by Derek Gilna
Much has been written about the two-level decrease for drug offenses that will take effect in November and the proposed two-level decrease for white-collar offenders, and rightfully so. These are changes of monumental significance, especially if the U.S. Sentencing Commission makes them retroactive, which I fully expect them to do, based upon what was done with the crack law.
Hopefully, the positive impact, will be even greater if assistant U.S. Attorneys and U.S. Probation officials around the country cease asking district court judges to use “relevant conduct” to increase sentences.
“Relevant conduct” permits a district judge to enhance a sentence based solely on information presented by informants, cooperating witnesses, and may (and generally does) include normally objectionable hearsay. Although the Apprendi and Alleyne cases have helped limit the damage of “relevant conduct,”, a defendant can be at real risk, especially if he elects to testify in his own behalf in an attempt to rebut prosecution ”evidence.”
In attempting to set aside a sentence based upon “relevant conduct,” attacking the veracity of the evidence used to obtain the enhancement could be a way to prove “actual innocence,” a possible gateway back into court, an evidentiary hearing, and perhaps a reduced sentence. If the “evidence” used by the judge to justify enhancing can be successfully attacked, the sentence might end up being reduced.
We can only hope that the DOJ does its part in helping reduce the prison population by applying common sense prosecution strategy to match the reality that correctional expenses are too high, t prison sentences too long, and the prisoner population too high.