Georgia Criminal Defense Lawyer Blog

The Eleventh Circuit recently vacated the sentence of a defendant after determining that the district court improperly found that he was a leader in a drug conspiracy for purposes of the Sentencing Guidelines. That erroneous finding had increased his sentence by four levels.

In US v. Martinez, the defendant, Martinez, pled guilty to conspiring to distribute and to possess with the intent to distribute 100 kilograms or more of marijuana. Specifically, he made weekly shipments of pounds of marijuana from Texas to Florida, used fictitious return addresses and used wire transfers to receive drug proceeds. When sentencing Martinez, the district court found that he took a leadership role in shipping the marijuana. This led to an increase in his sentence by four levels under the United States Federal Sentencing Guidelines and resulted in a 78 month sentence. To have this four level increase, a court has to find that the defendant was either an organizer or a leader, and that the criminal activity involved either five or more participants or was otherwise extensive. The Sentencing Guidelines put forth seven factors which a court considers when determining if a defendant is a “leader” or an “organizer”: decision making authority, nature of participation, recruitment, right to a larger share of the proceeds, degree of participation in planning, scope of illegal activity and degree of control over others.

The increased sentence was largely due to the judge’s reliance on Martinez’s Presentence Investigation Report (PSI) which had been prepared by a probation officer. The PSI stated that he “orchestrated” weekly shipments of marijuana and recruited others. Martinez strenuously objected to the idea that he orchestrated shipments, recruited others or was a leader in any way. If a defendant objects to a fact contained in a PSI, the government bears the burden of proving the fact in dispute by a preponderance of the evidence. However, during the guilty plea, Martinez admitted to orchestrating drug shipments and that he used others in the scheme. When a defendant admits a fact during a guilty plea, the government does not have to provide evidence of those facts.

However, even with Martinez’s admissions, the appellate court found that his actions did not fit within the seven elements which would make him a “leader.” First, the term “orchestrate” is not synonymous with control. Moreover, there was no evidence that he recruited any of his co-conspirators, or that they were his subordinates. He also did not claim a larger share of the proceeds and was in fact destitute. In addition, it was unclear where he was in the chain of command. And finally, the fact that he “utilized” others did not show control over others. Instead, Martinez had always maintained that he was equally involved with his co-conspirators. Since the government failed to provide evidence of a leadership role, the 11th Circuit vacated the sentence and instructed the district court judge to resentence Martinez.

Obviously, it is important for people convicted in federal court to understand that they generally have the right to appeal their sentence if they were convicted at trial. In most cases, the United States Federal Sentencing Guidelines will determine how a convicted person is sentenced, but district court judges can and do make mistakes when employing the Guidelines.

An experienced criminal appeals attorney will analyze a sentence for any inconsistencies with the Guidelines and relevant statutes (usually, 18 U.S.C. Section 3553) and can raise any sentencing issues on appeal. In fact, our lawyers have won several recent federal appeals and have reduced our clients' sentences by a few months to many years.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

The House Judiciary Committee passed the Fairness in Cocaine Sentencing Act of 2009 last week which would remove the words “cocaine base” in federal drug statutes. If the bill becomes law, it would effectively close the wide gap between sentences for crack and powder cocaine.

The Minneapolis Star Tribune has the story.

In 1986, Congress passed the Anti-Drug Abuse Act which created the vast disparity. Many of the original supporters and drafters of the 1986 law have since come out to oppose it. The law essentially created a 100-to-1 sentencing disparity between crack and powder cocaine. For instance, a person convicted of possessing five grams of crack cocaine will receive a minimum sentence of five years. However, it would take 500 grams of powder cocaine for a person to receive the same sentence.

This disparity has fallen hardest upon African Americans. It is estimated that around 80% of those convicted of crack offenses are black even though the majority of crack users are white or Hispanic.

President Obama’s Administration seems to be onboard with the proposed change in the law. Last month Attorney General Eric Holder was quoted as saying that the difference in punishment is “simply wrong.” The President will have the opportunity to sign the bill into law assuming both the House and the Senate vote in favor.

And not a moment too soon, although it is uncertain whether this proposed law will be retroactive. It's too early to tell if this legislation will help those people who have already been convicted under the existing version of this law.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

The passage of tough sex offender laws three years ago has been criticized by civil rights groups as being too harsh and too broad. Georgia lawmakers are now contemplating changing the toughest provisions of the sex offender laws to quell the debate.

The Macon Georgia Telegraph has the story.

The tougher laws against sex offenders were passed in 2006 in hopes of preventing the state from becoming a haven for sex offenders. Indeed, the laws passed in 2006 are said to be among the toughest in the nation and have sparked many court cases and controversy. One provision prevents offenders from living or working within 1,000 feet of almost anywhere children congregate. Another provision prevents offenders from volunteering in churches.

The current law also treats those convicted with crimes such as statutory rape, which deals with consensual relations, the same as those who are convicted of more serious crimes such as child molestation. Proposed changes would allow offenders convicted of statutory rape to petition the court to be removed from the state’s sex offender registry.

