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No Points For You

On Behalf of | Mar 14, 2018 | Firm News

Interesting case from the 5th Circuit Court of Appeals today, with possible application for federal defendants with cases and or convictions in Austin:

US v. Carlile, felon in possession of a firearm caseIn this case, the Defendant was assessed one extra criminal history point for “serving” a sentence of imprisonment that he actually “served” on an unrelated case.  In other words, the judge on the case in question gave the Defendant credit toward his sentence for time he actually served only on some other case and not that case. The 5th Circuit said this was error but not strong enough error to overturn the sentence.

This is a real-world situation I have encountered before; here is an example to illustrate:

Suppose a client is on bond in “County A” and gets arrested in “County B” then sits some months in jail in “County B” before being released from the jail of “County B.”  Client’s bond from “County A” is never revoked, and he is released from jail in “County B” when his sentence there is served.  Client then appears in court in “County A” and pleads to time served, with the judge crediting his sentence for the time served in “County B” even though client was technically out on bond for the “County A” charge the entire time he was in the “County B” jail.

I have probably handled more than a dozen cases where I was able to get exactly this kind of credit for a client.  In those cases I was always up front about it with the prosecutor and the judge.  In a sense it is beneficial to all sides: the client doesn’t have to go back to jail, the prosecutor can pad his or her conviction statistics by assessing a sentence that appears to be higher than he otherwise would have received, and the court doesn’t have to take the time or expense involved in bench-warranting an inmate from some other jurisdiction just to plead them to time served.

The reason why this is important in federal court is the way that federal sentences are assessed.  The U.S. Sentencing Guidelines scheme depends on assigning points to the offense of conviction on the one hand, and points to a defendant’s criminal history on the other to derive the recommended sentencing range.  In the Carlile case, that one extra criminal history point meant the difference between a sentencing range of 37-46 months in prison and 46-57 months in prison.  Carlile was sentenced to 46 months in prison, so the 5th circuit said that the sentencing judge could have just sentenced Carlile to 46 months in either case.  However, the counter argument is that the judge sentenced Carlile to the low end of what he thought was the correct range, and he would likely have done the same had Carlile been facing the lower, correct sentencing range of 37-46 months.

This is one more question to ask clients in federal cases, especially in jurisdictions that may be more liberal about allowing credit for time spent in other jurisdictions: did you actually go to jail on your particular priors or might you have just gotten a deal that credited you with some time you’d done elsewhere?