sentencing guidelines

Published on: September 15, 2023

18 USC 3582(c)(2) – reduction in federal sentences based on August 2023 changes to criminal history category calculations for those who committed crimes while on probation or parole

In August 2023, the United States Sentencing Commission decided to change the way that some federal defendants’ criminal history scores are calculated for sentencing purposes. Previously, those found to have committed their crimes while “under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status,” had two points added to their Criminal History category calculation, pursuant to USSG 4A1.1(d). The Sentencing Commission decided that not only would those two points no longer be added, but those who had been previously sentenced with these two points added to their calculation would be allowed to apply for retroactive re-sentencing. Basically, those individuals who previously were sentenced based upon Sentencing Guidelines calculations that included these two points in the Criminal History Calculation can now ask their sentencing courts to re-sentence them (beginning in February 2024). Not every defendant sentenced for a crime committed “while under any criminal justice sentence” will necessarily benefit from this amendment, as a two-point reduction for Criminal History may not necessarily change that person’s Criminal History Category. Moreover, some judges may not think that these amendments justify downward modifications of previously imposed sentences. Nonetheless, every defendant sentenced with these two points included in their sentencing calculation should strongly consider applying for a reduction in their sentence based upon this amendment and 18 USC 3582(2)(c).

Matthew Galluzzo has successfully applied for resentencing in other 18 USC 3582 cases, including modifications of sentences based upon US v. Davis and other changes in the law. He is an experienced federal criminal defense attorney and appellate lawyer and he offers a reasonable flat fee for an application to modify a federal sentence. Contact him today to discuss whether such a petition might benefit you or your loved one.

Published on: June 19, 2023

LOMG gets excellent result in federal narcotics overdose case.

By Matthew J. Galluzzo

Last week, criminal defense attorney Matthew Galluzzo successfully persuaded a federal judge in Manhattan to sentence his client to a very favorable sentence. The client was guilty of selling fentanyl that led to the overdose death of a customer. Though there was no mandatory minimum for this offense, the Federal Sentencing Guidelines recommended a sentence of between 234 and 240 months in prison (i.e. approximately 20 years). The client had an extensive criminal record including, among other things, two prior felonies for drug trafficking and a conviction for a violent felony assault.

Mr. Galluzzo worked with a social worker to describe the client’s extremely difficult upbringing, which included parental abuse, poverty, homelessness, the foster care system, and drug abuse as a pre-teen. Mr. Galluzzo convinced the judge that pursuant to the recent Second Circuit decision in US v. Gibson, the client was not a Career Offender under the Federal Sentencing Guidelines despite his two prior convictions for NY Penal Law Section 220.39, resulting in his classification as a Criminal History Category IV instead of VI. He also convincingly described the overdose as a terrible accident and expressed his client’s remorse to the judge.

Ultimately, the Court granted a significant downward variance and gave him a sentence equal to roughly half that recommended by the Sentencing Guidelines, 120 months (10 years). The client was pleased with the result and felt that his voice had been heard. The case was US v. Huertero, 20-cr-580 (ER) before Judge Ramos.

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Published on: July 21, 2022

Below Guidelines Sentence for Client charged with 18 U.S.C. Section 922(g)

By Matthew J. Galluzzo

Last week, a client of the Law Office of Matthew Galluzzo PLLC was very pleased to receive a very lenient sentence in a federal case involving charges of 18 U.S.C. Section 922(g). Our client – a 49-year-old man with several prior (but old) felony convictions – was arrested after shooting another person in the leg following a dispute on a Brooklyn sidewalk. The federal government charged him violating 18 U.S.C. Section 922(g) for possessing ammunition and having previously been convicted of a felony. The charge carries a maximum penalty of ten years in prison.

The entire incident was captured on surveillance tape from nearby buildings, and a witness identified our client as the shooter. Initially, the prosecutors sought a sentence near the maximum, between 8 and 10 years in prison. After a lengthy period of negotiation, the client’s attorney, Matthew Galluzzo, secured a plea agreement for the client with a sentencing range of between 33-41 months under the Federal Sentencing Guidelines. However, following the client’s guilty plea, it was up to the federal judge to decide his ultimate sentence (the Sentencing Guidelines are advisory but not mandatory).

Prior to the sentencing hearing, Mr. Galluzzo submitted a lengthy memorandum detailing the client’s difficult upbring, his long period of productive employment, his supportive family network, his remorse for the crime, and the terrible conditions the client had endured at MDC Brooklyn during the pendency of the case. The federal judge (Judge Donnelly) was thus persuaded to give our client a downward variance far below the sentencing Guidelines, in sentencing him to 24 months in prison. Given the time that he has already spent in custody, that amounts to a sentence only slightly longer than time served. The client was thrilled was this result and with the prospect of returning home to his wife and son soon.

