Don Diva Magazine » Legal Corner

10TH ANNIVERSARY BACK ISSUE SALE

Tiffany Chiles — Fri, 16 Oct 2009 14:10:07 +0000

WHOLESALE PRICING FOR THE PUBLIC

10 BACK ISSUES FOR ONLY $25.00

Bills in Congress You Should Be Watching

Tiffany Chiles — Wed, 09 Sep 2009 23:24:26 +0000

Bills in Congress that could affect you or a loved one!

Although most of us are concentrating our efforts on paying bills, saving money and monitoring what is going on with the countries health care and deficit; we can’t forget about the injustices that STILL exist in the criminal justice system. Most of us still have family/friends that are in prison. Below are a list of bills currently in Congress that we should be monitoring via FAMM.ORG.

IMPORTANT: Federal bills do not become law until they pass both the House of Representatives and the Senate and are signed by the President. If the House and the Senate pass different versions of the same overall legislation, then typically a special conference committee composed of representatives of both chambers meets to try to settle the differences. If they reach agreement, the compromise is sent back to the floors of the House and Senate for a final vote. If both bodies approve it, the compromise is sent to the President.

The bill has to travel through Congress and be signed by the President during the congressional term in which they are introduced. Each congressional term is two years. If the bill does not pass both the House and Senate before the end of Congress, the bill does not become law. For a reminder on how a bill becomes a law, take a walk down memory lane on the Office of the Clerk of the House of Representatives’ website that explains how a bill becomes a law.

Federal sentencing bills that FAMM is following:

INCREASED JUDICIAL DISCRETION

H.R. 3327, The Ramos-Compean Justice Act of 2009

H.R. 2934, the Common Sense in Sentencing Act of 2009

MANDATORY MINIMUMS: DRUGS

H.R. 1466, the Major Drug Trafficking Prosecution Act of 2009

CRACK COCAINE SENTENCING POLICY

H.R. 3245, the Fairness in Cocaine Sentencing Act of 2009

H.R. 2178, the Crack Cocaine Equitable Sentencing Act of 2009 H.R. 1459, the Fairness in Cocaine Sentencing Act of 2009

H.R. 265, the Drug Sentencing Reform and Cocaine Kingpin Trafficking Act of 2009 H.R. 18, the Powder-Crack Cocaine Penalty Equalization Act of 2009

REVIEW OF CRIMINAL JUSTICE AND SENTENCING

S. 495 and H.R. 1412, the Justice Integrity Act of 2009

S. 714, the National Criminal Justice Act of 2009

MANDATORY MINIMUMS: GUNS

H.R. 834, the Ramos and Compean Justice Act of 2009

H.R. 866, the Law Enforcement Protection Act of 2009

H.R. 2933, the Firearm Recidivist Sentencing Act of 2009

GOOD TIME LEGISLATION

H.R. 61, Federal Prison Bureau Nonviolent Offender Relief Act of 2009

H.R. 1475, the Federal Prison Work Incentive Act of 2009

REENTRY AND EXPUNGEMENT

H.R. 1529, the Second Chance for Ex-Offenders Act of 2009

Inmates: Do You Have Pending Charges?

Tiffany Chiles — Mon, 10 Aug 2009 13:15:35 +0000

Pending Charges or Detainers

This is an area of the law that many attorneys are not familiar with, and so do not know to check or advise their clients about. The result is sometimes that a defendant serves YEARS more time in prison than is necessary, all because of a simple oversight or just not knowing that something can be done.

What is a pending charge?

Sometimes when a case begins, the defendant is charged in state court with some offense and then, for any number of reasons, the case “goes federal”, and the defendant is indicted under the federal system. If that state charge is never disposed of either with a conviction or a dismissal, then it could remain “pending”.

Other times, a defendant is awaiting the conclusion of a state charge when he or she is picked up on an unrelated federal charge. The federal case proceeds, and nobody ever does anything with the state case because it is not worth the state’s time, given the severity of the federal case.

In either case, a pending charge, even something as petty as a simple assault case, can remain in the system, and if it does, it can have disasterous consequences for a federal inmate.

What is a Detainer?

A detainer may stem from a state charge or even a state investigation in which no charges have even been filed. A state agency normally notifies the Bureau of Prisons or a national computer database that a matter is pending, regardless of the progress of the matter to that point, and that agency then is notifying the world that as soon as the federal system is done with that person, this agency wants him or her. The Bureau of Prisons then treats the detainer the same way that they treat a pending charge.

What Difference Does it Make?

