U.S. v. Alvarez-Lopez, No. CR JB | Casetext
The State will attempt to negotiate a plea agreement with a defendant's attorney which may include a reduction or "deviation" of the sentence normally imposed for the alleged offense. If the parties agree, the case is set for sentencing. If no agreement is reached, the case proceeds to the scheduled preliminary hearing. Both the status conference and the preliminary hearing are cancelled, or "vacated," if the County Attorney's Office files formal charges against the defendant by obtaining a Grand Jury indictment.
Preliminary Hearing When felony charges are filed by a direct complaint, a preliminary hearing is held to determine whether the defendant should face trial on the charges alleged in the complaint. At the hearing, the prosecutor presents a Judge with evidence that would lead a reasonable person to conclude that the accused individual has committed the crime, a finding known as "probable cause. In some instances, a prosecutor will secure a Grand Jury indictment prior to the preliminary hearing.
When this happens, the Grand Jury makes a finding of probable cause and the preliminary hearing is vacated.
Arraignment An arraignment is held within ten days after the filing of an indictment or direct complaint, unless the defendant has not been arrested or has negotiated a plea agreement at the status conference. The defendant is asked to enter a plea to the charge s. A pretrial conference and a trial date are set. If the defendant remains in custody, a trial date must be set within days from the initial appearance.
Defendants released from custody on bail or on their own recognizance OR must receive a trial date within days from initial appearance. In extraordinary circumstances, the trial may occur later than these time frames. If the defendant intends to contest the charges presented at the preliminary hearing, the arraignment is known as a not guilty arraignment. If a defendant intends to plead guilty, the preliminary hearing is waived and a guilty arraignment is scheduled in Superior Court.
The defendant can either plead "straight to the charges," or enter into a plea agreement. Upon accepting the plea, the Court will set a date for sentencing. If a defendant who is not being held in custody fails to appear at any court hearing, the Court can issue a bench warrant for the defendant's arrest. Regional Court Centers RCC for Felony Processing There are two Regional Court Centers in Maricopa County where preliminary hearings and arraignments are consolidated into one event at one location to expedite the criminal justice process primarily for lower level offenses.
Preliminary hearings at an RCC require the attendance of the prosecutor, the defendant, the defense attorney, and the prosecutor's witnesses. The victim is given notice of this hearing and may also be required to attend. The defendant may demand a hearing, waive the hearing, or accept a plea offer from the prosecutor. A plea offer is an agreement between the prosecutor and the defendant in which the defendant agrees to plead guilty or no contest in order to avoid a trial. The prosecutor must make diligent efforts to confer with the victim about any plea offer made to the defendant.
In some less serious cases, sentencing will also be set at the RCC. Early Disposition Court EDC Previously known as Expedited Drug Court, EDC is designed to handle most first and second-time drug offenses and prevent a backlog of these relatively minor cases by resolving them as quickly as possible. Eligible cases are identified at the IA and set for a preliminary hearing within 10 days. The plea and the sentencing are combined at these hearings and many defendants are ordered to participate in substance abuse treatment programs in lieu of prosecution. Initial Pretrial Conference Following arraignment, defendants who plead not guilty are scheduled for an initial pretrial conference IPTC.
Here defendants have a hearing before a Commissioner to narrow the issues in controversy surrounding the case and perhaps settle it prior to the trial date. An IPTC is usually held within 45 days after an arraignment. Discovery According to the Arizona Rules of Criminal Procedure, the prosecution and defense must disclose the information each side intends to present at trial, including physical evidence, police reports and a list of witnesses. This process, known as discovery, is reviewed in one or more pretrial status conferences before the Judge.
The rules of discovery also allow attorneys to interview prospective witnesses. Settlement Conference In some cases, the trial Judge assigned to a case will order the parties to meet with another Judge to discuss possible resolutions to a case short of trial.
At the conference there is an exchange of views, and the Court will typically suggest ideas to attempt a resolution. The trial Judge can only participate in such discussions with the consent of both parties. Motion to Continue Panel When attorneys file a motion to continue, or postpone, a trial more than five business days, a panel of Judges is convened to decide whether or not there is sufficient reason for delaying the trial.
