What Is the Crack Cocaine Amendment to the Federal Sentencing Guidelines?
Historically, federal law treated those convicted of crack cocaine offenses much more harshly than those convicted of offenses involving cocaine. This is despite the fact that chemically the substances are very similar and physiologically they react with the body in the same way. The sentencing disparity between crack cocaine and cocaine offenses was originally 100 to 1. This means that if a conviction for 100 grams of cocaine would result in a 30 year sentence, it would only take 1 gram of crack cocaine to get a 30 year sentence.
The difference in the law had an enormous effect on who gets the harsher punishments, as crack cocaine is found more often in neighborhoods that are predominantly occupied by African Americans and cocaine is generally found in more affluent, White areas. This resulted in the over incarceration of African Americans in the United States.
Over the years, civil rights advocates and criminal defense attorneys called for a more fair sentencing structure that treats the two drugs more similarly. Lawmakers eventually realized that this distinction was not scientifically supported and had contributed to the over criminalization of African Americans over the years. A few years ago, the federal government took a step in the right direction and decreased the disparity between the two drugs. In 2010, lawmakers reduced the crack/cocaine disparity to about 18 to 1. While still far from equal, this was a welcome step by many because it showed willingness to compromise on the issue. These changes went into effect on November 1, 2011.
Retroactivity of the Amendment
Once the lawmakers decided that the sentencing scheme was not fair as written, and that it needed to be rewritten to reduce the disparity, that raised another question: Can it be retroactively applied?
Unfortunately, despite the passage of the Fair Sentencing Act, there are thousands of people — the vast majority of whom are African American — still in prison serving excessive sentences based on the discredited 100:1 sentencing disparity. In May of this year, a majority panel of the Sixth Circuit concluded that it was unconstitutional to allow thousands of already incarcerated offenders to continue to serve extremely long sentences based on the 100:1 disparity, while allowing offenders – who have committed identical crimes – to receive significantly shorter sentences, based on the 18:1 sentencing calculation, simply because they were sentenced later.
However, this decision has been appealed. We are still awaiting a decision. I am wondering if the 6th Circuit overstepped its power. I seem to remember congress being the only branch of government with the power to retroactively apply a statute.
To find out if you are eligible for a sentence reduction, you should contact an experienced criminal defense attorney to discuss the specific facts of your case.
Have You Been Charged With the Possession of Crack or Cocaine Base?
If you have been charged with a federal drug offense, you are facing some serious jail time. The best thing to do is to ensure that you have the assistance of an experienced New Orleans federal criminal defense attorney as soon in the process as possible. The longer your attorney is able to work on your case, the better the chances are of negotiating the case out of court and avoiding the expense and stress of trial.
New Orleans Federal Defense Attorney
This past week, a former LSU football player pled guilty to Bank Fraud in the US Court for the Eastern District of Louisiana. Lucky for him, Robert Packnett avoided jail time and was sentenced to 5 years federal probation. He was also ordered to pay approximately $233,000 in restitution. His indictment to Bank Fraud arose from the practice of Mortgage Fraud. According to the indictment, between 2011 and 2012 he submitted doctored documents to First NBC Bank overstating his income. He also applied for at least six mortgages, refinanced mortgages and commercial lines of credit. In order to qualify for these mortgages, Packnett had to submit proof of income; he submitted documentation overstating the monthly rental payments he received from tenants, as well as claiming income from properties that were in fact vacant.
Bank Fraud – 18 USC § 1344
What is Federal Bank Fraud?
Whoever knowingly executes, or attempts to execute, a scheme or artifice-
(1) to defraud a financial institution; or
The criminal law elements of a violation of 18 U.S.C. § 1344 (1) bank fraud which must be contained in an indictment and must be proved by the government beyond a reasonable doubt are as follows:
- The defendant knowingly executed or attempted to execute a scheme or artifice to defraud.
- The defendant did defraud or attempt to defraud the financial institution.
- The defendant used a material misrepresentation or concealment of a material fact as part of the scheme or attempted scheme.
- The financial institution was insured or chartered by the federal government.
