18 U.S. Code § 3559 – Sentencing classification of offenses
(a) Classification.— An offense that is not specifically classified by a letter grade in the section defining it, is classified if the maximum term of imprisonment authorized is—
Monthly Archives: January 2015
Sentencing Guidelines in Federal Court
Plea Bargain Paper
Most criminal cases in federal court are resolved not by trials, but by plea bargains. In order to negotiate a successful plea agreement, defense counsel must understand what kind of agreements can be made and the effect of each kind on the client s sentencing exposure. Although plea agreements are generally referred to and treated as contracts, they are like contracts in a heavily regulated industry. Rights and responsibilities under these contracts are controlled by layers of statutes, rules, guidelines, Department of Justice (DOJ) policies, and case law. Regardless of the type of plea agreement, counsel must understand the impact of all these layers of regulation in order to know what the provisions of the agreement will mean to the client. The Department of Justice Manual the blue looseleaf standard reference manual for all U.S. Attorney s offices, cited herein as the DOJ Manual requires that plea agreements for all felonies and misdemeanors negotiated down from felonies be in writing and filed with the court. (DOJ Manual 9-27.450) Some U.S. Attorney s offices have standard plea agreement forms, others give individual assistants more leeway in what can or must be in plea agreements. Some agreements cover the basics in a couple of pages, others extend to ten or twenty pages. For some time the trend seemed to be toward longer and more complex agreement forms.
To learn more about this topic please visit http://www.fd.org/docs/select-topics/pleas/making-your-deal-with-the-devil-plea-agreements-under-the-federal-rules-federal-sentencing-guidelines-and-department-of-justice-policies.pdf?sfvrsn=4
Executing a Will or Codicil in Mississippi
The laws governing the execution of Wills and Codicils are very specific and governed by§ 91-5-1. Who may execute; signature; attestation.
Every person eighteen (18) years of age or older, being of sound and disposing mind, shall have power, by last will and testament, or codicil in writing, to devise all the estate, right, title and interest in possession, reversion, or remainder, which he or she hath, or at the time of his or her death shall have, of, in, or to lands, tenements, hereditaments, or annuities, or rents charged upon or issuing out of them, or goods and chattels, and personal estate of any description whatever, provided such last will and testament, or codicil, be signed by the testator or testatrix, or by some other person in his or her presence and by his or her express direction. Moreover, if not wholly written and subscribed by himself or herself, it shall be attested by two (2) or more credible witnesses in the presence of the testator or testatrix.
The United States Code Controlled Substances Act
The United States Code Controlled Substances Act
Part D — Offenses And Penalties
§841. Prohibited acts A
(a) Unlawful acts
Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or
(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
(b) Penalties
Except as otherwise provided in section 849, 859, 860, or 861 of this title, any person who violates subsection (a) of this section shall be sentenced as follows:(1)(A) In the case of a violation of subsection (a) of this section involving—
(i) 1 kilogram or more of a mixture or substance containing a detectable amount of heroin;
(ii) 5 kilograms or more of a mixture or substance containing a detectable amount of—
(I) coca leaves, except coca leaves and extracts of coca leaves from which cocaine, ecgonine, and derivatives of ecgonine or their salts have been removed;
(II) cocaine, its salts, optical and geometric isomers, and salts of isomers;
(III) ecgonine, its derivatives, their salts, isomers, and salts of isomers; or
(IV) any compound, mixture, or preparation which contains any quantity of any of the substances referred to in subclauses (I) through (III);
(iii) 280 grams or more of a mixture or substance described in clause (ii) which contains cocaine base;
(iv) 100 grams or more of phencyclidine (PCP) or 1 kilogram or more of a mixture or substance containing a detectable amount of phencyclidine (PCP);
(v) 10 grams or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD);
(vi) 400 grams or more of a mixture or substance containing a detectable amount of N-phenyl-N- [ 1- ( 2-phenylethyl ) -4-piperidinyl ] propanamide or 100 grams or more of a mixture or substance containing a detectable amount of any analogue of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide;
(vii) 1000 kilograms or more of a mixture or substance containing a detectable amount of marihuana, or 1,000 or more marihuana plants regardless of weight; or
(viii) 50 grams or more of methamphetamine, its salts, isomers, and salts of its isomers or 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, its salts, isomers, or salts of its isomers;
such person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of title 18 or $10,000,000 if the defendant is an individual or $50,000,000 if the defendant is other than an individual, or both. If any person commits such a violation after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment and if death or serious bodily injury results from the use of such substance shall be sentenced to life imprisonment, a fine not to exceed the greater of twice that authorized in accordance with the provisions of title 18 or $20,000,000 if the defendant is an individual or $75,000,000 if the defendant is other than an individual, or both. If any person commits a violation of this subparagraph or of section 849, 859, 860, or 861 of this title after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release and fined in accordance with the preceding sentence. Notwithstanding section 3583 of title 18, any sentence under this subparagraph shall, in the absence of such a prior conviction, impose a term of supervised release of at least 5 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a term of supervised release of at least 10 years in addition to such term of imprisonment. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph. No person sentenced under this subparagraph shall be eligible for parole during the term of imprisonment imposed therein.
