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Offense Conduct Can be Determined by Sentencing Court


Federal Criminal cases are sometimes the most document intense of all criminal cases.  In most cases, the United States has a trial notebook prepared the day a person is indicted in Federal Court.  The defendant is at a disadvantage if the person does not seek counsel at the moment the person believes they are the target of a federal offense. In fact, you are entitled to a speedy trail within 70 days from the day of indictment.  The bad news is the government is more than willing to honor that request.  You need to seek counsel from the moment you are the target of a case.    

Federal Courts and particularly, federal judges, have unique powers now to determine relevant conduct and offense conduct even if not charged or not pursued at trial.  In the case at hand, U.S. v. McClaffin, a case from the 10th Circuit, the defendant was involved in a Ponzi scheme related to investors.  

The plea agreement between the defendant and the government called for a two level increase involving more than 10 victims.  In total the government offered evidence of more than 25 victims impact statements at sentencing.  If a 6 level enhancement had been applied the defendant would have been subjected to a 135-168 term of imprisonment.  The sentencing court granted a variance and the defendant received 96 months in custody.

On appeal, the 10th Circuit Court of Appeals, stated that  the court can look beyond admissible evidence at trial as long as the information has a sufficient reliability to support its probable accuracy. In this case, there were more than 90 investors that were defrauded.  Only 25 filed impact statements for sentencing. 

The most important thing for criminal defense lawyers from this case is to consider all criminal activity, not just charged conduct.  If you are facing a federal criminal case, get ahead of the investigation.  Many times, a lawyer can discuss a case with the U.S. Attorney before charges are filed to mitigate charges or prison time.

If you are facing a federal criminal case in Alabama, Florida or Georgia, contact Ingram Law LLC at (205) 335-2640.  


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