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SENTENCING DEPARTURES SINCE BOOKER

Feb 21 2009
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Defense Lawyers Must Prepare for Federal Sentencing

By: Houston Criminal Defense Lawyer John Floyd and Paralegal Billy Sinclair

The United States Supreme Court in 1996 held that federal district court judges had discretion to depart from the recommendations of the U.S. Sentencing Guidelines. See: Koon v. United States, 518 U.S. 91, 98 (1996).

Some of these judges – many of whom were placed on the federal bench during the 12-year presidential reign of Ronald Reagan and George W. Bush because they shared the politically conservative views of judges like Robert Bork and Clarence Thomas – viewed Koon as a judicial license to enhance criminal sentences as part of the Republicans’ “war on crime.” See: United States v. Weisser, 417 F.3d 336, 346 (2nd Cir. 2005) [reversal of a district court judge’s sentence based upon multiple enhancements including a 13-level increase in the offense level and a three-level increase in the criminal history level].

Nine years after Koon – a case involving one of the Los Angeles police officers convicted in the infamous “Rodney King” freeway beating – the Supreme Court handed down United States v. Booker which limited the discretion of federal judges to enhance sentences by ruling that the Guidelines are advisory, not mandatory. See: 543 U.S. 220, 245-46 (2005).

Booker instructed federal judges that in sentencing matters they could only consider facts for enhancement that are: (1) reflected in the jury verdict; (2) admitted by the defendant; (3) contained in the defendant’s guilty plea; or (4) pertain to a prior conviction. Id. Beyond these factors, the jury had to find facts true beyond a reasonable doubt to warrant
enhancement. Id.

Two terms later the Supreme Court reinforced Booker with two strong sentencing decisions. First, in Rita v. United States the court held that any sentence imposed consistent with the Booker rule had to be presumed “reasonable” when reviewed on appeal by the federal appellate courts. See: 127 S.Ct. 2456, 2463 (2007).
Second, in Gall v. United States the court held that federal appellate courts must apply the deferential “abuse-of-discretion” standard when reviewing sentences on appeal – even those imposed within the Guidelines. See: 128 U.S. 586, 589-90 (2007). Put simply, “the fact that the appellate court might have reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal.” Id. The court, however, added the caveat that a “major departure” – such as the one rejected by the Second Circuit in Weisser – “should be supported by a more significant justification than a minor one.” Id.

The First Circuit made this point quite clear in United States v. Zapete-Garcia when it reversed a district court sentence enhanced eight times the maximum sentence recommended by the Guidelines. See: 447 F.3d 57 (1st Cir. 2006). The First Circuit outlined the facts of Zapete as follows:

“In October 2004, Dionisio Zapete-Garcia (Zapete) disembarked from an airplane in Isla Verde, Puerto Rico. The flight had originated in the Dominican Republic. On arrival, Zapete presented United States immigration officials with an American permanent resident card bearing his own photograph and the name Vetilio E. Fajardo. Upon questioning, Zapete admitted that he had obtained the card fraudulently, paying approximately $1,500 for it. Federal Immigration and Customs Enforcement records revealed that Zapete had been deported from the United States twice previously, once in 1985 and once in 1987.

”That December, Zapete pleaded guilty to one count of knowingly using or attempting to use a forged, counterfeit, or altered immigration document in violation of 18 U.S.C. § 1546(a). His sentencing hearing took place on February 4, 2005 in the District Court for the District of Puerto Rico. The district judge, following the recommendation of the Pre-Sentence Investigation Report (PSR), began his calculations under the federal Sentencing Guidelines with a base offense level of 8. He then added two levels because Zapete was an unlawful alien who had previously been deported from the United States ( U.S.S.G. § 21.2(b)(1)) and subtracted two levels for acceptance of responsibility (§ 3E1.1), arriving at a total offense level of 8. Because Zapete had never before been convicted of any offense, the court determined his criminal history category to be I. The total offense level combined with the criminal history category yielded a recommended guidelines sentencing range of zero to six months. The district judge, however, after reminding the parties that [Booker] had rendered the guidelines advisory rather than mandatory, sentenced Zapete to 48 months in prison, eight times the maximum guideline-recommended sentence. As explanation for the sentence he chose, the judge stated:

“’The Court imposes this sentence based on the following factors. As it appears from the presentence report . . . this defendant has already been deported twice from the United States. He had been deported back in October of 1985 and August of 1987. It also appears from the presentence report that he was arrested on November 14, 1991, in New York City, charged with criminal possession of controlled substance, narcotics, a Class A Felony, and with criminal possession of a weapon, which is a Class D Felony. And since 1992 a bench warrant [that] has been issued for his arrest remains outstanding. For those reasons the Court imposes the sentence that it has imposed.’” Id., at 58-59 [internal citations omitted].

The district judge offered two reasons for enhancing Zapete’s sentence eight times that recommended by the Guidelines. First, the judge pointed out that Zapete had twice deported from the United States, and, second, Zapete had a prior arrest in New York years earlier and had an outstanding bench warrant against him. Id., at 60. The First Circuit addressed, and rejected, both of these factors:

“The first factor, Zapete’s previous deportations from the United States, was already accounted for in the guideline calculation: the PSR recommended, and the judge adopted, a two-level increase applicable to a defendant who ‘is an unlawful alien who has been deported (voluntarily or involuntarily) on one or more occasions prior to the instant offense.’ U.S.S.G. § 2L2.2(b)(1). When a factor is already included in the calculation of the guidelines sentencing range, a judge who wishes to rely on that same factor to impose a sentence above or below the range must articulate specifically the reasons that this particular defendant’s situation is different from the ordinary situation covered by the guidelines calculation. The judge in this case provided no such explanation. We do note that the two-level guideline enhancement in § 2L2.2(b)(1) applies to any unlawful alien defendant who has previously been deported at least once; the guideline does not recommend a steeper enhancement for defendants who have been deported multiple times. It is not necessarily unreasonable for a judge to increase the sentence of a defendant who had previously been deported more than once, and indeed Zapete had been deported twice. However, although some amount of increase for multiple violations might be reasonable if supported by an explanation, here there was no explanation for an increase of such magnitude. In any event we cannot say that one additional prior deportation reasonably warrants an eightfold increase in punishment.