The criminal law elements of a violation of 18 U.S.C. § 1344 (2) bank fraud which must be contained in an indictment and must be proved by the government beyond a reasonable doubt are as follows:
- The defendant knowingly executed or attempted to execute a scheme or artifice to obtain the money (or other property) owned by, or under the custody or control of, a financial institution.
- The defendant used materially false or fraudulent pretenses, representations, or promises in the execution or attempted execution of the scheme.
- The financial institution was insured or chartered by the federal government.
There are a number of other federal statutes prohibiting fraud against banks or other similar financial institutions, including, but not necessarily limited to, the following:
- 18 U.S.C. § 1004. Certification of checks.
- 18 U.S.C. § 1005. Bank entries, reports and transactions.
- 18 U.S.C. § 1006. Federal credit institution entries, reports and transactions.
- 18 U.S.C. § 1007. Federal Deposit Insurance Corporation transactions.
- 18 U.S.C. § 1013. Farm loan bonds and credit bank debentures.
- 18 U.S.C. § 1014. Loan and credit applications generally; renewals and discounts; crop insurance.
- 18 U.S.C. § 1029. Fraud and related activity in connection with access devices.
- 18 U.S.C. § 1032. Concealment of assets from conservator, receiver, or liquidating agent of financial institution.
If you or a loved one has been indicted for Bank Fraud call White Collar Defense Attorney.
Abuse and Neglect of Adults — 14:403.2
Any person, who by law, is required to report the abuse or neglect of an adult and knowingly and willfully fails to so report shall be guilty of a misdemeanor and upon conviction shall be fined not more than $500.00 or imprisoned for not more than 6 months, or both.
Any person who knowingly and willfully obstructs the procedures for receiving and investigating reports of adult abuse or neglect, or who discloses without authorization confidential information about or contained within such reports shall be guilty of a misdemeanor and upon conviction shall be fined not more than $500.00 dollars or imprisoned for not more than 6 months, or both.
Any person who reports an adult as abused or neglected to an adult protection agency or to any law enforcement agency, knowing that such information is false, shall be guilty of a misdemeanor and upon conviction shall be fined not more than $500.00 or imprisoned for not more than 6 months, or both.
Any person who retaliates against an individual who reports adult abuse to an adult protection agency or to a law enforcement agency, shall be guilty of a misdemeanor and upon conviction shall be fined not more than $500.00 or imprisoned for not more than 6 months, or both.
Death Row Inmates and Organ Donation
As many of you know, I am an advocate of organ donation due to the many health issues my mother suffered, i.e. liver and kidney failure. Naturally, this story caught my eye and made me wonder why we do not routinely ask for permission to use the organs of executed inmates. I believe that many would gladly donate their organs. Such a donation could be a form of reconciliation to society or even a means of creating a sense of purpose for the atrocious, barbaric death penalty. Ohio Department of Corrections tried to say that they are not equipped to facilitate organ donation. All they need to do is let the transplant doctors know when the organs will be ready for harvesting. It is not too complicated – maybe I am wrong?
“Yesterday Ohio Gov. John Kasich has stepped in to delay a convicted killer’s execution after the condemned man asked to donate his organs to ailing family members. Ronald Phillips sought to donate his kidney to his mother and his heart to his sister. But the Ohio Department of Rehabilitation and Correction had said it was not equipped to facilitate organ donation.
Gov. Kasich announced that although Phillips’ crime was heinous, in the interest of saving lives, the state should examine whether it would be possible for the organs to be donated. The governor rescheduled the execution for July 2 to give the state time to study the feasibility of the proposition. An executed inmate has never been an organ donor in the United States, a spokeswoman for the educational nonprofit Lifebanc stated. Phillips was convicted of raping and killing his girlfriend’s 3-year-old daughter in 1993.”
What do you think? Should we try to create an organ donation program for death row inmates?
In 2006 the Adam Walsh Child Protection and Safety Act made a number of changes regarding sex offender laws including laws that imposed on the states requirements pertaining to state sex offender registration on where, when and how long sex offenders must register.
The law requires each jurisdiction to maintain a sex offender registry that divides sex offenders into three tiers and requires different registry periods for each tier.
