Practically, what does this mean?

It means that I can be very accurate in determining what your federal sentence is going to be if you are convicted in federal court in the Southern District of Mississippi.  As I have stated before, federal court is different than state court.  In federal court, the sentencing battle is sometimes as big as the trial itself.

A recent study shows that the Judges of the District Court for the Southern District of Mississippi - there are 11 in all - tend to sentence a convicted Defendant within the guideline range recommended by the U.S. Sentencing Commission at least 80.7 percent of the time.

At the heart of federal sentencing is 18 U.S.C. § 3553(a), which states that a federal judge must impose a sentence that is “sufficient, but not greater than necessary” to:

• reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
• afford adequate deterrence to criminal conduct;
• protect the public from further crimes of the defendant; and
• provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

In order to accomplish these objectives, the statute lists a number of considerations, and one of them is “the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines issued by the Sentencing Commission.”  18 U.S.C. § 3553(a)(4).  For a period of time, these guidelines were mandatory on federal judges, until the U.S. Supreme Court declared in 2005 that the mandatory application of the federal sentencing guidelines violated the right to trial by jury under the Sixth Amendment.

Since that decision in 2005, federal courts have been virtually all over the map in determining how these guidelines are to factor into a federal sentence.  A detailed treatment of this struggle is available here.  Suffice it to say that statistically the Southern District of Mississippi holds the Federal Sentencing Guidelines in high regard.  Your lawyer in your federal case must be experienced and well-versed with the guidelines in order to find the variances, the downward departures, and the arguments for favorable treatment so that you will spend the least amount of time locked up as possible.

If you are facing federal criminal charges give me a call at 601-991-1099, or send me an email to clarence@guthriefirm.com.  Your initial consultation won’t cost anything.  Let’s try to win your case first, but if that is not possible let’s go through the guidelines to try to achieve the best possible result for you.

Statutory rape is sexual intercourse with a person who is not of age.  Statutory rape laws exist because children are not mature enough to understand the consequences of their actions.  They also ostensibly protect young children from being exploited by adults.  The child’s consent to the sex DOESN’T MATTER.  The fact that you thought she was old enough DOESN’T MATTER.  The fact that she was acting like she was 25, and she has been with half the county DOESN’T MATTER.  This makes statutory rape a “strict liability” crime.  All the prosecutor has to do is prove your age, the child’s age, and the fact that intercourse occurred and that’s it.  

In Mississippi, statutory rape works like this, and I’m quoting the statute: 

Any person seventeen (17) years of age or older has sexual intercourse with a child who:

1. Is at least fourteen (14) but under sixteen (16) years of age;
2. Is thirty-six (36) or more months younger than the person; and
3. Is not the person’s spouse; or

A person of any age has sexual intercourse with a child who:

1. Is under the age of fourteen (14) years;
2. Is twenty-four (24) or more months younger than the person; and
3. Is not the person’s spouse.

Miss. Code Ann. § 97-3-65.  Incidentally, Mississippi law prohibits marriage by a female under the age of 15 or a male under the age of 17, without court approval and parental consent.  As you can see, calculating the age difference is not simple, so my general advice to you is this:  If you find yourself trying to do the math in your head at the middle school football game, just leave it alone.  Because the consequences are severe.

Penalties for statutory rape:

1. If you are 18-21 years old, and you are convicted under the first section of the statute (child 14-16, 36 months younger, not your spouse), then the penalty is imprisonment for not more than five (5) years in the State Penitentiary or a fine of not more than Five Thousand Dollars ($5,000.00), or both;
2. If you are 21 or older and convicted under the first section, the penalty is imprisonment of not more than thirty (30) years in the State Penitentiary or a fine of not more than Ten Thousand Dollars ($10,000.00), or both, for the first offense, and not more than forty (40) years in the State Penitentiary for each subsequent offense;
3. If you are 18 or older and convicted under the second section (under 14, 24 months younger, not your spouse), then the penalty could be imprisonment for life in the State Penitentiary or such lesser term of imprisonment as the court may determine, but not less than twenty (20) years;
4. If you are 13-18 years old and convicted under either section, the court is free to sentence you to anything it deems appropriate to the situation.  

I have also discussed the Collateral Consequences of a Criminal Conviction on this blog, and yes, a conviction for statutory rape in Mississippi requires registration as a sex offender under Mississippi law.

During my time trying courts-martial in the Marine Corps, the military changed the Uniform Code of Military Justice to implement a “reasonable mistake of fact” defense to statutory rape.  The fact that an accused reasonably believed that the person was old enough is a defense to statutory rape in the military.  The State of Mississippi continues to reject this defense. 