“The second factor relied upon by the district judge to enhance the sentence, Zapete’s arrest in New York City in 1991 and the accompanying outstanding bench warrant, is also unpersuasive to support the magnitude of the increase. To begin with, the guidelines contain a policy statement that allows sentencing courts ‘to consider “prior similar adult criminal conduct not resulting in a criminal conviction”’ but prohibits them from basing an upward departure solely on a defendant’s prior arrest record. Although this policy statement is no longer binding, one of the seven statutory factors a judge must consider in sentencing is ‘any pertinent policy statement issued by the Sentencing Commission.’ 18 U.S.C. § 3553(a)(5). Therefore, while not controlling, the policy statement prohibiting reliance solely on arrest records must be duly considered by the district judge. There is no evidence that the judge in this case did so.” Id., at 60.

The Eighth Circuit, on the other hand, chose to misread the Booker mandate, particularly with respect to the district court judge’s enhancement authority. See: United States v. Thorpe, 447 F.3d 565 (8th Cir. 2006). See also our previous articles discussing the Eighth Circuit’s repeated conflicts with Supreme Court following Booker: Floyd, John T. and Sinclair, Billy, “Judicial War Over Crack Sentencing Comes to an End” (Jan. 30, 2009); Floyd, John T. and Sinclair, Billy, “The Judicial Wars Invoked by Crack Sentencing,” (Oct. 24, 2008): https://www.johntfloyd.com.

The Eight Circuit in Thorpe reviewed a 180-month sentence imposed for crack cocaine distribution and possession of firearm convictions. The government presented evidence that Thorpe was a member of the Murdertown Gangsters, had an extensive criminal history, and was a major drug dealer. Believing the district court judge had imposed a sentence too lenient based on the quantity of drugs allegedly distributed by Thorpe, the Government appealed. The Eighth Circuit responded in defiance of the Booker rule that any factor that enhanced a defendant’s sentence had to be established beyond a reasonable doubt:

“The government argues that the district court erred in sentencing Thorpe based on the drug quantity found by the jury beyond a reasonable doubt instead of on the amount proved by a preponderance of the evidence.

“Judicial fact-finding based upon a preponderance of the evidence standard is permitted in sentencing provided that the guidelines are applied in an advisory manner. [citing Booker]. If the district court fails to recognize that it has this authority, we will remand for resentencing unless the beneficiary of the error demonstrates that the error was harmless, such as when the district court would have imposed the same sentence absent the error. As recounted above, the district court read Booker to require the application of a beyond-a-reasonable-doubt standard of proof to drug quantity determinations. Because, as the probation officer’s comment in the PSR suggests, the guidelines calculation might well have been different had the district court realized that, as explained in our post-Booker decisions, it could constitutionally find Thorpe accountable for a drug quantity greater than that found by the jury. Thorpe has failed to demonstrate that the district court’s error was harmless.

”The government also argues that the district court erred in the extent of its departure from the guidelines range in imposing Thorpe’s sentence on Count I. We need not address this issue, however, in light of our remand for resentencing.
”We affirm the conviction, vacate the sentence, and remand to the district court for a determination of the drug quantity under a preponderance of the evidence standard and for the imposition of a sentence commensurate with the drug quantity determination.” Id., at 568-69 (internal citations omitted]. See also: United States v. Carter, 449 F.3d 1289, 1298 (D.C. Cir. 2006) [In determining the quantity of drugs attributable to a defendant, sentencing judge must point to evidence sufficient to support his/her findings].

In the wake of Booker, the Fifth Circuit dealt with two cases involving the opposite extremes in departure: downward and upward. In the downward departure case, United States v. Castillo, the Fifth Circuit held that a sentencing judge’s anger toward a government prosecutor was not a legitimate basis for imposing a more lenient sentencing than recommended by the Guidelines. See: 430 F.3d 230 (5th Cir. 2005). The appeals court stated the facts in Castillo as follows:

“On September 9, 2003, five days before Castillo was scheduled to be sentenced, Castillo filed a sentencing memorandum and motion to file this pleading under seal.’ In this memorandum, Castillo argued that the district court should depart downward from the sentencing range established by the Guidelines for two reasons. First, he contended that the district court should depart downward because of a disparity between how the government rewarded him for his cooperation versus how it rewarded Lipit for his cooperation. According to Castillo, both he and Lipit cooperated with the government, but only Lipit stood to receive a motion for downward departure by the government as a result of that cooperation. Second, Castillo moved for a downward departure under U.S.S.G. § 5H1.4 because he was HIV-positive, which, in his view,

constituted an extraordinary physical impairment. The sentencing memorandum noted that Castillo had been HIV-positive since 1993, had Hepatitis C, and suffered from muscle soreness and a groin rash. Castillo also noted in his sentencing memorandum that ‘the probation officer had submitted to the Court a confidential document describing Mr. Castillo’s condition.’ In fact, the PSR’s Second Addendum noted that ‘a confidential page to the PSR’ describing Castillo’s condition had been submitted to the court under Fed.R.Crim.P. 32(c)(3)(A). Specifically, in a sealed enveloped attached to Castillo’s sentencing memorandum was a two-page document entitled ‘Information Excluded From the Presentence Report Pursuant to Rule 32(c)(3)(A) F.R.C.P.’ According to the government, this document was never disclosed to it.