Other changes would allow the homeless to use a street on which they stay when registering instead of having to provide a home address so as to comply with the law. Offenders would also not be required to hand over internet passwords to officials under the revised law.

The changes in the law are supported by sheriff’s groups, defense attorneys, civil rights groups, and many lawmakers. We'll see.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Our firm is also listed in the Bar Register of Preeminent Lawyers by Martindale-Hubbell.

No surprise, but TI was finally sentenced. And the deal was as sweet as expected. A federal judge in Atlanta sentenced rapper Clifford “T.I.” Harris Jr. to one year and one day in federal prison. The sentence stems from an incident in October 2007 in which T.I. attempted to purchase machine guns and silencers in a Midtown parking lot from undercover ATF agents.

The plea deal T.I. made with the U.S. Attorney’s Office has come under fire as another example of a celebrity receiving a light sentence. The federal sentencing guidelines suggest that a defendant who pleads guilty to such offenses should receive nearly five years in prison. However, the plea deal also required T.I. to serve 1,500 hours of community service, pay a $100,000 fine, and be confined to his home for one year. T.I. has already served over 1,000 hours of his community service requirement.

Page Pate of our firm was interviewed by Entertainment Weekly about TI's extraordinary deal. He has also previously provided expert commentary to the local media on this high-profile case.

U.S. Attorney David E. Nahmias defended the plea deal by arguing that T.I. has made hundreds of appearances in front of thousands of kids denouncing gangs and crime. The hope is that T.I.’s appearances will deter some kids from entering a life of crime. Former U.N. Ambassador and Atlanta Mayor Andrew Young also applauded the large impact T.I.’s community service has had on reaching kids in underprivileged communities. Young and T.I. worked together in a community outreach program in New York.

T.I.’s sentence of one year and one day may be reduced to around 10 months for good behavior. The sentence is set to begin in late May when he will voluntarily report to prison.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Our firm is also listed in the Bar Register of Preeminent Lawyers by Martindale-Hubbell.

Earlier today, the Georgia Supreme Court struck down a portion of the Georgia sex offender registration statute. The Court found that the statute is unconstitutionally vague because it does not sufficiently inform homeless persons how to register if they have no residential address.

The Atlanta Journal Constitution has the story. A copy of the full opinion can be found on the Georgia Supreme Court website.

This decision is especially important to William James Santos, the man who brought the legal challenge. He had been sentenced to life in prison because it was his second conviction for failing to register. An unfortunate and ridiculous result of the mandatory penalties of this statute.

We'll soon see how the Georgia legislature attempts to deal with this rejection of one of its most poorly drafted and confused laws.

On Friday, the Eleventh Circuit Court of Appeals (the federal appeals court in Atlanta) issued a stay of execution for Troy Davis. The Atlanta Journal Constitution has the story.

This is a great victory for Mr. Davis and his lawyers, but it is only temporary. The defense lawyers will now have to file briefs to convince the appeals court that Mr. Davis deserves another appeal.

Considering the fact that seven of the state's nine key witnesses against Mr. Davis have recanted, the appeals court should give serious consideration to the defense lawyers' request for permission to pursue another habeas petition on the grounds of actual innocence. An evidentiary hearing is the best way to test the credibility of the witnesses' testimony and review any other evidence suggesting that Davis may actually be innocent of this crime.

Davis' lawyers have 15 days to file their written brief. The State has a right to file a response brief 10 days after that.

The question for the court will be whether Davis' lawyers have shown that there is clear and convincing evidence that Davis is actually innocent, and that such evidence could not have been discovered earlier. It is a difficult standard, but one I am sure Davis and his lawyers are anxious to try to meet.

Yet another man wrongfully convicted on the basis of eyewitness testimony was released from a Georgia prison this week. John White was convicted in 1980 of raping a 74 year old woman in West Georgia. The Athens Banner-Herald has the story.

The dedicated criminal defense lawyers at the Georgia Innocence Project did it again. I am proud to be a founding member and supporter of this group. Here is a portion of their press release:

Hairs from the crime scene were matched to White during the investigation by microscopic analysis, the best technology available at the time. DNA testing of those hairs has now proven that they do not belong to Mr. White. A GBI comparison of the test results to files in the Combined DNA Index System (CODIS) reveal the hairs actually belong to another man who is now under investigation.

Mr. White was convicted in Meriwether County of rape, aggravated assault,
burglary and robbery for an attack on an elderly woman in her home in
August 1979. The court sentenced Mr. White to life in prison. When he was
paroled in 1990 as a convicted sex offender, Mr. White’s life began a
downward spiral that culminated in convictions for drug possession and
robbery, crimes Mr. White admits that he committed. These subsequent
convictions caused Mr. White’s parole to be revoked, and he was returned
to prison to serve his full life sentence.

Having gone to prison for the rape when he was 20 years old, Mr. White
says, “I was raised on the chain gang, and I didn’t know how to make my
way once I got out.” Along with Mr. White’s family, the Georgia Innocence
Project’s Life After Exoneration program will now work to help him make
the transition back to society. Mr. White says, now that he is exonerated
of a brutal crime and relieved of the sex offender status he has carried
for nearly 30 years, he is determined to rebuild his life.