Despite statutory rape being a strict liability crime in Mississippi, these cases are defensible, and winnable.  The state must be held to its burden of proving all of the elements, including the act itself, beyond a reasonable doubt.  A good lawyer will analyze the evidence and then help you make the best decision on your case.  I have handled many statutory rape cases through the years, and will be glad to discuss it with you.  Give me a call at 601-991-1099, or shoot me an email to clarence@guthriefirm.com.  We are here to help.

Mortgage fraud investigations have increased dramatically over the past five years, for obvious reasons.  Mortgage fraud contributed significantly to the collapse of the housing loan market several years ago, which touched off the tailspin our economy has been in since then.  The Federal Bureau of Investigation has increased its investigations into this area, and has consolidated much of its investigations in this area into its Financial Institution Fraud Unit.

The general definition of mortage fraud is ”the material misstatement, misrepresentation, or omission relied upon by an underwriter or lender to fund, purchase or insure a loan.” Federal Bureau of Investigation, Financial Crimes Report to the Public, at 20 (Mar. 2007).  Mortgage fraud is sometimes confused with “predatory lending,” but the difference is that the victims of mortgage fraud are banks and lending institutions, and the victims of predatory lending are the borrowers.  Although it has been discussed, there is not currently a federal statutute specifically addressing mortgage fraud.  Instead, in federal courts mortgage fraud is prosecuted under the wire fraud, bank fraud, mail fraud, and money laudering statutes, with penalties of up to thirty years imprisonment for each count.

Mortgage fraud schemes are generally complex.  The government spends tons of money investigating and prosecuting these crimes, and so if you are caught up in a mortgage fraud investigation or case you can expect to have the weight of the federal government against you.  Some common examples of how mortgage fraud schemes work are:

• Foreclosure scheme – a person’s home is in danger of foreclosure, and someone convinces that person that the home can be saved by transferring the deeds and paying some fees.  The home is then mortgaged again, and the fees get put in someone’s pocket.
• Property flipping or shotgunning – a property is purchased through a sham indentity or shell company and then the price is artificially inflated through false appraisals. The inflated valued properties are then repurchased several times for higher prices by associates of the “flipper.” Following three or four “sham sales,” the properties are foreclosed on by victim lenders.
• Equity skimming – occurs when someone figures out how to get a loan for more than a home’s value.  The homeowner is then convinced to sign over the deed to the home.  This is a popular method to dupe homeowners and investors out of the equity they may have built up in their home.
• Nominee loans/straw buyers – borrower’s identity is concealed through use of nominee who allows borrower to use nominee’s name/credit history to apply for a loan.
• Fictitious/stolen identify – Occurs when a person steals the identity of another and uses that identity to obtain a mortgage without that person’s knowledge.
• Appraisal Fraud – Occurs when an appraiser provides a lender with an inaccurrate and misleading report that inflates the property’s value.  Or, in reverse, the property’s value is understated in order to get a lower price on a foreclosed home. 

Indictments for mortgage fraud are on the rise, and Mississippi is not immune from this increased level of prosecution for these crimes.  If you would like more information, even on Mississippi cases, The Mortgage Fraud Blog, published by a lawyer and mortgage broker in California, does a very good job of keeping up with this area of law.

Any person involved in a mortgage transaction may be subject to investigation and charges of mortgage fraud, and could be subject to both civil and criminal penalties.   This would include the lender, mortgage broker, the homeowner, and any others accused of misrepresenting a material fact on a mortgage application or bank document.  Remember that you may be prosecuted not only on the actual loss amount, but also on the intended loss.  The government is going to try as hard as they can to increase the intended loss in these cases, and you will need a lawyer experienced in federal court challenge the valuations and minimize the intended loss, reducing your exposure in these types of cases.

Technically, there is no such thing as a “hate crime,” by definition, in Mississippi.  Instead, Mississippi treats all crimes, felonies or misdemeanors, as ”hate crimes,” if the prosecution can prove that the crime was committed “because of the actual or perceived race, color, ancestry, ethnicity, religion, national origin or gender of the victim.”  Miss. Code. Ann § 99-19-301.  In other words, the “hate crime” label is applied during the sentencing phase of the criminal process.  In fact, the portion of the Mississippi Code that covers Mississippi’s Hate Crimes laws is entitled “Enhanced Penalties for Offenses Committed for Discriminatory Reasons.”

