Since the United States Supreme Court decided  United States v. Booker, 543 U.S. 220 (2005), judges in the federal trial courts have had discretion as to whether to impose the harsh sentences that are sometimes called for by the United States Sentencing Guidelines.  Although Booker still requires District Court judges to consider the guidelines in imposing sentences, the judges are no longer bound by the guidelines.  Put another way, the guidelines are now considered advisory rather than mandatory.

In light of Booker, it was interesting to see the sentencing statistics for the judges in the Northern District of Texas for 2009.  In 1007 cases sentenced in 2009 in this district, the judges followed the sentencing guidelines in 65% of the cases.  In a large majority of the cases in which the judges gave a sentence below the guidelines it was because of a defendant’s cooperation.  Yet in these “cooperation cases,” the defendants would have been eligible for these below guideline sentences even before Booker.  Indeed, the judges only used  their discretion under Booker to give a lesser sentence in 114 (11 percent) of the cases.  Moreover, they used their discretion under Booker to give a higher sentence in 46 (5 percent) of the cases.

In sum, it does not appear that the judges in the Northern District of Texas are varying as much from the sentencing guidelines as judges in other districts or as much as was hoped by defense attorneys when Booker was first announced five years ago.

Of course, when a defendant is charged with a criminal offense in federal court, it is imperative that he or she retain a lawyer that practices regularly in federal court and is skilled in the application of the United States Sentencing Guidelines.  It is also important that lawyers present a comprehensive sentencing memorandum prior to a client’s sentencing and make a full presentation at the time of sentencing along with character witnesses in an attempt to persuade judges to use the discretion that Booker has given them.  It is disappointing that only 11 percent of the cases in 2009 in the Northern District of Texas resulted in a lower sentence as a result of a “Booker variance.”

CLICK HERE FOR THE 2009 STATISTICS COMPARING THE NORTHERN DISTRICT OF TEXAS WITH OTHER DISTRICTS

President Obama recently signed legislation reducing, but not eliminating, the disparate ways in which federal criminal law penalizes those involved with crack cocaine and those involved with powder cocaine.  This becomes the second small step in an attempt to eliminate the unjust fashion in which the federal drug laws distinguish between crack cocaine and powder cocaine, but there is  still a long way to go. Read the rest of this entry »

Clients often wait to retain us until they are actually indicted. Many times, however, had the client come to us when they first became aware they were under criminal investigation they might have avoided indictment all together or, at least, been in a better position to defend themselves once they were indicted. Just as it is important to see a medical doctor before it is too late, it is important to be proactive about a criminal investigation. Read the rest of this entry »

Federal prosecutors are prosecuting child pornography offenses at an astounding rate both here in the Northern District of Texas and throughout the country. Because of Broden & Micklesen’s reputation as one of the preeminent federal criminal defense firms in the United States, we were recently hired to represent the husband of an FBI agent who had been charged in federal court with distribution of child pornography. While we often have to aggressively take on federal law enforcement agents in court, it was flattering that, when one of their own was in trouble, they turned to our firm. The case of the agent’s husband is typical of how many child pornography cases usually arise and how they are prosecuted. Read the rest of this entry »

There are many Texas attorneys who advertise that they will “serve as both your bail bond agent (bondsman) and your attorney” and that they provide “competitive rates” for bail bonds that can later be applied to legal fees. Read the rest of this entry »

A potential client came to see me the other day.  The potential client was charged in federal court with possession and distribution of child pornography.  When the potential client called me to set up the appointment, it was clear that he did not have much money.  He was being represented by a Federal Public Defender (FPD) and was not working.  I do not charge for initial consultations and was happy to meet with the gentleman even though I recognized that it was unlikely that he would be able to retain our firm.
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In rare cases in federal court it is possible to make the government pay for a wrongful prosecution.  On November 26, 1997, Congress passed the Hyde Amendment which provides that if a defendant prevails in a prosecution brought in federal court and the court finds that the prosecution was “vexatious, frivolous or in bad faith,” the government can be required to pay the attorney’s fees and litigation costs that the defendant incurred in connection with the prosecution. Read the rest of this entry »