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D.C. Voluntary sentencing guidelines training

D.C. Voluntary sentencing guidelines training. Guidelines Training 101 January 23, 2019. Outline of Session. Guidelines Basics Finding the Right Box(Offense Severity and Criminal History) Sentencing Within the Grid Range (Prison, Probation, and Split Sentences)

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D.C. Voluntary sentencing guidelines training

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  1. D.C. Voluntary sentencing guidelines training Guidelines Training 101 January 23, 2019

  2. Outline of Session • Guidelines Basics • Finding the Right Box(Offense Severity and Criminal History) • Sentencing Within the Grid Range (Prison, Probation, and Split Sentences) • Sentencing Outside the Grid Range (Departures) • Consecutive and Concurrent Sentences • Additional Resources and Contacting Commission Staff

  3. Guidelines Basics • Purpose – promote certainty, fairness, and consistency in sentencing. • Function • Offense severity and criminal history. • The Master and Drug Grids. • Voluntariness – judges do not have to follow the Guidelines. • Lenity – judges are encouraged to impose the least severe sentence that accomplishes the purposes of punishment.

  4. Finding the Right Box– Basic steps • Use the version of the Guidelines manual that is/was in effect at the time of verdict or plea, unless the parties agree to use the version that is/was in effect at the time of sentencing. • Determine the applicable Offense Severity Group (OSG). • Determine the defendant’s criminal history (CH). • Find the applicable row (offense severity) and column (history) on either the Master or the Drug grid and find the box where they meet. • Except in certain circumstances that’s the applicable Guidelines range and available sentence type. • Any sentence outside of that range would be considered non-compliant with the Guidelines. • Non-compliant sentences are still legal and not grounds for appeal.

  5. Finding the Right Box • Example: • Robbery conviction – Master Group 6 (M6) • Criminal history score = 2 • Range is 30-72 months • A sentence outside of this range would be considered non-compliant with the Guidelines (there are a few exceptions to this rule, which we will discuss).

  6. Finding the Right Box – Offense Severity • Determining offense severity • Appendices C and C-1 in the applicable Voluntary Sentencing Guidelines manual. • Above example involved a robbery conviction – Master Group 6 (M6). • Unusual situations where scoring is different, explained in detail in the manual: • Currently unranked offenses or amended offenses • Offenses that have been repealed, repealed and completely replaced, or partially repealed and replaced • Previously unranked or re-ranked statutes

  7. Finding the Right Box – Criminal History • List all prior convictions and juvenile adjudications from D.C. and the 50 states (the manual explains what to do for convictions from U.S. territories and foreign jurisdictions) • Note: only the most serious conviction arising out of a single event is scored • Example: You have a case in which the defendant was previously convicted of both robbery (M6) and fleeing law enforcement (M8) in connection with a single event; only the robbery would be scored

  8. Finding the Right Box – Counting Criminal History • The basic rule for determining what “counts” as an adult conviction for scoring purposes: • A prior adult conviction “counts” for scoring purposes if any portion of its sentence falls within either the time between (1) the commission of the instant offense and the day before sentencing or (2) the ten-year window before the commission of the instant offense.

  9. Finding the Right Box – Counting Criminal History • The basic rules for determining what “counts” as a juvenile adjudication for scoring purposes: Juvenile adjudications for offenses in Master Groups 6-9 and all Drug Groups “count” for scoring purposes if the amount of time between the date of initial disposition or the date of release from New Beginnings (or a similar out-of-District facility) on the prior case (which is later) and the commission of the instant offense is five years or less. Juvenile adjudications for offenses in Master Groups 1-5 “count” for scoring purposes if the amount of time between the date of initial disposition, the date of release from New Beginnings, or the date of release from a locked facility on the prior case (whichever is later) and the commission of the instant offense is five years or less. Juvenile misdemeanors do not count.

  10. Finding the Right Box – Counting Criminal History Lapsed convictions do not count unless revived. • Adult convictions lapse, and do not count for scoring purposes unless revived, if they fall outside of the 10-year window. • Juvenile adjudications lapse, and do not count for scoring purposes, if they fall outside the 5-year window.

  11. Finding the Right Box – Counting Criminal History • Rules for reviving convictions: • Adult convictions revive, and count for scoring purposes, if any prior felony conviction or any part of its sentence (including incarceration, probation, parole, or supervised release, but not fines) occurred within the 10-year window preceding the commission of the instant offense. • A misdemeanor conviction during that same 10-year window does not revive lapsed convictions. • A lapsed misdemeanor conviction can never be revived. • Juvenile adjudications are never revived. A juvenile adjudication that has lapsed will never count towards a criminal history score.

