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Welcome to the CJA Panel Site. BE SURE TO CHECK THE "WHAT'S NEW" SECTION BELOW. This is a secured site intended to assist and provide litigation support to CJA Panel attorneys, FDO staff attorneys, and criminal defense attorneys in representing indigent defendants in the federal courts. We encourage your suggestions, questions and comments by sending an e-mail to the FDO Web Site Manager If a link needs to be updated, please feel free to contact the FDO Web Site Manager. Disclaimer: Although every effort is made to ensure the accuracy of the information contained on this site, the FDO or the Web Site Manager shall not be responsible for any errors or omissions contained herein. All information used in any legal proceedings should be double checked for accuracy. What's New?
A new page -- "Crack Retroactivity" -- has been added to this site to keep you current on this topic. Click on it in the Navigation bar at the top of any page.
A Public Defender's Handbook is available
online from the US Marshal Service. There is a link to it on the Documents page.
It deals with US Marshal services to assist court-appointed counsel. Resource lists for Wayne, Oakland, Macomb and Washtenaw county
are available on the Documents page. Several links were added to the Links page in the public section
of this web site. These are links to government agencies of interest to Federal
Defense attorneys. The Federal Defender Sentencing Resource Counsel have set up a
blog for the Sixth Circuit defenders and CJA counsel. You may access this
site at http://circuit6.blogspot.com.
(Each Circuit will have their own blog.) The new Sixth Circuit Pattern Jury Instructions are now
available on the Sixth Circuit Web Site-
www.ca6.uscourts.gov The Administrative Office of the United States Courts
announced an increase in the maximum hourly rate payable to appointed counsel in
capital representations from $125 to $160. The new rate will apply to work
performed on or after February 1, 2005.
Click here to view the
Administrative Office memo. CJA case maximums have increased as of December 8, 2004.
The new monetary caps are as follows: $7,000 for felony offenses, $2,000 for
misdemeanor offenses, $5,000 for appeals. The new case maximum rate will
apply to any case where work was done on or after December 8, 2004. In addition,
CJA counsel may now spend $500 for expert services prior to judicial
approval. The hourly rate in capital cases has been raised up to
$160 per hour as of April 1, 2005. (The non-capital case rate remains
at $90 per hour.) An Equal Protection brief challenging illegal re-entry
sentencing guidelines is added to the documents page.
See Equal Protection Brief on Documents Page. On Friday, August 13, 2004, the Sixth Circuit Court of Appeals
entered an order in United States v. Koch, No. 02-6278. The
Court, after en banc argument, holds that Blakely v. Washington, does
not invalidate appellant's sentence. The Court instructs lower
courts to continue to sentencing under the federal Sentencing Guidelines.
However, the Order also recommends that district court judges within the
circuit "also announce at the time of sentencing a sentence pursuant to 18
U.S.C. 3553(a) (West 2000 & Supp. 2004), treating the Guidelines as advisory
only" until such time that the Supreme Court rules. See U.S. v. Koch
order on Documents page. You must consider several issues if you are going to preserve a
Blakely issue for a client who has pled guilty. You must determine if
the client admitted the particular enhancements at the plea colloquy or in the
factual basis set forth in the plea agreement. (Of course you may also
have the argument that indictment did not charge the enhancing factors.)
The government might argue that the stipulated worksheets are also
admissions. But are they admissions beyond a reasonable doubt? Some
of the Rule 11's in our district have language stating that the defendant will
not challenge the constitutionality of the guidelines. If you file a Blakely
motion, the government might attempt to back out of the plea agreement arguing
that you have breached the terms of the Rule 11. You must determine
if you want to argue that Guidelines as agreed upon by the parties can be
applied but that no enhancements meeting the requirements of Blakely can be
applied. Or, you may wish to argue, as the court held in United
States v.Montgomery (see below), that the Guidelines are merely
advisory. Finally, you could argue that the Guidelines are
unconstitutional in their entirety, therefore allowing for any reasonable
sentence within the statutory minimum and maximum as set forth in the statute
for the offense of conviction. See a helpful outline of
cases prepared by the New York Federal Defender Office on the Documents page. The United States Supreme Court granted certiorari on
August 2, 2004 in two cases, United States v. Booker, ___ F. 3d.
