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  #1  
Old 01-11-2006, 09:09 PM
msdntexas msdntexas is offline
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Question Concurrent Sentence / Consecutive Sentence-What time counts???

I am new to research on the matter of my friends final sentence which is at a Federal Facility. He had served his TDJC and then turned over to US Marshalls to serve final sentence in Federal Location.

He asked me to research if his time served should be counted against his Federal time. I couldn't be more confused.

His sentence for Federal reads to be served consecutive to the undischarged terms of improsonment. It also states that is was imposed pursuant to the Sentenceing Reform Act of 1984. Offenses were committed after November 1, 1987

However what I have read for senteneces imposed for crimes committed after 1987 all terms should run concurrent no matter where the individual is incarcerated. It almost appears like there is no other sentencing alternative reading statute governing State and Federal Sentencing.

If anyone could advise on what can be done to have his time already served count against his current sentence at Federal Facility? I would greatly appreciate the help.
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Old 01-12-2006, 08:01 AM
newton98 newton98 is offline
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Greetings!!!

There are actually a few reasons sentences can be run consecutive. For examaple failure to appear or incurring another charge before you get to court on the current case.

Also, I am not sure there is a requirement that state time has to be run concurrent with federal time. Did he have a plea agreement, from the feds, for it to run concurrent?

Lynne
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Old 01-12-2006, 08:30 AM
bellisq bellisq is offline
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If the Judge specified consecutive that is what the BOP will follow. It means the federal sentence only starts to run after the TX tme is finished. The judge has the full authority here.
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Old 01-12-2006, 09:02 AM
Ruddsgrl1 Ruddsgrl1 is offline
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Unhappy My man has to run his maricopa time with his Pinal time

HOPEFULLY he can at the current facility ,he is working on it NOW!!! Their has got to be a way for him too. I may look into it MORE to see what I can do get the process going ASAP!!! So he can come HOME in November!!! But if anyone has any Information on this kind of situation PLEASE Let me KNOW!!! What I can do to help him if I can in any way! I want him home so BAD I can taste it!!!! He has already sent letters and documents regarding the cases he is in trouble for.

Wendy aka Ruddsgrl1
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Old 01-12-2006, 09:15 AM
newton98 newton98 is offline
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Quote:
Originally Posted by Ruddsgrl1
......He has already sent letters and documents regarding the cases he is in trouble for...Wendy aka Ruddsgrl1
Do you have the transcripts for his sentencing?
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Old 01-12-2006, 09:28 AM
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gamma577 gamma577 is offline
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Where is he at now?Sometimes the system can be so confusing,I should know my son was approve for parole and was at a release unit just to be told oops mistake Nov20th now.Take care Gamma577
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I am going to be more positive for my son(I love you SunShine):love:6more months to go Nov20th and still counting
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Old 01-12-2006, 10:08 AM
newton98 newton98 is offline
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Default Modification & Reduction Stuff

Here are few things I found on Lexis



TITLE 18. CRIMES AND CRIMINAL PROCEDURE
PART II. CRIMINAL PROCEDURE
CHAPTER 227. SENTENCES
SUBCHAPTER D. IMPRISONMENT


18 USCS § 3582 (2005)
§ 3582. Imposition of a sentence of imprisonment

(a) Factors to be considered in imposing a term of imprisonment. The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) [
18 USCS § 3553(a)] to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation. In determining whether to make a recommendation concerning the type of prison facility appropriate for the defendant, the court shall consider any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(2).

(b) Effect of finality of judgment. Notwithstanding the fact that a sentence to imprisonment can subsequently be--
(1) modified pursuant to the provisions of subsection (c);
(2) corrected pursuant to the provisions of
rule 35 of the Federal Rules of Criminal Procedure and section 3742 [18 USCS § 3742]; or
(3) appealed and modified, if outside the guideline range, pursuant to the provisions of section 3742 [
18 USCS § 3742];

a judgment of conviction that includes such a sentence constitutes a final judgment for all other purposes.