“On September 15, 2003, the day of sentencing, the government filed its response to Castillo’s sentencing memorandum. The government did not file its response under seal. In its response, it stated that Castillo had not provided the government with substantial assistance, and it argued that Castillo’s HIV-positive status was not, in and of itself, an appropriate basis for a downward departure under U.S.S.G. § 5H1.4. Unbeknownst to the government, its response to Castillo’s sentencing memorandum, along with Castillo’s sentencing memorandum, were both sealed by the district court. Although the district court had issued a separate order sealing Castillo’s motion for continuance based on cooperation, it did not issue an order sealing either his sentencing memorandum or the government’s response. According to the government, it never knew that either its response or Castillo’s sentencing memorandum was filed under seal.

”Later in the day on September 15, the district court held its sentencing hearing for Castillo. The court, adopting the PSR, first found that Castillo’s total offense level was twenty-nine, his criminal history category was I, and the applicable Guidelines range was 87-108 months imprisonment. The district court then asked Castillo’s lawyer to speak on her client’s behalf. She replied that she wanted to discuss the issues raised in her sentencing memorandum but did not want to ‘go into all the detail that’s in there, given that I filed it under seal.’ Then, after discussing Castillo’s cooperation with the government, she began to discuss Castillo’s ‘condition.’ The court inquired if drugs were available at the detention center for Castillo, and Castillo’s lawyer, citing her sentencing memorandum, responded that ‘the very nature of jail conditions is dangerous for a person in his situation.’ The court then asked whether Castillo was ‘currently ill or not currently ill.’ Castillo’s attorney replied that Castillo’s medical records were ‘pretty vague,’ that Castillo had ‘muscle aches and the persistent rash that may or may not be related to his condition,’ and then said ‘I don’t know.’ She also told the court that ‘I can’t say to the court that he qualifies.’ The court then asked additional questions about the availability of medications for Castillo, and Castillo’s lawyer once again said that ‘my real argument is that in his current condition, he should qualify for a downward departure given his increased susceptibility in the jail.’ After Castillo’s counsel finished discussing Castillo’s medical condition, Castillo addressed the court and asked for forgiveness.

”After Castillo addressed the court, the prosecutor began his presentation, stating first that Castillo had not yet provided the government with substantial assistance. The court then told the prosecutor that it did not understand the government’s written response to the motion for downward departure on health grounds and asked for clarification on the government’s position. The following exchange ensued:

“’[The prosecutor]: My entire point–and she’s right, I couldn’t find any Fifth Circuit law on this particular point and so basically what I did was I went to the other circuits, as did she, and in my citation to the United States v. Johnson [sic United States v. Rabins], the Eighth Circuit case–it’s cold and it’s difficult for me to stand beside Mr. Castillo knowing his physical condition and the sympathy that I have for him, but the fact of the matter is, this isn’t the first time in the country that this has happened and they use terms like “full-blown AIDS” and “advanced AIDS” literally in the cases–

”THE COURT: Well, you’re the first person who said that and you know this is filed under seal. So, why would you do that in this courtroom?
[The prosecutor]: My apologies. I did not know that.
THE COURT: Yes, you did know that.
[The prosecutor]: Well, I received a faxed copy from–
THE COURT: No one has said that except for you today. No one has said that except for you.
[The prosecutor]: My apologies. It was not–it was thoughtless and–
THE COURT: It was completely unnecessary, thoughtless, and rude. Y’all have a seat. I’m going to come back to you.” Id., at 233-35 [emphasis added].
After this exchange, the sentencing judge granted Castillo’s request for a downward departure and imposed a 57-month sentence. The judge stated for the record the following basis for his departure:

“’Although it is not clear to the Court the exact current medical status of [Castillo’s] condition, that is, whether he is HIV positive or he has AIDS, the Court is taking that condition into consideration specifically in this case in determining that a downward departure should be granted for two reasons. One, the Court is departing downward under 5H1.4 based on the Court’s finding that he has an extraordinary medical condition.

”’The Court is additionally departing downward under 5K2.0, finding that counsel’s action this morning deliberately placed the defendant in danger of–in possible danger and repercussions from fellow prisoners, in that counsel disclosed in the presence of other persons incarcerated with this defendant the nature of the defendant’s HIV status, suggesting even the possibility that he might have full-blown AIDS, in a manner that the Court believes is designed to potentially impact his Eighth Amendment rights. And that could place the defendant in unnecessary danger and subject him to needing additional protection, and that a departure on that basis is warranted to avoid any failure to protect issues that might arise from the unauthorized disclosure of his medical condition to other prisoners who were in the courtroom this morning.’” Id., at 236.

The sentencing judge also attached a “written statement of reasons” for his downward departure. In addition to finding Castillo had an “extraordinary physical condition,” the judge also found that the government attorney was “malicious and deliberate” in disclosing the defendant’s confidential medical condition. The judge added this confidentiality breach put Castillo in “dangerous and repercussion from fellow inmates which warrants special prison protection.” Id., at 237. The Fifth Circuit then addressed, and concluded, that the judge had abused his discretion in departing on these grounds:

“ … We conclude that the district court’s factual finding–that the prosecutor deliberately and maliciously made comments that endangered the defendant’s safety–is wholly unsupported by the record and is clearly erroneous. To begin with, nothing in the record suggests that the defendant was ever endangered. To the contrary, the government, in its brief on appeal, argues that the public disclosure of Castillo’s HIV-positive status would make him less likely to be the victim of a physical attack in prison because other inmates would want to avoid possible exposure to his bodily fluids.