Notice Requirements

In order to inflict this enhanced penalty on you, the prosecutor must provide you with written notice that he or she intends to seek the penalty, by actually including this notice of intent as a separate part of your Indictment paperwork.  Because this is a sentencing enhancement, the fact that these additional penalties are being sought cannot even be mentioned in the guilt or innocence phase of the trial in front of the jury, to prevent the “hate crime” issue from influencing the jury’s consideration of the facts of whether you did it or not.

The Required Proceedings

If you are found guilty of the underlying offense, and the state has provided the proper notice of its intent to enhance (increase) your sentence under the hate crimes laws, the court must have a separate hearing to determine your sentence.  Unless you have pleaded guilty and waived your right to a jury, a jury (either the same one from your trial or a new one) must hear evidence from the state and be convinced beyond a reasonable doubt that:

1. the defendant perceived, knew, or reasonably should have known that the victim was within the class delineated; (race, color, ancestry, ethnicity, religion, national origin or gender)
2. the defendant maliciously and with specific intent committed the offense because the victim was within the class.

By statute, both you (your lawyer) and the state are allowed to present arguments for or against the enhancement.

Hate Crimes Penalties

If the state proves the above elements beyond a reasonable doubt, then the penalty for any given offense may be doubled.  Double jail.  Double fine.  Double stinks.

As a practical matter, the hate crime enhancement is used very rarely.  Obviously, even the connotation of a “hate crime” evokes emotion, passion, and politics, and usually both sides of a criminal matter want to avoid these factors if possible.  If you get caught up in a prosecution and receive notice of a sentencing enhancement under these laws, make sure your lawyer knows what to do.

If you type “Don’t Talk to the Police” into google you will very quickly get 95,900,000 results in 0.10 seconds.  I’m not kidding.  Try it.  And now you will get 95,900,001, because here is another take on it.

Prolific Jackson-based blogger Kingfish of the Jackson Jambalaya blog has this post entitled Excellent Advice, which features a 27-minute lecture from a law professor in Virginia on why you should never speak to law enforcement when you might be accused of a crime.  And knowing that you probably won’t believe the lawyer, his lecture is followed by an actual cop lecturing for 21 more minutes reinforcing the concept.

Most interesting thing the cop said:  he has interrogated literally thousands of people over 28 years, and he has only let “a couple” walk away totally innocent.  Think about that.  

1. Don’t talk.
2. Don’t run.
3. Don’t fight.
4. Don’t buy what they say.
5. Don’t consent.
6. Don’t let them in.
7. Say “I want a lawyer.”
8. Call 601-991-1099

Extortion is the gaining of property or money by almost any kind of force, including threats of violence, property damage, harm to reputation, or unfavorable government action.  It is also sometimes referred to as “blackmail,” with a few minor distinctions.  It can be charged in either state or federal court, but this post is concerned with the federal extortion statutes. 

Federal statutes make many kinds of extortion or blackmail illegal. For example, it is illegal for federal officials to extort money in their official capacity (as part of their job).  18 U.S.C. § 872.  If you demand or receive something for not informing on someone that has violated federal law you have committed blackmail.  18 U.S.C. § 873.  If you make a threat with intent to extort, and your threat is mail or travels in interstate commerce – the internet qualifies - then you have violated 18 U.S.C. §§ 875–877.  There are several other statutes that make this type of behavior illegal, including the Hobbs Act, 18 U.S.C. § 1951, which prohibits racketeering in interstate commerce.  The act also prohibits robbery and extortion when these would affect interstate commerce.  If charged in federal court you will face substantial time and financial penalties, along with all of the baggage that comes with a federal conviction.  See this post and this post. 

So what is the difference between extortion and blackmail?

When you commit extortion, you are forcing someone to do something, usually to give up something, by threatening them.  When you blackmail someone you are obtaining something of value under the threat to disclose something shameful or disreputable about a person.  The difference is that extortion requires an independent criminal act, and blackmail does not. 

In fact, this leads to one of the more difficult concepts in criminal law – the law treats blackmail as if two rights make a wrong.  Let’s say you want a contract from a government agency, and you know the head of the agency is handling out these contracts in violation of goverment regulations.  So you threaten to expose the head of the agency unless they give you some of the contracts.  In that case, (1) you have a legal right to expose the wrongdoing, and (2) you have a legal right to go after the government contracts.  But if you exercise both of these rights together you have committed a crime!  And there is no victim!  What do you do?  You call a lawyer familiar with this area of the law; that’s what you do. 