  12. Finding the Right Box – Counting Criminal History • Basic rule for the lapsing and reviving of a prior adult conviction:

  13. Finding the Right Box – Counting Criminal History • Basic rules for lapsing and reviving for misdemeanors: A misdemeanor that occurred more than 10 years before the commission of the instant offenses lapses. A lapsed misdemeanor cannot be revived and cannot revive a lapsed felony. Robbery 12/7/05 Theft II 3/16/16 Instant offense 8/8/18 Theft II 11/8/04 Sentencing

  14. Finding the Right Box – Counting Criminal History • Basic rule regarding the lapsing and revival of juvenile adjudications: only felonies are scored; lapse after 5 years (running from day of adjudication or release, whichever is later), never revive

  15. Finding the Right Box – Counting Criminal History • So, what counts? • Adult felony convictions that have not lapsed. • Adult felony convictions that have lapsed and been revived by a prior felony within the 10-year window. • Adult misdemeanor convictions that have not lapsed, where the sentence was 90 days or more. • Juvenile adjudications that have not lapsed.

  16. Finding the Right Box – Counting Criminal History • Example: Defendant has the following criminal history on the day of sentencing in the instant case: • Adult conviction for robbery, March 16, 2005 • Adult conviction for theft 2, April 16, 2006 • Adult conviction for receiving stolen property, June 16, 2017 ← Which conviction(s) would count if sentencing were held today?

  17. Finding the Right Box – Counting Criminal History • Example: Defendant has the following criminal history on the day of sentencing in the instant case: • Adult conviction for robbery, March 16, 2005 • Adult conviction for theft 2, April 16, 2006 • Adult conviction for ADW, May 16, 2010 • Adult conviction for receiving stolen property, June 16, 2017 Which convictions would count if sentencing were held today?

  18. Finding the Right Box – Scoring Criminal History • Use the table in Section 2.2.2 of the VSGM:

  19. Finding the Right Box – Scoring Criminal History • Scoring out-of-District convictions/adjudications • Look at the name of the out-of-District offense • Examine the elements of the out-of-District statute • Score as the most closely matched D.C. offense • If more than one closely matches, select the least severe D.C. offense • If no comparable D.C. offense can be found: • 1 point for all convictions classified as felonies • ¼ point for all convictions classified as misdemeanors where the sentence max is ≥ 90 days • No score for convictions classified as misdemeanors where the sentence max is < 90 days • ½ point for adjudications classified as felonies • No score for adjudications classified as misdemeanors • No score where the conduct of conviction has been decriminalized in D.C. • If there is a challenge, the court can examine underlying conduct.

  20. Finding the Right Box – Scoring Criminal History • Additional scoring considerations • A prior misdemeanor conviction is scored according to the maximum penalty for the offense: ¼ if 90 days or more. Offenses with a maximum penalty of less than 90 days are not scored. • Prior misdemeanor convictions are capped at 1 point, so only four can count towards a criminal history score. • Juvenile adjudications are capped at 1½ points, unless there is more than one adjudication for an offense that counts as 1½ points offenses in Master Groups 1-5). In that event, each such adjudication is counted and all other adjudications are not counted. • A criminal history score can be challenged – instructions for challenging a recommended score are in the manual.

  21. Finding the Right Box – Scoring Criminal History • The manual contains information about scoring the following: • Convictions for marijuana PWID (and attempt and conspiracy) • Convictions for marijuana distribution (and attempt and conspiracy) • Convictions for assault on a police officer • Military and foreign convictions • Contempt convictions

  22. Finding the Right Box • Example: • Robbery conviction – Master Group 6 (M6) • Criminal history score = 2 • Range is 30-72 months • A sentence outside of this range would be considered non-compliant with the Guidelines (there are a few exceptions to this rule, which we will discuss).

  23. Sentencing Within the Range • Guidelines compliant sentencing options: • White boxes – prison only • Dark grey – prison or short split • Light grey – prison, short split, or probation

  24. Sentencing Within the Range • Prison and Probation • A prison sentence is any term within the range, with backup time reserved. • A probation sentence is any term within the range, suspended, and a term of up to 5 years’ worth of probation imposed. • ESS – execution of sentence suspended • ISS – imposition of sentence suspended

  25. Sentencing Within the Range • Split sentences • Long split sentences • Impose a term within the range • Suspend a portion, but keep the amount of prison to be served within the range • Suspend supervised release • Impose up to 5 years’ probation • Short split sentences • Impose a term within the range • Suspend all but 6 months or less • Suspend supervised release • Impose up to 5 years’ probation

