Attorney at Law

Ken Tableman Law Blog

Year-end estate planning

The end of the year is a good time to review what you own and how you own it. Do you have accounts with joint owners? How is your car titled?

What happens if something happens to you?

This office is available to help you look at what you own and what you want to happen to it, if something happens to you. We can also advise on how to protect your assets from creditors. We prepare wills, trusts, powers of attorney and other documents to help you keep, protect, and pass on your assets.

Are sawed-off shotguns inherently violent?

Last week the Supreme Court heard argument in Johnson v. United States, a case which poses the question of whether possession of a sawed-off shotgun qualifies as a violent felony under the Armed Career Criminal Act ("ACCA").  This federal "three-strikes" statute imposes a mandatory 15-year sentence on persons convicted of unlawful firearm possession who have three prior qualifying convictions. A crime qualifies if itposes a serious potential risk of physical injury.

Surprisingly, according to the brief and oral arguments, thousands of people lawfully possess sawed-off shotguns.  And there is little statistical information toshowany correlation between possessing these weapons and the risk in injury.

The case may lead to a ruling that the ACCA is unconstitutionally vague because it is so hard to determine whether a potential crime fits the statutory language.

Federal Sentencing - Relevant Conduct

What information can a federal judge consider at sentencing?

And what standard of proof applies?

The law says that the court can consider a wide range of information and courts have held that it need only be proven by a preponderance of the evidence.  In addition the sentencing guidelines have introduced a concept called relevant conduct.  Relevant conduct is broader than the conduct that supports the offense of conviction.  It includes everything that the defendant did "during the commission of the offense of conviction, in preparaton for the offense, or in the course of attemptiong to avoid detection or responsibility for that offense."  It also includes "all reasonably foreseeable acts and omissions of others in furtherance of ... jointly undertaken criminal activity." USSG Section 1B1.3.

In practice, a defendant acquitted a trial of drug conspiracy charges but convicted of distributing drugs, can still be sentenced to a longer sntence based on what took place in the conspiracy if the trial court concludes by a preponderance of the evidence that the defendant was part of the conspiracy.  United States v. Kevin St. Hill, No. 13-2097, (1st Cir. October 1, 2014).

But this approach conflicts with several Supreme Court cases that say that facts that increase the penalty for a crime must be proven to a jury beyond a reasonable doubt.  To do otherwise violates the Sixth Amendment's right to jury trial and the Fifth Amendment's right to due process of law.  But thus far the Supreme Court has shied away from saying so.  See Jones v. United States, No. 13-10026, 574 US       (October 14, 2014) Scalia, J., dissenting.

Until the Supreme Court rules, the best you can do as a defendant is to object, and to ask the court to only use jury-found facts to increase a sentence.




Buying or Selling Real Estate: Consider Interim Obligations

Sometimes in a real estate transaction, there will  be interim obligatons spelled out in the purchase agreement.  A common one is making repairs.  If there is an agreement to make repairs the agreement should spell out the time to complete the repair and the standard for completing it.  The agreement should also say who will determine if the repair is properly completed.

Other typical interim obligations include preparing the closing documents, providing evidence of the title to the property, and arranging financing.

Sentencing Based on Acquitted Conduct in Federal Court

Can the judge increase the defendant's sentence based on a finding by the judge that the defendant committed an offense, even thought the jury acquitted the defendant of the charge?  Yes.  The Supreme Court recently refused to reverse a judge who did just that.  In Jones, et. al., v. United States three defendants were convicted of distributing drugs, but acquitted of conspiracy to distribute drugs.  Nonetheless, at sentencing the judge found that they had conspired and based their sentences on the amount of drugs involved in the conspiracy.  The result was a much longer sentence for each defendant.

Justice Scalia, joined by two other justices, dissented from the Court's decision not to review the lower court's holding.  Jones et. al., v. United States, No. 13-10026 decided October 14, 2014.

So, for now, in a drug case a defendant can win at trial and still lose.



Thank you for considering Kenneth P. Tableman, P.C. We look forward to beginning a relationship with you and earning your business. 



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