Federal Wiretaps in Criminal Cases
The use of wire taps by federal agents for purposes criminal investigations are admissible only if a warrant was issued to do so. Because of their similarity to searches and seizures, the fourth amendment warrant clause applies to electronic surveillance as well. Obtaining a warrant for electronic surveillance requires showing probable cause to a Judge, describing in particularity the conversation to be intercepted, providing a specific time period for the interception of the communications device, and noticing the property owner unless law enforcement can show “exigent circumstances”.
As with routine searches and seizures, exigent circumstances may serve as grounds for law enforcement to dispense with first obtaining a warrant. if law enforcement encounters a situation threatening a person’s life, a conspiracy threatening the national security, or a conspiracy suggesting organized crime, then law enforcement may proceed without first acquiring a warrant.
Title III requires Federal, state and, other government officials to obtain judicial authorization for intercepting “wire, oral, and electronic” communications such as telephone conversations and e-mails. It also regulates the use and disclosure of information obtained through authorized wiretapping. 18 U.S.C. §§ 2516-18.
Under § 2516. 18 U.S.C. § 2518(3), a judge may issue a warrant authorizing interception of communications for up to 30 days upon a showing of probable cause that the interception will reveal evidence that “an individual is committing, has committed, or is about to commit a particular offense” listed in .
18 U.S.C. § 2517 provides that a law enforcement or investigating officer may use, disclose to another law enforcement or investigating officer, or disclose during testimony information obtained in authorized wiretapping, provided the use or disclosure “is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.” .
18 U.S.C. § 2517 provides that any Federal official who “receives information pursuant to this provision may use that information only as necessary in the conduct of that person’s official duties subject to any limitations on the unauthorized disclosure of such information.” .
Federal wiretaps implement any issues including the the fourth amendment right against search and seizures. Many attorney’s argue that there need not be a physical intrusion into a tangible area in order to constitute a search. The Court already has recognized that certain “constitutionally protected areas” fall under the Fourth Amendment’s protections. The trespass doctrine results in an overly literal reading of the Fourth Amendment. The objective of a wiretap is the same as a physical search — to provide evidence that a crime has been committed. Therefore, the full protections of the Fourth Amendment should apply to wiretaps as well as searches.
Plea Agreements in Federal Criminal Cases
A “plea bargain” is an agreement between the prosecutor, the defendant’s attorney and the defendant. In return for the defendant entering a plea of guilty to a criminal charge, the prosecutor agrees to recommend to the judge a particular penalty. Plea bargaining allows the prosecutor to obtain guilty pleas in cases that might otherwise go to trial. The prosecution is relieved of the burden of proving the case beyond a reasonable doubt at trial and the defendant receives a specific resolution of the charges against him.
Plea agreements in Federal criminal cases are addressed in Rule 11 of the Federal Rules of Criminal Procedure:
(c) Plea Agreement Procedure.
(1) In General. An attorney for the government and the defendant’s attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. The court must not participate in these discussions. If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will:
(A) not bring, or will move to dismiss, other charges;
(B) recommend, or agree not to oppose the defendant’s request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request does not bind the court); or
(C) agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement).
(2) Disclosing a Plea Agreement. The parties must disclose the plea agreement in open court when the plea is offered, unless the court for good cause allows the parties to disclose the plea agreement in camera.
