Recently in Federal Sentencing Category

Knoxville Woman Sentenced to More Than 7 Years for Bank Robbery

March 18, 2014, by The McKellar Law Firm, PLLC

Twenty-year-old Jordan Nicole Nicley of Knoxville, Tennessee, was recently sentenced to serve more than seven years in federal prison for her role in a May 31, 2013 attempted armed-robbery of a local bank.

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According to court records, Nicley's accomplices, Kaylon M. Batts and Dion A. Kinnear, disguised themselves as construction workers and entered the 2075 North Broadway SunTrust Bank location. They then threatened employees at gunpoint and demanded keys for the vault. However, since no employee had the keys, Batts and Kinnear fled the scene empty-handed.

The pair drove away in a Ford Ranger pickup truck that they had previously carjacked, which they promptly abandoned in a nearby alley. At that point, prosecutors claim Nicley picked them up in a Honda CRV and assisted them with their escape. Police officers later found the stolen pickup truck along with evidence of the foiled robbery, including discarded hardhats, orange vests, and bank slips.

Given Nicley's age and lack of criminal history, it is no wonder that she was overcome by emotions when U.S. District Judge Thomas Varlan sentenced her to seven years and four months in prison. Through tears, Nicley told Judge Varlan that she wished to be home with her family and to start over.

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Source: Knox News Sentinel, "Woman who drove getaway car in bank robbery gets prison sentence despite tears," Feb. 20, 2014

Sevier County Police Officer Sentenced to 18 Months for Social Security Fraud

February 25, 2014, by The McKellar Law Firm, PLLC

Sevier County's first ever K-9 officer has been sentenced to 18 months in prison for defrauding the Social Security Administration ("SSA") by committing social security fraud.

Joseph Laney, Jr., age 57, left the Sevier County Sheriff's Office in 1989 after becoming its first K-9 officer. Two years after leaving, Laney filed for disability benefits citing "affective mood disorder" and epilepsy. He was approved and received benefits for the next twenty years to the tune of $319,000.

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As a general rule when on disability benefits through SSA, one cannot do "substantial gainful activity" (SGA) and continue to receive these benefits. "SGA is defined as working and making more than $1,070 per month ($1800 per month if you are blind)." (http://www.disabilitysecrets.com/page1-13.html). Laney was clearly in violation of this activity as he ran a martial arts school, was a dog trainer, taught carry permit classes, was a bounty hunter, authored a book, and was a private investigator. Laney received money for all of these ventures, but failed to report this income to SSA and/or failed to inform them of his ability to work.

Prior to handing down Laney's sentence, Judge Varlan of the United States District Court in Knoxville, Tennessee stated, "[i]n reflecting the seriousness of the offense, the court takes into consideration not only the loss amount, which the court finds significant, but the time frame (of) approximately 20 years."

Tennessee Businessman Sentenced to 31 Years in Prison for Fraud

August 30, 2013, by The McKellar Law Firm, PLLC

Former Nashville, Tennessee area business owner, Richard Olive, 49, of Vero Beach, Florida, was convicted on charges of mail fraud, wire fraud, and money laundering by federal jury on March 7, 2013. Olive was ordered to serve 31 years in prison and to pay $5,992,181.24 in restitution to approximately 190 victims for crimes related to his operation of National Foundation of America (NFOA), headquartered in Franklin, Tennessee.

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According to a press release from the U.S. Attorney's Office, from January 2006 through May 2007, Olive represented that NFOA was a charitable organization. He stated multiple times to potential investors that NFOA was recognized by the IRS as a 501(c)(3) organization, even though he only donated approximately $108,000 to charity. That amount is less that ½ of 1% of the $23.6 million NFOA received. Olive continued to state this though he was counseled to cease at least twice by his attorney. Olive obtained assets of over $30 million during the time of operation, promising that in exchange for an "installment bargain contract," NFOA would provide a "guaranteed payout over a guaranteed period of time," as well as a "generous tax deduction." Evidence revealed at the trial showed that NFOA lacked the assets to meet these promises.