The regularly assigned trial Judge hears motions to continue of five days or less. Review of "motions to continue" by panels is intended to reduce the number of motions to continue and save time prior to trial. Final Trial Management Conferences A final trial management conference FTMC is typically held seven days before the scheduled trial date to discuss the trial schedule and address any remaining issues in the case before going to trial. All cases are scheduled for a FTMC prior to ordering a jury. Typically the Rule 11 process takes at least one month after which a hearing is scheduled for the Judge to review evidence from mental health specialists and decide if the defendant is or is not competent to stand trial.
If the Judge determines that the defendant is competent , the case proceeds through the criminal justice process. If the defendant is found to be incompetent , the Judge will order a second evaluation to determine if the defendant can be restored to competency with mental health treatment.
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If the judge finds that the defendant can be restored to competency , the criminal case is placed on hold while the defendant participates in mental health treatment. Once the defendant is determined to be competent to assist in his or her defense, the prosecution resumes. Article 13 Trials Compromise of misdemeanors and petty offenses; domestic violence; effect of order of dismissal; exceptions and limitations Waiver of jury by consent of parties Procedure where proof shows higher offense; effect Effect of acquittal on merits Title of affidavits or depositions Harmless error Admissibility of confessions Admissibility in evidence of eye witness testimony Article 14 Procedures on Issue of Insanity of Defendant Detention of defendant during insanity; restoration to sanity Expenses of maintenance of insane defendant as county charge Examination of defendant pleading not guilty by reason of insanity; privilege inapplicability; reports Commitment; hearing; jurisdiction; definition.
Article 16 Costs, Fees, and Disposition of Fines and Forfeitures Costs of criminal action on removal before trial Costs of transmittal of records of prosecution to another county upon discovery that trial court is without jurisdiction Counsel assigned in criminal proceeding or insanity hearings; investigators and expert witnesses; compensation Fees for expert witnesses in sanity hearing; fees of physician examining defendant alleging pregnancy as cause for not pronouncing sentence.
Article 17 Insanity or Pregnancy of Person Under Death Sentence Competency to be executed; definition Determining competency Recovery of competency Untimely or successive motions Procedure upon discovery that prisoner under death sentence may be pregnant; examination Proceedings subsequent to examination for pregnancy. Article 18 Appeals Right of appeal Appeal by state Appeal by defendant Expense of record or transcript upon appeal by indigent as county charge Power of supreme court on appeal from judgment of conviction Power of supreme court to correct and reduce sentence upon appeal by defendant Power of supreme court on appeal by state Failure of appellant to prosecute appeal; effect Divestiture of jurisdiction of supreme court after remission of minute entry and decision; exception Fee of counsel assigned in criminal proceeding or insanity hearing on appeal or in postconviction relief proceedings; reimbursement Appellate proceedings; request for extension; victim notification.
Article 19 Entry of Clearance on Records Entry on records; stipulation; court order. Article 20 Competency and Privileges Competency of witness Anti-marital fact privilege; other privileged communications Competency of female concerned in certain offenses; effect of marriage to accused Order compelling person to testify or produce evidence; immunity from use of such evidence; contempt Prohibition on psychological or psychiatric examination to determine credibility Privileged communication; sex offender treatment; exception.
Article 21 Attendance of Witnesses Subpoena; issuance; duty of clerk Service of subpoena Refusal to attend, be sworn or testify as contempt Attendance of witness; liability for nonattendance; appearance bond forfeiture Removal of prisoner to attend as witness; procedure; duty of sheriff Allowance of expenses of out of county or indigent witness. Article 22 Material Witnesses Definition of material witness Material witness bond Material witness; detention; release Material witness deposition; time limits.
Article 23 Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings Definitions Summoning witness in this state to testify in another state Witness from another state summoned to testify in this state Exemption from arrest and service of process Uniformity of interpretation Short title.