___, 2004 WL 1535858 (7th Cir. 2004) and United States v. Fanfan, No.
03-47-P-H(D. Me. June 28, 2004). The Solicitor General asked the Court to
consider the following two questions: (1) Whether a district court
violates the Fifth and Sixth Amendments by relying upon facts that increase the
maximum sentence available under the United States Sentencing Guidelines (other
than the fact of a prior conviction) when those facts were not charged in the
indictment and wither found by the jury on proof beyond a reasonable doubt or
admitted by the defendant; and (2) if the answer to the first question is yes,
the following question is presented: What role do the Sentencing Reform
Act, the Sentencing Guidelines, and Federal Rule of Criminal Procedure 32
continue to play in federal criminal sentencing? Arguments will be heard
on October 4, 2004. The Sixth Circuit will hear a case en banc, United States v. Koch, on August 11, 2004, to resolve the Blakely issue for our Circuit. Blakely update in the Eastern District of Michigan: The Sixth Circuit Court of Appeals notified counsel in United States v. Montgomery that it was going to hear the case en banc. This, of course, vacates the court's opinion in Montgomery. In the interim, the government attorney reached a settlement with defense counsel which included permitting Ms. Montgomery to serve her sentence in a halfway house. Both counsel withdrew the appeal and consequently the Montgomery opinion is not Circuit precedent. Attorneys in this office have had several sentence hearings scheduled since the ruling in Blakely. We are currently briefing a Blakely issue for Judge Cleland and Judge O'Meara who both adjourned sentencing. We raised a "Montgomery guidelines are only advisory issue" before Judge Hood (when the case was still good law). Judge Hood looked to the factors enumerated in 18 U.S.C. 3553 and sentenced the defendant to the guideline sentence (the particular case has no sentencing enhancements). Judge Borman (in a case not in this office) issued two sentences in a case, a straight guideline sentence and a "Blakely" sentence. The probation department has been instructed to send letters to the judges setting forth their view if the particular case has any Blakely ramifications. Judge Battani has adjourned her sentences. We will keep you current on any new developments. Judge Nancy Gertner from the District of Massachusetts
consolidating four cases before her, and held that Blakely applies
to the Federal Sentencing Guidelines and renders them unconstitutional in their
entirety. See United States v. Steven
Mueffleman, No 01-CR-10387, et. al. on the Documents page. Added Memorandum of Approved Interpreters to enter Milan
Federal Detention Center. See CJA Forms &
Downloads page. Pre-U.S. v. Montgomery brief arguing Blakely applies to the
Federal Sentencing Guidelines. See Documents page. 6th Circuit opinion, United States v. Montgomery, No 03-5256
(7/14/04) applying Blakely v. Washington to the federal sentencing guidelines
and holding that the guidelines are advisory only. Memorandum re Blakely v. Washington and Federal Sentencing
guidelines. See Documents page. Introduction to Federal Guideline Sentencing (8th Edition,
March, 2004). See Documents page. Memo re: FIP Assignment. See
Documents page. As of October 1, 2003, the court approved a proposal to end Criminal Pretrial Conferences held by the magistrate judges. Instead, the United States Attorney's Office will file a Discovery Notice form with the Court within 10 days of a defendant's arraignment. Defense counsel should contact the assistant assigned to the case to request discovery. Note that there is a built-in reciprocal discovery request. See the DOCUMENTS page for a sample of the form. Those judges who hold their own pretrial conferences will
continue to do so. September 23, 2003: Added a brief on issue of retroactivity of PROTECT ACT
de novo
appellate standard of review. See the Documents page. September, 2003: Added a Document page to provide one place to see all memos,
documents, etc. of a more permanent nature. On July 28, 2003, Attorney General John Ashcroft issued a
memorandum to all federal prosecutors setting out policies and procedures that
all DOJ attorneys must adhere to with respect to sentencing recommendations,
sentencing hearings, and sentencing appeals. See the Documents page. This is a list of Cincinnati area hotels that offer special
rates when traveling to Cincinnati for appearance at the Sixth Circuit Court of
Appeals. To view the list, go to Documents page. Beginning with the March, 2003 (Spring,
2003) issue of the CJA News contained on this web site, links to the court's web
