It has been a while since I have updated here and on my article pages ( http://www.drugandgunlawyer.com ). Updates will be posted there, soon, as well. This summer took me out of state several times and so I am just getting caught up with a number of things, including posting law updates.

First, as you certainly know, November 1, 2011 is the retroactive effective date of new Sentencing Guidelines directed by the "Fair Sentencing Act of 2010". What this means is that U.S. District Judges will have jurisdiction to begin granting motions under the new law on that date, but not before. Consequently, motions should not be filed before that date. That does not mean, however, that you should not retain counsel now, if you are going to, or that you should not begin drafting your motions now, so that they can be ready to file as soon after November 1, 2011 as possible. My firm has already begun case-specific research and drafting for a number of clients.

Second, I would like to try to answer a number of questions that I have been asked dozens of times by inmates and their family members over the last couple of months.

What factors would make someone ineligible? The most common reasons why someone would not be eligible are 1) Career Offender enhancement; 2) Mandatory Minimum, including 851 enhancement; and 3) Quantity of Crack of 8.4 kilos or more (the relevant conduct in your PSI, not the Indictment quantity). For exceptions to these factors, see below.

Should I hire an attorney to file the motion? The answer to this question is complex. What I have been telling people is that, as a general rule, your motion is more likely to be granted if an experienced attorney files a well-drafted motion for you than if the inmate files a motion pro se, but there are exceptions. If the inmate filed a pro-se motion after the 2007 amendment and received a satisfactory reduction, you may want to seriously consider doing that again, on the theory that "If it ain't broke, don't fix it!" Also, for those very fortunate few whose public defenders or USPO's took it on themselves to proactively file before, this may happen again, and if you can afford to wait for them to get around to it, this may be a fantastic option. However, if you have a complex issue (like an arguable reason why you should be granted even though you are a Career Offender), OR if a delay in filing will be cutting into time when the inmate may otherwise be up for immediate release if your motion were filed earlier, then it is probably highly advisable that you have an experienced attorney handle the motion.

Are Career Offenders eligible? As a general rule, the answer is no. There are possible exceptions that should be examined carefully on a case-by-case basis, however, because there are some really good cases out of some circuits, and really bad cases out of others, and the case law continues to develop. Issues that may invoke one of the possible exceptions are: 1) the sentence was anywhere above the bottom of the Guideline range; 2) The inmate received a 5K1.1 or Rule 35 (varies by your circuit); or 3) The inmate received some other adjustment to his sentence that took him out of the Career Offender Guideline range. It is also important to note that the Career Offender Guideline is a Guideline enhancement, which means that it is advisory only. It is not a statutory enhancement. This means that, in spite of some negative case law on the Booker issue, the Judge really do retain their discretion, and this, too, should be carefully evaluated.

What about the Recency Amendment. While the Recency Amendment was not made retroactive, if it was an issue at sentencing, then there is no reason not to raise the issue in a 3582 motion under the new crack guidelines, and ask that the Judge exercise his or her discretion to give an equitable reduction for that. They may say no, but it would be a shame not to ask, especially if you have a Judge who has already indicated that they would have sentenced the inmate to a lower sentence in the first place had they had discretion to do so.

What about those with mandatory minimums? This question reflects one of the most confusing issues surrounding the "Fair Sentencing Act of 2010". The best answer I can give is this: While Congress authorized the Sentencing Commission to reduce the Crack guidelines and to make those guidelines retroactive, Congress did not make its new mandatory minimum provisions retroactive. For this reason I (half-jokingly) tell people it should have been called the "Slightly Fairer Sentencing for Some, But Not All Act of 2010". Consequently, those who received a mandatory minimum are not eligible, unless they received a sentence reduction under 18 U.S.C. 3553(e) for cooperation, either under 5K1.1 of the Sentencing Guidelines or under Rule 35 of the Federal Rules of Criminal Procedure (or unless they can still earn one). That is the only way to "bust the mandatory minimum" after sentencing. There is currently a bill before Congress called the Fair Sentencing Clarification Act of 2011 (HR2316) which, if it passes, would make the new mandatory minimums retroactive, but we have a long wait ahead of us before we will know if it is going to pass or not. These bills typically languish in Congress until near the end of the session. This session ends December 31, 2012.

What about 851 enhancements? This falls under the same rules as the Mandatory Minimums, above. If the inmate got the enhanced mandatory minimum, and did not get a 5K1.1 or Rule 35, then he is not going to eligible at this time, unless he could still earn such a reduction.

What does it cost to hire an attorney for this? Attorneys charge different fees depending on a number of factors. I am seeing some attorneys offering to file motions in the range of $4,500.00 to $15,000.00. Having done a significant number of these in 2008 and 2009, I have a good feel for how much work is going to be involved and the likelihood that a hearing will be required, and I charge in the range of $4,500.00 to $7,500.00 in most cases. It could be a little more, depending on whether your district has a local counsel rule that would require that I associate in a local attorney on your case. The fee I have to pay the local attorney is fairly minimal usually, so it doesn't raise the price too much. I can handle these cases out of pretty much any United States District Court in the country.

What do I do now? The first step, if my office is going to handle a case, is to do a full case review. I charge $250.00 to review for eligibility, make a recommendation for a plan of action, and quote a firm fee to file the 3582 motion. THE $250.00 REVIEW FEE IS ONLY A REVIEW FEE. IT IS NOT THE FEE TO FILE THE MOTION. IT DOES NOT OBLIGATE ME TO FILE A MOTION, AND IT DOES NOT OBLIGATE YOU TO HIRE ME. THE FEE TO FILE THE MOTION IS A SEPARATE FEE. Federal inmates are not allowed to have their Presentence Investigation Report (PSI) in the BOP. If someone on the outside isn't holding a copy for him for safekeeping, then have the inmate try writing his former attorneys and politely directing them to mail a copy to someone on the outside. Most will do this. You can also have the inmate try politely asking his Counselor or Case Manager. They may not be willing to do this. If they won't, don't hold it against them. They may not be permitted to do so. If, however, someone on the outside can send me a COPY, NOT THE ORIGINAL, with a check or money order for $250.00, I will call them back with the results of the review. Just be sure to tell them send a COPY and include their name and phone number in what they send me. They can also fax or email the PSI to me, and my fees can be paid by credit card.

Finally, let me close with the reminder to have the inmate check with his counselor or case manager every year (every six months in the last couple of years before the projected release date), and ask them "Do I have any pending charges or detainers showing up in the BOP computer system?". Tell them to ask even if they are sure they don't have any. Sometimes items can show up by mistake. Sometimes cases they forgot about can show up, even many years after they thought it had all blown over. If they have something pop up, let me or some other attorney who deals with this sort of thing know. It is often pretty easy to straighten out, but if you don't, it could cost you ALL OF YOUR SENTENCE CREDITS (jail time before sentencing, all good conduct time credit, and up to a year off for RDAP). You can fix it if you don't know it's a problem, so ask!

If family members of inmates who are considering making financial arrangements for motions, etc., I am always glad to answer questions from them by email or phone to give them what they need to make informed decisions regarding retaining an attorney, so they should not hesitate to contact me. It is helpful if they have basic information about your case (When the inmate was sentenced; How many months he received; Whether he received a Rule 35 or 5K1.1; Whether he received a sentence reduction after the 2007 crack amendment; Where his case is out of. It is even more helpful if you have the PSI with you when you call.) They may email me directly, or through the "Contact Us" link on my website at http://www.drugandgunlawyer.com , or simply call (512) 497-0604.