Charles Davis Thompson, Attorney at Law - Criminal Law Blog

The Federal Government has started using 18 U.S.C. sec. 1519 to charge "anticipatory obstuction of justice." T. Markus Funk wrote an excellent artice in the May 2011 edition of the "Champion." In a "normal" obstruction of justice case the government must prove four things: (1) the defendant knowingly engaged in an obstructive act; (2) the act impacted an issue or matter with in the jurisdiction of ANY U.S. department or agency; (3) defendant acted at least in relation to or in contemplation of suck prospective issue; and (4) WHICH specific pending proceedings. Now section 1519 does not require the state to prove element four. This leads the state with wide and unfettered ability to charge anticipatory obstruction of justice. So basically if you destory anything after some letter form the government arrives you could be facing federal prosecution.

The sentencing range is determined by the district court under a three-prong approach (as noted in the application instructions to section 1B1.1). First, the correct guidline range is determined using the usual combination of factors of the client's offense level like specific offense characteristics, role in the offense adjustements and criminal history (among others). Second, the guidlines then direct the sentencing court to look at Parts H and K of Chapter 5 to see if any upward or downward departures apply. Third, the court would consider (where applicable) factors under section 3553(a) in determing if a sentence variance is needed. Section 3553(a) has four individual factors: (1) age; (2) mental and emotional condition; (3) physical condition including drug or alcohol dependance or abuse and/or gambling addiction; and (4) military service.

The 5th Circuit just handed down U.S. v. Hernandez; 09-20267 which indicates that when a Federal Judge chooses to impose an upward sentancing departure under 2k2.1 and 5k2.0 he (or she) does not have to give equal weight to the factors listed in sec. 3553(a). Further, a Judge may weigh factors diffeerntly for differnt defendants. Also, the Judge does not have to explain why or how much weight he (or she) gave to the factors in deciding that an upward departure was appropriate.

In United States v. Cashaw; No.09-51035, the United States 5th Circuit Court of Appeals has held that if in a PSR a Defendant is found to be a minor participant and come under the career ofender provision, the career ofender provision will prevent any downward adjustment underthe minor participant provision. The Fifth Circuit explained that the Federal Sentencing Guidlines require following a step-by-step sequence to determine a sentence. The career ofender provision expressly authorizes an adjustment for acceptance of responsibility.