Later discoveries in the investigation showed that Olive solicited assets that included annuities, which have high penalties upon their surrender. Once Olive possessed the annuities, he promptly surrendered them to access the cash, incurring more penalties. With this cash, he began living a lavish lifestyle. Olive paid $153,000 on his personal credit card, funded a private jet for a family vacation to New Orleans, settled a lawsuit filed against him for $250,000, and purchased several properties, including a $690,000 condominium in Las Vegas.

Evidence at trial demonstrated that Olive deliberately misrepresented information pertaining to NFOA. In February 2006, merely days after NFOA gained its incorporation, Olive consulted a financial advisor and provided the advisor with fabricated financial statements that stated NFOA held substantial assets and had been operation in both 2003 and 2004. Three months later, he consulted with another financial advisor stating that the company had $35 million worth in assets. However, since its creation till June 2006, the charitable tax returns filed with the State of Tennessee, NFOA had only received $2.8 million in revenue. Olive was also served with a cease-and-desist order from five different states when they detected a misrepresentation of the company as an IRS recognized 501(c)(3) charitable organization. In May 2007, NFOA was seized and liquidated by the Tennessee Department of Commerce and Insurance.

Due to Olive's leadership in this sophisticated scheme, the large amount of money taken from numerous defenseless victims, and the misrepresentation of NFOA being a charitable organization, the District Court concluded additional sentencing enhancements were to be applied.

Two Tennessee Men Sentenced to Prison for Possession of Child Pornography

August 26, 2013, by The McKellar Law Firm, PLLC

Persons charged with violation of federal child pornography laws can face severe sentences, as two Tennessee men are now fully aware. Charles Wesley Bush, of Knoxville, Tenn., and Patrick Shane O'Ferrall, of Piney Flats, Tenn., were recently sentenced to prison time for possession of child pornography and other related charges.

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The Honorable Thomas A. Varlan, Chief U.S. District Court Judge, sentenced Bush on Aug. 20, 2013 to serve 151 months in federal prison for both the possession and distribution of child pornography. In October 2012, Bush was arrested pursuant to a four-count indictment charging him with distribution and possession of child pornography, and he ultimately pleaded guilty in March 2013. According to a press release from the U.S. Attorney's Office, Bush caught the eye of federal authorities through his use of the internet to distribute child pornography. A search of Bush's computer showed that he possessed 232 images and 299 video files of child pornography.

In another Eastern District of Tennessee case, Judge Leon Jordan sentenced Patrick Shane O'Ferrall of Piney Flats, Tenn., to a statutory maximum sentence of 120 months in prison. O'Ferrall was also ordered to pay restitution to a victim, whose image was among the child pornography depictions. According to a U.S. Attorney's Office press release, O'Ferrall's investigation began when, following his arrest for domestic assault, his spouse discovered pornographic images of young children on CDs among his belongings. Officers then confiscated computers and other forms of electronic media from O'Ferrall's residence, and the seized items contained over 3,500 images containing child pornography and DVDs containing videos of young children engaged in sexual acts.

As these cases show, child pornography can carry severe penalties. If you are suspected of being involved with a federal sex crime, act immediately to consult with an experienced federal criminal defense attorney.

Self-Proclaimed "Queen of Tax Fraud" Begins 21-year Prison Sentence

July 19, 2013, by The McKellar Law Firm, PLLC

Tennessee criminal defense attorneys will rarely have clients as outspoken as self-proclaimed "queen" of tax refund fraud Rashia Wilson. Wilson was sentenced earlier this week to 21 years in federal prison for tax fraud, aggravated identity theft, and weapons charges.

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Wilson, a 27-year-old resident of Tampa, Florida, admitted to stealing in excess of $3 million by using stolen social security numbers to file fraudulent tax returns. Wilson is suspected of taking nearly $20 million in total due to the tax refund scheme in which she was engaged. Wilson used the money on a variety of items, including throwing a $30,000 birthday party for her 1-year-old.

Prior to her arrest, Wilson taunted the Government by posting items to her Facebook account, including these gems:

YES I'M RASHIA THE QUEEN OF IRS TAX FRAUD THE SAME ONE WHO PUT EVERYBODY ON AND ERRYBODY FORGET WHERE THEY COME FROM

IMA NEED A BIHH TO PLZZZZZ KNOW THEY PLACE U SAY YA R BETTER THAN ME BUT I BEG TO DIFFER MY WHOLE NAME IS PAID IM'A MILLION AIRE FOR THE RECORD SO IF U THINK INDICTING ME WILL B EASY IT WON'T I PROMISE U!

