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THE TEN COMMANDMENTS OF FEDERAL SENTENCING

 

FIRST COMMANDMENT

“THOU SHALT HAVE NO OTHER JUDGES BEFORE ME”

“Thou shalt love and Honor Thy Judge with all thine heart, and with all thy soul, and with all thy oral argument.”  A blessing is a Sentencing Judge whom knowest and desires what is best for your Client.  Thou shalt not commit the sin of speaking dicta from any other Judge before Him in your oral argument.  To so Speaketh doth hinder your judge’s ability to bless your Client with a Variance.  Your Judge knoweth that a Variance alone can save your client; nothing else has that power.  Of your Judge you shall worship upon His/Her thinking first.

 

SECOND COMMANDMENT

“THOU SHALT NOT MAKE ANY GRAVEN ARGUMENTS TO THY JUDGE”

Bear not a likeness of anything that is not in the heaven of Loadstar cases above or sentencing law below.  Nor any likeness of anything that is not in the Presentence Report or that is not in the Guidelines beneath. To not so speaketh of that which is in the Loadstar waters and thoust client shall be as dust to the wind in a Federal Detention Center and shall not reside in a Federal Camp nor in Home Detention nor Probation. Thou shalt bow down thyself before thy Judge and serve him Sentencing Commission statistics, Sentencing Commission Comments and Sentencing Commission Studies and the fruits thereof. Nothing more nor less.

 

THIRD COMMANDMENT:

“THOU SHALT NOT TAKE THE  SENTENCING GUIDELINES IN VAIN”

Know Well the Loadstars and caselaw from your district that show the path for your Judge to leave the safety of the Presentence Report and its homage to the recommended Guidelines Sentence.  A Departure is a blessing and a Variance is a Miracle.  Speaking the prayer for a Variance before thy Judge shall be an abomination in his eyes without a pocket full of Loadstar.

 

FOURTH COMMANDMENT:

“REMEMBER THE PRESENTENCE REPORT FOR IT IS HOLY”

Knoweth by heart the words of your Presentence Report for it is holy.  Of the days ordained by Rule shalt thou labour, and do all thy work between Submission to the Court of the Presentence Report and your Objections to the Presentence Report.  But the seventh day is the sabbath of the Lord thy God.  God sayeth to you to set aside one day a week to worship and rest.  The Sabbath is an opportunity to withdraw from worldly pursuits and focus on your SENTENCING MEMORANDUM.  Spiritual growth and observing the Sabbath is a sign to the Judge that you remember and love thy Judge.

 

FIFTH COMMANDMENT

“HONOR THY PROBATION OFFICER FOR OFTEN HE HATH THE EAR OF YOUR JUDGE”

Seek and speak thy prayer that the days of your client may be not long upon the land of A federal detention facility or a federal camp which the Lord thy God and your Federal Judge may giveth thy client.  Prayer that He/She may dwell in the land of home confinement or probation, thou shalt honor your in-court probation officer for He/She speaketh last upon and in the ear of your judge before the judge enters the courtroom.

 

SIXTH COMMANDMENT

“THOU SHALT NOT BEG”

Do not commit the sin of begging for leniency in the name of no prior convictions, good deeds or good character.  Alas you want not to hear before pronouncement of Sentence the A.U.S.A. speaketh thus: “Counsel knows full well that the Guidelines factor-in acceptance of responsibility, and the defendant has cooperated with the government and has no prior convictions.”  FOR THY CLIENT MAY NOT REPENT OR RECOVER FROM SUCH WORDS.

 

SEVENTH COMMANDMENT

“THOU SHALT NOT COMMIT THE SIN OF FALSE FACT”

Of the first instructions that God and Judges intoned and gave Adam and Eve was not to dispute stipulated facts as contained in the Indictment or Information, the Letter agreed upon between the Prosecutor’s office and your client, the transcript of your plea hearing or the Presentence Report.  And thou shall cleave unto the INDICTMENT and they shall be one flesh.  When a Defendant’s counsel is faithful to the above, he shall have an ear that is open and a Judicial mind that is in search of a lawful sentence as bequeathed by section 3553(a).