(c) Modification of an imposed term of imprisonment. The court may not modify a term of imprisonment once it has been imposed except that--
(1) in any case--
(A) the court, upon motion of the Director of the Bureau of Prisons, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) [
18 USCS § 3553(a)] to the extent that they are applicable, if it finds that--
(i) extraordinary and compelling reasons warrant such a reduction; or
(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c) [
18 USCS § 3559(c)], for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g) [18 USCS § 3142];
and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission; and
(B) the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute or by
Rule 35 of the Federal Rules of Criminal Procedure; and
(2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to
28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) [18 USCS § 3553(a)] to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

(
d) Inclusion of an order to limit criminal association of organized crime and drug offenders. The court, in imposing a sentence to a term of imprisonment upon a defendant convicted of a felony set forth in chapter 95 [18 USCS §§ 1951 et seq.] (racketeering) or 96 [18 USCS §§ 1961 et seq.] (racketeer influenced and corrupt organizations) of this title or in the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 801 et seq.), or at any time thereafter upon motion by the Director of the Bureau of Prisons or a United States attorney, may include as a part of the sentence an order that requires that the defendant not associate or communicate with a specified person, other than his attorney, upon a showing of probable cause to believe that association or communication with such person is for the purpose of enabling the defendant to control, manage, direct, finance, or otherwise participate in an illegal enterprise.


Rule 35. Correcting or Reducing a Sentence

(a) Correcting Clear Error. Within 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.

(b) Reducing a Sentence for Substantial Assistance.
(1) In General. Upon the government's motion made within one year of sentencing, the court may reduce a sentence if:
(A) the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person; and
(B) reducing the sentence accords with the Sentencing Commission's guidelines and policy statements.
(2) Later Motion. Upon the government's motion made more than one year after sentencing, the court may reduce a sentence if the defendant's substantial assistance involved:
(A) information not known to the defendant until one year or more after sentencing;
(B) information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or
(C) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant.
(3) Evaluating Substantial Assistance. In evaluating whether the defendant has provided substantial assistance, the court may consider the defendant's presentence assistance.
(4) Below Statutory Minimum. When acting under Rule 35(b), the court may reduce the sentence to a level below the minimum sentence established by statute.

(c) "Sentencing" Defined. As used in this rule, "sentencing" means the oral announcement of the sentence.

1. Amendments:
1984. Act Oct. 12, 1984 (effective on the first day of the first calendar month beginning 36 months after enactment, as provided by § 235(a)(1) of such Act, as amended by Act Dec. 26, 1985,
P.L. 99-217, § 4, 99 Stat. 1728, which appears as 18 USCS § 3551 note, and applicable as provided by such § 235, which appears as 18 USCS § 3551 note) substituted this Rule for one which read:
"Rule 35. Correction or reduction of sentence
"(a) Correction of sentence. The court may correct an illegal sentence at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.
"(b) Reduction of sentence. A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. The court shall determine the motion within a reasonable time. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision.".

The authority to correct a sentence under this subdivision is intended to be very narrow and to extend only to those cases in which an obvious error or mistake has occurred in the sentence, that is, errors which would almost certainly result in a remand of the case to the trial court for further action under Rule 35(a). The subdivision is not intended to afford the court the opportunity to reconsider the application or interpretation of the sentencing guidelines or for the court simply to change its mind about the appropriateness of the sentence. Nor should it be used to reopen issues previously resolved at the sentencing hearing through the exercise of the court's discretion with regard to the application of the sentencing guidelines. Furthermore, the Committee did not intend that the rule relax any requirement that the parties state all objections to a sentence at or before the sentencing hearing. See, e.g., United States v. Jones, 899 F.2d 1097 (11th Cir. 1990).

Sentence Reduction (Does he qualify for a reduction?)

18 U.S.C.S. § 3621(e)(2)(B) does not compel the Federal Bureau of Prisons (BOP) to grant a sentence reduction to any prisoner. The statute merely permits, but does not require, the BOP to grant a sentence reduction of up to one year to a prisoner "convicted of non-violent offense" who successfully completes the Residential Drug Abuse Program (RDAP). By implication, the statute also forbids the BOP from granting a sentence reduction to a prisoner convicted of a violent offense who successfully complete the RDAP. It is the statute, not the BOP, that defines eligibility.