TO DA RAT WHO WENT N TOLD AS IF 1ST LADY DON'T HAVE DA TPD UNDER HER SPELL I RUN TAMPA RIGHT BOUT NOW ANY 1 OF U HOES CAN ALL GET TURNED N WIT ME N I BET I WONNT DO NO TIME DUMB BITCHS

Wilson's predictions about the difficulty in indicting her and about not serving time ended up being as spot on as her spelling. Wilson was singing a different tune at her sentencing hearing and asked the judge to "please don't take me away from my children by sending me to prison for a long time." "That would be something you should have considered...that you didn't want to be taken away from your children," the judge replied.

SOURCES
"Tax fraud 'queen' sentenced to 21 years" - The Tampa Bay Tribune

"Rashia Wilson, The 'Queen of IRS Tax Fraud' Gets 21 Years Behind Bars" - OpposingViews.com

Supreme Court Holds that Juries Must Decide Facts Which Increase Mandatory Minimum Punishments

June 24, 2013, by The McKellar Law Firm, PLLC

The U.S. Supreme Court handed down a decision last week in Alleyne v. United States, which ruled that juries must decide any facts which could increase the minimum mandatory sentence for a defendant. Previously, judges would often decide such facts without any finding of fact from the jury.

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The case before the Supreme Court involved Allen Alleyne who was convicted of robbery and use of a firearm during the commission of a crime. During trial, the prosecution asserted that one of Alleyne's accomplices "brandished" a firearm during the commission of the robbery. However, on the jury's verdict form it found that a firearm was "used" and/or "carried" during the commission of the crime, not "brandished." For sentencing purposes, the judge presiding over the trial determined that a weapon was "brandished" despite the jury's silence on the matter. Due to the judge's decision, Alleyne received an increased mandatory minimum punishment of seven years.

The subtle difference between "carrying" or "brandishing" a weapon during the commission of a crime can change the mandatory minimum sentence from five years to seven years. Alleyne objected to this increase in punishment at sentencing, and he argued that such an increase, without a finding of fact by the jury that he brandished the weapon, violated his Sixth Amendment rights.

The Supreme Court agreed with Alleyne by stating "[b]ecause mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an 'element' that must be submitted to the jury." This ruling means that any fact that can increase punishment for a crime will now have to be proven "beyond a reasonable doubt" to the jury before the increased sentencing can be applied. Accordingly, in Alleyne's matter, the trial court's decision was reversed and remanded for sentencing based on its ruling.

Tampa, Florida Stripper Sentenced to 76 Months in Prison for Tax Fraud

April 23, 2013, by The McKellar Law Firm, PLLC

Earlier this month, Danielle Denson claimed she never knew she had to file income tax returns for her income as an adult "exotic" dancer. However, she filed 323 tax returns in other citizen's names claiming more than $1.6 million in refunds from tax years 2008 to 2011. Sentencing Judge Susan Bucklew presiding over the case, expressed disbelief over Denson's claim that she was unaware that she was supposed to file tax returns on her income as a stripper, and stated: "What did you think the IRS did? Just give money back? Yet you were filing hundreds of tax returns? I have a hard time believing that." Judge Bucklew then proceeded to issue a Judgment for Denson to serve 6 years and 4 months in federal prison for her tax crimes.

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Denson's defense attorney's attempted to convince the Judge that Denson's hard life led her to engage in fraud as a way to simply survive. Denson's attorney stated Denson's mother died of AIDS and her father abused her. One of the victim's mothers was not persuaded by Denson's attorney's argument. Her daughter is a 27 year old autistic female that resides in a group home. On the false returns, Denson listed the victim as a student which resulted in a $9,046 tax return. The mother of the victim stated the she had also been severely abused as a child, yet she had maintained her job for 29 years. The mother of the autistic female asked the court to give Denson the maximum sentence possible.

