The Case of the Drug Trafficking, Money Laundering Indictment in Eastern District of Texas: Supervised Release
Posted on by Michael Lowe.
Watch enough movies or live true crime trials on YouTube, and you may get the idea that sentencing in a criminal case is almost immediate: in a brightly-lit courtroom, the defendant stands up next to his defense attorney. Together, they face an imposing judge. From the bench, there comes a solemn proclamation of punishment in terms of years behind bars, or maybe even the death penalty. However, real life isn’t the same.
Sentencing hearings in federal court are complicated by all sorts of things, like plea negotiations between the AUSA and the lawyer for the accused; the impact of the United States Sentencing Guidelines (“USSG”); and the recommendations filed with the United States Probation Office (“USPO”) in their Presentence Investigation Report (“PSR”).
Recently, I was happy to help my client deal with criminal charges involving 21 USC §841(b)(1)(A). The case was filed in the United States District Court for the Eastern District of Texas, Sherman Division. In the original indictment, the government charged my client with drug charges that involved a ten year to life imprisonment upon conviction.
The PSR included a guideline calculation based upon the USSG that was terrifying for my client. Fortunately, my client did not serve any significant time in jail because I had him on bond for the entire duration of the case. The key here was to look past the PSR and into the specifics of this particular matter and find arguments and authorities for the court’s consideration.
A plea agreement was reached. I arranged for him to plead only to an information for a single money laundering count. He got “back time,” which is the time that a defendant spends behind bars before the final judgment is entered; it is credited against the sentence.
He also got supervised release, which is like probation. This was based upon the federal judge’s agreement with my defense stance that a downward departure was warranted in the circumstances despite the PSR’s recommendations.
From my over two decades of experience in federal criminal defense here in the State of Texas, I know it is very rare to go from a 10-to-Life drug case to supervised release and no jail time, especially in the Eastern District of Texas. Accordingly, I share details from this case result for edification.
No legal advice is given here: please refer to my site disclaimers.
The Indictment: Cornerstone of the Government’s Case
My client was not alone; he was charged in an indictment with several others for alleged illegal acts involving drugs: specifically, cocaine, heroin, and meth. It was alleged to be a significant drug trafficking case and alongside the criminal charges, forfeiture was also sought of land, cash, and other assets.
Specifically, the Federal Grand Jury had found sufficient facts to pursue several different criminal counts regarding illegal conspiracies to distribute and to possess as well as to manufacture cocaine, heroin, and methamphetamine (drug trafficking) as well as transporting, transmitting, or transferring monetary instruments or funds as part of the illegal drug activities (money laundering). There were also counts related to illegal firearms possession in furtherance of a drug trafficking crime. And, of course, criminal charges related to a continuing criminal enterprise, unsurprising in a drug case.
For more on these various criminal charges, read our earlier discussions in:
Of importance, my client had no prior criminal history and at the time of sentencing had been on bond for over three years without any further criminal violations.
What is a Presentence Investigation Report?
As part of the consideration for sentencing, the United States Probation Office is tasked with preparing its own analysis of the case against the accused, organizing its findings in a formal “Presentence Investigation Report.” As part of this analysis, the USSG are incorporated and a proposed sentenced based upon the federal sentencing guidelines is given.
The PSR will be a tool used not just by the judge but also by the probation officer, the Parole Commission, and the U.S. Bureau of Prisons. In summary, the PSR will have the following:
- A chronological summary of the case, from the initial charges to the involvement of the USPO. The details will be given regarding not only the criminal charge but the underlying facts pertaining to each offense and the various elements (like criminal history) that impact the USSG application.
- There may be details regarding the crime provided to the judge that explain if the offense was part of a larger scheme or plan that may be relevant to the determination of the USSG; the selection of a sentence within the USSG range; and any consideration to depart from the guidelines themselves.
- This report also gives facts which can be confirmed in the government’s evidence files regarding the role played by the defendant in the crimes. Did he help plan things? Was he a major participant or a minor player?
- There will be a section that describes the loss of freedom by the defendant. Date of arrest; the arresting officer; the place of arrest; court appearances; prior decisions on things like bond and bail; and conditions of release pending trial will be given. Moreover, if the defendant did anything to impede the investigation or prosecution, then this will be explained.
- The impact upon the victims of the crime will be given. The judge will have this even if the information does not impact the calculation of the USSG. This can be comprehensive: not only financial losses may be covered but things like social, medical, or psychological consequences will be described for each victim.
- Factual details will be provided for any acceptance of responsibility by the defendant, too. This does come into the calculations under the USSG.
PSR Calculation of Sentence Under the USSG
Perhaps the most powerful portion of the PSR involves the application and calculation of the USSG to the particular matter. In a separate section, the report will go count by count, referencing the Grand Jury Indictment, and for each one, identify the sentencing guideline(s) that applies with the base offense level and any adjustments to that base level because of some particular facts of the case. See, Fed. R. Crim. P. 32.