A conviction for extortion or blackmail at the state or federal level may result in an extensive term of imprisonment, fines, and a number of lasting consequences for your career.  Even unsubstantiated allegations can cause irreparable damage if they are not addressed from the beginning.  If you believe the government is looking at you for extortion, blackmail, or any other white-collar crime, call me immediately at 601-991-1099, or send me an email to clarence@guthriefirm.com.  I’m here to help.

Look at this.

Last night I posted here about Mississippi’s Castle Doctrine.  Today the Clarion Ledger is reporting that a Jackson resident was awakened by 5:00 a.m. this morning and saw the silouette of a man standing in his bedroom.  Pretty scary.  Not how you want to get up in the morning.  The CL is reporting that the resident retrieved a weapon and chased the man off, and when the intruder made a threatening gesture the resident shot him in the leg.

It happened this morning, and the case is still under investigation, but from the information reported it looks like the Castle Doctrine might come into play.  It will be interesting to see how JPD and the Hind’s County DA’s office analyze the situation, and how it turns out.

Castle Doctrine laws, or “castle laws,” are based on very old English common law, which recognized that someone’s home is a place where they should be free from illegal trespassing or violent attacks.  As such, the laws gave citizens the right to defend their home (their “castle”), from violent attacks or intrusions, to the extent of using deadly force if necessary.  Each state’s laws are different with regards to the Castle Doctrine, with some having no law at all, all the way to the other extreme, which is where Mississippi is on it.  Basically, the law allows you to defend your home against attack or intrusion without criminal or civil consequences.

In 2006, Mississippi enacted one of the nation’s most extensive “Castle Doctrine” laws.  Instead of making an entirely new law, Mississippi’s castle doctrine comes from an amendment to the already existing “justifiable homicide” statute.  Miss. Code Ann. § 97-3-15.  This law reads, in relevant part:

1) The killing of a human being by the act, procurement or omission of another shall be justifiable in the following cases:

(e) When committed by any person in resisting any attempt unlawfully to kill such person or to commit any felony upon him, or upon or in any dwelling, in any occupied vehicle, in any place of business, in any place of employment or in the immediate premises thereof in which such person shall be;

(f) When committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished;

A “dwelling” means a building or conveyance of any kind that has a roof over it, whether the building or conveyance is temporary or permanent, mobile or immobile, including a tent, that is designed to be occupied by people lodging therein at night, including any attached porch;

 (3) A person who uses defensive force shall be presumed to have reasonably feared imminent death or great bodily harm, or the commission of a felony upon him or another or upon his dwelling, or against a vehicle which he was occupying, or against his business or place of employment or the immediate premises of such business or place of employment, if the person against whom the defensive force was used, was in the process of unlawfully and forcibly entering, or had unlawfully and forcibly entered, a dwelling, occupied vehicle, business, place of employment or the immediate premises thereof or if that person had unlawfully removed or was attempting to unlawfully remove another against the other person’s will from that dwelling, occupied vehicle, business, place of employment or the immediate premises thereof and the person who used defensive force knew or had reason to believe that the forcible entry or unlawful and forcible act was occurring or had occurred. This presumption shall not apply if the person against whom defensive force was used has a right to be in or is a lawful resident or owner of the dwelling, vehicle, business, place of employment or the immediate premises thereof or is the lawful resident or owner of the dwelling, vehicle, business, place of employment or the immediate premises thereof or if the person who uses defensive force is engaged in unlawful activity or if the person is a law enforcement officer engaged in the performance of his official duties;

(4) A person who is not the initial aggressor and is not engaged in unlawful activity shall have no duty to retreat before using deadly force under subsection (1)(e) or (f) of this section if the person is in a place where the person has a right to be, and no finder of fact shall be permitted to consider the person’s failure to retreat as evidence that the person’s use of force was unnecessary, excessive or unreasonable.

(5)    (a) The presumptions contained in subsection (3) of this section shall apply in civil cases in which self-defense or defense of another is claimed as a defense.

(b) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant acted in accordance with subsection (1)(e) or (f) of this section. A defendant who has previously been adjudicated “not guilty” of any crime by reason of subsection (1)(e) or (f) of this section shall be immune from any civil action for damages arising from same conduct.

If you read this carefully you will see that Mississippi takes the Castle Doctrine to the extreme, not only allowing you to defend your home (porches especially), but also your car, your place of employment, or practically anywhere you have a legal right to be.  Also, unlike some states, you do not have to retreat before you take action to defend yourself.  Last, but not least, the law added civil immunity (you can’t be sued) if you are forced to defend yourself in accordance with this law.

