One would think that this is simple, look up the criminal history, respect the rules, get the result. If any three people were to get the same report, they would end up with the same results.
[xCite item=”IZEPFAIY” pos=1]

To begin with, these are called “Guidelines”. This is to imply that they aren’t always followed. The more out of line with the guidelines the sentence is, the more likely the sentence will be overturned on appeal if it is too much. If it is too little, no victim has standing to challenge the sentence.

It is unclear what Sotomayer was speaking about when she described the question. We don’t know from her opinion on the denial of cert. what exactly was done.

There are three parties involved with the sentencing. The first party is the prosecutor, the second is the defendant, and the third is the judge. In a fair and just world, we would want the Judge to respect the law and the guidelines.

The problem is that the guidelines can be manipulated. This is done with modifiers, number of charges brought, and subjective evaluation, where available.

If the judge is looking at this person, that is bad. The judge knows it. The person has been before his bench for various violent crimes over the last few years. He is tired of him getting a slap on the wrist and out again.

There was a case I read about where the accused took a plea deal. The deal was for 5 years with probation. The accused had to allocute to his guilt, he said the words, he claimed it was just to get the deal. The Judge heard the allocution, decided that the plea was off the table, and sent him to prison for 19 years.

The dick wad that was diddling my friends kids was found guilty in a court of law and sentenced to the “special” prison where kiddy diddlers might actually live for a couple of weeks. The judge sentenced him on each count to the maximum, then set them to run serially, then entered into the record that he had other charges that had not been tried — yet.

If he is every given probation, those “other charges” will come up, and he will be put back on trial for the other counts. At this time, it looks like he is eligible for parole on his final sentence sometime in the late 2100s.

When we are talking about judicial discretion, this is what we are thinking about. The judge knew dick was a bad person that should never see freedom again. (The court was aware of some 4 other victims that had not brought charges)

When the PSR was created, the prosecution added the fact that they knew of other victims. They added that there were other charges pending. They added that he had spent two years evading a warrant for his arrest for bouncing checks. All of this factored into his final sentences.

In the case before the Supreme Court, the question was different. The accused was accused of only charged with two things. Armed robbery and murder. He was found not guilty of murder.

When the prosecutor brings the PSR to the judge does he mention the multiple charges for which the accused has not been found guilty? Or is he limited to just the charge he was found guilty of in the case?

Was this his first offense, or was he “Well known to law enforcement”? Was this the first time he had been found guilty of a crime? Is this the first time he didn’t plead out of more serious crimes? None of these questions were answered by the Order Listing.

To me, the fact that a 17-year-old boy is robbing pharmacies at gun point is a pretty good indicator that he is a bad person.

That is what he was found guilty of. Do you, or I think this was his first encounter with the law?

This is why the state is going over the sentencing guidelines. We want the bad ones off the street, yet at the same time we don’t want the one and done overly punished.

There is a balance in here. I don’t know where it is.
[xCiteBib]

The devil is in the details.

Hopefully, a short one.

4473 and the Gun Control Act of 1968, as amended

All of us have had the pleasure of filling out a form 4473, waiting for some bureaucrat decides that we are good enough to exercise our right to keep and bear arms, and finally give us permission. Most of form 4473 is bogus. It is designed to do a few things.

To capture owner identification and associate it with one or more firearms, a registry. To for the seller to keep an accurate inventory. And to catch people out in lies or mistakes.

The ONE reason it supposedly exists, is to allow the government to do a background check. Are you a prohibited person?

Now, let’s say you or I go in and lie on the 4473. It doesn’t matter where, it is a lie designed to allow us to purchase this particular firearm. If we are not prohibited people, we are guilty. On the other hand, the courts have ruled that it is a Fifth Amendment violation for a prohibited person to self report on a 4473.

Yep, if you are an actual prohibited person, and you lie about it on a 4473, you don’t get in trouble. If you are not a prohibited person and lie, you do get in trouble.

All the authority for the ATF to force the 4473 on us comes from the Gun Control Act of 1968, as amended. In particular, §922(g).

§922(g) is the list of things that make you a prohibited person.

§922(g)3 is the prohibition on being an “unlawful user” of a controlled substance. I.e., they partake of marijuana or other drugs.

Our Story

Our story begins when Patrick Darnell Daniels, Jr, was driving along, minding his own business, when a couple of LEOs pulled him over. They pulled him over for driving without a license plate.

It just so happened that one of these officers was a DEA agent. It is almost as if the DEA agent was looking for reasons to “investigate” vehicles he was interested in.
Read More

B.L.U.F. A follow on to the Hoover case regarding sentencing.

Yesterday, in Policies are not laws, we discussed how sentencing guidelines work. A short recap:

The courts use a rubric to decide the range of sentences that should be imposed. One axis is the “level” of the crime, the other is the category of criminal. Before sentencing, the court gathers all the information required to use the table. This is done by the Bureau of Prisons using local community resources.

