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  #1  
Old 04-22-2019, 10:08 PM
Bigdre520 Bigdre520 is offline
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Default Does the judge lower time at Sentencing?

Getting sentence May 1st. Looking at 30 months. was just wondering how sentencing goes does the judge go lower I don't have a mandatory minimum because .i have the safety valve
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Old 04-23-2019, 05:30 AM
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Welcome to Prison Talk. The judge has complete discretion over the sentence since the Supreme Court ruled that the sentencing guidelines are "advisory", previously they were "mandatory". Your lawyer will be working to get you a lenient sentence.
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Old 04-23-2019, 06:35 AM
Bigdre520 Bigdre520 is offline
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Default Sentencing

My lawyer keeps saying they won't go below the 30 months. but everything I read says that the judge probably will I've been out for two years on pretrial release. I have no mandatory minimum. Because of the safety valve. Strong family ties good work history. No violence in my past. And no prior criminal history. and I was only in the conspiracy for one month. I guess my question is is it common for judges to go below the guideline range or is that unusual. I asked my lawyer but he's all doom and gloom I think he don't want me to get my hopes up just looking for some clarity here because my setting to is next Wednesday. And I'm kind of freaking out.
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Old 04-23-2019, 07:24 AM
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My lawyer keeps saying they won't go below the 30 months. but everything I read says that the judge probably will I've been out for two years on pretrial release. I have no mandatory minimum. Because of the safety valve. Strong family ties good work history. No violence in my past. And no prior criminal history. and I was only in the conspiracy for one month. I guess my question is is it common for judges to go below the guideline range or is that unusual. I asked my lawyer but he's all doom and gloom I think he don't want me to get my hopes up just looking for some clarity here because my setting to is next Wednesday. And I'm kind of freaking out.
To be fair in most cases there is no real way of knowing since as fbopnomore stated it is completely up to the judge. In my husband's case the DA is asking for "the low" end of 63-78 months. His lawyer has said it will be less than 60, but probably not as low as 48... however based on similar cases ruled on by the judge is appears he may be looking at closer to 36, not to mention every case is different. Don't give your lawyer too hard of a time about being "all doom and gloom".... you would rather be pleasantly surprised that the sentence is much lower than to go in expecting a lower sentence and get a lot more. His judge has been described as "very middle of the road" in the fact that he tries to pretty much please everyone. We're going in with the idea that he'll be getting between 48 and 60 months and anything less will be a blessing.

I do have one question for you. You say you have been out on pre-trial for 2 years. Have you spent that time on home detention? If so that time does not technically count towards any time (something that completely bugs me) but the judge can take that into account when sentencing you.
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Old 04-23-2019, 08:21 AM
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Default Sentencing

I got out at my detention hearing. I haven't been on home confinement. And haven't had any real restrictions. Other than the occasional drug screen. thanks for responding to my question. I guess I won't really know anything until sentencing just nervous because it's coming up in a week.
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Old 04-23-2019, 08:27 AM
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I got out at my detention hearing. I haven't been on home confinement. And haven't had any real restrictions. Other than the occasional drug screen. thanks for responding to my question. I guess I won't really know anything until sentencing just nervous because it's coming up in a week.
Trust me... I feel ya!! My husband's case technically started in November of 2016 when a search was made. There was not an arrest but we kept in touch with the investigators for about 6 months until we decided we couldn't live that way anymore. His arrest came in May of 2018 and he spent 10 days in jail until his detention hearing but was released on house arrest which he has been on since that time. His latest sentencing hearing is schedule for May 14th.... the third scheduled. Everyone here tells you that the "unknown" is the worse part of all of this.... while we both want to get it done and over with, each time we become more nervous. According to this PO sentencing is really the easy part as it gets you out of this "unknown" time and that most people hit reality when they receive their destination letter.
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Old 04-23-2019, 11:24 AM
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Judge's sentencing can sometimes be predictable based on their histories, but it is still just a guessing game until you hear your actual punishment. Your lawyer still needs to argue for a lesser sentence. Here are the options the US Sentencing Commission makes available, but it is also up to the judge to utilize them or not.
https://www.ussc.gov/sites/default/f...on/SENTOPT.pdf