Article 24 Deposition of Witness Within the State Witness for defendant Grounds for examination; application Order for examination; notice; proof of service Attendance of witness; testimony; transmittal Use of deposition at trial; objection to testimony. Article 25 Deposition of Witness Without the State Witness for defendant; grounds; application; issuance of commission; stay of trial Interrogatories and cross-interrogatories; notice; service; duty of court; execution of commission Duty of commissioner in executing commission; attachment of section to commission Receipt and filing of commission; inspection Use of deposition at trial; objection to testimony Delivery of commission by agent; inability of agent to deliver.
Article 27 Crime Victim Accounts Definitions Void contracts; crime victim accounts; establishment; notice to victims; exceptions; civil liability; definition. However, four days before the June 28, , sentencing hearing, the Supreme Court decided Blakely v. Washington , 40 holding that as part of a state sentencing guideline system, a Washington state judge could not find an aggravating fact authorizing a higher sentence than the state statutes otherwise permitted. The sentencing judge in Fanfan considered the effect that Blakely may have on the federal sentencing Guidelines and recalculated the Guidelines based only on the possession of grams and imposed the 78 month maximum for that range.
The Court unanimously agreed that discretionary sentencing guidelines would not implicate a defendant's Sixth Amendment right. This violation occurs when a judge makes certain factual findings supported by a preponderance of the evidence 43 to enhance a sentence beyond the range otherwise authorized by the jury's verdict or the defendant's admissions. In rejecting the government's arguments against Blakely's applicability to the federal sentencing guidelines guidelines , the Court found the fact that the guidelines were developed by the United States Sentencing Commission rather than by Congress was constitutionally insignificant.
United States. In the first opinion, the Court sought to restore the jury's significance in its finding of the underlying crime. To reach this conclusion, the majority evaluated the likely effect of the constitutional requirement on the SRA's language, history and basic purpose. In other words, the Court answered the question of what "Congress would have intended" in light of the Court's constitutional holding. The Supreme Court based its decision to delete the mandatory requirement of the guidelines on the supposition that, given the choice, Congress would not have enacted a mandatory system modified to accommodate Blakely.
The Breyer majority opined that Congress would have preferred "the total invalidation of the Act to an Act with the Court's Sixth Amendment requirement engrafted onto it. The Court called upon Congress to decide whether its declaration of judicial discretion merits legislative action. In Booker's aftermath, questions remain regarding the decision's retroactivity. It appears that the Booker Court did not intend that every case on appeal be remanded for resentencing. Summerlin , 58 may provide guidance on the point. Generally, the question of retroactivity turns on whether the Court announced a new rule and whether the new rule is substantive in which case it may apply retroactively or procedural in which case it would not apply retroactively unless it qualified as "watershed".
Arizona holding that "any increase in a defendant's authorized punishment contingent on the finding of a fact, including eligibility for the death penalty must be found by a jury beyond a reasonable doubt" 60 cannot be treated as a new substantive rule, a rule that "alters the range of conduct or the class of persons that the law punishes. In McReynolds v. United States, 62 a lower court found that Booker , like Apprendi and Ring , must be treated as a procedural decision for purposes of retroactivity analysis.
Due to the severance of 18 U. However, they must consult and consider the guidelines when sentencing. In addition, the Court preserved a right to appeal. Some may contend that this lack of definition for "unreasonableness" may signal a return to pre-guideline sentencing disparities.
For example, Justice Scalia noted in his dissent from the opinion's second holding, "what I anticipate will happen is that 'unreasonableness' review will produce a discordant symphony of different standards, varying from court to court and judge to judge. As such, this majority feels that it is fair to assume that appellate judges will prove capable of handling the task.
However, subsequent to the Booker decision, circuits have been split as to the use of a presumption of reasonableness for within-guidelines sentences. In Rita v. United States , 67 the Court provided some guidance on how appellate courts should undertake the "reasonableness" review of a lower court's sentencing decision. Rita was convicted of perjury, making false statements, and obstructing justice.
A pre-sentencing report calculated the applicable guideline range of months. After hearing sentencing arguments from both sides, the judge imposed a sentence of 33 months. On appeal, the defendant argued that his month sentence was "unreasonable" because 1 it did not adequately take into account "the defendant's history and characteristics," and 2 it "is greater than necessary to comply with the purposes of the sentencing set forth in 18 U.