 

EIGHTH COMMANDMENT

“THOU SHALT NOT BY STEALTH ARGUE CASELAW FROM ANOTHER DISTRICT”

Honor this commandment for it encompeth more than the focus of case law and dicta shall be at all times that of your Judge, your District or your Court of Appeal.  Wandering off to the 9th is as a curse.  Yea, California is a land of Democrats, Liberal Judges and is as a blaspheme in ANY FEDERAL COURT NOT IN CALIFORNIA.

 

NINTH COMMANDMENT

                               “THOU SHALT NOT BEAR FALSE WITNESS AGAINST THY                                      ASSISTANT UNITED STATES ATTORNEY

Speak the truth as contained in your Plea Agreement Letter, your Plea Colloquy and the report of the Case Agent.  Wherefore thou shalt put away lying.  Speak every man truth as it is known and stipulated upon by thy Assistant United States Attorney.  For his or her wrath shall be visited upon thy client as a plague from the heavens at sentencing should thou distort fact or commit the sin of misstatement.

 

TENTH COMMANDMENT

            “THOU SHALT NOT COVET THE WORD OF ANOTHER JUDGE IN YOUR            COURTHOUSE AT SENTENCING ”

“Anything that is thy neighbor’s sentence is not yours.”  A person who covets or so desires a thing excessively a Variance is cursed without a Loadstar argument and caselaw and its progeny in THY APPELLATE DISTRICT.  Coveting a Departure or a Variance is not a sin, but a bespoken prayer for a Variance without a Loadstar case shall be a curse upon thy client and shall be the doom of same.  “Let your conversation with the Judge be without covetousness but it shall be of Loadstars, Variances and Sentencing Guidelines Commission Statistics”  and be content with such things as ye have for oft thy Judge hath said, “I will never leave thee O Guidelines nor forsake thee without a path of caselaw, statistics and Comments from the Holy-of-Holies the Sentencing Guidelines Commission of the sacred City of Washington, D,C.”

Yesterday, the government made public the set of internal rules that are used to compile the list of names on the infamous No-Fly list. Now, the right of U.S. citizens to move among and between the States has its roots in the U.S. Constitution. The Commerce Clause, the Comity Clause, and the Due Process Clause are all the fundamental laws on the right to travel. When the government tells citizens of the U.S. that their right to unfettered travel has been removed, it gets civil and human rights groups, as well as business interests to take action. And it has.

300px-FBISealThe fact that air travel is only one of many ways to travel makes the No-Fly rules difficult to challenge constitutionally. Those alternative methods of transportation keep the No-Fly rules insulated from primary constitutional law, but not from the rule making Due Process Clause (which is the rule making law). In fact, the Due Process Clause is what is behind the apparent open view policy, which forced the Justice Department and the Transpiration Department to make the No-Fly list rules public in the first place. And although the rules have now been made public, there is no reason to believe that the screening process will become lenient, but at a minimum, the public will see more transparency in the process by which the who, why and when of how names are placed on the No-Fly lists and how they are removed.

As we know, security on domestic air travel is a government function. Screening, for national security purposes, was done under the procedures set out in a document, previously secret, identified as “Watchlisting Guidance.” The procedures were most recently updated in March 2013, and were not available to public scrutiny. All that changed when an online magazine, “The Intercept” obtained “Watchlisting Guidance” and revealed that they had the document. The response from Attorney General Holder was to make the document public. This response is in itself of no real consequence because the next day the internal document and its guidelines were reportedly re-issued and remains secret.

For you to see the skeletal documents that outline the purpose directed policy, one can refer to a 2011 document, which contains a set of rules that the F.B.I. disclosed previously. Other places to look for a quick read are an affidavit from Attorney General Eric Holder and the ruling from a Federal Court judge in Oregon. Attorney General Holder has maintained that the Watchlisting Guidance should remain out of public scrutiny, and the courts are most likely not to force the document into the public domain.

