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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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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 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.
I am on federal probation , 3 years left and got a dui. What kind of sentence am i looking at?4/16/2013 Answer: First, I'll say the obvious: You need a federal defense attorney. When someone on supervised release picks up a new state charge, there are a lot of things that need to be addressed. My colleagues point out that you could do federal time and that the guidelines will depend on a variety of factors you haven't given us. You should also know that sometimes an attorney can help you negotiate a joint disposition that lets you take care of both the state charge and the federal violation at the same time. On occasion, a state will even dismiss a charge if the defendant agrees to admit to the violation and is facing a federal probation revocation, or they may agree to a no-jail conviction depending on how much (if any) federal time is imposed. The good news is that it's your first violation so there is some hope that you would not do much time. My strong advice is to get an attorney right away or contact your prior federal defender (if you had one) and start figuring out how to deal with this immediately. Good luck!
A family member of mine was convicted of methamphetamine distribution in court the lawyer made a " deal" with him and told him he would make sure the family member would only get 168 months so the family member blind took the offer and refused the 15-year plea agreement. The defendant argues he rejected it on the basis of his counsel's bad advice. Is there anything you can help me with here? A: Ineffective assistance in a situation like that is a complex legal matter and will require consultation with an attorney who may be able to challenge the plea through a habeas petition. You should contact a federal attorney to look into your options. Unfortunately this is one of those very complex questions that just can't be answered in an easy way!
Sentenced to 4 months federal prison how much time will I have to serve? All or 85 percent?2/13/2013 Answer: You're going to have to do all of it. Only sentences that exceed 12 months benefit from the 85% time rule. It's strange, I know, but it means that a sentence of 12 months and 1 day is shorter in practice than a sentence of 12 months!
Answer: You may still be eligible for RDAP even though it was not recommended in your PSR. However, only some people are eligible for the program. The requirements are that the inmate:
1. have a documented pattern of substance abuse in the 12 months prior to arrest for which he/she is serving his/her current sentence; 2. be able to complete all three phases of RDAP, including community transition drug abuse treatment; and 3. be diagnosed by the Drug Abuse Program Psychologist as having a drug use disorder as defined by the American Psychiatric Association's Diagnostic and Statistical Manual (DSM). You should contact your counselor to ask how to request that you be allowed to participate in the program. If you qualify and you have no detainers and you are not convicted of a violent crime this program can help you to get early release. Even without this program you can earn good time credits of up to 54 days per year in federal jail (when the sentence is more than one year, as it is in your case), so you will still only have to do about 85% of the 30 months. |
AuthorSteven Brody is an experienced Los Angeles Federal Defense Attorney . Please send your question to [email protected]. Archives
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