Tips for State Criminal Defense Lawyers from a (Former) Federal Practitioner

Many criminal defense lawyers in state court will have clients who are later charged in federal court. Some lawyers do not have experience in federal court or understand federal laws. To lessen the harsh penalties in federal court, here are some tips for state defense practitioners:

1.  Under the federal sentencing guidelines, your client’s criminal history will be calculated based on the amount of time he is sentenced to, without regard to whether the state offense is a felony or a misdemeanor. Points in the federal guidelines for prior sentences are divided as follows:  custodial sentences over 13 months; over 59 days; or 59 days or less. The original sentence and any violation sentences are all added up to reach these thresholds. There are limits on which misdemeanors count; some never do, and others count only if your client was locked up for at least 30 days, put on probation for over a year, or is similar to the charged offense.  There are time limits on whether old convictions are counted or not which are different than the time limits set forth in the state guidelines. There are specific rules on whether prior convictions which occurred on the same date or which were sentenced on the same date are treated as one, or more than one, prior conviction.

2.  Keep in mind that prior convictions under the federal guidelines are counted if the end of the prior sentence falls within the time period for counting the old conviction. The end of the prior sentence is the date the defendant is released from probation, prison, or jail, including for violations, whichever is later. For example, if the defendant is on parole to the MDOC,  and he is convicted of a new offense and returned to the MDOC, the earlier sentence is usually continued until he is discharged from the new sentence. Thus, a very old case may be counted in determining his criminal history under the federal sentencing guidelines.
 
3.  Any state sentence where the defendant admitted guilt, even if the sentence was ultimately deferred or the case dismissed (for example, 7411 for drug cases or HYTA), will count towards criminal history under the federal sentencing guidelines. On the other hand, they are not counted as a predicate felony for a Felon in Possession charge under 18 USC 922(g) in the Eastern District of Michigan.

4.  In addition to the harsh federal sentencing guidelines, several federal statutes (The Armed Career Criminal Act, or ACCA, 18 USC 924(e) in Felon in Possession cases, and 21 USC 851 in drug cases) and a guideline (the Career Offender guideline in drug cases, USSG 4B1.2) provide for sentence enhancements based on a client’s criminal history. Violent felonies and drug trafficking prior convictions count. This is an evolving area of the law and if you have the choice of which felony your client should plead guilty to in state court, you should check with a federal practitioner or your local Federal Defender office. For example, attempted drug crimes do not count as Career Offender predicates even where the substantive drug crime may count, see United States v Havis, 382 F3d 382, 387 (6th Cir 2019).

5.  Unlike state court, nolo contendere (or no contest) pleas are rarely permitted in federal court.

6.  There are not many areas of the law where  federal court is more favorable to the criminal defendant than state law. However, if your client is charged with being a Felon in Possession in state court, or a prior conviction will be part of the prosecutor’s case, you can stipulate to the fact of the prior conviction (in other words, agree that your client is a convicted felon) without specifying the circumstances of the prior or anything else about it, like the sentence he received. Old Chief v United States, 519 US 172 (1997).

7.  Unlike in the state sentencing guidelines, the federal sentencing guidelines have a built-in guidelines reduction for entering into a plea rather than going to trial. The reduction is still available in very limited circumstances where the client goes to trial. 

8.  The federal sentencing guidelines, like the state guidelines, are not mandatory. There is a specific guideline that permits upward and downward departures based on an inadequate or  overrepresented criminal history, USSG 4A1.3. Many of the same arguments which can be made in state court for a below guidelines sentence can be argued in federal court for a downward variance or departure.

Joan Morgan

Ms. Morgan is a Staff Attorney at Neighborhood Defender Service and a former federal practitioner. She can be reached at
jmorgan@ndsdetroit.org