Friday, July 31, 2015

Pay attention

Opening paragraph of today's 10th Circuit's decision in U.S. v. Martinez-Torres
The most important thing at sentencing is determining whether the defendant will be incarcerated and, if so, for how long. Other matters, such as restitution and conditions of supervised release, are, appropriately, of secondary concern. But they are not inconsequential and deserve focused attention. Readily avoidable errors regarding these “secondary” matters appear too frequently on our docket. Particularly frustrating is that often the errors were not raised by defense counsel until the appeal. If the prosecutor, the defense attorney, and the district court would devote a bit more time at sentencing hearings to issues beyond incarceration, much time and effort will be saved in the long run. 
Judge Hartz doesn't stutter when he and the other two panel members, Judges Gorsuch and Moritz, take down current district court practices of imposing supervised release violations without justification. The Court lays much of the blame (where it may probably belong) on defense counsel for failing to even timely address these issues. The Court still vacated three supervised release requirements for psychosexual evaluation, prohibiting the use of alcohol or other intoxicants, and prohibiting the possession of sexually explicit material. The case was remanded for resentencing.

So pay attention to the proposed supervised release conditions in the PSR. Are they standard or special conditions? Do they meet the statutory requirements in 18 USC 3583(d)? Did the court make an individualized assessment? Then object. Rely on this case. 

One note: it seems that these sort of objections may offend probation and the courts because of the belief that our probation office, where ever you may be, would never overstep. Perhaps not. Certainly, there are outstanding probation offices who are reasonable and respectful. But the point is that your client may end up in another jurisdiction for supervision, and they may have a different philosophy about supervision. The only way to protect your client is to make sure it is done correctly in the first place, because you don't know who will be supervising or how the conditions will be enforced.

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