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Published on: December 31, 2021

Ghislaine Maxwell – what happens next?

By Matthew J. Galluzzo

After a long trial followed by over forty hours of jury deliberations, Ghislaine Maxwell finally stands convicted of several federal charges relating to the sexual abuse of minors. Ms. Maxwell somewhat curiously chose not to testify in her own defense, and she now faces a sentence of up to 65 years in federal prison. Ms. Maxwell’s fight is far from over, but ultimately it will almost certainly lead to one final choice: cooperate with the government or die in prison.

After a federal conviction – by guilty plea or by jury verdict – the defendant is interviewed by a specialized officer from the U.S. Department of Probation. These officers typically have backgrounds in social work, and it is their responsibility to prepare a biography – or presentence report – for the court. The judge uses this presentence report at sentencing to understand the defendant’s life, background, and circumstances. (The Bureau of Prisons also uses this report in determining the defendant’s prison designation.) The preparation of a report can easily take two months or more, as the interview has to be scheduled, a draft report prepared, edits and objections made by both the defense and the prosecution, and a final draft with a sentencing recommendation submitted to the sentencing court.

Following the preparation of the presentence report, both the prosecution and defense prepare sentencing memoranda for the judge. Both sides make arguments about the proper application of the U.S. Sentencing Guidelines and the sentencing factors pursuant to 18 U.S.C. § 3553(a). Defense lawyers usually submit character letters from friends and family of the defendant, and sometimes the defendant also submits his/her own letter of remorse. Eventually, the sentencing court then holds a sentencing hearing at which both sides make oral arguments about the sentence and the court pronounces its decision. That sentencing hearing could be anywhere from 4 to 6 months after the conviction, though it could take even longer.

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Published on: October 8, 2021

Feds call traveling on 18 former NBA players for health care fraud

By Matthew J. Galluzzo

Yesterday, the Department of Justice announced that its U.S. Attorney’s Office in Manhattan (Southern District of New York) had filed an indictment charging 18 former NBA players and 1 of their spouses with federal crimes relating to the defrauding of the NBA players’ association HRA (health reimbursement account). In short, the alleged mastermind of the crime, Terrence Williams, allegedly recruited former players into his scheme. They allegedly created fake invoices for chiropractic, medical, and dental services that they did not in fact receive, and then submitted those invoices to the HRA for reimbursement for those phony services. The defendants are charged with violations of 18 U.S.C. § 1341 (wire fraud) and 18 U.S.C. § 1347 (health care fraud), and Terrence Williams also faces a charge of identity theft for bizarrely impersonating a health care plan administrator to try to shake down another player for his kickbacks under the scheme.

Of course some of these players may in fact be innocent. But you can expect the government’s case to be strong here. The prosecutors will probably be able to demonstrate that the medical/dental/chiropractic services detailed in these invoices submitted for reimbursement were not in fact provided. And the government almost certainly has the bank records, phone calls, emails, and text messages showing the transactions between Terrence Williams and the other participating defendants. There are probably several cooperating witnesses as well (i.e. former players who did not participate in the scheme though they were approached about it). So, most of these defendants – if not all of them – are likely to plead guilty. Indeed, the overwhelming majority of federal defendants do.

Sentencing at the federal level is an inexact science. There is no statutory minimum here, and sentencing judges will look to the federal Sentencing Guidelines for guidance. However, the sentences suggested by those Guidelines are merely advisory, and not mandatory or binding. In fraud cases, the biggest variable in the Guidelines calculation is the amount of loss (assuming these defendants mostly do not have criminal records already). The defendants will likely be in Criminal History Category I, on the left hand column of the sentencing table provided for by the Sentencing Guidelines. Their base offense levels for Wire Fraud/Health Care fraud would be six. See U.S.S.G. 2B1.1. But then, you would have to add an additional offense level for the amount of fraud. There is some debate about whether this number should reflect “actual loss” or “intended loss,” which would make a difference here as the intended loss (i.e. the amount of false invoices submitted) was $3.9 million overall, but the actual loss was $2.5 million overall. Theoretically, each member of the group could be held responsible for the entire $3.9 million, as they were co-conspirators in a group effort to defraud the HRA. However, normally, in fraud cases, defendants are held accountable, so to speak, for the amount of money they themselves were actually involved in stealing (though that is not always the case, it is a fuzzy question of foreseeability). Terrence Williams, however, as the mastermind of the scheme, would probably have to add at least 16 levels to his sentencing offense level, in light of his being in charge of the entire scheme. Additionally, “masterminds” or managers of criminal enterprises can have their sentencing levels increased by another four levels. Pleading guilty tends to get a defendant an overall three-level reduction in sentencing offense level, so Terrence Williams could find himself at a suggested Guidelines sentencing range of 57-71 months (offense level 25), or roughly 5-6 years in federal prison.

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