What is, however, of both practical and legal significance is that the government is yielding to transparency over secrecy, and still striving to maintain a high level of security for domestic and international air travel. For individuals, it means that a process and procedure may soon be in place for those who are banned from plane travel to have their status reviewed in a rational and considered forum. Either the government will accede to this or face continued legal battles for a process to review.

Ever wonder why some sentences are longer than others? Have you or one of your “peeps” (peoples) been sent to the big house for an extended stay, while others seem to breeze in and out with more major convictions? Wonder why or do you know?
The sentencing process, when one is before a judge and pleading for mercy, does not begin with a well suited lawyer, it begins with a well prepared lawyer. When was the last time any lawyer you know wrote a sentencing memorandum? I’ll wager never, unless I’m your lawyer.

Sentencing memorandums are the Holy Grail to a lighter sentence. Why you ask? Why indeed! The answer is that judges hate them because it means that an appeal is next, and to avoid an appeal most judges will sentence on the low end of the guidelines and leave for another defendant that old thrown away key sentence. Lawyers know this but don’t do it because it takes up time, time they need for golf or relaxation. So here’s what you do: If you are interviewing a lawyer for a criminal case ask her/him to include the promise of a sentencing memorandum in the retainer agreement. It can make a big difference when the pedal meets the medal and it’s time for a reservation in a State residence. Know now and you’ll do better. And, knowing more means buying my app on the Apple Store for you iPad and iPhone: CRIMINAL LAW 101 by Ralph Behr. As of July 2011 after only seven months there were over 1000 copies downloaded and only one buyer asked for their money back…..and he was from England!

Florida criminal statutes for cocaine possession have three basic levels: one for cocaine users (small personal amounts), a second level is for those who sell or give cocaine to another (for free or for money), that is called “delivery” or “sale”. The third level, which carriers a thirty –year sentence is for trafficking in cocaine. Drug trafficking statutes (whether for cocaine, marijuana trafficking, oxycodone trafficking in Florida, or any other controlled substance) are for those “in the business”. Trafficking starts when the amount of the drugs exceeds a weight or pill count set in the various drug trafficking laws in Florida criminal law. Drug trafficking enhancements, which can lead to a life sentence or even capital punishment when trafficking includes a death either by a participant or under the felony murder rule, armed trafficking and “king-pin” cocaine trafficking (significant amounts by weight of cocaine), Federal criminal drug trafficking laws carry similar enhanced punishments when weapons or guns are used, displayed or discharged. Florida criminal laws pertaining to controlled substances are similar for marijuana, so called “designer drugs”, methamphetamines ( and variants such as mixtures, salts and compounds), ecstasy, and other controlled substances as are listed in Florida drug laws. If you, or someone you know, have been arrested in Miami, Broward County (Fort Lauderdale) or Palm Beach (Boca Raton, Delray, and West Palm Beach) you should speak with a South Florida criminal defense lawyer.

The most common violations of probation are: moving out of state without permission, failure to pay money before the last month of probation, and another arrest after placed on probation. Not every violation is enough to get you before a judge; some are considered “technical” and are not punished. However, it is important to understand that only a judge can decide what is “technical” and what is “willful and substantial”. The Florida probation officer is required to report to the Judge any violation. Your Florida probation officer cannot forgive or overlook a violation: he/she must send a violation report to your Judge and request a violation of probation warrant be issued. The Judge will review the Probation Officer’s report (called a “request” for a violation of probation warrant) and decide if the alleged violation is serious enough to justify issuing a warrant to arrest you and bring you before the Judge. At the first appearance you either admit or deny the alleged violation. If you deny the violation you will return to court for a final hearing: similar to a trial but without a jury and with a much lower proof requirement. The biggest problem is that in Fort Lauderdale, Miami, and West Palm Beach you do not get a bail or bond if you are picked up on a violation of probation warrant. You will remain in jail for ten days before your first appearance hearing (admit or deny) and then remain in jail until the judge sets a final hearing. Some people in South Florida (Fort Lauderdale, Miami, and Broward County) remain in jail for three to four months waiting for a final hearing. At the final hearing the State Attorney (prosecutor) must prove that you were advised of the conditions (see the probation statute for the list of minimum conditions imposed on all probationers in Florida) and the Judge must make a finding of fact. If the judge finds that a violation has occurred the Judge can do one of three things: Reinstate, reinstate and modify (add conditions or requirements or extend the term) or the Judge can sentence the violator to any term of jail or prison under the Florida Punishment Code for the charges that placed you in probation.