Under the rules that govern how sentence credits are given by the Federal Bureau of Prisons, an inmate normally receives credit for the time he served in jail before sentencing, receives credit for up to 54 days per year for good time, and even up to one year off for participation in a drug treatment program (RDAP) in some cases.

HOWEVER, if a pending charge or a detainer shows up in the Bureau of Prisons’ computer system, the Bureau of Prisons will not and can not give any of those credits.

For an inmate sentenced to 10 years, for example, not receiving these sentence credits could mean that he or she would serve all 10 years, instead of only about 8.5 years had all sentence credits been given.

Defendants serving federal sentences should not trust their own recollection of whether there is or might be a pending charge or detainer. There are two reasons for this: Sometimes even if the inmate knows that the charge was dropped, it could still remain in the system as if it had not been. Additionally, in some circumstances, there are charges pending that a defendant may not even have been aware of. Finally, the BOP’s computer system could just show a pending charge or detainer by mistake! It happens! And when it does, the inmate does not get his or her sentence credits.

What Should the Inmate Do?

Every inmate in the Bureau of Prisons should go to his counselor, case manager, or unit team leader, and ask him or her to check in their computer system to see if the system shows any pending charges or detainers. If not, the inmate should check up on it every six months to a year to make sure that none show up. If a pending charge shows up in the system then the Bureau of Prisons can retroactively take away all sentence credits past and future! This also happens.

If the counselor, case manager, or unit team leader says that there is a pending charge or detainer, the inmate should get the case number, the agency or court, the nature of the charge, and the date of the charge and call an attorney with experience in this field immediately!

What Can an Attorney Do?

An experienced attorney can take all of the information about the pending charge, and, in most cases, get all of them dismissed or otherwise disposed of such that they will no longer be pending. The attorney will then provide the required information to the Bureau of Prisons, who will then remove the pending charges or detainers from their system. As soon as all of this is done, the counselor or case manager will re-calclate the projected release date, which will often result in a HUGE reduction in the amount of time the inmage has left to serve. In some cases, inmates who have served many years on their sentences already will find that their release date is now just around the corner instead of several years down the road!

What Will This Cost?

Different attorneys charge different rates for their services. Some will charge more or less, and it almost always varies based on experience. I have found that a good arrangement that works for me and my clients is to bill at my rate of $225.00 per hour with a 10 hour minimum. I have found that in most cases of this sort, everything that needs to be done is often done in around 10 hours of my time. Only in rare cases is it much less or much more.

Please email me with questions or for more information. Click on “Contact Us” on the left at the top of this page to email me, or you may email me directly at theonomist@gmail.com .

The Most Surprising but Most Common Issue in My Practice

I am always assured by the inmate or his family that there are no pending charges. However, when they follow my advice and check anyway, they are often surprised to find out that there are.

Over the last year, I have run into this issue more times than I can count. I don’t know if it is because the Bureau of Prisons is handling these differently now, or if it is because nobody has bothered to check, but by my estimate, this may affect as much as 30% of the federal inmate population.

Every inmate should ask his counselor or case manager two or three simple questions to make sure that he does not have a pending charge or detainer, and he should do so at least once a year.

A pending charge or detainer could make a difference of as much as 15% on an inmate’s sentence. If there is a pending charge or detainer in the BOP’s computer system, even if it is there by mistake, the inmate will not get credit for the time he spent in the county jail before sentencing, he will not get credit for “good conduct time”, and he will not receive up to one year off for participation in the drug treatment program.

Pending Charges or Detainers

What is a pending charge?

In either case, a pending charge, even something as petty as a simple assault case, can remain in the system, and if it does, it can have disasterous consequences for a federal inmate.

What is a Detainer?

What Difference Does it Make?

HOWEVER, if a pending charge or a detainer shows up in the Bureau of Prisons’ computer system, the Bureau of Prisons will not and can not give any of those credits.

What Should the Inmate Do?

What Can an Attorney Do?

What Will This Cost?

About this Lawyer

For the last four years, Chad Van Cleave has handled federal criminal matters almost exclusively. His practice has evolved increasingly into inmate issues including handling the dismissal of pending charges, sentence credits, sentence reductions, crack amendment motions, and appeals.

Chad Van Cleave

Attorney at Law

P.O. Box 999

Cameron, Texas 76520

(254) 697-4LAW (4529)

(512) 852-4755 (Fax)

theonomist@gmail.com

www.drugandgunlawyer.com

HOW TO BE YOUR OWN LAWYER

MIKE BROWN — Wed, 15 Jul 2009 18:50:02 +0000

By: Mike Brown

Eighty percent of the people in the United States cannot afford to hire an attorney. In a court fight, 80% of the population would appear to be unarmed. You don’t have to be one of them.

