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my friend's release date from state prison was suppose to be september 10 but he was transfer last week to federal custody for a federal case. Is he still doing state time or did it stop his state time and he will have to come back and finish it after he deals with the fed rap? if he in federal custody is he getting credit for state or federal or what? Answer: Wow, you are asking a very tricky question here. Generally when a state prisoner is transferred temporarily to federal custody for prosecution on a federal offense, he won't be entitled to credit on his federal custody time, but should be getting credit towards his state time. It may depend on how he got to federal custody. If he got there by what is called a "writ of habeas corpus ad prosequendum" then it is generally believed that the state has not released "primary custody" over the defendant and he is basically still in state custody. See Thomas v. Brewer, 923 F.2d 1361, 1366–67 (9th Cir.1991) (state retains primary jurisdiction over state prisoner transferred to federal custody by writ of habeas corpus ad prosequendum); see also United States v. Wilson, 503 U.S. 329, 334 (1992) (under 18 U.S.C. § 3585(b) , a defendant may not receive double credit for presentence detention time)
18 USC § 3585 gives a defendant presentence custody credit, but only where it hasn't been credited against another sentence. This is going to be tricky for his attorney, but if he is sentenced on the federal case while still doing state time, you could ask the judge to run his federal time concurrently. There's no guarantee that the judge would do that, however. An experienced federal attorney can try to minimize his overall time.
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My fiancée was arrested for drug conspiracy, and is being held in a federal holding jail. His lawyer told him that since he was on parole when he was arrested, that it was pointless to attend the bail hearing and now is being told that he cannot be released by his lawyer. Two other men involved with the conspiracy were released and placed on house arrest. I'm unsure why they get to be released and he does not. Answer: It's common for a defendant on parole not to be released. It's called a 3142(d) hold. Under section 18 USC 3142(d): "If the judicial officer determines that— [the defendant is on] probation or parole for any offense under Federal, State, or local law . . . such judicial officer shall order the detention of such person, for a period of not more than ten days." This is to give the US attorney a chance to notify the state that the defendant has been picked up by the feds. It doesn't mean you can't come back later and ask for bail, so i's not necessarily permanent. You can address the issue of bail after the hold has been dealt with. Sounds like you lawyer knows this is probably what's up.
Answer: There is generally no constitutional right to representation by counsel in a habeas corpus proceeding, but the court is empowered, within its discretion, to appoint counsel to assist a petitioner in preparing his petition. This is because a habeas corpus proceeding is civil in nature, and Sixth Amendment right to counsel afforded for criminal proceedings does not apply.
However, appointment only happens when the interests of justice require it (if there's going to be a court hearing, for example) or when there is an unusual legal question at play. So, your husband can apply to be appointed counsel, or, if you get someone to look at his case and they find a novel legal issue or something they think would justify appointment of counsel then they can apply to be paid by the court to represent him. The factors generally considered are "the legal complexity of the case, the factual complexity of the case, and the petitioner's ability to investigate and present his claims, along with any other relevant factors." (29 F.3d 469). If your husband was not advised of the immigration consequences of his plea, then he may have a good issue, but not a very novel one, unfortunately. My advice is to consult with an attorney although of course I understand that can be expensive. Best of luck! Answer: It sounds like this could not be a more serious case, so you need to speak to your lawyer about these things right away. In general, with respect to your question, the court has no discretion to "strike" or otherwise dismiss a prior that is increasing your criminal history score and making you ineligible for safety valve. A mandatory minimum is generally just that: mandatory. It may be possible to negotiate a different charge in return for a guilty plea and/or cooperation; and yes, cooperation can result in a motion by the government to prevent the mandatory minimum from applying. Again, you must speak with your attorney about the possibilities.
Im on federal supervised release but am facing a charge of conspiricy to distribute over 500 grams of methanphetamine and was federaly indited in June 2012. I have a trial date of jan. 2013. I have absolutly no prior criminal history in my past. and would the safety valve progam apply to me? Answer: The conspiracy charge is very significant and carries a mandatory minimum sentence, so of course you should be consulting with an attorney as soon as possible. Your question is a little unclear because I don't see how you can be on supervised release but have no criminal history at all. I assume you have a conviction if you are supervised release. The Safety Valve provision allows the judge not to impose a mandatory minimum sentence and, where there is no mandatory sentence, is sometimes made available by the prosecutor as part of a plea agreement. Safety valve is available under certain conditions only. One of them is that you have no more than one criminal history point. Typically, when you commit a new offense while on supervised release, you receive two criminal history points just for that, so that would disqualify you; other conditions apply as well, but this is the one that most often prevents people from getting the benefit of safety valve. (There are some highly technical arguments about whether a court *must* find that you get two criminal history points for committing your new offense while on probation, but they are too complex to address here). Even if you were eligible for safety valve, probation would be highly unlikely given the charges.