If you are under twenty-one years at the time of sentencing you are eligible in Florida to request your criminal case be sentenced under Florida’s Youthful Offender Statute. Crimes committed in Florida by those less than twenty-one years old on the date of their sentencing can be sentenced under the Punishment Code under this statute. Prior to 2008 the statute only required that the offender have been under twenty-one at the time of the offense. For reasons best known by the Legislature, but beyond common sense, the law was amended to require that the sentencing be done before one’s twenty-first birthday. This cruelty forces young people to plead out otherwise defensible charges if the delays of court will take the case beyond their twenty-first birthday. Florida’s Youthful Offender Statute limits the sentence to six years. The Judge can combine multiple criminal sanctions (prison, probation, community control) but cannot exceed six years of any combination and permutation of these sanctions. If you are accused of a crime in Florida and you want to seek Youthful Offender status you must plead guilty or be adjudicated guilty at trail, and then ask the Judge to sentence you under the Youthful Offender statute. The obvious problem is if you are not guilty or have a legal defense you cannot pursue them. Secondly: the Judge will not tell you if he intends to sentence under the Youthful Offender statute before you plead guilty. You therefore have no assurance that the Judge will agree to limit sentencing to six years until after the guilt phase is over. Your South Florida criminal defense lawyer can ask the Judge for an indication that Youthful Offender Status will be granted but Judge’s are under no requirement to decide to grant Youthful Offender Statius until after the defendant has been found and adjudicated guilty.

Sealing and expunging criminal records is available in Florida. Florida has a method of sealing end expunging criminal records: your South Florida criminal attorney can explain the statute. Sealed records exist but cannot be viewed without a court order. An expunged record is as close to a legal deletion as can be obtained. Many people after the economic hardships which began in 2007 have paid fees and incurred the expenses of sealing and expunging criminal records in the hope that it will help them find a job. Seek a consultation with a Florida criminal lawyer before you begin what is a lengthy, expensive process which may delay your entry into the job market. Ask questions like: “What legal effect does a sealing or expungment have?”, “Can an employer find out about my history?” “What is the difference between a sealing, expungment, and what is the difference between a criminal history and a criminal record?” Since the advent of the internet much personal information is available online and is sold and re-sold by companies that, for a fee, will sell you background information about anyone. If your purpose in seeking a sealing or expungement of your criminal record in Florida is to make it “go away”…understand that nothing ever goes away once it is published on the internet. Call any South Florida criminal defense lawyer and invest the time before you spend your money.

Florida is one of very few states that have a statutory scheme for sealing and expunging criminal records. Sealing is different from expunging, and some charges cannot be sealed or expunged. The statute has been amended several times and has made it increasingly difficult to obtain a sealing or expunging. The process goes like this: first you send a fingerprint sample to the Florida Department of Law Enforcement with an application (which can be obtained from your county clerk). Then the State Attorney must be sent a formal request to either oppose or not oppose the sealing or expungement, next a motion must be filed with the clerk and a hearing set before a circuit court judge. The Florida Department of Law Enforcement will send a letter either confirming or denying eligibility for sealing or expunging your criminal record. Lastly you must set and conduct a hearing after noticing the State Attorney, Clerk, F.D.L.E. and the Judge. A sealed record exists but can only be shown to someone with a court order. An expunged record is legally deleted. Expungement is always better than sealing. The sealing and expungement statute lists those charges which cannot be sealed or expunged. Because of the complexity of the process and the effect of amendments over the years which have changed Florida’s sealing and expungment statute, most people seek the assistance of a Florida criminal attorney to handle a sealing and expungment request. Since 2006 the statute now requires that a judge sign and approve any sealing and expungement. Because setting and conducting hearings are complex, and the formalities and requirements of the sealing and expungement statute are both complex and confusing I suggest you find a South Florida Criminal lawyer for assistance. Most lawyers will gladly provide answers over the phone at no cost.