Tier III sex offender — the most serious classification. These sex offenders are convicted of an offense that is punishable by more than one year in prison and:
1. is comparable or more severe than one of the following federal crimes or conspiracy or attempt to commit one of them: aggravated sexual abuse, sexual abuse, or abusive sexual contact against a minor under age 13;
2. involves kidnapping a minor, unless the actor is a parent or guardian; or
3. occurs after the offender became a Tier II sex offender.
A Tier III sex offender must register for life, unless he is a juvenile at the time of sentencing in which cases the registration period is 25 years if he maintains a clean record.
A Tier II sex offender — someone convicted of an offense punishable by more than one year in prison that:
1. is committed against a minor and is comparable or more severe than one of the following federal crimes or attempt or conspiracy to commit one of them: sex trafficking, coercion and enticement, transportation with intent to engage in criminal sexual activity, or abusive sexual contact;
2. involves using a minor in a sexual performance, soliciting a minor for prostitution, or producing or distributing child pornography; or
3. occurs after the offender became a Tier I sex offender.
A Tier II sex offender must register for 25 years.
A Tier I sex offender — someone convicted of a sex offense not included in the other tiers.
The act defines a sex offense as (1) a crime involving a sexual act or sexual contact with another, (2) specified crimes against minors, (3) specified federal crimes and military crimes, and (4) attempt or conspiracy to commit one of them. Certain foreign crimes and certain crimes involving consensual sexual conduct are excluded but certain juvenile adjudications are included.
A Tier I sex offender must register for 15 years, but with a clean record and registration compliance the registration may be reduced to 10 years.
The law also requires sex offenders to appear in person to have a picture taken and verify registry information.
Tier I sex offenders must appear every year,
Tier II sex offenders every six month, and
Tier III sex offenders every three months.
New Orleans Attorney Elizabeth B. Carpenter Dedicated to reforming Sex Offender Registration Laws!
Domestic Abuse Aggravated Assault – La. R.S. 14:37.7
Domestic abuse aggravated assault is an assault with a dangerous weapon committed by one household member upon another household member.
For purposes of this Section, “household member” means any person of the opposite sex presently living in the same residence, or living in the same residence within 5 years of the occurrence of the domestic abuse aggravated assault, with the defendant as a spouse, whether married or not, or any child presently living in the same residence or living in the same residence within 5 years immediately prior to the occurrence of the domestic abuse aggravated assault, or any child of the offender regardless of where the child resides.
Whoever commits the crime of domestic abuse aggravated assault shall be imprisoned at hard labor for not less than one year nor more than five years and fined not more than five thousand dollars.
This Subsection shall be cited as the “Domestic Abuse Aggravated Assault Child Endangerment Law”:
When the state proves, in addition to the elements of the crime as set forth above, that a minor child 13 years of age or younger was present at the residence or any other scene at the time of the commission of the offense, the mandatory minimum sentence imposed by the court shall be 2 years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.
If you have been arrested for Domestic Abuse Aggravated Assault in the New Orleans area, contact our firm for a consultation. We are ready to defend you!
Federal Trafficking Penalties for Schedule II Cocaine
FOR: Schedule II Cocaine — 500-4999 grams mixture Or
Schedule II Cocaine Base – 28-279 grams mixture
First Offense: Not less than 5 yrs. and not more than 40 yrs. If death or serious bodily injury, not less than 20 yrs. or more than life. Fine of not more than $5 million if an individual, $25 million if not an individual.
Second Offense: Not less than 10 yrs. and not more than life.
If death or serious bodily injury, life imprisonment. Fine of not more than $8 million if an individual, $50 million if not an individual.
FOR: Schedule II Cocaine – 5 kilograms or more mixture Or
Schedule II Cocaine Base – 280 grams or more mixture
First Offense: Not less than 10 yrs. and not more than life. If death or serious bodily injury, not less than 20 yrs. or more than life. Fine of not more than $10 million if an individual, $50 million if not an individual.
Second Offense: Not less than 20 yrs, and not more than life. If death or serious bodily injury, life imprisonment. Fine of not more than $20 million if an individual, $75 million if not an individual.