As such, the court rejected Mr. Rita's arguments and upheld the sentence. The issue before the Supreme Court was whether a presumption of reasonableness should apply to a sentence within the Federal Sentencing Guidelines.
Justice Breyer, writing for the Court, 68 held that an appellate court may view the Guideline range as presumptively reasonable, although the presumption is non-binding. See Rule 32 f. Thus, the sentencing court subjects the defendant's sentence to the thorough adversarial testing contemplated by federal sentencing procedure. However, the Court also stressed the importance of providing reasons for the sentencing decision.
While the guidelines can be considered reasonable as a starting point for appellate review, the plurality cautions that this should not be interpreted to be obligatory. In the aftermath of this decision, it appears that, while it is permissible for appellate courts to apply a non-binding presumption of reasonableness to within-guidelines sentences, questions linger as to what factors the appellate courts may or should consider to overcome the presumption.
Moreover, given that the Court apparently approved only one method of reviewing sentences, questions remain as to other methods the Court might approve and whether the acceptable methods of appellate review apply in other instances where sentences are not within guideline range. In Gall v. United States 79 and Kimbrough v. United States , 80 the Court provided additional clarification to both sentencing and appellate courts as to crafting and reviewing sentences in a post- Booker regime. In Gall , the Court ruled that judges may deviate from the guidelines without having to demonstrate that "extraordinary circumstances" required sentencing outside the guidelines.
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In a decision, the Court disagreed and held that the acceptable method of appellate review for all sentences, whether inside, just outside, or significantly outside the guidelines range, was a deferential abuse-of-discretion standard. Justice Stevens writing for the majority rejected a presumption of unreasonableness for sentences outside the guidelines range. Similarly, In Kimbrough v. United States , 91 another decision, the Court held that a sentence outside the guidelines range is not per se unreasonable when it is based on a disagreement with the sentencing disparity for crack and powered cocaine offenses.
The applicable guidelines range was 19 to As in Gall , the Court noted that the district court followed appropriate procedure by properly calculating and considering the guidelines range. The Court noted that the district court "homed in on the particular circumstances of Kimbrough's case and accorded weight to the U. Taken together, these cases arguably provide federal district court judges some discretion in crafting reasonable sentences, regardless of whether the sentence falls within or outside the guidelines range.
United States , the Court clarified its Kimbrough ruling by holding that district court judges "are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines. In addition, it should be noted that this flexibility does not eliminate the mandatory minimums established by statute under federal law. Sentencing guidelines can be presumptive, statutory, advisory or voluntary.
The most notable of these are the presumptive sentencing guidelines, which had been in place at the federal level at the time of the Supreme Court's ruling in Booker. Prior to the Court's ruling in Booker , the federal sentencing guidelines were characterized as being presumptive, rather than statutory, advisory or voluntary. Presumptive sentencing guidelines are contained in or based on legislation, which are adopted by a legislatively created body, usually a sentencing commission. Presumptive sentencing guidelines set a range of penalties for an offense that is based on the seriousness of the offense and the defendant's criminal history.
While judges were required to adhere to the guidelines, they could depart from them. Departures under presumptive sentencing guidelines, however, are subject to appellate review. Statutory sentencing guidelines are created by a legislative body. Statutory sentencing guidelines are sometimes confused with presumptive sentencing guidelines. While both types of guidelines are ultimately authorized by a legislative body, statutory sentencing guidelines are directly authorized by a legislative body, while presumptive sentencing guidelines are established by a sentencing commission that is usually legislatively created.
Under an advisory or voluntary sentencing guideline scheme, judges are not required to follow the sentences set forth in the guidelines but can use them as a reference. As previously discussed, the Booker ruling made the federal sentencing guidelines advisory. Unlike the federal system pre- Booker , states that have adopted presumptive sentencing guidelines generally do not have enhancement factors built into the guidelines' structure.
Departures from the sentencing guidelines in the federal system can take three forms: substantial assistance departures, other downward departures and upward departures. Substantial assistance departures are a form of downward departures and occur when a defendant provides substantial assistance to the prosecution. Of the three types of departures, upward departures are used least often and substantial assistance departures are used most often.