”Regardless of whether the government’s argument is correct, the fact remains that the record contains not a shred of evidence suggesting that the disclosure of Castillo’s HIV-positive status would endanger his safety, and the district court never explained how it knew that the prosecutor’s comments would lead to such danger. The district court also did not order the Bureau of Prisons to take any special security precautions with respect to Castillo’s incarceration, which suggests that it was not overly concerned about his safety. Accordingly, because the district court’s factual finding that the prosecutor endangered Castillo leaves us with a definite and firm conviction that a mistake has been made, it is clearly erroneous.

”The district court’s factual finding that the prosecutor deliberately and maliciously disclosed Castillo’s HIV-positive status is also clearly erroneous. No rule in the Southern District of Texas prohibits a prosecutor from disclosing or discussing a defendant’s HIV-positive status at sentencing. Furthermore, the district court never ordered confidentiality at sentencing or took any steps to preserve confidentiality at sentencing (such as holding an in camera sentencing hearing or sealing the courtroom). Likewise, the district court never ordered that the parties refrain from mentioning Castillo’s HIV-positive status. The only rule pertaining to the disclosure of Castillo’s HIV-positive status that is potentially applicable to the present case is Fed.R.Crim.P. 32(d)(3), which prohibits the probation officer from including certain confidential information in the PSR. In accordance with this rule, the probation officer filed information about Castillo’s medical condition under seal. This rule, however, imposed no obligations whatsoever on what the prosecutor could say at sentencing. Moreover, the prosecutor in the present case claims that he did not even know about the sealed information from the probation officer. When the prosecutor filed his response to Castillo’s sentencing memorandum (discussing Castillo’s HIV-positive status), he did not file it under seal, and the district court did not issue an order sealing it. Finally, certain statements made by the district court relating to its factual finding that the prosecutor acted deliberately and maliciously–e.g., its statement that the prosecutor said that Castillo ‘might have full-blown AIDS, which is a direct violation of the confidential nature of this type of disclosure”–are factually false (e.g., the prosecutor never said that Castillo might have full-blown AIDS).” Id., at 243-44.

In the upward departure case, the Fifth Circuit in United States v. Jones confronted a case where the Guidelines recommended a sentence in the range of 46 to 57 months for a guilty plea conviction of a felon in possession of a firearm. See: 435 F.3d 541, 542 (5th Cir. 2006). Jones did not object to the PSR calculated Guidelines sentence. The sentencing judge elected to depart upward and sentenced Jones to the statutory maximum of 120 months. The sentencing judge justified the upward departure by pointing out that Jones was driving the car and was in possession of and under the influence of drugs at the time of the offense. Id. The judge felt this behavior aggravated the offense because it put the public at risk. The judge also alluded to two state offenses involving guns that occurred after the federal offense and during which Jones reportedly “used [the guns] in personal violence.” Based on Jones’ history of using guns, committing violence against others, and risk caused to society by the federal offense, the sentencing judge departed upward seven levels to a “guideline range of 97 to 121 months of imprisonment.” Id.

Jones objected to the sentence on the basis that the sentencing judge had relied upon facts not proven beyond a reasonable doubt or admitted to by him. The sentencing judge overruled the objection and the Fifth Circuit upheld the sentence on appeal. The appeals court did not reject, as the Eighth Circuit did in Thorpe, the proof beyond a reasonable doubt standard for a post-Booker upward departure but applied the harmless error rule to any error, if any, committed by the sentencing judge:

”Jones argues that the district court violated his Sixth Amendment rights under Booker when it based its upward departure, at least in part, on judicially found facts. Jones’ objection to the upward departure in the district court preserved this challenge. ‘If either the Sixth Amendment issue presented in Booker or the issue presented in Fanfan is preserved in the district court by objection, [this court] will ordinarily vacate the sentence and remand, unless we can say the error is harmless under Rule 52(a) of the Federal Rules of Criminal Procedure.’ The government bears the burden of demonstrating that the error was harmless by demonstrating beyond a reasonable doubt that the Booker error did not contribute to the sentence he received. In other words, the government must point to evidence in the record showing that the district court would have imposed the same sentence under an advisory sentencing scheme.’

”In several unpublished opinions, we have found harmless error in cases in which the district judge expressly stated that it would impose the same sentence under an advisory system or expressed disappointment that the statutory maximum sentence that it imposed was not greater. Although the record in this case does not include similar explicit statements as to what the district court would do under an advisory scheme, it does contain other evidence that the district court would have imposed the maximum statutory sentence under either a mandatory or advisory guideline scheme.

”The district court ordered an upward departure in Jones’ case under the authority of U.S.S.G. § 5K2.0. The decision to depart from a guideline sentence ‘embodies the traditional exercise of discretion by the sentencing court.’ U.S.S.G. § 5K2.0 [citing Koon]. A court has substantial discretion under the guidelines to depart from the recommended guideline range. In other words, an upward departure is in no sense mandatory. Booker only struck down the mandatory application of the guidelines when calculations were based on facts not found beyond a reasonable doubt by a jury or admitted by the defendant. As the facts relied on by the district court in making the upward departure were not applied to a mandatory provision of the guidelines, there is arguably no Booker error.

