-defendants entered guilty pleas, they are each trying to limit the sentences that will be imposed against them.

Each of the co-defendants are trying to avail themselves of level reductions available under the United States Sentencing Guidelines. Gary's criminal lawyers are blaming Gibson for being the mastermind behind the grow house operation. They are doing this for good reason. If they can prove to the judge that Gary was only a minimal or minor participant, he would be eligible for a two to four level decrease under his applicable guidelines. However, if Gary is shown to be an organizer, leader, manager or supervisor in the marijuana trafficking operation, he would be eligible for a level increase rather than a reduction..

As Gary has entered a guilty plea, he is also trying to receive a reduction for his acceptance of responsibility. By pleading guilty and offering a written acknowledgment of his guilt to the government and the court, he will be eligible for a two or three level reduction depending on the weight of the marijuana. Another reduction that Gary is trying to obtain is called Limitation on Applicability of Statutory Minimum Sentences or more commonly called the "Safety Valve". If a defendant does not have a prior criminal history, did not use violence, threats of violence or a firearm, the offense did not result in death or serious bodily injury and the defendant was not an organizer, leader, supervisor or manager of the offense, a two level reduction is possible with a waiver of any minimum mandatory sentences that may apply.

The case is representative of how a qualified criminal attorney can limit a client's sentence by having an intimate knowledge of the federal sentencing guidelines. While it is always important to evaluate to the strengths and weaknesses of any case before going to trial or entering a plea, an experienced federal criminal defense lawyer is necessary to evaluate the sentencing guidelines in order to effectively represent a client and obtain the best possible sentence.

DEA Agent in Kobie O. Gary Case Faints on the Stand, The Miami, April 9, 2010.

April 6, 2010

Drug Dealers Arrested in Broward County

During a county wide sting, the Broward Sheriff's Office in conjunction with other local law enforcement officers arrested dozens of suspected drug dealers and other offenders. Law enforcement authorities made 170 arrests for cocaine possession, cocaine possession with intent to sell, marijuana possession, marijuana possession with intent to sell, oxycodone possession, prostitution and a variety of firearm charges. The arrests came as result of what the authorities dubbed "Operation April Fool's". The police confiscated dozens of firearms, hundreds of pounds of marijuana, hundreds of grams of cocaine and pills including oxycodone and Vicodin. The majority of those arrested will be represented by criminal defense lawyers from the Broward County Public Defender's Office.

Those arrested face a wide variety of sentences if they enter pleas or are convicted after a jury trial. The Broward State Attorney's Office will inevitably extend plea offers to all of the defendants. The plea offer will be determined based on a number of factors including the charge, a person's prior criminal history, the location of the drug transaction and whether or not a defendant qualifies for an enhanced sentence. The State of Florida has promulgated sentencing guidelines based on a point system. The more severe the charge, the more points will be assigned to the offense. For example, felony marijuana possession is a level 1 offense, while cocaine possession with intent to sell within a 1,000 feet of school is a level 7 offense that carries with it a mandatory state prison sentence. Additionally, cocaine sale or cocaine possession with intent also carries a three year mandatory minimum sentence if the offense occurred within a 1,000 feet of a school.

Not only do the points for the current offense get scored under the Florida guidelines, but additional points are added for prior offenses even if an adjudication was withheld. Simply put a person with a cocaine possession charge with nor prior record will receive a much better plea offer than a person arrested for the same charge, but has prior felony convictions. The points assigned to the prior offenses are also based on the severity of the charge. The prosecutors use form score sheets to compile a defendant's guidelines. Always remember that first time offenders will always receive better plea offers than others with an extensive criminal history.

While a past arrest record can lead to an accumulation of points, a past criminal record may cause the prosecution to seek enhanced penalties under the career criminal laws. There are several categories of career criminal statutes which can double a persons sentence and add hefty minimum mandatory sentences. Examples of the various career criminal statutes are habitual offenders, habitual violent offender, violent career criminals (GORTs) and prison releasee re-offenders. Minimum mandatory sentences apply to the last two categories. Individuals can qualify as a career criminal based on two criteria, a person's past criminal history and the dates on which the previous offenses were committed. Always remember, that just because the prosecution claims a defendant to be a career criminal, they must prove it to a judge using the individuals prior certified judgements and sentences.

Suspected Drug Pushers Arrested Throughout Broward,, April 2, 2010.