The prosecution was also not persuaded by Denson's arguments.
The Government argued that Denson did not just participate in tax fraud to survive but rather to support her lavish lifestyle, which included a new Mercedes, spending over $300,000 at the Hard Rock Casino in 2007, and spending $14,000 at Gucci.


Sources
The Tampa Tribune - "Tampa Exotic Dancer Sentenced for Tax Fraud"

The Tampa Tribune - "Woman Set to Plead Guilty in Tax Fraud of $1 Million Plus"

Newspitter.com - "A Stripper, Danielle Denson Gets 6 Years for Tax Refund Fraud"

Child Protection Act Doubles Statutory Maximum Sentences for Child Pornography Offenses

February 6, 2013, by The McKellar Law Firm, PLLC

On December 7, 2012, President Barack Obama signed the Child Protection Act, which doubles the potential sentences for those convicted of certain sex and child pornography crimes. The Child Protection Act (CPA) also provides more resources for investigating online crime and a more efficient way to issue subpoenas. As an additional weapon in the fight against online child crime, the CPA creates a civil action and new offenses for harassing or intimidating a child victim or witness.

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This new law amends the federal criminal code to impose a fine and/or prison term from 10 years up to 20 years for transporting, receiving, distributing, selling, or possessing pornographic images of a child under the age of 12, provided in 18 U.S.C. § 2252(b)(2). In 18 U.S.C. 1514(b)(2), the new law allows a U.S. district court to issue a protective order prohibiting harassment or intimidation of a minor victim or witness as long as the court finds evidence that the conduct could adversely affect the willingness of the minor to participate in a federal criminal case. If an offender is to violate this protective order, then he or she can be imprisoned for up to 5 years and/or be fined. The U.S. Marshals Service can now issue an administrative subpoena for the investigation of unregistered sex offenders by the U.S. Marshals Service.

Finally, the Child Protection Act of 2012 further amends the PROTECT Our Children Act of 2008 in the following ways:
(1) Doubles the amount from $2,000,000 to $4,000,000 annually that the Attorney General can award a non-law enforcement agency to establish and conduct training courses for the National Internet Crimes Against Children Task Force Program.
(2) Requires that the Attorney general designate a senior official at the Department of Justice with experience in child exploitation cases as the National Coordinator for Child exploitation Prevention and Interdiction, and he or she will be responsible for coordinating the development of the new system.
(3) Requires the Attorney General to report within 90 days after the enactment of this Act on the status of the establishment of the system.

Child Pornography Sentences Continue to Stir Up Controversy

Some of the most challenging cases for criminal defense attorneys to take on are cases involving possession of child pornography. As one might imagine, a person accused of possessing child pornography is not likely to garner much support or sympathy from a jury member. Oddly enough, the person in the court most likely to show mercy to such a client may just be the sentencing judge.

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The Kingsport Times recently linked an article from the Associated Press regarding the continuing debate over how to properly sentence those persons convicted of violating the child pronography laws, which are primarily federally codified at 18 U.S.C. § 2252. The article claims that the U.S. Sentencing Commission plans to release a report at the end of the year that would propose changes to the sentencing guidelines used on defendants convicted of possessing or distributing child pornography. The reasons for the proposed sentencing changes lie primarily with the severity of the sentencing for child pornography possessors, which have resulted in offenders who distribute and possess child pornography receiving longer prison sentences than those who actually sexually molest or even rape a child.

Perhaps surprisingly, federal court judges may actually agree with proposals to reduce the punishment for such offenses. According to a 2010 survey of federal judges, 70% said the sentencing structures were too high for child pornography convictions. In practice, federal judges issued child pornography sentences that were lower than the sentencing guidelines 45% of the time in 2010. Yet even though the sentences were lower than the sentencing guidelines, the average sentence for child pornography was still higher than all other offenses except murder and kidnapping.

On the other side of the debate are prosecutors and advocates for the victims. As one victim stated, "[those who view or distribute child pornography] need to be taught how much pain they inflict and a greater term of imprisonment will teach them that, (and) will comfort victims seeking justice." A congressman showed dismay over the number of judges who are already issuing lower sentences. "I am concerned that the federal judiciary is failing to consider the severity of child pornography and its victims. This departure rate is disturbing and threatens the most vulnerable among us, our children."