”Whether exercise of a court’s discretion to depart upward is a decision made under a ‘mandatory Guidelines regime,’ as needed for Booker error, is a matter of some uncertainty.

”We need not decide that question, because even assuming that Jones can establish Booker error under these circumstances, we find any error to be harmless. There is no argument that the mandatory nature of the guidelines affected the district court’s sentencing decision in any way. The district court properly calculated Jones’ guidelines sentence, without objection from Jones, and then exercised its discretion to depart from the sentence that would result from a mandatory application of the guidelines. Jones’ only argument under Booker is that the district court’s use of judge found facts to support the upward departure violates Booker and Blakely. He makes no argument of Booker error in relation to the calculation of the base mandatory guideline sentence.

”In this aspect, this case is distinguishable from a similar case decided by the Seventh Circuit. In United States v. Burke, 425 F.3d 400, 416-17 (7th Cir. 2005), the Seventh Circuit found the government failed to establish harmless error from alleged Booker error as to a sentence that included an upward departure. Burke had been convicted of perjury. The guidelines directed the district court to apply the guideline relevant to the criminal offense with respect to which the defendant gave false testimony. The court stated that the guidelines directed it to apply a certain cross-referenced guideline that triggered additional enhancements. The district court then upwardly departed because the criminal history category under-represented Burke’s criminal past and likelihood of recidivism. The court sentenced Burke in the middle of the range resulting from the increased criminal history category and the enhanced offense level. Burke argued that his sentence violated Booker, without limiting his argument to the upward departure as does Jones. Because the district court’s calculation of Burke’s base guideline sentence, including the cross-referencing guideline and several enhancements, was affected by a mandatory application of the guidelines, the Seventh Circuit found that the government had not established that the district court would have imposed the same sentence had the guidelines been merely advisory. Our case differs in two material respects – the nature of the defendant’s Booker challenge to his sentence and the fact that the district court in Jones’ case upwardly departed to the statutory maximum sentence.

”The district court imposed the upward departure because Jones’ case did not involve the mere possession of a firearm by a convicted felon. The departure reflected the court’s concern with the seriousness of Jones’ weapon possession while under the influence of drugs and his pattern of actually using weapons that he possessed. These are appropriate factors for an upward departure and Jones does not assert otherwise. U.S.S.G. § 5K2.0(a)(1)(A), (3). The district court found that an offense level of 28 appropriately reflected the seriousness of the circumstances of Jones’ offense. The court also specifically stated that a six-level upward departure would be insufficient and that an eight-level departure would be too much.

”Under the specific facts of this case, in which the defendant’s Booker challenge is addressed only to a discretionary aspect of the sentencing guidelines, we find that the government has met its burden of establishing beyond a reasonable doubt that any Booker error did not contribute to the sentence Jones received. Additionally, the fact that the district court departed up to the statutory maximum sentence further supports the conclusion that the district court would have imposed the same sentence under an advisory sentencing scheme.” Id., at 542-44 [internal citations omitted].

Jones reflects why defense counsel should always file a sentencing memorandum prior to sentencing. Mitigating factors need to be placed in the record before the judge imposes sentence. Further, if the judge elects to depart upward on any of the following permissible grounds that the defendant’s conduct caused,

Death
Physical injury
Extreme psychological injury
Abduction or unlawful restraint
Property damage or loss
Possession or use of weapons or dangerous instrumentalities
Disruption of a government function
Extreme conduct
Facilitation or concealment of another offense
Danger to the public welfare
Participation in a violent street gang

Possession of a high-capacity semiautomatic firearm in connection with a crime of violence or controlled substance

defense counsel should object if the sentencing judge and/or the government does not provide the defendant reasonable notice that these grounds may be used to justify the departure. See: Burns v. United States, 501 U.S. 129, 138 (1991).

All the circuits have adopted a position similar to the Fifth Circuit in Jones that most Booker errors are harmless if there is a legitimate independent basis for the sentence ultimately imposed. See: United States v. Kelly, 446 F.3d 688, 692-93 (7th Cir. 2006) [error, if any, permitting potentially unreliable hearsay harmless because it bore “substantial indica of reliability]; United States v. Red Bird, 450 F.3d 789, 794 (8th Cir.2006) [error adjusting sentence under mandatory regime harmless because court would have imposed same sentence and sentence not unreasonable]; United States v. Cornelio-Pena, 435 F.3d 1279, 1289 (10th Cir. 2006) [error treating Guidelines as mandatory harmless because court announced alternative sentence in advisory capacity].

Sentencing in federal courts is a minefield of varying potentialities. The only safe rule for a defense attorney trying to step through this minefield is to take sentencing procedures as seriously and with the same degree of preparation as he/she does the trial on the merits.

SOURCE: The Georgetown Law Journal, 37th Annual Review of Criminal Procedure (2008).