A couple of quick points about this law:

1. It is limited to the defense of people, not property.
2. It does not affect gun ownership rights in any way (i.e., if you cannot possess a gun for some reason, then this does not confer on you the right to have one).

This law has only been around for four years, and I’ve already had a few cases that have had castle doctrine implications.  As always, there are exceptions and nuances to this law, as any other, so do not believe that this law has turned your front porch into a target range.  If you have been accused of a crime, and you believe you were within your rights to defend yourself under this law, give me a call and let’s think it through.  I am here to help.

The time to get an appellate lawyer involved in your case is IMMEDIATELY.  I frequently get calls from people who have been convicted of a crime, only to find that jail doesn’t suit them.  They want to appeal their case, but many times I have to tell them it is too late, at least for a direct appeal.

The time limits for filing a direct appeal from a criminal case in Mississippi are: 

• From Municipal or Justice Court:  Any person found guilty of a criminal offense by a justice or municipal court can appeal to county court – or to circuit court if the county has no county court – within 30 days of the judgment.  Uniform Circuit and County Court Rule 12.02.
• From County Court:  Any person found guilty of a criminal offense by a county court can appeal to circuit court with 30 days of the final judgment.  Uniform Circuit and County Court Rule 12.02.
• From Circuit Court to the Mississippi Supreme Court:  Rule 4(a) of the Mississippi Rules of Appellate Procedure states that appeals will be filed with the clerk of the trial court within 30 days after the date of the entry of the judgment or order appealed from.  In criminal cases, usually there are post-trial motions filed in each case resulting in a conviction, such as a motion for judgment of acquittal notwithstanding the verdict, or a motion for a new trial.  In this case, Rule 4(e) states that the 30 days begins to run from the entry of the order denying these motions, if filed.  The rules state a couple of ways that these deadlines might be extended, or reopened in some certain circumstances, but your best bet is to get your appeal filed on time. 

If you fail to file your Notice of Appeal on time, your next possible remedy is a petition for post-conviction relief, which involves an entirely different set of legal statndards than a direct appeal.  If you have even the slightest inclination that you might want your case reviewed by a higher court, contact an appellate lawyer immediately after your trial so they may begin the process of reviewing your case.

On April 13, 2010, the U.S. Sentencing Commission voted to amend the Federal Sentencing Guidelines Manual by deleting §4A1.1(e) (recency points).  This paragraph of the Manual increased the number of “points” in determining a defendant’s criminal history category by 2 if the defendant committed the instant offense less than two years from release from imprisonment or on escape status from a prior offense.  What this means is that, in federal court, you were looking at more punishment if you committed a crime not long after being released from prison for another crime.

The Sentencing Commission has decided to remove this provision from the guidelines, ostensibly because points added for recency do not accurately serve the intended purposes of the criminal history calculation of Chapter Four of the Federal Sentencing Guidelines Manual, which is “first, to predict recidivism, and second, to reflect offender culpability.”  The recency provision was included in the 1980s by the original Commission without the benefit of data, with the Commission “assuming” that “recency of the defendant’s prior record” was a “reliable predictor of future criminal conduct” because it was “very similar” to those included in the Salient Factor Score of the United States Parole Commission and the Inslaw Scale.”  See Written Statement of Margy Meyers, Incoming Chair, Federal Defender Sentencing Guidelines Committee and Marianne Mariano,  Federal Public Defender for the Western District of New York On Behalf of the Federal Public and Community Defenders Before the United States Sentencing Commission Public Hearing on Proposed Amendments for 2010 Re: Alternatives to Incarceration, Specific Offender Characteristics, Application Instructions, and Recency, March 17, 2010. 

Now, some 25 years later, the Commission has had time to gather data and has done some studies, and apparently has determined that the “recency” of committing a “new” crime really has no predictive quality in determining whether any given defendant is “more culpable.”  Therefore recency points will be eliminated on November 1, 2010, if nothing happens in the interim.  In the meantime, as always, federal judges are free to sentence you independently of the Federal Sentencing Guidelines, so your lawyer should already be arguing against any calculations based on “recency” points.

All of this may not mean much to you, but suffice it to say that if you are like me you wouldn’t want your federal sentence determined by “assumptions” based on incomplete data.  As I’ve said, the current structure of federal sentencing is incredibly complex, and if you are charged in federal court you will want a lawyer that keeps up with the frequent changes in this area of law, and can use them to your benefit.