This is a very serious charge as I'm sure you realize. If you have a trial date already set for January then you must have an attorney or a federal public defender representing you. They should be able to explain all this to you. I wish you the best of luck. I was sentenced to aiding and abetting a bank robbery with a $312,00.000 restitution. However, it is in my sentencing and plea agreement that I only received $7500.00, is the anyway I can have this separated in hopes to own property and not be in debt the rest of my life? Answer: A court has the discretion to decide whether to hold defendants jointly and severally liable for restitution. See U.S. v. Booth, 309 F.3d 566 (9th Cir. 2002). I'm not aware of any way that you can challenge that as an abuse of discretion except through direct appeal of the court's judgment. Most likely your plea agreement prevents you from an appeal, but you should discuss that possibility with your federal defense attorney. If the agreement itself says that you will be held jointly and severally liable, then it would be very difficult indeed to modify those terms. There are ways to address a restitution order after sentencing. E.g. a defendant can petition to have the terms modified due to a change of circumstances and ability to pay. See 18 U.S.C.A. § 3664(k). This provision may offer you some hope, but it's a complex question. If you need representation and don't already have an attorney, you can contact me to discuss the matter. Best of luck.
Answer: Almost definitely. Different countries are different sovereigns and can charge the crimes independently. Double jeopardy (to the extent that the countries in question have such protection) would not apply unless some treaty between the counties barred double prosecution (which I have never heard of).
Answer: This is a very serious charge as you already know. House arrest and probation would be very difficult to get under the circumstances but there are a lot of facts about your case that could influence the outcome including possibly pleading to a lesser charge. If you have no prior convictions and are not under any probationary sentence at the time that you committed the conspiracy offense, then you may be eligible for "Safety Valve" - a provision in the federal sentencing guidelines and federal code that permits a judge not to impose the mandatory minimum sentence on a defendant with no more than one "criminal history point."
It's critical at this point to get an attorney on your side who can negotiate with the prosecutor and advise you properly on your case. Even without the mandatory minimum sentence in play, the federal sentencing guidelines can be very harsh for a significant volume of marijuana. Get someone to look over your case with you and start negotiating with the prosecutor today. I have been on Federal Supervised Release since 08/2011. In 10/2012 I got a ticket for an infraction of turning left in a posted no left. Than in 04/2013 another ticket for running a red light, another infraction. My PO was mad but only about me being able to afford the fines. Tonight, 05/10/2013 I got another ticket - brake light fix it ticket. In the investigation, because I hadn't paid the 10/2012 ticket my license was suspended, so I was cited for that too. While I was in jail, I knew people that had gone back because of drunk driving arrests. What kind of trouble, realistically, am I looking at for the parole violation? Will I be arrested when I meet my PO on Monday, or will I just be given a summons to appear before the judge for probation violation? Answer: You are in violation of the terms of your supervised release, and could face a revocation if a petition was filed, but there's no way to know if this is going to happen so you want to be prepared for all eventualities. There is no mandatory revocation of SR for the kinds of crimes you are talking about, but that doesn't mean it won't happen - especially where there is repeated conduct and driving on a suspended license may be takes seriously by some judges. The best thing to do is contact an attorney and speak with your PO as scheduled. Fee free to call me for a free consultation if you are not already represented by another attorney.
I know it goes by pts. but my lawyer is telling me to get character letters together i quailfy for saftey valve, I will also take acceptance of responsability to help lower my points. I am also looking for a job, and taking counseling, I wanted to take a real estate class to get my license. Do you think that is a good idea? or should I just save that money? Is there anything you all can recommend in your personal experience that i can do while on pretrial to appear better or show I am sorry before the judge? That may help the judge to consider lowering my time. Answer: It's true that many judges like to read character letters and this is often a good thing to have attached to your sentencing memorandum or provided directly to the court. You're correct that the recommended sentence for your offense will be based on your criminal history score and your offense level, but those guidelines are just advisory and the judge usually has a lot of discretion if there is no minimum sentence. in my experience it never hurts to have been doing good productive things while you are on pretrial release. Many judges like to see that you're working, going to school, and otherwise bettering your life, and they may take that into consideration when sentencing you, if they believe you are committed to getting your life together and that you have a productive future.
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AuthorSteven Brody is an experienced Los Angeles Federal Defense Attorney . Please send your question to [email protected]. Archives
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