benson weintraub's news and quotable
•
•
July 21, 2004 - The Miami Daily Business Review (FL)
Federal Judge in Miami Rules Sentencing Guidelines Unconstitutional, By Dan Christensen
Request For En Banc Ruling
In the hope of pushing the Southern District toward a clearer and more unified stance, Fort Lauderdale-based attorney and sentencing specialist Benson Weintraub on Friday filed papers seeking an extraordinary public hearing by the active judges concerning what to do about Blakely.
"The district judges should collectively assemble en banc to consider, as quickly as counsel may be heard -- (1) the constitutionality of the guidelines; and (2) establishment of a uniform standard, at least in this district, for the manner and process of post-Blakely sentencing," Weintraub wrote. . .
Prof. Douglas Berman’s award winning academic/legal blog,
SENTENCING LAW & POLICY
July 18, 2004
Taking Blakely to the (en) banc
Yet another reason for the Supreme Court to move fast on a Blakely case is to try to reduce the stunning amount of lower court judicial time and energy being occupied with efforts to figure out what Blakely means for the federal system. As detailed in this article, renown sentencing lawyer Benson Weintraub is seeking to have the Southern District of Florida district judges (all 24 of them) rule en banc on the constitutionality of the federal sentencing guidelines in the wake of Blakely. Though en banc rulings by district courts are rare, in this setting Weintraub's motion, which seeks a uniform standard for post-Blakely sentencing in the district, seems to make a lot of sense. Otherwise, there is a reasonable risk that, as in Utah, different courts in the same district will apply considerably different sentencing standards. http://sentencing.typepad.com/sentencing_law_and_policy/2004/07/taking_blakely_.html
NEW YORK TIMES (August 6, 2001), JOHN SCHWARTZ
Compressed Data; Password Protection With Prison Stripes
O.K., people, let's go over this again. For a computer password to be secure, you should not use obvious things like your wife's name. Or your child's birthday. Or your father's federal prison ID number.
Federal prosecutors who are trying to convict Nicodemo S. Scarfo Jr. on gambling and loan sharking charges in Federal District Court in Newark revealed in court papers that the password Mr. Scarfo allegedly used to encrypt and decrypt files was NDS09813-050.
An alert reader of this newspaper, Benson B. Weintraub, a Florida lawyer, wrote to say that the seemingly nonsensical password looked like a United States Bureau of Prisons register number.
A quick call to the bureau confirmed that, indeed, it was the identification number for Mr. Scarfo's father, Nicodemo S. Scarfo Sr. The elder Mr. Scarfo, former head of the mob in Philadelphia and South Jersey, is serving multiple prison terms.
The government, however, did not have to use guesswork. With a warrant, it surreptitiously used a sophisticated key-logger system to capture Mr. Scarfo's keystrokes on his PC. Mr. Scarfo is trying to have the computer evidence thrown out, arguing that the authorities overstepped constitutional bounds.
Sentencing Guidelines Face Test Case
Dan Christensen , Miami Daily Business Review December 24, 2003
. . . Thus, they argue that “the retroactive application of [the Feeney Amendment’s] sentencing provisions violates the constitutional prohibition against ex post facto laws.” Their attorney, Benson Weintraub, said, “What’s at stake is resentencing for many defendants, a large number of whom could receive lower sentences but for the Feeney amendment.”
The Short Life of the Feeney Amendment
Dan Christensen, Daily Business Review 01-24-2005
Nearly two years ago, the congressional Feeney Amendment and its get-tough approach to locking up criminals and scrutinizing sentencing decisions by individual federal judges was the talk of the bench and the bar. Today, Feeney is dead, slain by the U.S. Supreme Court.
"There has been a highly accentuated undercurrent of tension between the judiciary and Congress over sentencing, and the shit finally hit the fan," said Fort Lauderdale, Fla., attorney Benson B. Weintraub, an expert in sentencing issues. "Clearly, the Feeney Amendment accelerated the demise of the sentencing guidelines."
Thursday September 08, 2005
Judge Tjoflat Criticizes 11th Circuit Stance on Booker
by TChris
. . . Fort Lauderdale lawyer and sentencing expert Benson B. Weintraub complained that "the 11th Circuit is completely out of sync with the rest of the country's courts of appeal. The Thompson decision underscores the rigidness of this court in extolling form over substance in the most critical of criminal cases.
