Urgent Updates

• Supreme Court Issues Three Defense-Friendly Rulings
  
  First, in Kimbrough v. United States, the Court ruled that the Sentencing Guidelines for crack cocaine are advisory only. Therefore, while district courts must consider the advisory Guidelines range for a crack cocaine violation, the courts may consider the disparity between the Guidelines' treatment of crack and powder offenses in determining the appropriate sentence.
  
  Next, in Watson v. United States, the Court concluded that a person does not "use" a firearm under 18 U.S.C. § 924(c)(1)(A) when he receives it in trade for drugs.
  
  Finally, in Gall v. United States, the Court ruled that while the extent of the difference between a particular sentence and the recommended Guidelines range is relevant, courts of appeals must review all sentences under a deferential abuse-of-discretion standard. Under this standard, an appellate court may take the degree of a variance into account and consider the extent of a deviation from the Guidelines, but it may not require "extraordinary" circumstances or employ a rigid mathematical formula using a departure's percentage as the standard for determining the strength of the justification required for a specific sentence. The opinion also contains some helpful language regarding the process a district court should follow in determining an appropriate sentence.
   

• Crack Amendment and Retroactivity
  
  On December 11, 2007, the United States Sentencing Commission voted unanimously to give retroactive effect to a recent amendment to the Guidelines that reduces penalties for crack cocaine offenses. The effective date for retroactivity is March 3, 2008. The Commission's press release making this announcement can be found here. The District Court for the District of New Jersey will be meeting shortly after January 1, 2008 to develop a standard procedure for dealing with re-sentencings in these cases. If you have a former client you believe would be eligible for immediate release based on the amendments (i.e., prior to March 3, 2008), please contact Federal Defender Richard Coughlin in our Camden Office.
   

• Recent Amendments to the Federal Rules of Criminal Procedure
  
  Several amendments to the Federal Rules of Criminal Procedure became effective on December 1, 2007. A change to Fed.R.Crim.P. 11 brings the Rule into conformity with United States v. Booker, 543 U.S. 220 (2005) by requiring the sentencing court to advise the defendant of the court's obligation to calculate the applicable guideline range and to consider that range, possible departures under the Guidelines, and other sentencing factors set forth in 18 U.S.C. § 3553(a).
  
  An amendment to Rule 32 clarifies the court's authority, in light of  Booker, to instruct a probation officer to gather and include in the PSR any information relevant to the § 3553(a) factors.
  
  Rule 35 has been amended to remove the restriction that the court may reduce the sentence of a cooperating defendant only if the reduced sentence accords with the Sentencing Guidelines. The restriction was stricken as inconsistent with Booker.
  
  Rule 45 has been amended to clarify that a party served has an additional three days to respond after service by mail, service by leaving with the clerk of the court, or service by electronic or other means consented to by the party served.
  
  Finally, a new rule, Fed.R.Crim.P. 49.1, has been added to permit partial redaction of an individual's home address and an exemption from redaction for certain forfeiture-related information. In addition, specific types of filings are exempted from the redaction requirement, including arrest and search warrants, charging documents, and documents filed before the filing of a criminal charge.
  
  The full text of the amendments can be found here.