  26. Sentencing Within the Range • Example of a long split sentence • Offense: Burglary (M5); Criminal history score: 1 • Guidelines range: 48-96 months Compliant: Non-compliant: 72 months 72 months 50 months 24 months

  27. Sentencing Within the Range • Short split sentences (and when a mandatory minimum prevents one) • Example: unlawful possession of a firearm (prior felony) – M7 • CH score = 1 • Mandatory minimum = 12 months • Sentence – 18 months ESS all but 12 months

  28. Sentencing Within the Range - Exceptions • Statutory minimums: • A mandatory prison term that may be suspended, in whole or in part • To be Guidelines compliant, the judge can impose the mandatory term, and then suspect any amount, provided that the term to be served is within the Guidelines range • Example: The statutory minimum for first degree burglary is 60 months. The guidelines prison range for a person with zero criminal history points in Box 5A is 36-84 months. It is a prison only box. The judge must impose the statutory minimum of 60 months. However, since the defendant has no criminal history, the judge might decide to suspend execution of 24 months of the prison sentence (resulting in 36 months – the bottom of the range).

  29. Sentencing Within the Range - Exceptions • Mandatory minimums • A mandatory minimum must be imposed, even if it is outside the Guidelines range and may not be suspended. • Mandatory minimums are imposed by law; they are unaffected by the Guidelines. • These are the one exception to the amount of discretion the court has in imposing a Guidelines compliant sentence within a box. • The manual provides a list of offenses for which there is a mandatory minimum.

  30. Sentencing Within the Range - Exceptions • Statutory maximums • Some offenses have a statutory maximum that is lower than the Guidelines range. • By law, the court cannot impose a sentence that is higher than the maximum, even if the maximum is lower than the Guidelines range. • Example: The statutory maximum for attempted robbery is 3 years. The amount reserved for incarceration following revocation of release (back-up time) is one year. Thus, the maximum sentence that can be imposed is 24 months. Attempted robbery is in Master Group 8. The higher number in the prison range in boxes 8B, 8C, and 8D is greater than 24 months. Therefore, the maximum sentence that can be imposed in each of these boxes for attempted robbery is 24 months, and not 28, 32, or 36 months respectively.

  31. Sentencing Within the Range - Exceptions • Enhancements • The criminal code includes some enhancements that lengthen a prison term (e.g., particularly vulnerable victims, selling drugs to minors, etc.) • Sometimes these increase the statutory maximum by a percentage; other times they increase the maximum by a number of years • If there’s an enhancement, the top of the Guidelines range is increased by the same percentage or number of years • Example: Where the statute says increase the maximum by 1 ½ times, increase the top of the Guidelines range by 1 ½ times; where the statute says the maximum goes from 5 to 10 years, double the top of the Guidelines range.

  32. Sentencing Within the Range - Exceptions • Federal Rule of Criminal Procedure (FRCP) 11(c)(1)(C) • This appears in the Federal Rules of Criminal Procedure and pertains to plea agreements where the defendant agreesto cooperate. • Under the Guidelines, FRCP Rule 11 pleas are always deemed to be Guidelines compliant, even if the sentence imposed is outside the range.

  33. Sentencing Outside the Range • Departures • Circumstances are so extraordinary that sentencing within the Guidelines would not serve the ends of justice. • Aggravating (above-range) and mitigating (below-range) factors. • “Catch-all” provisions if there are grounds for departure that are not listed. • The parties can agree to a departure as part of a plea agreement, or argue the matter. • Judge must state on the record which factor he/she is relying on. • If using the “catch-all” provision, just must state a reason. • Manual contains instructions for providing the proper notice when one intends to request a departure. • Failure to follow these procedures is not a basis for appeal.

  34. Consecutive and Concurrent Sentences • The following must be imposed consecutively: • Multiple crimes of violence: multiple victims in multiple events, multiple victims in one event, and one victim in multiple events for offenses sentenced on the same day • “Multiple events” = committed at different times and places or have a different nucleus of facts • Only one crime of violence per victim per event must be imposed consecutively • Sentences imposed for offenses committed while the defendant was serving a different sentence on another case

  35. Consecutive and Concurrent Sentences • The following must be imposed concurrently: • Offenses that are not crimes of violence: multiple offenses in a single event. • Offenses for which a concurrent sentence is required by statute.

  36. Additional Resources and Commission Staff • Please feel free to contact the Commission with additional questions or for assistance with specific cases. • Contacting the Commission with general questions: • scdc@dc.gov • (202) 727-8822 • For specific questions about the Guidelines: • General Counsel Kara Dansky • Kara.dansky@dc.gov • (202) 727-7934 • Additional resources, including the Voluntary Sentencing Guidelines Manual: http://scdc.dc.gov

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