Note: For more on how the United States Sentencing Guidelines Manual is used to calculate federal sentences (including examples from the Sentencing Tables), see our past articles including: Federal Sentencing Guidelines: Conspiracy to Distribute Controlled Substance Cases; and Federal Sentencing Guidelines on Federal Child Pornography Cases.
Offense Level
The PSR will demonstrate its calculation of the total offense level of the defendant referring to the charges in the Indictment. Enhancements from the USSG Manual will also be explained. If there are facts that suggest an increase in the offense level, this will be provided.
Criminal History
The criminal history aspect of the USSG is determined and provided as it has been computed by the USPO. This will involve things like any other pending criminal charges against the defendant. Any arrests on record are listed.
If there is past criminal conduct known through reliable information, this will be described, too. It is considered important in the consideration of whether or not the defendant will commit crimes in the future.
Past criminal behavior of the defendant that is not considered relevant conduct under the USSG will be detailed, too. Things like dismissed charges may end up here.
- For more on relevant conduct, read: Relevant Conduct in the Federal Sentencing Guidelines: Acquittals and Uncharged Conduct.
Any juvenile offenses will be included. They may or may not be used in calculating the defendant’s criminal history score under the USSG. To the extent they do impact the calculation, the USPO references Chapter IV of the USSG Manual. As for criminal convictions after the defendant has reached the age of adulthood, they will be listed. All the dispositions will be given (incarceration, etc.)
As for the offender’s characteristics, the PSR will give the judge details into the defendant’s personal history, and this can be extensive. Family background; physical health and mental condition; emotional trauma; history of substance abuse; job history; education; vocational or trade skills; and financial stability are all investigated and included here.
Sentencing Range: Options for the Judge
Finally, the PSR will provide its sentencing options for the court’s consideration. The statutory penalties defined by federal statutes listed in the Counts of the Indictment give the parameters. The USSG then detail options (see Chapter V of the USSG Manual).
Things on the table here include not only the statutes themselves and the guidelines, but any plea agreement reached between the AUSA and defense counsel and the impact of things like fines, restitution, etc. The PSR should include any factors that the probation officer thinks may indicate a sentence that differs from the USSG calculation.
The probation officer will give the USPO’s position on any plea agreement. The PSR will have a section that compares the USSG applicable if the defendant were to plead to all counts as compared to the deal reached in the plea bargain.
Downward Departure: Supervised Release in a Federal Criminal Matter
The federal judge does not have to follow the determination of the USPO or the USSG. SCOTUS decided that long ago in United States v. Booker, 543 U.S. 220 (2005), which makes it clear that the USSG Manual is advisory, not mandatory. The federal judge has discretion in sentencing. As long as the sentence is reasonable, it is not considered an abuse of discretion and will be upheld on appeal. Kimbrough v. United States, 552 U.S. 85 (2007).
What is Supervised Release?
During a term of “supervised release,” the individual is not behind bars, but remains a part of the federal criminal justice system. It is intended to help an offender to reintegrate into society, deter further criminal behavior, and protect the public by monitoring the individual’s compliance with specific conditions. Under 18 U.S.C. § 3583, the USPO oversees compliance by the individual. Different felonies come with different time periods; for instance, there can be up to five years of supervised release for a Class B felony.
Conditions are placed upon the person on what they can and cannot do during the release. Of course, they cannot commit any criminal offenses or do drugs. But they may also be required to live and work and remain within a certain judicial district (like the Eastern District of Texas). Maybe they will be ordered to continue in psychological counseling, etc. Each case is different.
What is Downward Departure?
Whenever a federal judge refers to the United States Sentencing Guidelines and takes them under advisement but then determines a criminal sentence outside them, where the punishment is lesser than calculated by the USSG, then it is considered to be a “downward departure.” The judge looks at the guidelines, the sentencing factors in 18 U.S.C. § 3553(a), the considerations within the plea agreement, and things like the nature of the offense, the defendant’s history, possibility of rehabilitation, deterrence, and protection of the general public.
It is the goal of the criminal defense lawyer to study the client’s situation and personal history in depth, to understand with compassion the likelihood of a successful second chance, and take that before the judge at sentencing.
My Case Result
One afternoon early last December, I was able to come before the federal court in Sherman, Texas, and appear alongside the AUSA, after we had both reviewed the PSR in the case. After my client pled guilty to Count 1 with a total offense level of 19 and a criminal history of I under the USSG Manual, where the PSR found 30 months in sentencing, I was able to argue for my client’s particular circumstances.
The AUSA also presented the government’s position. The federal judge recognized on the record that:
- The defendant had been on bond over three years
- The defendant had no violations during that time
- There was no prior criminal history
- The defendant was a zero-point offender
- The defendant accepted responsibility and had remorse.
The fine was waived. There was a special assessment of $100.00. The judge granted supervised release for a term of three years.
The AUSA moved to dismiss the remaining counts and the underlying indictment, and this was granted.
It was a remarkable moment for my client and myself; it is not often that supervised release as described herein is granted in this federal district (at least to my knowledge).
For more, read:
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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, “Pre-Arrest Criminal Investigations .”
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