1. The most important hearing is often the first one
Most federal defendants make their first court appearance the afternoon after their arrest. This initial appearance can determine the course of the case. The federal bail system is a binary one; either the client is detained or released under pretrial supervision, often with conditions like electronic monitoring. Cash bail is virtually non-existent. The magistrate judge will base her decision on whether to detain or release on the person’s risk of flight and danger to the community. The initial bail decision is hard to overturn or reopen, requiring new information not available at the time of the initial hearing. If you need more time to gather or verify information, ask for up to five days. Your client will be detained for now, but better that than risking his sitting in jail until trial or sentencing.
2. Your case will be assigned to at least two judges
The magistrate judge who handled the bail hearing will continue to address related issues. The case will also be assigned a district judge and a potentially different magistrate judge. In the federal system, magistrate judges handle non-dispositive matters, such as discovery and competency, and they often hold hearings and issue recommendations on issues, like evidence suppression, subject to district court review. District judges conduct pleas, trials and sentencings.
3. It’s all about the guidelines
Over 90 percent of federal criminal cases result in guilty pleas. Of cases that go to trial, the vast majority are convictions. Accordingly, federal criminal practice is mostly about sentencing. Federal sentencing guidelines were adopted in 1987, with the goal of more national uniformity. Guidelines levels are determined under a sentencing table, consisting of a complex grid of 45 offense levels by six criminal history categories.
4. Except where it’s not
For the first few years of their existence, federal sentencing guidelines were mandatory. Combined with a DOJ policy requiring that prosecutors plead defendants to the most serious crimes, sentences were driven almost exclusively by guidelines factors, such as drug weight or fraud loss amount. In 2005, the Supreme Court made the guidelines advisory in United States v. Booker. The court is still required to calculate the guidelines range, but the district judge may adjust, usually downward, based on a defendant’s characteristics and the goals of sentencing, such as deterrence, protection of the public and rehabilitation. Defense counsel should focus on a client’s positive attributes and any unique aspects of the case.
5. But watch out for those pesky mandatory minimums
Despite advisory guidelines, mandatory minimum statutes apply to many federal crimes, including narcotics, firearms and child exploitation cases. Even some white-collar offenses have mandatory minimums, where identity theft is involved. An AUSA’s charging discretion in this area can determine your client’s fate, and DOJ policy on mandatory minimums has changed over time. Otherwise, mandatory penalties can only be overcome by cooperation, or “safety valve” eligibility in drug cases.
About the author
Russell E. Marsh, Esq. is the managing partner at the Las Vegas criminal defense firm of Wright Marsh & Levy. Mr. Marsh was formerly with the U.S. Department of Justice, serving as Criminal Chief of the U.S. Attorney’s Office for the District of Nevada.
About this article
This article was originally published in the “Five Things” issue of Communiqué, the official publication of the Clark County Bar Association, (January 2021). See https://clarkcountybar.org/about/member-benefits/communique-2021/communique-january-2021/.
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