and the Federal Defender's instructions to their lawyers about sentencing mitigation allocutions to present to the court.
https://moe.fd.org/Mitigation/allocution%20pleading.pdf
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Old 04-23-2019, 10:09 PM
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Agree with the above. Its up to the judge. However, I hope you have done everything in your power these last couple years to put yourself in the best possible light at sentencing. Reviewed your PSR, worked on your speech to the judge, asked and obtained character letters, find out if you may have a reason for a variance or downward departure, been productive over the last couple years volunteering going to therapy etc. Your lawyer should be advising you on all of these things and fight for the lowest possible sentence. If you have done all or some of these things, which are really the only things in your control, you have done all you can and set your self up for the best outcome possible. No guarantee the judge will go along with it but, its the best you can do. I had a guideline of 15-22 months and received probation. Others on prison talk have received similar but, some through no fault of their own received within the guidelines or more. Again, do everything in your power for a reduced sentence and hope the judge goes along with it.. I hope your lawyer has been helping you do this.

Last edited by worldwide; 04-23-2019 at 10:12 PM..
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Old 04-23-2019, 11:01 PM
Bigdre520 Bigdre520 is offline
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Default Sentencing

To be honest I have a public defender. So he hasn't really been helping me a lot. He's been mostly gloom and doom. At first he told me I was going to do 10 years. Then he said five. now it's all the way down to worst case scenario of 30 months. but like I said I've been out for two years. I haven't done all the things that you mentioned. but of course I have passed all my drug screens. just had a baby got engaged. Have strong family ties great works history. and I do have letters. and I'm prepared to speak at my sentencing. So I figured from my calculations I should be out in 13 and a half months. But I am hoping with all the things I have in my favor that the judge will show me a little leniency and it could be even better. But no matter what I know could be a lot worse so I'm going to keep my head up.
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Old 04-23-2019, 11:03 PM
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Oh yeah. And I have reviewed my PSR. It was very good really couldn't get any better. And I have no violent past criminal history. pretty much no criminal history at all.
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Old 04-24-2019, 06:29 AM
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Quote:
Originally Posted by Bigdre520 View Post
To be honest I have a public defender. So he hasn't really been helping me a lot. He's been mostly gloom and doom. At first he told me I was going to do 10 years. Then he said five. now it's all the way down to worst case scenario of 30 months. but like I said I've been out for two years. I haven't done all the things that you mentioned. but of course I have passed all my drug screens. just had a baby got engaged. Have strong family ties great works history. and I do have letters. and I'm prepared to speak at my sentencing. So I figured from my calculations I should be out in 13 and a half months. But I am hoping with all the things I have in my favor that the judge will show me a little leniency and it could be even better. But no matter what I know could be a lot worse so I'm going to keep my head up.
Where did you come up with 13 1/2 months? Just curious
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Old 04-24-2019, 08:15 AM
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If you are sentenced to 5 years, 60 months, you will receive 270 days of good time, or about 9 months, leaving 51 months to serve. Anything else, (RDAP, First Step Act) is speculative, so don't count on any additional time off until you get it, otherwise you will probably be disappointed.

Half way house or home confinement is still being in bop custody, and the amount is decided by your unit team and warden. Some inmates receive zero, and some who do receive HWH/HC say they would have been better off by remaining in prison.
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Old 04-24-2019, 10:05 AM
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The safety valve was broadened with the First Step Act passed last year. https://crsreports.congress.gov/product/pdf/R/R41326

You are looking to get a variance (if you don' t have a 5K1 plea for cooperation.) If your lawyer hasn't prepared a sentencing memorandum with specific variance issues detailed, then he is not fully representing you.

Waiting until sentencing to present your issues is risky, many judges make up their minds before they take the bench. Your lawyer should present your request for lower sentence and the rationale for this in writing. If he hasn't done so, you need to raise holy hell and demand he do it. Put it in writing, because this is grounds for a an appeal or reconsideration if you don't like the outcome or if the judge was not fully apprised of the facts.
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Old 04-24-2019, 09:20 PM
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Oh yeah. And I have reviewed my PSR. It was very good really couldn't get any better. And I have no violent past criminal history. pretty much no criminal history at all.
A good PSR is a great step. Most judges rely heavily on the PSR. Many times Probation will make their own sentencing recommendation apart from the guideline sentence. Did they do so on your PSR (many times at the end of it)? If it is low enough then the Judge will not have to vary far to give you a non incarceratory sentence.
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Old 04-24-2019, 09:22 PM
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The safety valve was broadened with the First Step Act passed last year. https://crsreports.congress.gov/product/pdf/R/R41326

You are looking to get a variance (if you don' t have a 5K1 plea for cooperation.) If your lawyer hasn't prepared a sentencing memorandum with specific variance issues detailed, then he is not fully representing you.