With very few exceptions, you can be your own lawyer in most legal situations. This has been true in the federal courts since 1792. See 28 U.S.C. § 1654, a federal law. Many states allowed it even before then.

How do you become your own lawyer? You read how-to books on the subject and learn how to do it.

~~~~~~~~~~~~~

Brown’s Lawsuit Cookbook: How To Sue and Win $25.00

Filing a lawsuit or defending a lawsuit is easier than you think. You simply have to know how to look up what the law is on a particular subject. The law has an indexing system. Chapter 4 in this book will teach you how to look up anything any lawyer can look up in about 90 minutes.

It’s easier than you think. Title 28 U.S.C. § 1654, for example, simply refers to Title 28 (Judiciary and Judicial Procedure) of the United States Code. Section 1654 is merely the number of the statute, which reads:

§ 1654. Appearance personally or by counsel

In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.

~~~~~~~~~~~~~

The Criminal Defendant’s Bible $50.00

If you have been indicted, you need this book. Most people panic when they are charged with a criminal offense and, in that state of panic, blindly put their trust in the first lawyer they talk to. You might want to learn what to expect in the court system first.

The first motion in this book—all you have to do is connect-the-dots for your case—is a Motion to Dismiss for Ineffective Assistance of Counsel. Do you have a lazy, worthless, arrogant, incompetent public defender? File this motion. They won’t dismiss the charges but—in most cases—they will give you another public defender. Quite often you will wind up with a public defender who will actually fight your case. You may have to go through more than a couple of them.

~~~~~~~~~~~~~

The Drug Defendant’s Handbook $30.00

Don’t think you have a drug problem? Guess again. What are you going to do when a cop throws drugs into your car and then “finds” it? This practice is so common that it is referred to as “farming” or “flaking” by the police themselves.

Are you actually guilty of smuggling or peddling drugs? Not to worry, almost everyone makes the mistake of attempting to fight a case on the facts, which is a bad idea. Most criminal cases are decided these days by Napoleon’s definition of history: a set of lies agreed upon. Prosecutors suborn perjury, bribe witnesses (his), intimidate witnesses (yours), the list is endless.

This book shows you how to fight a case on the law. E.g., if a prosecutor charges you with felon-in-possession of a loaded gun clip (in the gun) in count two in federal court under 18 U.S.C. § 922(g), that’s illegal. Make the court dismiss count two before you go to trial or negotiate a plea to count one in exchange for dismissing count two.

~~~~~~~~~~~~~

The Bill of Rights Handbook $5.00

The sequel to the Citizens Rule Book, which only addresses jury nullification, which is almost impossible in federal court these days. This book describes what unelected judges have done to the Constitution, your rights, and what to do about it—an education on the Constitution that fits in a shirt pocket.

~~~~~~~~~~~~~

Why You Have No Civil Rights $5.00

How federal judges have destroyed your right to petition your government for the redress of grievances and how to overcome government blocking access to the grand jury. Free on the Internet at:

judgesabovethelaw.com

Sources:

Brown’s Lawsuit Cookbook

The Criminal Defendant’s Bible

call 877-366-3482

email inquiries to info@dondivamag.com

~~~~~~~~~~~~~

The Drug Defendant’s Handbook

call 877-366-3482

email inquiries to info@dondivamag.com

~~~~~~~~~~~~~

The Bill of Rights Handbook

Marshall J. Martin

PO Box 913

Wilmington, OH 45177

~~~~~~~~~~~~~

Why You Have No Civil Rights

Mike Lee

7601 North Eastlake

Chicago, IL 60626

(773) 251-197

—–

Legal Information Is Not Legal Advice

This site provides information about the law designed to help users safely cope with their own legal needs. But legal information is not the same as legal advice — the application of law to an individual’s specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

FEDERAL DRUG MANDATORY MINIMUM SENTENCES

Tiffany Chiles — Thu, 09 Jul 2009 22:58:57 +0000

MANDATORY MINIMUM SENTENCES (MMS)

Mandatory Minimum Sentences (MMS) are automatically enacted when you commit certain drug crimes with specified quantities. The only way to get a lesser sentence on a MMS crime is to cooperate with the government.
LSD

1 GRAM 5YR MMS

10 GRAMS 10YR MMS

WEED

100 PLANTS OR 100 KILOS 5YR MMS

1000 PLANTS OR 1000 KILOS 10 YR MMS

CRACK

5 GRAMS 5YR MMS

50 GRAMS 10 YR MMS

POWDER COCAINE

500 GRAMS 5YR MMS

5 KILOS 10 YR MMS

HEROIN

100 GRAMS 5YR MMS

1 KILO 10YR MMS

METH (PURE)

