Something Every Federal Criminal Defense Attorney Should Know… But Some Don’t

justice scale and gavel

As a federal criminal defense attorney practicing in Phoenix, Arizona, it’s quite common to get calls from potential clients charged with federal crimes such as conspiracy to distribute, money laundering, and white-collar offenses. Most of my clients are fish out of water; that is, they are scared as they have never had contact with the criminal justice system.

My clients often have questions, as they should. On several recent occasions, I have been asked the same thing: “How can you help me if the federal sentencing guidelines are mandatory, leaving federal judges no discretion?” Because this statement is just flat out wrong, I asked my most recent client (who was charged with wire fraud and conspiracy) where they got this incorrect information. To my dismay, he told me that he read this on the website of another criminal defense attorney in Phoenix who boasted that he was an “expert” in federal criminal defense as he was a former federal prosecutor. I had to check it out for myself.

Sure enough, this “expert” attorney’s website reads “In 1984, the U.S. Congress passed the Federal Sentencing Act, which requires U.S. District Courts to follow certain sentencing guidelines whenever a defendant is found guilty of a federal offense.” This is both wrong and ignorant of the law.

Now, I hate to get all legal on you, but in fairness, I am a criminal defense attorney. In 2005, the Supreme Court of the United States, in a case called United States v. Booker, determined that the United States Sentencing Guidelines (not the Federal Sentencing Act, as the “expert” would claim) are advisory in nature. What this means is that federal judges should strive to follow the guidelines, but they retain the absolute discretion to go above or below the guidelines if they feel that it is appropriate to do so given the facts of a particular case. Congress mandating that judges must follow the guidelines and that they have not discretion to depart from them is a violation of the doctrine of separation of powers. Think 7th grade social studies. The legislative branch has no ability to bind the judicial branch.

So one of two things is happening with the “expert” federal criminal defense attorney in Phoenix. Either they have no clue about one of the most basic notions of representing clients charged with federal crimes, or they have no inclination to fight for their clients to get a sentence below the advisory guidelines.

I’ve been practicing law for over 25 years and am very comfortable practicing in federal court. Frankly, it’s not for the inexperienced criminal defense attorney or the faint at heart. Too many lawyers tell you they know what they are doing, but don’t have the faintest clue and end up calling someone like me for help. How about getting it right the first time, particularly when your freedom and future are on the line. Call me to set up a confidential consultation at (602) 663-9100 to discuss the details of your federal criminal defense matter. I guarantee you’ll have a better understanding of what you are up against and what some of the strategies are to best craft a solution. While we won’t solve the world’s problems in an hour, your anxiety and blood pressure will come down; unlike with the “expert” who will perpetuate your fear and try and sell you on services that they are not competent to perform in the first place.