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

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    I asked the Law Office of John T. Floyd a very important question regarding the legal aspects of purchasing a firearm with a deferred adjudication charge. They answered the question … More very professionally and accurately and I was quite pleased with the information that was shared. I recommend this law firm because they are very honest and will work for you and with you.
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    I’ve never been one to write reviews but this time I couldn’t pass up the opportunity to say something. I had some serious legal questions I needed answers to concerning Texas laws. … More Being I’m from another state, I found and reached out to Attorney John Floyd for the answers. Mr Floyd listened to to my requests and told me what he need from me and went out of his way to get me the answers. Very polite, straightforward and professional, I can’t thank him enough for all he’s done. Whatever your legal case may be, I wouldn’t hesitate to recommend Mr Floyd.
  • Avatar Pat Garner ★★★★★ a year ago
    John & Chris helped my family member get a reduced charge and acceptable plea agreement in place. Their compassion, attention to every detail was what helped carry the day.Truly … More the best of the best.P
  • Avatar Summer A ★★★★★ a year ago
    Mr. Floyd is both ethical and loyal to his clients; two qualities that are hard to find specially in lawyers. I'd definitely recommend him to anyone.Positive
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  • Avatar Abdulraouf Haj ★★★★★ a year ago
    Mr. John was very helpful and truly was the reason why my case was dismissed. Thank you so much Mr. John I truly recommend everyone in need to work with him.
  • Avatar Hope Fischer ★★★★★ a year ago
    His service to the community and diligence to helping his clients speaks for its self! Not to mention the many articles, papers and TV appearances that speak to his intellect
  • Avatar Faisal Mahmood ★★★★★ a year ago
    John has given Excellent service and have been very friendly and extremely helpful to us. I highly recommend this law firm
  • Avatar Mohammed Nabulsi ★★★★★ a year ago
    This law firm is diligent, responsive and succeeded in getting my case dismissed. 10/10 would recommend.
  • Avatar Anthony Stark ★★★★★ a year ago
    super knowledgeable, good attitude, would definitely recommend him
  • Avatar Lloyd Kirby ★★★★★ a year ago
    Very helpful, knowledgeable and honest.
  • Avatar Tarek Zaghloul ★★★★★ 2 years ago
    John is an amazing person and lawyer who is actually very understanding of how anxious I got and although it was hard to reach him sometimes because of his schedule, but never worry … More he is on top of things. He is very organized, very smart. I had the experience to go through a trial with him, and he always plans ahead well and is actually open and receptive to any ideas and comments I had and he was quick to decide which is right to use at the moment. I really appreciated working with him and Chris. Great lawyers and great people. As I was reminded by John, I am adding that the Jury reached a not guilty decision on the original charge and on a lesser charge in just 25 minutes. It took more time to write the charge and instructions for the jury than it took them to reach a decision.
  • Avatar Anya Palapa ★★★★★ 2 years ago
    Highly recommend John T Floyd law firm, great response time and demeanor.I was researching an on-going criminal case, when I found an informative article written by John Floyd (about … More the perils of expert testimony). I called his office, and was very pleased to receive a timely call back. Not only was Mr. Floyd candid and helpful, but he had the kindest demeanor of any attorney that I've dealt with. I am so glad to have found this firm.
  • Avatar Joffre Cross II (Jeff) ★★★★★ 2 years ago
    Although I am not a client, John Floyd contacted me the same day I sent an email requesting advice, answered my questions and even when further to assist with my issue and communicated … More with me the next day. A true credit to his profession and I can only imagine how well he provides services to his actual clients!
  • Avatar jeannette young ★★★★★ 2 years ago
    I give Mr. Floyd 10 Stars if they were available so I'm giving him five that's all that's available. The first time I left a message for him it was on a Friday after … More 5 p.m. and within 15 minutes he called me back I told him I needed to buy a lotto ticket because that has never happened. I knew from our chat and him calling me back that he was different from any attorney I've tried to talk to left messages never got called back they didn't even know what I needed and neither did Mr. Floyd but he did call me back. I was very interested in meeting with mr. Floyd about my case because I felt he was very transparent honest and genuine. If you've ever dealt with attorneys they don't have those traits but Mr. Floyd does. He was very honest with me told me what I could and could not do with my case. He is not egotistical he's very compassionate and he actually reads the documents you sent him unbelievable that's never happened. He will be the only lawyer I refer to anyone that needs his expertise. If you're in need of a criminal defense attorney please give John T Floyd a call you will not be disappointed.
  • Avatar 9salmon ★★★★★ 2 years ago
    Mr John is a great human being and a very knowledgeable attorney. He has always called me back promptly,advised me very clearly and never rushed our conversation. i was wrongfully accused … More and Mr John had my case DISMISSED!! on the day of trial after fighting for me for two years. I am very thankful to the John T. Floyd Law Firm. You will not go wrong with John. Mr John you deserve way more then 5 stars.Thank youShaikh.
  • Avatar Ken R ★★★★★ 2 years ago
    John Floyd Law Firm is highly recommended for your legal needs. He and his staff are highly professional in every aspect. Easy and comfortable feeling talking with him, and he understands … More your needs and explains your legal advice in a way you can understand. Enough just cant be said. Thank You Sir.Positive
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  • Avatar Jeff Vaughn ★★★★★ 2 years ago
    John was kind enough to assist me with legal advise on my firearm gun rights restoration. I highly recommend him and his firm. Very professional and knowledgeable. If I need assistance … More in the future I will definitely go back to him.
  • Avatar Reginald Bell ★★★★★ 2 years ago
    What I liked the most was that he actually returned my phone after leaving a message unlike pretty much everyone else I called prior. He listened and answered my question with the best … More advice that would benefit me the most. I was actually lost from moving to Texas from a different state we’re laws vary and he pointed me toward the right direction to get a understanding of if I need to do business with him now or after I contact a lawyer in my home state.