site(s) are provided in the CASE INDEX. Simply click on the case and the opinion
will be displayed from the court web site. A synopsis written by Carmen Hernandez of the amendments to the Sentencing
Guidelines which was attached to the "Amber Alert Bill," S. 151. The
Senate approved the bill in a 98-0 vote on April 10, 2003. The amendments
eliminate many of the existing grounds for downward departures in
child-related and sex offenses. The amendments
also change the acceptance of responsibility adjustment requiring a government
motion for the court to grant the extra 1 level downward adjustment. The
Sentencing Commission is directed to review existing downward departure grounds
and promulgate appropriate amendments to ensure that the incidence of downward
departures are substantially reduced. Go to the Documents page to view her
memo. Outline of Federal Bureau of Prisons programs and placement
considerations, prepared by Jill Price. This outline also includes a brief
overview of the procedures for inmate transfers, release for family emergencies,
and compassionate release. See the Documents page to
view/download the document. DOJ Memo re Halfway House placement. The directive mandates that
the Bureau of Prisons desist from designating a halfway house (Community
Corrections Center) as the place of confinement for sentences of imprisonment
for low-risk, non-violent offenders. Contact the Federal Defender Office if you
have a client who was redesignated and is now facing a sentence of
imprisonment. Go to the Documents page to view this directive. As of November 1, 2002, ten new amendments to the sentencing
guidelines became effective. Some of these amendments were briefly
discussed in the September 2002 CJA Newsletter. However, Carmen
Hernandez, from the defender training group, has outlined the changes to the
guidelines made by these amendments. Additionally, Ms. Hernandez has
summarized the Sentencing Commissions' May, 2002 report to Congress with respect
to Cocaine and Federal Sentencing Policy. Click here to access
Carmen's
document. Note that as of July 1, 2002, all Rule 11 plea agreements in this District will include a new broader appeal waiver clause. The new language reads as follows: Defendant's waiver of appeal rights. If the court imposes a sentence equal to or less than the maximum sentence described in paragraph 2 of this agreement, defendant waives any right he may have to appeal his conviction or sentence, including any right under 18 U.S.C. § 3742 to appeal on the grounds that the sentence was imposed as a result of an incorrect application of the sentencing guidelines. Thus, if your client receives a sentence within the guideline range bargained for in the Rule 11 plea agreement, he may not appeal the conviction or sentence. However, after discussions with the United States Attorney, it is clear that this waiver is not intended to waive any rights that a defendant may pursue under 28 U.S.C. § 2255. Additionally, if you reach an agreement with an assistant to "agree to disagree" over guideline applications, you only will be permitted to appeal an adverse ruling from the district judge by specifically reserving this right in the Rule 11 agreement. You must negotiate this exception to the appeal waiver with each individual Assistant United States Attorney on a case-by-case basis. Given this new policy, attorneys must make a
decision as to whether it is in a client's best interest to sign a particular
Rule 11 agreement or whether it is more advantageous to a client to plead guilty
"straight up" to all charges without a Rule 11 plea agreement.
This decision should be made after careful review of the guidelines applicable
to the case, the potential bargain that the defendant will receive under the
Rule 11 agreement, and of course, in consultation with the defendant about
the possible sentencing outcomes-both with and without a Rule 11 agreement. Notice-Change in sentence for Halfway House placement The office has been put on notice that the Bureau of Prisons will not designate a defendant who has been sentenced to a period of incarceration of 13 months or above to a federal halfway house. Prior, anyone who had received up to an 17 month sentence was eligible for placement at the halfway house upon a judicial recommendation. However, if a person has been in custody and the time remaining on their sentence is less than 13 months, halfway house designation is still possible; e.g., your client was sentenced to 16 months but has been in custody for five months. These restrictions do not apply to defendants who are sentenced to probation with a special condition to serve a period of time at the halfway house.
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