This is the seventh person released from Georgia prisons on the basis of DNA testing. Every single one of them were convicted after being identified by an eyewitness who was "certain" that they did it. I discussed the problems with eyewitness identification in an earlier post, and we are hoping for some legislative reforms in Georgia this year.

I am always excited to hear about these cases, but it also disturbs me. I know that most inmates who were convicted on the basis of eyewitness identification do not have access to DNA evidence to prove their innocence. There is no way to know just how many innocent people are serving time right now for crimes they did not commit.

At least there's one less innocent person in prison tonight. Congratulations to the Georgia Innocence Project, and best wishes to Mr. White.

The Georgia Supreme Court today struck down a critical portion of Georgia's Sex Offender Registration law by declaring its residency restrictions unconstitutional. In Mann v. Georgia Department of Corrections, the Court held that the statute unconstitutionally forces individuals to move whenever a new child care facility, church or school happens to move within 1,000 feet of the person's previously permissible residence.

Anthony Mann is a registered sex offender who in 2002 pleaded nolo contendere in North Carolina to the offense of taking indecent liberties with a child. In August 2003, he got married and he and his wife purchased a home in Clayton County, Georgia. At the time it was purchased, the home complied with Georgia's sex offender residency restrictions as it was not "within 1,000 feet of any child care facility, church, school or area where minors congregate." Additionally, in October 2004, Mann became a part-owner and day-to-day operator of a barbecue restaurant that similarly was in compliance with the statute (the statute also prohibits Mann from being "employed by any business or entity that is located within 1,000 feet of an area where minors congregate").

At some point thereafter, child care facilities were erected within 1,000 feet of Mann's home and business. Mann's probation officer demanded that he quit the barbecue business and remove himself from his home or be subject to arrest on felony charges.

Mann filed a civil suit in Clayton County Superior Court alleging that the statute's residency and employment restrictions constitute an unconstitutional government taking of his property in violation of the Fifth Amendment to the U.S. Constitution. The Court partially agreed holding that forcing Mann to give up his home without providing compensation was unconstitutional, but that the Constitution did not prohibit the government from forcing him to find new employment.

The Court was particularly troubled by the legislature's failure to include a "move-to-the-offender" exception that would allow a person who establishes residency or accepts employment in a permissible location to stay there when a new child-related establishment moves nearby (the statutes in Alabama, Iowa and other states contain this type of exception). Without this exception, the Court reasoned that "there is no place in Georgia where a registered sex offender can live without being continually at risk of being ejected."

Essentially, the statute amounts to an unconstitutional taking of a person's property when it forces an offender who owns his residence in a permissible location to move when a new child-related establishment moves in. An individual who rents his residence does not have the same constitutionally protected property interest as a landowner. The Court also found that Mann's interest in his barbecue business was not protected by the Constitution either. Although the statute directly deprives Mann of his right to work on site at the restaurant, it does not compel him to relinquish his ownership interest or to relocate the business in order to maintain his interest in it.

Over the last two years, our firm has been asked to handle many sex offender registration cases similar to the one decided today. The decision will not only affect our current clients, but will likely open the door to future litigation to address the rights of others, like Mann, that had been forced to leave their homes as a result of this law.

The decision today puts an end to a sixteen month campaign where the state forced thousands of people out of their homes--many of them were landowners like Mann. There are also many criminal prosecutions, for violations of these restrictions, that will now undoubtedly be dismissed.

Several proponents of the statute have criticized the decision fearing "that now convicted felony sex offenders are free to live anywhere they want to in Georgia." In reality, though, the legislature will most likely take their first opportunity in January to amend the statute by adding the "move-to-the-offender" exception that has been adopted by other states. Doing so will likely satisfy the Supreme Court and allow the state to enforce a modified version of these residency restrictions next year.

It's not news to criminal defense lawyers in Georgia, but the Athens, Georgia newspaper reports today on the aging of the state prison population. This is a problem both for the elderly inmates who die in custody, and for Georgia taxpayers who have to fund the escalating costs of inmate health care.

I knew that the prison population was exploding and getting older, but I had no idea it was this bad. As the Athens paper reports:

Justice Department statistics show that the number of sentenced inmates in federal and state prisons age 55 and older has shot up 33 percent between 2000 and 2005, the most recent year for which the data was available. That's a far faster pace than the 9 percent growth overall.

The trend is particularly pronounced in the South, which is home to some of the nation's toughest sentencing laws. In 16 Southern states, the growth rate has escalated by an average of 145 percent since 1997, according to the Southern Legislative Conference.

The reason is obvious - mandatory minimum sentences, often for first-time nonviolent offenders. Some good policy resources on mandatory sentences and their consequences can be found on the Justice Fellowship website.

Of course, people charged with crimes don't have a lobbyist representing them in the state capital. So, it's easy and politically popular to increase punishment for crimes. But a lot of the "tough on crime" laws may be short-sighted.

Perhaps the Georgia legislature will take notice as the costs of incarceration keep climbing and reintroduce some fairness in sentence practices. But given what happened this last session (elimination of the Sentence Review Panel, etc.), I wouldn't hold my breath.