Nov 27, 2017 Federal felony sentencing- Virginia criminal lawyer’s warning
Federal felony sentencing often is harsh, unless the prosecution requests leniency as part of plea negotiations, with that leniency request ordinarily connected to snitching/cooperation. As a Virginia criminal lawyer defending in state and federal court, I know that many federal felony convictions involve substantial mandatory minimum prison sentences. Additionally, although the federal sentencing guidelines are advisory rather than mandatory (pursuant to United States Supreme Court ruling), federal trial judges know that substantial departures below those sentencing guidelines invite prosecutorial appeals that may well prevail, thus increasing the level of reluctance of federal trial judges too often to engage in such substantial downward sentencing guidelines departures in the first place.
Federal felony sentencing for child pornography, drugs and other crimes is an exercise in harsh awakenings, says Fairfax, Virginia criminal lawyer
A few weeks ago, Julian Alexander Zuk experienced the roller coaster of receiving a time-served two-year sentence for one count of child pornography — compared to through-the-roof federal sentencing guidelines of twenty years to twenty years (that is no typo), to having the federal appellate court telling the trial judge to try again. U.S. v. Zuk, ___ F.3d ___ (4th Cir., Oct. 24, 2017).
Federal felony sentencing in the Fourth Circuit will meet significant challenges in seeking a sentence substantially below the federal sentencing guidelines
Zuk reminds federal sentencing judges in the Fourth Circuit to watch out what happens when they sentenced drastically below the bottom of the sentencing guidelines, starting with:
“In 18 U.S.C. § 3553(a), Congress provided that district courts must impose a sentence “sufficient, but not greater than necessary, to comply with” the basic purposes of sentencing — namely, ‘(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.’ 18 U.S.C. § 3553(a)(2)…. The sentencing court must also consider (1) the nature of the offense and the defendant’s history and characteristics; (2) the kinds of sentences legally available; (3) the advisory sentencing range provided by the Sentencing Guidelines; (4) any relevant policy statement issued by the Sentencing Commission; (5) the need to avoid unwarranted sentence disparities; and (6) the need for restitution… § 3553(a)… ‘[A] major departure from the advisory range “should be supported by a more significant justification than a minor one.”‘”
Criminal defense lawyers practicing in federal court need to fully know federal sentencing law, the federal sentencing guidelines, and the practices and caselaw of the applicable trial judge and federal appellate court
As a practice pointer, criminal defense lawyers practicing in federal court must know that relevant conduct is considered for federal sentencing guidelines. Therefore, even though Zuk’s guilty plea agreement avoided six five-year mandatory minimum sentences for such counts as transmitting child pornography, his sentencing guidelines went through the roof when considering depiction of a minor under twelve years old, sexual act in the offense, distribution, sadistic conduct or other depictions of violence. Zuk.
Zuk was caught with thousands of curated child pornographic images. He received a temporarily saving grace from a sentencing judge sympathetic to his overall psychological plight, including autism, that was detailed in a two-day sentencing hearing that included psychological experts.
On resentencing, it remains to be seen whether Zuk’s trial judge will still depart below the sentencing guidelines instead of imposing a twenty-year prison sentence, that will merely warehouse the man.
Fairfax, Virginia, criminal lawyer Jonathan L. Katz defends child pornography, sex crime, felony, misdemeanor and DUI charges. To discuss your case with Jon, please call his staff at 703-383-1100 to schedule a confidential consultation.