  • Avatar Debby Griffin ★★★★★ 2 years ago
    John T Floyd handled my sons case & got a dismissal for us! He is great to work with, gets back to you promptly & knows what he’s doing. Definitely one of the best we have had … More to deal with!Positive
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  • Avatar Gabriela ★★★★★ 2 years ago
    John is honestly the best! The whole team is. He answered me in a timely manner and helped me when my friend was going through a situation in Houston, Texas as an inmate. He was so … More thorough, honest, and without charging me sent me so much information because I was out of the loop. He never once tried to take you for your money, he did all that he could to. help me and I can't thank him enough.
  • Avatar Randy Rich ★★★★★ 2 years ago
    I have used John on two occasions and found him to have full knowledge of Texas law, diligent, creative in plan, and aggressive in defense. He is the best criminal defense attorney … More in the State of Texas. No reason to look elsewhere.
  • Avatar Robert Robinson ★★★★★ 2 years ago
    I have been calling to get some legal advice pertaining to gun rights. A few legal offices would not even take my call because quote " your not a client and Im losing money. … More I I called John T. Floyd Law Firm and they were not only able to answer my question, but gave great detail information, and further elaborated on their answer. I hope I do not have to use them in the future, but if I do need to, they will be my first call.
  • Avatar Tyler Barr ★★★★★ 2 years ago
    Great lawyer! Needed some advice and gave me a Consultation, and advice for steps to take, without any hassle l, Was a honest guy and actually wanted to help me and not just take my … More money! Highly recommend!!Positive
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  • Avatar Clint B ★★★★★ 2 years ago
    Attorney Floyd replied very timely to my inquiry and he provided practical advice. I will not hesitate to contact him in the future if I need additional legal counsel.
  • Avatar Huey B ★★★★★ 2 years ago
    Highly recommend, down to earth lawyer. Talked to me about my legal issues without being super money hungry and genuinely wanted to help me with my legal problems. 5 stars ⭐️.
  • Avatar Ben Blackman ★★★★★ 2 years ago
    Very knowledgeable and professional. I called and left a message Friday morning and before end of business that day I received a call back.Positive
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  • Avatar Manny Figueroa:: ★★★★★ 2 years ago
    Very helpful highly recommended for any Question / case will definitely keep he's name and number for any other legal advice
  • Avatar Rosalinda Garcia ★★★★★ 2 years ago
    Excellent service and a lawyer that doesn't lie. He does what he says. JW recommends him.
  • Avatar Cord Ary ★★★★★ 2 years ago
    One of the best services Ive used in awhile. Thank you for all the help and answers. You got my life back. Thank youPositive
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  • Avatar William Shaw (Bill) ★★★★★ 2 years ago
    Im impressed. This guy was polite and professional and most important...he listened.
  • Avatar Mohammed Masood ★★★★★ 2 years ago
    Good experience and very good lawyer
  • Avatar Joseph Floyd ★★★★★ 2 years ago
  • Avatar Arsalan Safiullah ★★★★★ 2 years ago
  • Avatar Elvis Maldonado ★★★★★ 2 years ago
    Positive
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  • Avatar Tylor St. Clair ★★★★★ 3 years ago
    It was a pleasure speaking with John. He is knowledgeable and has a true desire to help the people of society. I turned to him for some guidance of a long-standing issue. He never … More rushed our conversation and went out of his way to look into the details to provide the right answer as well as assist me anyway he could. Thank you for our conversations and I wish your and your firm the best. If you need a lawyer, John Floyd is your guy!
  • Avatar Andrew Vo ★★★★★ 3 years ago
    John represented me in court for roughly 2 years. I won't (and shouldn't) get into any serious details, but let me tell you that I couldn't have chosen anyone better. … More Seriously.Every appearance in court I felt very comfortable. The judge and DA's had a high regard for his reputation. There is a time I recall where simply his presence greatly impacted the court's interpretation of my case and persons. We were in front of the stand and the judge could not stop talking about John's prestige and past accomplishments and how that took in relation to my case. I kept silent in front of the judge, but I observed then that John's popularity and reputation within the court had already given me a better looking rapport with the judge. Let me tell you, I never had more confidence then, knowing that the judge held him in such high regard.This is not to mention how personable John is. I'll be honest that during the stress of court, sharing a laugh with your lawyer helps a lot. This may sound a lot, but I really appreciated the relationship we had then. This is also not to mention that he was able to deal very well with any DA that rotated over the years. Seriously, John was great, prompt with information and very hands on with my case. I had great peace those 2 years until everything wrapped up.If you're looking for a lawyer, I highly, HIGHLY recommend the John T. Floyd Law Firm. He IS nationally renowned, you know. He'll get the job done to the utmost confidence. He's very experienced and has a great record to boot. I am glad to have had him represent me in court and trust me that I never thought I'd ever say that (and whoever does?). We explored every avenue of victory together and I personally enjoyed the experience, despite the seriousness of the accusation.If you have a case that needs to be represented at the highest levels, choose John T. Floyd. He's a good man and very good at what he does. Him and his team has the experience you need to make the best decisions and options to get the best outcome for your case. We got the best result I could possibly ask for, thank God.Seriously. Hire John. He knows what he's doing.Seriously.
  • Avatar Banning Lary ★★★★★ 3 years ago
    One of the few honest lawyers I have ever talked to. His complimentary consultation was knowledgeable and thorough. He knew exactly what the issue was and how to handle it. His candid … More appraisal of the situation and how to proceed saved me thousands of dollars in legal fees. If you have a case requiring expertise in John's area of practice, look no further. Hire this man!
  • Avatar Larry Green ★★★★★ 3 years ago
    I had the opportunity to read an article that Mr. Floyd wrote and it was very interesting. I called him about the article and advice concerning a similar situation. He not only gave … More me excellent advice, he pointed out not just what I wanted to hear but what I needed to hear concerning my situation. The Good, The Bad and The ugly in a manner or speaking. He spoke with an open and honest heart with information to help me and not just to get a client.