Federal Sentencing Guidelines
The Federal Sentencing Guidelines are non-binding rules that set out a uniform sentencing policy for defendants convicted in the United States federal court system that became effective in 1987. The Guidelines provide for “very precise calibration of sentences, depending upon a number of factors. These factors relate both to the subjective guilt of the defendant and to the harm caused by his facts.” Payne v. Tennessee, 501 U.S. 808, 820 (1991).
The Guidelines are not mandatory, because they may result in a sentence based on facts not proven beyond a reasonable doubt to a jury, in violation of the Sixth Amendment. United States v. Booker, 543 U.S. 20 (2005). However, judges must consider them when determining a criminal defendant’s sentence. When a judge determines within his or her discretion to depart from the Guidelines, the judge must explain what factors warranted the increased or decreased sentence.When a Court of Appeals reviews a sentence imposed through a proper application the Guidelines, it may presume the sentence is reasonable. Rita v. United States, 127 S.Ct. 2456 (2007).
Injunctive Relief Against a Municipality in Mississippi
When bringing an action against a city government, the Plaintiff may demand an immediate remedy before the case is finalized. For example, to prevent a city government from taking an action, or in other instances, force a city to take action, one may file a Petition for Preliminary Injunction in connection with the underlying lawsuit. According to the The Mississippi Rules of Civil Procedure Advisory Committee:
“The purpose of a preliminary injunction is to provide injunctive relief until the merits
of the case are resolved. Preliminary injunctions cannot be granted without notice. A party
moving for preliminary injunctive relief pursuant to Rule 65(a) must demonstrate that “(i)
there exists a substantial likelihood that the [movant] will prevail on the merits; (ii) the
injunction is necessary to prevent irreparable harm; (iii) the threatened injury to the [movant] outweighs the harm an injunction might do to the [opposing party]; and (iv) granting a preliminary injunction is consistent with the public interest.” See Littleton v. McAdams, 60 So. 3d 169, 171 (Miss. 2011). Motions for preliminary injunctions are within the trial court’s discretion. See City of Durant v. Humphreys County Mem’l Hosp., 587 So. 2d 244, 250 (Miss. 1991).
Judgment Debtor Examination in Mississippi
Upon being awarded judgment by a Mississippi court, the prevailing party may petition to examine the Defendant’s assets
Mississippi Code Ann 13-1-261 provides:
(1) To aid in the satisfaction of a judgment of more than One Hundred Dollars ($ 100.00), the judgment creditor may examine the judgment debtor, his books, papers or documents, upon any matter relating to his property as provided in Sections 13-1-261 through 13-1-271; except that no single judgment creditor may cause a judgment debtor to submit to examination under this section more than once in a period of six (6) months.
(2) In addition to the method of examination prescribed in subsection (1), the judgment creditor may, in the alternative, utilize the discovery procedures set forth in the Mississippi Rules of Civil Procedure for the purpose of examining the judgment debtor.
Responding to Subpoenas for Documents in Mississippi
Miss. R. Civ. P. 45 governs how to respond to subpoenas for documents in Mississippi.
(2) Subpoenas for Production or Inspection. (A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or to permit inspection of premises need not appear in person at the place of production or inspection unless commanded by the subpoena to appear for deposition, hearing or trial. Unless for good cause shown the court shortens the time, a subpoena for production or inspection shall allow not less than ten days for the person upon whom it is served to comply with the subpoena. A copy of all such subpoenas shall be served immediately upon each party in accordance with Rule 5. A subpoena commanding production or inspection will be subject to the provisions of Rule 26(d). (B) The person to whom the subpoena is directed may, within ten days after the service thereof or on or before the time specified in the subpoena for compliance, if such time is less than ten days after service, serve upon the party serving the subpoena written objection to inspection or copying of any or all of the designated materials, or to inspection of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the material except pursuant to an order of the court from which the subpoena was issued. The party serving the subpoena may, if objection has been made, move at any time upon notice to the person served for an order to compel the production or inspection.(C) The court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (i) quash or modify the subpoena if it is unreasonable or oppressive, or (ii) condition the denial of the motion upon the advance by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things. (e) Duties in Responding to Subpoena. (1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand. (2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.