Waiting until sentencing to present your issues is risky, many judges make up their minds before they take the bench. Your lawyer should present your request for lower sentence and the rationale for this in writing. If he hasn't done so, you need to raise holy hell and demand he do it. Put it in writing, because this is grounds for a an appeal or reconsideration if you don't like the outcome or if the judge was not fully apprised of the facts.
Sound advice. The takeaway from this is be proactive. Squeaky wheel gets the grease. Call, text, email your Public Defender. Ask questions. Make recommendations. Educate yourself about your case. Stay after the PD and make sure he/she is doing there job. It is your life! Fight for it.
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Old 04-25-2019, 04:46 AM
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You almost fit into the rationale for aberrant behavior variance. I don't know the context of the dialogue that gets the negative response from the lawyer, but it does concern me. If t here is no memo submitted at this late date, this isn't good and talking to the oversight person prior to the sentencing may yield a more aggressive result.
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Old 04-25-2019, 01:53 PM
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Is it common for judges. To go below the guideline range?
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Old 04-25-2019, 02:36 PM
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Quote:
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Is it common for judges. To go below the guideline range?
That often depends on the crime, the defendant and the judge and how they feel.
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Old 04-25-2019, 02:38 PM
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Okay thanks.
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Old 04-25-2019, 03:38 PM
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Quote:
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Is it common for judges. To go below the guideline range?

Judges depart downward about 40% of the time. The most common approach is to ask for a variance, and give reasons for the lower sentence. There was a great deal of political commentary after Manfort et al, because the sentences were lower than the sentencing guidelines.
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Old 04-28-2019, 07:33 AM
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Your PD should be able to tell you the history of that Judge, or you can search on pacer to find other cases that judge has ruled in and see what he/she has given as far as sentencing.

We knew we got a good draw with the judge ruling in my husband's case. His guidelines were 51-73 months and he got 18. In prison there were a lot of guys who got one specific judge and that guy seemed to give a lot harsher sentences. One guy we know, was recommended probation by both the PO and the prosecutor with a large fine. Instead he got basically no fine and sentenced to 1 year 1 day by that judge.

You can't be complacent. You need to work to put yourself in the best position for as positive outcome as possible. Better yourself now. Do community service, go to therapy, get positive character letters. I think your sentencing is soon so it is probably too late. But you can't just rely on hoping the judge is going to give you a low sentence, "just because".

Hopefully it will all work out, but this is the advise your PD should have been giving you all along.
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Old 05-01-2019, 08:09 PM
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This was ten years ago, but my brother in law had a five year mandatory minimum, with a safety valve. He received 18 months. So its possible.
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Old 05-01-2019, 10:12 PM
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Can anybody tell me how much time I will serve on the 27 months Federal sentence. I have two subs around there next Wednesday
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Old 05-01-2019, 10:20 PM
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If I were to venture a guess, your total time will be around 23 months with good time. You could possibly get community (halfway house or home confinement). If I were to guess based on when I was in a 27 month sentence would get you 3 to 6 months of community time, but things have really changed so that time will probably be less now. If I were you I would plan on being away from anywhere between 18 to 23 months.

Hang in there. The worst believe it or not this behind you. There are no more unknowns. You only go up from here.

Can you do RDAP? When I was in, a 27 month sentence was the bare minimum for RDAP. If that is a possibility for you, you could probably get an additional 3 to 4 months off your sentence. But depending on how you feel, the BS you have to go through with RDAP may not be worth the minimal time off you would get.
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Old 05-01-2019, 11:21 PM
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To be honest with you. I'm looking at probably anywhere from 13 to 16 months. Because the first step Act. can teach you 6 months halfway house time. My good time is 4.05 and I did 13 months when I was originally arrested. before I got out at my detention hearing. so that's 10.5 months. so that takes me down to 16 and 1/2 months. although I am very grateful for this. I am still curious about the other I am still curious about the other programs like rdap. and some of the new first step programs
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