  • Avatar Jackie Cohen ★★★★★ 3 years ago
    If you are in trouble and need a lawyer, contact the John T. Floyd law firm. Some of the best lawyers in Texas work there! Understanding and helpful lawyers and staff that will do all … More they can to help you 😊
  • Avatar It’s Me ★★★★★ 3 years ago
    He gave me one of the most honest answers I have received in a very long time about any issue I was having with anything. Legal or not legal. I highly recommend giving him a call and … More will be referring him to friends and family if they have any issues in the future.Positive
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  • Avatar I’m Home ★★★★★ 3 years ago
    He took time out of his day to answer my legal questions and didn’t even charge me. I would definitely recommend him to you.
  • Avatar Tad Nieschwietz ★★★★★ 3 years ago
    Gave free consultation on getting gun rights back. He truly cares about gun rights and getting you the help you deserve. 100% worth a callPositive
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  • Avatar Maher Abbara ★★★★★ 3 years ago
    Very professional, great quality work, and very friendly and helpful. Overall, their service is phenomenal. I recommend Mr. Floyd to anyone.
  • Avatar Thomas McLaughlin ★★★★★ 3 years ago
    Mr. Floyd took the time to explain his experience with the law to me in layman's terms. Definitely give him a call.Positive
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  • Avatar Zarrie Adkins ★★★★★ 3 years ago
    He was honest , knowledgeable , and professional about what we talked about. Most lawyers are just about the money , but not john.Positive
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  • Avatar Keisha Gaches ★★★★★ 3 years ago
    He was very truthful and honest with us very great man I would recommend him and we would use him again
  • Avatar Samyra Carrasquillo ★★★★★ 3 years ago
    Very professional honest and works hard currently working my husband’s appeal I pray he does his best workPositive
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  • Avatar Raul Perez ★★★★★ 3 years ago
    I contacted John T. Floyd Law firm and I was very satisfied with service extremely helpful and friendly thank you Mr. FloydPositive
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  • Avatar Johnny Johnson Jr ★★★★★ 3 years ago
    This law frim was informative,great response time ,and the attorney called back not some secretary or legal assistant thank u guys for all your help wish it was more like youPositive … More
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  • Avatar Dana Adkison ★★★★★ 3 years ago
    I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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  • Avatar Crecencio Fabian ★★★★★ 3 years ago
    He explained my case better then any other lawyerPositive
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  • Avatar Barry Lewis ★★★★ 3 years ago
    Very informative
  • Avatar Ismael Flores ★★★★★ 3 years ago
  • Avatar Haley Danielle Lummus ★★★★★ 3 years ago
  • Avatar Eddie Villarreal ★★★★★ 3 years ago
  • Avatar Neil Productions ★★★★★ 4 years ago
    Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
  • Avatar S A ★★★★★ 4 years ago
    Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
  • Avatar Gary Watch ★★★★★ 4 years ago
    I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
  • Avatar Saman Daftarian ★★★★★ 4 years ago
    I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
  • Avatar calvin robinson ★★★★★ 4 years ago
    It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
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  • Avatar Alan Howk ★★★★★ 4 years ago
    Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
  • Avatar CMCustom Cycles ★★★★★ 4 years ago
    Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
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  • Avatar Greg Page ★★★★★ 4 years ago
    I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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  • Avatar Kristen Rankin ★★★★★ 4 years ago
    Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
  • Avatar Kedar Puranik ★★★★★ 4 years ago
    John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
  • Avatar Joseph Sivadon ★★★★★ 4 years ago
    What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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  • Avatar Lex Strider ★★★★★ 4 years ago
    Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
  • Avatar karim khalifa ★★★★★ 4 years ago
    Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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  • Avatar James Haggard ★★★★★ 4 years ago
    Great service, very knowledgable and happy to help with any questions I had
  • Avatar David Sustaita ★★★★★ 4 years ago
    Quick to action and helpful and knowledgeable with entertainment industry based issues!
  • Avatar Chad Groves ★★★★★ 4 years ago
    Responded on a holiday week. Very knowledgeable and reassuring.
  • Avatar Mark Fein ★★★★★ 4 years ago
    Very professional
  • Avatar Bthomason903 Bthomason903 ★★★★★ 4 years ago
  • Avatar Anton Jasser ★★★★★ 4 years ago
  • Avatar Alma Garza ★★★★★ 4 years ago
  • Avatar Victory 2020 ★★★★★ 6 years ago
    I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
  • Avatar Alma Garcia Cunningham ★★★★★ 6 years ago
    The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
  • Avatar Rajiv Patel ★★★★★ 6 years ago
    From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
  • Avatar Jose Tapia ★★★★★ 6 years ago
    I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
  • Avatar Sagar Patel ★★★★★ 6 years ago
    These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
  • Avatar RAYNINN ★★★★★ 6 years ago
    John and Chris are true professionals! Love those guys like family!
  • Avatar Virginia Martin ★★★★★ 6 years ago
    Mr. Floyd and his team are very knowledgeable, informative, and helpful.
  • Avatar Darla Latham ★★★★★ 6 years ago
    A team you can depend on to stand up and fight for you to prove the truth the whole truth!
  • Avatar Veronica Elorza ★★★★★ 6 years ago
  • Avatar Karetta Lux ★★★★★ 7 years ago
    Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
  • Avatar GM ★★★★★ 8 years ago
    The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
  • Avatar Sandra Bivens ★★★★★ 8 years ago
    I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
  • Avatar Mike Kittelson ★★★★★ 8 years ago
    I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
  • Avatar Robert Hair ★★★★★ 8 years ago
    Extremely helpful!!! Helping me understand the law.

John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization

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