In a recent article for the journal of the National Association of Criminal Defense Lawyers, former Sen. Arlen Specter of Pennsylvania and former AUSA Linda Dale Hoffa criticized the approach by Congress. "The fact that child pornography offenders can be given longer sentences than child abusers or violent offenders reflects a lack of care by Congress," Specter and Hoffa wrote. "In the rush to prove itself hostile to individuals who possess or distribute child pornography, Congress has obscured the real distinctions between different offenders."

Even with the Sentencing Commission's upcoming report and criticisms by judges, there are those who believe that Congress will most likely not act. As Professor Jelani Exum from the University Of Toledo College Of Law stated, "You don't have a built-in sympathy. Who's going to stand up and say, 'I'm fighting for child porn possessors [?]'" Former federal prosecutor Linda Hoffa shared Professor Exum's views. "If you vote against these harsher penalties, the sound bite is that you're protecting child pornographers, and that could be the end of somebody's career."

Convicted Tax Evader Demonstrates How Not to Properly Handle a Criminal Case

March 19, 2012, by The McKellar Law Firm, PLLC

Abraham Lincoln is credited with saying, "He who represents himself has a fool for a client." I too have often thought the same thing when I hear of people venturing into the dangerous waters of criminal defense without a skilled lawyer. One such person to venture into these dangerous waters is Hiram Dane, who was convicted on four counts of felony tax evasion in Utah.

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Up until 2 weeks ago, Dane had been on the lam for almost three years. In 2008, he was a pilot for SkyWest Airlines in Utah when he was arrested for four counts of felony tax evasion. The prosecution claimed that Dane failed to file tax returns for 2005 and 2006, and that he also falsified returns for other tax years.

Dane's case came to trial in 2009. He went pro se before the court during the morning session. He was due back in the afternoon but never showed. He was later convicted of tax evasion and failure to file a proper tax return. For close to three years, he has been on the run from authorities. In 2010, he registered a company called Bavarian Securities in Sanford, North Carolina. This act ultimately led to his arrest.

Dane made three mistakes that I hope no one else will make: 1) representing himself, 2) abandoning his defense in the midst of trial, and 3) fleeing. I can only imagine that Dane will receive no leniency from his sentencing judge upon his return to Utah, and he may face additional penalties and/or charges for fleeing and contempt of Court.

Three Tennessee Residents Plead Guilty to "Soring" Horses

December 2, 2011, by The McKellar Law Firm, PLLC

According to the Department of Justice's website in an article titled "Barney Davis, Christen, Altman, and Jeffrey Bradford Plead Guilty to Horse Protection Act Violations," three Tennessee residents pled guilty in October to "soring" horses. The "soring" of horses is defined in the article as "...an unlawful practice where items like bolts are screwed against the soles of horse's hoofs or chemicals are applied to the pastern and hoof areas to produce pain and sensitivity to alter the gait of a horse."

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According the article from the U.S. Attorney's Office for the Eastern District of Tennessee, the United States Department of Agriculture, Office of the Inspector General began investigating the case in August of 2010. In April of 2011, a grand jury in Chattanooga returned a thirty-four count superseding indictment against the three Shelbyville, Tennessee residents. Among the charges were violations of the Horse Protection Act of 1970, which is codified at 15 U.S.C. § 1821, and financial crimes related to the incident. The original charges were later amended to charge Davis with witness tampering. Davis pled guilty to the amended charges and waived presentation to the grand jury.

Violators of the Horse Protection Act are prosecuted federally and can be charged with both felony and/or misdemeanor crimes. Unites States Attorney Bill Killian expressed that he hoped that the prosecution of Davis, Altman, and Bradford will deter others in the industry from committing these types of crimes. Killian went on to say, "...we have been given dominion over the earth and its creatures, and we must exercise that privilege by being good stewards of this gift. Maiming and mutilating horses for sport and profit betrays that charge of stewardship."

Sentencing in this case has been set for February 13, 2012, at 9:00 a.m., in the United States District Court in Chattanooga.