Law professor and sentencing expert Doug Berman observes that the Eleventh Circuit "seem to be trying their darnedest to make sure [that defendants who failed to make a constitutional challenge] do not get the benefit of the Booker decision."
www.talkleft.com/new_archives/012217.htm
Miami Daily Business Review
October 25, 2005
Criminal Justice
SENSIBLE SENTENCING?
WITH MANDATORY GUIDELINES STRUCK DOWN, DISBARRED LAWYER ASKS 11TH CIRCUIT TO TOSS OUT 28-YEAR PRISON TERM, by Julie Kay
. . . Markus said he's optimistic for several reasons that Hogan will be the case that cracks the 11th Circuit's hard-line stance. 'Garland Hogan's case is the prototypical example of the absurdities that came about from the mandatory guideline regime,' he said. 'We are very optimistic that the 11th Circuit will do the right thing in this case and order a resentencing so that Mr. Hogan can get a just sentence, unlike the previous sentence which was forced on the district judge by the unjustifiably harsh and rigid guideline book that all of us would like to burn.'
Markus also said he's optimistic about Hogan's case because Hogan's former defense lawyer, Fort Lauderdale lawyer Benson Weintraub, raised the issue at the time of sentencing in 2001 of whether judges could make findings at sentencing that were not presented to a jury.
That issue was at the heart of the Supreme Court's subsequent Booker ruling, which held that having judges rather than juries make factual findings violates a defendant's Sixth Amendment right to a jury trial. Under the mandatory sentencing guidelines system, judges routinely based their sentences on probation office findings of aggravating factors.
Defense experts say defendants have a better chance of winning resentencing post- Booker if their lawyers raised the Sixth Amendment issue in proceedings prior to Booker, as Benson did in Hogan's case.
New York Times
January 19, 1989
JUSTICES UPHOLD DISPUTED SYSTEM OF U.S. SENTENCING
LINDA GREENHOUSE, Special to the New York Times
WASHINGTON, Jan. 18 The Supreme Court, ending a year of turmoil in the lower Federal courts, today upheld the new Federal system for sentencing convicted criminals.
The 8-to-1 decision, written by Justice Harry A. Blackmun, swept away an array of constitutional objections to the seven-member commission that was given the power by Congress to revise nearly all Federal criminal sentences. The new system, which became effective on Nov. 1, 1987, abolished parole and sharply limited the discretion long enjoyed by Federal trial judges to choose from among a broad range of sentences.
But, in an explosion of litigation with few if any precedents in the Federal court system, about 150 Federal district judges invalidated the new rules on the ground that the United States Sentencing Commission was exercising powers not permitted by the Constitution. Another 115 judges found the commission and its work valid. . .
Benson Weintraub, a lawyer for the National Association of Criminal Defense Lawyers, a 10,000-member organization that filed a brief against the commission, said the decision today "validates a Draconian system," which, he said, defense lawyers would continue to challenge. . .
US SENTENCING COMMISSION POST-BOOKER [INITIAL] DATA—Impact for WHITE COLLAR Defendants (March 2006)
There has been a manifest shift from the mandatory Guideline system to a more flexible one according to the Sentencing Commission’s most recent empirical data which reflects a judicial trend toward what would have been regarded as “below guideline” sentences, particularly for first-time offenders.
Recent Trend Toward Lower Sentences for Financial
Offenses Committed by First Offenders
The Final Report on the Impact of United States v. Booker On Federal Sentencing (March 2006) http://www.ussc.gov/bf.htm. issued by the Sentencing Commission in March 2006 noted the following sentencing trend:
The rate of imposition of below-range sentences for first offenders increased after Booker
This trend is significant because the Commission’s data indicates that for the white collar offenses studied, at least 10.7% of convictions resulted in below guideline sentences. Id. at Appendix E-1. After Booker, sentencing judges have imposed significantly more below guideline sentences on white collar first offenders than virtually all other categories of offenses. That the post-Booker paradigm engendered increased flexibility and sentencing discretion was predictable based on the Guidelines’ mandatory orientation toward imposition of more severe sentences, especially in tax cases in comparison to those imposed “[u]nder pre-guidelines practice [where] roughly half of all tax evaders were sentenced to probation. . . USSG 2T1.1, comment. (back’d)(1998). Under pre-guidelines practice, the other half received sentences of an average term of 12 months imprisonment. Id.Thus, prior to the Guidelines it was a virtual certainty of probation in a case like this.
Thus, the return to non-guideline sentencing apparently triggered a noteworthy post-Booker down-tick in the average length of sentences in financial offenses and that trend should be given effect here.
|
|