The period a prisoner convicted of a nonviolent offense remains in custody after successfully completing a treatment program may be reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the prisoner must otherwise serve." 18 U.S.C. § 3621(e)(2)(B).


21A Am Jur 2d CRIMINAL LAW § 933


American Jurisprudence, Second Edition
Copyright 2004 West Group

Criminal Law
PART ONE: General Principles
XV. Judgment and Sentence [§§ 791-934]
F. Vacation, Amendment, Modification, and Resentence [§§ 925-933]
2. Correction and Reduction of Sentence in Federal Criminal Case [§§ 931-933]

21A Am Jur 2d CRIMINAL LAW § 933
§ 933 Reduction of sentence for changed circumstances

Federal Rules of Criminal Procedure, Rule 35(b) provides that the court, on motion of the government made within one year after the imposition of the sentence, may reduce a sentence to reflect a defendant's subsequent substantial assistance in the investigation or prosecution of another person who has committed an offense, in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant to
28 USCA § 994. This provision deals only with the reduction of a sentence already imposed, and does not authorize coercive sentencing to induce a defendant's cooperation with the government. .lnfootnotes {text-decoration:none; font-weight:bold; color:#0000FF; font-size:7pt}14 The motion for the reduction of a sentence for changed circumstances pursuant to the Rule must be made by the government.15

Since there is no constitutional right to the availability of a substantial assistance provision to reduce a criminal sentence, the requirement that the government file a motion for the reduction of sentence under Federal Rules of Criminal Procedure, Rule 35(b) does not deprive the defendant of any constitutional rights.16 However, a cooperation agreement entered into between the United States Attorney and the defendant may obligate the U.S. Attorney to file a motion pursuant to Federal Rules of Criminal Procedure, Rule 35(b) if the agreement contains an express promise that the motion will definitely be filed.17 Moreover, the Supreme Court has held that, even though the government has no duty to file a motion to allow a District Court to impose a sentence below the minimum set by statute or the guidelines, based on a defendant's substantial assistance to the government, the refusal to do so is subject to review and may be remedied if the refusal is based on an unconstitutional motive, such as because of the defendant's race or religion, or if the refusal was not rationally related to any legitimate government end.18 This holding has been applied in the context of Federal Rules of Criminal Procedure, Rule 35(b), in a ruling denying a defendant's request that the government be compelled to file a motion for reduction of sentence, where the court held that a District Court cannot require the government to file such a motion, based on a defendant's substantial assistance, unless the defendant makes a threshold showing that the government's refusal was not rationally related to any legitimate government end.19

A District Court has jurisdiction to consider a motion under Federal Rules of Criminal Procedure, Rule 35(b) if:
(1) the motion is made by the government;
(2) the motion is brought within one year after the imposition of the defendant's sentence;
(3) the defendant has provided substantial assistance to the government;
(4) the assistance is related to the investigation or prosecution of another person; and
(5) the assistance is subsequent to the date of the defendant's sentencing.
20

The changes made to Federal Rules of Criminal Procedure, Rule 35(b), as applicable to offenses committed after November 1, 1987, remove a District Court's ability to resentence at its own discretion, permitting resentencing only on the Federal Government's motion.21 A court, therefore, cannot defer a ruling on a motion for a downward departure from the guidelines, under USSG § 5K1.1, until after sentencing, since this action returns to the District Court the discretion taken away by Federal Rules of Criminal Procedure, Rule 35 and conflicts with the temporal relationship between that provision and Federal Rules of Criminal Procedure, Rule 35(b).22

While the power to move for a sentence reduction rests with the government, the sole power to grant or deny a reduction and the extent of the reduction, if any, rests within the discretion of the court.23 A District Court is not required to reduce the defendant's sentence since there is no constitutional right to the availability of the "substantial assistance" provision.24 There is no requirement of proportionality in the reduction of the sentences of codefendants.25

The court's authority to reduce a sentence includes the authority to reduce such sentence to a level below that established by statute as a minimum sentence.26





Last edited by newton98; 01-12-2006 at 10:10 AM..
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  #8  
Old 01-12-2006, 04:56 PM
Ruddsgrl1 Ruddsgrl1 is offline
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Default from sentencing?

I don't know. Why?

Wendy aka Ruddsgrl1
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