Atlanta Chiropractor Sentenced to 57 Months Imprisonment and $6.5 Million in Restitution for Health Care Fraud

July 11, 2011, by The McKellar Law Firm, PLLC

An Atlanta, Gerogia chiropractor was sentenced to nearly five years in prison for conspiracy to commit health care fraud, according to a press release from the United States Attorneys' Office. Andrew Sokol pleaded guilty to charges that he fraudulently billed several private insurance companies for millions of dollars in physical therapy services that he never actually provided his patients. In addition to his prison sentence, Sokol was also ordered to pay restitution of over $6.5 million.

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According to the Government's press release, Sokol defrauded insurance companies by offering services like chiropractic care, personal training, and massages to the patients at his "WellnessOne" clinics in the Atlanta area. He would then bill insurance companies for the services, claiming he provided patients with physical therapy. Sokol specifically targeted employees at companies that offered Blue Cross Blue Shield policies because their plans provided generous physical therapy benefits. Sokol would offer promotional incentives to these employees such as massage gift cards, restaurant and gas cards, gift bags, and free lunches to entice them to use the clinic's services. He also waived deductibles and co-payments, so his patients were actually compensated for the services they received. Sokol did employ doctors and physical therapists, but they saw very few WellnessOne patients. These professionals were merely on the payroll so that Sokol could bill the insurance companies for their higher rates, while massage therapists were actually providing the massages. The scheme allowed Sokol to pocket millions of dollars by billing personal training sessions and massages as physical therapy.

Sokol's case is another example of the Government's crackdown on health care fraud as a means to help control skyrocketing health care costs. According to the FBI, fraudulent billing to private insurance companies and public health care programs such as Medicare and Medicaid account for an estimated 3 to 10 percent of total health care expenditures in the U.S., a potential cost of over $200 billion annually. Because of these enormous costs, federal law enforcement agencies are increasing their efforts to detect these schemes. In 2010, the government recovered $4 billion from health care fraud enforcement and prevention efforts relating to public programs alone. There are huge sums of money at stake for both public health programs and private insurers, so cases like Andrew Sokol's are likely to be prosecuted vigorously well into the future.

U.S. Sentencing Commission Decides to Apply Fair Sentencing Act Retroactively

June 30, 2011, by The McKellar Law Firm, PLLC

Federal Criminal Defense Attorneys are celebrating a decision by the United States Sentencing Commission will affect the length of sentences being served by thousands of people imprisoned for crack cocaine-related offenses. As discussed previously, under sentencing guidelines enacted in 1986, a person convicted for an offense involving crack cocaine could face significantly longer prison terms than a person caught with the same amount of powder cocaine.

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On August 3, 2010, President Obama signed the Fair Sentencing Act of 2010 ("FSA") into law. The FSA was intended to reduce the dramatic disparity in sentencing between individuals convicted of drug offenses involving crack cocaine compared to powder cocaine.
While critics of the old guidelines applauded the FSA, it was unclear whether these changes in sentencing should be applied retroactively to cases where a defendant had already been charged prior to the FSA taking effect. Courts were divided on the issue. Some courts applied the FSA's guidelines while others did not, leading to widely varying sentences for almost identical offenses.

As reported in the New York Times on June 30th, the Sentencing Commission clarified the situation by voting that the FSA's guidelines should be applied retroactively. The Commission determined that retroactive application of the FSA was the appropriate decision given the inherent unfairness of the previous guidelines. The decision affects approximately 12,000 federal inmates currently incarcerated for crack-related offenses. Those inmates can apply to a judge for a sentencing reduction. If approved, prisoners could see an average sentence reduction of around three years. The Sentencing Commission's decision is not final; Congress can overrule the Commission before the revised policy takes effect on November 1.

Sentencing Judges are Prohibited from Ordering Additional Imprisonment Solely to Allow Defendants to Participate in Drug Treatment Programs

June 21, 2011, by The McKellar Law Firm, PLLC

The United States Supreme Court's decision last week in Tapia v. United States (2011 WL 2369395 (U.S.)) could affect how long a number of criminal offenders spend in prison. Alejandra Tapia was convicted of smuggling unauthorized aliens into the country. The District Court found that the United States Sentencing Guidelines recommended that Tapia be sentenced to 41 to 51 months in prison. At Tapia's sentencing, the judge imposed a 51-month sentence, stating that Tapia could benefit from the Bureau of Prison's Residential Drug Abuse Program ("RDAP"), and that Tapia should spend enough time in prison to qualify for and complete the program.