SAY NO TO POLICE app Uses e-book functionalities to answer 150 criminal law questions

14,094,634 US Arrests but no place to go for answers to criminal law questions: until now. Using advanced functionalities this app takes users from basic questions to one paragraph answers. Created by a published US criminal lawyer (author of CAN THE POLICE LIE TO ME? 2008) this Apple/Android app has easy-read explanations of law. Apple and Android Launch is November 16, 2010. Go to www://saynotothepolice.com for info and press release.


SAY NO TO THE POLICE
….. Know what Cops and Judges won’t tell
Can they search you? Arrest you?
Protect yourself and know your rights with
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Why you need this app….. Don’t become a statistic
• 14,000,000 Arrests in the U.S. last year
• 1 in 6 Americans will be in jail during their lifetime
• 30,000,000 Americans had “police contact” last year
• 50,000,000 traffic citations were issued to Americans last year
• You can recover from a business failure, divorce, bankruptcy….but not from a criminal record
• A criminal record effects: Job prospects – Dating – Apartment rentals – Graduate Schools – Professions
app users say:
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 “This app will put lawyers out of work”
– The first Criminal-Law INFO-app built on Apple platform functionalities
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• 50 “MOST CHARGED” CRIMES DEFINED
“Why do I need this app?”
• Knowing what police, prosecutors and judges know can save you from a criminal problem and a lifetime of regret
• You can recover from a business failure, personal bankruptcy, a bad divorce
• A criminal history can ruin your future!

• Job prospects? Loans? Rentals? Dating? Graduate School? Professions?

“I know my Constitutional rights…….”
….But…. do you know the answers to these…..and 100’s of other questions?
• What is entrapment?
• What is obstruction?
• What is stalking?
• Should I “blow” at a DUI stop?
• Can I get a DUI on a bicycle?
• Can I buy or own a bong?
• Can I carry alcohol in my car?
• What is the law on fake ID?
• How do I say NO to the police?
• Can my boss or teacher look in my desk?
• Do I have to talk to the police?
Do the police need a warrant to arrest me?
• Can I rely on legal advice from a cop?
• Can the police lie to me about evidence and facts?

• Is my case dismissed if I’m not read my Miranda rights?

“I don’t have police problems because I’m smart” …Wrong!
• 1 in 6 Americans will be in jail during their lifetime
• 14,000,000 Arrests in the U.S. last year
• 50,000,000 traffic citations were issued last year
“I’m OK with the Police…I can talk my way out ….. Pretty face gets a “pass”
– The average cop spends ½ of his lifetime in a patrol car waiting to mess with you
– The average cop starts off treating you like a criminal and displays psychological problems like anger, frustration, envy
– 30,000,000 Americans had police contact…… none of it pleasant

With all the information overload we have….. This is THE MOST IMPORTANT INFORMATION YOU CAN POSSES
Read what pre-release users have said:
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Most of us are familiar with having a criminal record sealed or expunged. The process can take 3 to 6 months involves two court hearings and certified records obtained from The Florida Department of Law Enforcement. Most lawyers because of the work involved charge anywhere from 3 to 5 hours for the motions, letters, and court appearance at the hearings. Sealing and expunging has limited use today because so much of the information about our pasts is freely traded on the Internet. Having your record sealed and expunged in the courthouse is often never even found during background checks.

There is another method and it’s called administrative expunction. In many ways it is better than sealing and expunging because the net result is the record is administratively erased. Ask your South Florida criminal defense attorney to explain the distinction between an administrative expunction and a sealing and expunction.

Two years ago the law was amended to make it easier to obtain an administrative expunction. Previously you were required to obtain a letter from the police agency, which is often impossible to obtain. The amended statute permits the judge to enter an administrative expunction based on a finding that there was no basis for the arrest, or the arrest was a mistake. To have your record sealed and expunged requires only an application, but no proof of innocence; that is the critical distinction between sealing and expunging and administrative expungement.