2 or More Prior Offenses: Life imprisonment. Fine of not more than $20 million if an individual, $75 million if not an individual.
If you are facing federal drug trafficking charges, contact Attorney Elizabeth Bagert Carpenter. She is a highly skilled New Orleans Drug Crimes Attorney. We are ready to fight for you!
New Orleans Probation Revocation Attorney
If your loved one has been arrested for a Violation of Probation in the New Orleans area, please contact Attorney Elizabeth Carpenter for a consultation. She is ready to fight for you and try to keep your loved one out of jail.
Arrest Or Summons For Violation Of Probation — La CCRP Article 899
At any time during probation and suspension of sentence the court may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation, or may issue a summons to appear to answer to a charge of violation or threatened violation.
The warrant of arrest may be executed by any peace officer and shall direct that the defendant be returned to the custody of the court or to a designated detention facility. The summons shall be personally served upon the defendant.
If a probation officer has reasonable cause to believe that a defendant has violated or is about to violate a condition of his probation or that an emergency exists so that awaiting an order of the court would create an undue risk to the public or to the probationer, the probation officer may arrest the defendant without a warrant, or may authorize a peace officer to do so.
The court may grant bail to a defendant who is arrested under this article.
When a warrant for a defendant’s arrest or a summons for defendant’s appearance is issued, the running of the period of probation shall cease as of the time the warrant, summons, or detainer is issued.
Within 10 days following the arrest of an offender, the court shall determine if there is probable cause to detain him pending a final violation hearing and shall consider whether to allow the offender bail pending the final hearing. The determination of probable cause may be made without a formal hearing and may be conducted through the use of affidavits.
Probation officers shall be deemed to be peace officers and shall have the same powers with respect to criminal matters and the enforcement of the law relating thereto as sheriffs, constables, and police officers have in their respective jurisdictions. They have all the immunities and defenses now or hereafter made available to sheriffs, constables, and police officers in any suit brought against them in consequence of acts done in the course of their employment.
What is Inciting a Felony?
Inciting a felony is a crime that is defined by La. R.S. 14:28 – Inciting a felony is the endeavor by one or more persons to incite or procure another person to commit a felony.
What are the penalties?
Whoever commits the crime of inciting a felony shall be fined not more than 1,000.00 thousand dollars, or imprisoned, with or without hard labor, for not more than 2 years, or both.
If an offender over the age of 17 years commits the crime of inciting a felony by endeavoring to incite or procure a person under the age of 17 years to commit a felony, the offender shall be fined not more than one thousand dollars and imprisoned at hard labor for not more than 5 years.
If you or a loved one has been arrested for Inciting a Felony, contact Attorney Elizabeth Bagert Carpenter. Let her experience and skill help you at this difficult time.
Child Pornography on the Internet
Have You Been Charged with a Child Pornography Offense in State or Federal Court?
What is Child Pornography?
It may seem like a silly question, but the legal definition of child pornography is not as clear cut as many may think. For example, in order to be considered pornography, an image does not necessarily need to show a minor engaging in a sexual act, it is enough to show any sexually explicit image. This means that even a picture of a naked child may be sufficient to be considered pornographic if the picture is sexually suggestive.
Another common point of confusion is consent. Consent from a minor is no defense to a child pornography charge. This is because, as the law sees it, there is no way for a minor to give valid to consent to these types of sexually explicit acts. So, as long as the subject is under the age of 18, there can be no consent defense. Similarly, a lack of knowledge of the true age of a minor may or may not be a valid defense, depending on the facts of the case.
Punishments for Child Pornography in State and Federal Court
As is the case with most offenses, the punishments for possession, distribution, or manufacture of child pornography vary greatly based on the jurisdiction and specific facts of the case. Even a first-time offender convicted of possession of child pornography is facing a minimum sentence of between 5 and 25 years plus heavy fines.
In addition to a term of imprisonment, most people convicted of a state or federal sex offense will be required to register as a sex offender for the rest of their life. This means that, even if that person moves from one city or state to another, they will still be required to register in the new location. Failure to register may result in an additional serious felony charge.