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Tapia appealed the sentence to the Ninth Circuit Court of Appeals, where she argued that 18 U.S.C. § 3582(a) prohibited lengthening her sentence so that she could participate in RDAP. The Ninth Circuit disagreed with Tapia, but the United States Supreme Court reversed, holding that courts are not permitted to either impose imprisonment or lengthen a prison term in order to promote the offender's rehabilitation. The Supreme Court thus resolved a split among several Courts of Appeals on this issue.

The Supreme Court's decision was based primarily on the language of 18 U.S.C. § 3582(a), part of the Sentencing Reform Act of 1984 ("SRA"). Section 3582(a) states that when courts determine whether to sentence an offender to prison and for how long, the court should "recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation." The Court also cited a provision related to the Sentencing Guidelines instructing the Sentencing Commission to "'insure that the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or provide the defendant with needed educational or vocational training, medical care, or other correctional treatment." 28 U.S.C. § 994(k).

The Court found this to be so even though the SRA states that rehabilitation is one of the primary purposes behind sentencing. 18 U.S.C. § 3553(a)(2). The Court distinguished these provisions, finding that while rehabilitation is a purpose of sentencing generally, it is not a factor in determining the appropriateness of imprisonment or the duration of a prison sentence. Congress made clear its determination that imprisonment is not the way to achieve rehabilitation by enacting § 3582(a).

The Court also examined additional evidence of Congressional intent. The opinion notes that there are no provisions in the SRA that give courts the power to order offenders to participate in prison rehabilitation programs; the Bureau of Prisons has complete authority over those decisions. For example, in this case, the trial judge clearly hoped Tapia would participate in RDAP, but she never enrolled.

The Court was careful to state that it approves of lower courts discussing the rehabilitation and education programs that are available to offenders who have been sentenced to prison. What courts may not do is extend the term of imprisonment so that these services are available to offenders who otherwise would not have adequate time to complete such a program.

A Review of Recent Federal Sexual Exploitation and Child Pornography Sentences

Federal sex crimes encompass a wide variety of criminal action, and as a result, the sentences handed down by federal district court can vary greatly. Here's a quick summary of a few recent sentences involving federal sex crimes around the nation:

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1. A Florida man received a 72-month sentence last week for receipt of child pornography. The defendant was reportedly in possession of approximately 17,500 images of child pornography, including sadistic and masochistic images and depictions of sex acts with children
under twelve.

2. Last month, a North Dakota man was sentenced to 30 years in federal custody on child pornography charges. A federal jury found the defendant guilty of using the internet to download visual depictions of minors engaging in sexually explicit conduct. The sentencing judge ordered the defendant to serve 20 years for receipt of materials involving the sexual exploitation of minors, to be followed by 10 years on a charge of possession of those materials.

3. A 66-year-old California man was sentenced last week to almost 22 years in federal prison after he admitted to persuading a minor to participate in sexually explicit acts for the purpose of filming it. Reportedly, the defendant Baldwin came under investigation by the Federal Bureau of Investigation's Modesto Office and the local Sheriff's Office after a minor victim reported being molested by him from 2005 through early 2010.

4. Last month, a Texas man was sentenced to 20 years after he pled guilty in November 2010 to one count of receiving child pornography. After executing a search warrant at the defendant's residence, a forensic examination of his computer and officers discovered more than 100 images of child pornography. Further, according to the affidavit filed with a criminal complaint, a 16-year-old victim described details of sexual encounters with the defendant that occurred at the defendant's home. The victim stated that they had sexual intercourse and that during one of the sexual encounters, the defendant recorded it and stored it on his computer.

As these cases indicate, child pornography and sexual exploitation of minor cases can carry severe penalties. If you are suspected of being involved with a federal sex crime, act immediately to consult with an experienced federal criminal defense attorney.