5 GRAMS 5YR MMS

50 GRAMS 10YR MMS

METH (MIXED)

50 GRAMS 5YR MMS

500 GRAMS 10YR MMS

PCP (MIXED)

10 GRAMS 5YR MMS

100 GRAMS 10YR MMS

PCP (MIXED)

100 GRAMS 5YR MMS

1 KILO 10YR MMS

NOTE:

5 YEAR MANDATORY MINIUM SENTENCES

DOUBLE TO 10 YEARS WITH 1 PRIOR DRUG OFFENSE

MANDATORY 20 YEARS FOR FIRST OFFENSE IF DEATH RESULTS

MANDATORY LIFE SENTENCE IF DEATH RESULTS AND OFFENDER HAS 1 PRIOR FELONY DRUG OFFENSE.

10 YEAR MANDATORY MINIUM SENTENCES

DOUBLE TO 20 YEARS WITH 1 PRIOR DRUG OFFENSE

MANDATORY 20 YEARS FOR FIRST OFFENSE IF DEATH RESULTS

MANDATORY LIFE SENTENCE IF DEATH RESULTS AND OFFENDER HAS 1 PRIOR FELONY.

MANDATORY LIFE SENTENCE IF OFFENDER HAS 2 OR MORE PRIOR FELONY DRUG OFFENSES.

What are Mandatory Minimum Sentences?

Tiffany Chiles — Tue, 09 Jun 2009 22:33:45 +0000

Mandatory minimum sentencing laws require harsh, automatic prison terms for those convicted of certain crimes, most often drug offenses. Congress enacted mandatory minimums in 1986 and toughened them in 1988 to apply to drug conspiracies and certain gun offenses. The sentence is determined solely by the weight and type of drug, or the presence of a firearm during a felony offense.

Congress enacted mandatory minimum sentencing laws to catch drug “kingpins” and deter drug sales and use. But the laws undermine the American tradition of justice by preventing judges from fitting the punishment to the individual’s role in the offense. Because of mandatory sentencing laws, the population of federal prisons has soared and they are filled with low-level, nonviolent drug law violators – not the “kingpins” mandatory sentences intended to apprehend.

Why should mandatory minimums be changed?

Judges no longer control sentencing. Mandatory minimums shift control over sentencing to prosecutors. Prosecutors determine the charge, which can require a mandatory sentence; whether the case is tried in state or federal court; and whether the defendant has provided enough useful information to be given reduced sentence for cooperation.

Judges no longer consider the fact of each case or the individual’s role. The charge determines if the sentence is mandatory. If it is, only the weight and type of drug, or the presence of a firearm during a felony offense, determines its length. The judge cannot lower a mandatory sentence because of the circumstances of the case or a person’s role, motivation, or likelihood of repeating the crime.

Conspiracy laws make those at the top and those at the bottom of the drug trade equally culpable. Low-level defendants – drug couriers, addicts or those on the periphery of the drug trade – often have no information to give to prosecutors for a sentence reduction, unlike those who are most culpable and thus more likely to receive a reduced sentence for cooperation.

Mandatory minimums are rarely imposed on drug “kingpins.” For example, the majority of federal cocaine offenders generally perform lower level functions. Only six percent of cocaine and crack offenders are in the top two roles of the drug chain. (U.S. Sentencing Commission, Cocaine and Federal Sentencing Policy, 2002)

Who serves mandatory minimums?

Nonviolent drug defendants. Overwhelmingly, federal drug defendants – 85 percent of them – are nonviolent. Yet many receive mandatory minimums of five or 10 years or more, without regard for their role in the offense.

People of color. More people of color are serving time in federal prisons than their populations would indicate. African Americans account for 13 percent of the general population, yet in 2003 they comprised 27 percent of those receiving federal mandatory drug sentences. Hispanics constituted 12.5 percent of the general population but received 43 percent of the drug mandatory sentences.

An increasing number of women. Women are the fastest-growing sector of the prison population. Nearly 66 percent of the federal female prisoners are serving drug sentences. Taking a message for a boyfriend involved in a drug deal or driving him to the bank can lead to “conspiracy” charges, and the woman can be held liable for the entire amount of drugs sold.

Family members. Three out of five federal prisoners have children; their mean sentence is 10 years. Two-thirds of fathers and three-quarters of mothers in federal prison were convicted of drug offenses.

(via Famm.org)