While departures are available for judges, the guidelines explicitly prescribe when a judge can depart from the guidelines. As the Supreme Court asserted in the Booker ruling, " In most cases, as a matter of law, the Commission will have adequately taken all relevant factors into account, and no departure will be legally permissible. Prior to the Booker decision, Congress weighed in on the issue of downward departures in the th Congress when an amendment to the PROTECT Act was passed that restricted the grounds upon which a federal judge could apply a downward departures.
As Figure 1 shows, the majority of pre-Booker departures were downward departures. The majority of the downward departures occurred due to the defendant providing substantial assistance to the prosecution or the judge finding mitigating factors, which in both cases would necessitate a downward departure. In , federal judges departed from the sentencing guidelines These figures have remained relatively constant for the years preceding Figure 2 depicts a similar picture as in Figure 1 with respect to the majority of sentences falling within the guideline range.
However, there were some variances. In order to fully understand the changes in federal judicial sentencing practices post- Booker , one would need to take a more nuance examination of the data at the district and circuit court level. In both years examined, the data revealed that the vast majority of departures were downward departures. While proponents view downward departures as necessary in a structured system because their use allows judges to individualize sentences, critics argue that the frequent use of downward departures is a mechanism for judges to circumvent the limits imposed on them through the sentencing guidelines.
Moreover, such critics argue that departures should be eliminated because they produce unwarranted disparity. Unlike the structure that exists with the prescribed sentencing ranges in the guidelines, departures provide an opportunity for judges to sentence outside that range. Critics contend that permitting a judge to sentence outside the specified range could be problematic because judges could potentially increase or decrease a defendant's sentence substantially, depending on the circumstances.
Departures, however, are not always viewed as a negative tool. Some view departures as a mechanism for judges to tailor a sentence that reflects the totality of circumstances regarding an offender and the offense. In light of the Court's ruling in Booker and its subsequent rulings in Gall and Kimrough , the issue for Congress is whether to amend current law to require federal judges to follow guided sentences, or continue to permit federal judges to use their discretion in sentencing, under certain circumstances.
Following is a discussion and analysis of several selected options Congress could consider. One option Congress may wish to consider could be to maintain the sentencing guidelines by specifying mandatory minimum sentences and increasing the top of each guideline range to a statutory maximum for specified offenses hence, codify specified sentencing ranges that are in the guidelines.
In essence, this option would require any upward departures to coincide with the statutory maximum for the offense in question, in which case a statutory maximum would have to be specified. This option was first presented to the U. Sentencing Commission shortly after the U. Supreme Court decision in Blakely by Frank Bowman, who concluded with respect to such an option:.
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The practical effect of such an amendment would be to preserve current federal practice almost unchanged. Guidelines factors would not be elements. They could still constitutionally be determined by post-conviction judicial findings of fact The only theoretical difference would be that judges could sentence defendants above the top of the current guideline ranges without the formality of an upward departure Congress could consider a measure that has been implemented in Kansas.
Kansas had presumptive sentencing guidelines that were invalidated by the state's supreme court. The jury would have to find that the enhanced factors exist beyond a reasonable doubt in order for the enhanced sentence to be applicable. While this option may satisfy constitutional questions, it may prove to be an expensive and time-consuming. Congress may also allow federal judges to exercise their discretion in sentencing in cases where Congress has not specified a mandatory term of sentence. This option could possibly mirror the indeterminate sentencing scheme that was in place prior to the sentencing reform effort in While such an option would allow judges to individualize sentences to the extent that Congress has not established a mandatory sentence for the offense, it could also result in a lack of uniformity due to judges applying different sentences across jurisdictions.
According to the ruling, a provision in current law makes the guidelines binding on all judges. The provision, 18 U. While the Court struck down a provision that made the federal sentencing guidelines mandatory, the Court also noted that current law " The Court also struck down a provision that permitted appellate review of sentences that were imposed as a result of a judge's departure from the guidelines. The Court noted, however, that current law "