Once the PSR is completed, the prosecutor reviews it, makes changes where required, presents it to the defense. At a hearing, the parties argue over the PSR, and then it is in the Judge’s hands.

The prosecutor will recommend a sentence based on the guidelines. The judge gives the final sentence.

The facts in this case are that Dayonta McClinton and his friend robbed a pharmacy. Afterward, the two got into a dispute and McClinton’s friend was shot and killed.

McClinton was arrested and charged with robbery and murder.

The base level for First Degree Murder is 43 points, which is for premeditated. It looks like the shooting was Second Degree Murder at 38 points.

McClinton was found not guilty of murder in a jury trial. The prosecution was not happy with this.

McClinton was found guilty of robbery. I am going to assume armed robbery. The base level for robbery is 20 with a modifier of 6 for a total of 26 points.

At 26 points, he is up for 63 through 150 months, depending on Criminal History Category. The category is based on how often he has been incarcerated and for how long. There are also modifiers for doing crime while being on probation.

My Google foo is not up to finding criminal histories. My guess is that he is a Category III with 3 to 6 points.

In our table, that gives a sentencing of 78–97 months, or 6.5 to 8 years.

That seems like a reasonable punishment for armed robbery, if the criminal did not achieve room temperature during the act.

Unfortunately for McClinton, that isn’t what happened.

Even though McClinton had been acquitted of murder, the prosecutor used the accusation/charge of murder to modify the location on the sentencing table. This could have been adjustments for the Armed Robbery, or it could be adjustments in the Criminal Category.

If McClinton is bumped up just one category, his sentencing range goes from 78–97 to 92–115. That is a maximum duration of 9 2/3 years, up from 8 years.

But let’s say that the prosecutor added 3 points to the level and bumped him that one category. That takes us to 121–151 months, 10 to 12 1/2 years.

All because he is being sentenced based on a crime he was found not guilty of committing.

The supreme court denied certiorari on the case. Some justices feel that the use of an acquitted charge is wrong. Others feel that the issue isn’t ripe because the sentencing guidelines are being reworked. And Alito took issue with what he felt was Sotomayer advocating for the sentencing committee to make the changes she wants.

[xCite item=”GUTI4KRV” pos=0]

We read about the number of criminals that are being set free on a catch and release basis. This is happening in the prosecutor’s office. The prosecutor looks at the person being charged and decides on what charges to bring. PoC in blue city, low charges, white cis, higher charges. The prosecutor looks at what the cops say they are charging the person with. He then decides what the actual charges will be.

Example, a white female, 85 years of age, no criminal history, walking in the people’s house taking pictures. Charged by the special investigator with unlawful entry and interfering with an official proceeding. The prosecutor, looking at the totality of the person, the person’s history, the charges brought to them by the special investigator, decides to charge her with all of the above as well as incitement. He tells the court that she is a flight risk.

Counter example, a black male, 19 years of age, two felony convictions, a long history of gang involvement, multiple charges of violence against person. The cops picked him up for stabbing a pregnant white woman, at the scene, with the bloody knife in his pocket. He has previously attempted to evade arrest when warrants were issued. Including out of state flight. The prosecutor charges him with illegal possession of a weapon recommends that he be released with no bail.

This is “prosecutorial discretion”. It means that when the suspect gets to court, the court will try him for illegal possession of a weapon. That’s it. The attempted murder will never be heard by the court.

This is not what this article is about.

This article is about what happens after the suspect is found guilty.

Read More

I finished moving a new client onto our servers yesterday. They had been cracked and abused. Thank you to Miguel for that client.

On different fronts, I’m fighting with PyQt6. For whatever reason, the QMediaPlayer will not reliably play an MP3 or WAV. Lord help me if I want to change the start position. This is very frustrating for me because I’m at the 80% mark in a transcription program with a GUI.

You tell it to fetch a recording of a hearing before a court. It figures out how many speakers are recorded, when they are speaking and the duration of their segment. It then uses external guidance to do a voice ID of the different speakers before finally generating a transcription of the audio.

The issue? There is a part of the interface where you connect different speakers to named people. It allows you to listen to a segment of the audio and make comparisons.

For example, I have two cases where there was only one judge in common. That means that there should only be one match between the two cases, and that match should be the judge. There were two matches.

It turns out that both cases had the same court manager. So my software picked out the fact that there were actually two people speaking in both cases, which is cool.

Regardless, I’ll make it work. It is what I do.

There are numerous things happening in different cases right now, but I’m looking at Dayonta McClinton v. UNITED STATES which was recently denied certiorari. Not because the case has anything to do with the Second Amendment, but because Sotomayor, Kavanaugh, Gorsuch, Alito, and Barrett are in agreement.

The case is about a man who was charged with murder and robbery. The jury found him guilty of the robbery charge and not guilty of the murder charge. Under the sentencing guidelines, McClinton should have been looking at 5 to 6 years.

At the sentencing hearing, the state told the court that McClinton had been charged with murder. The court used the accusation, of which McClinton had been found not guilty, to increase the sentence to 20 years.

If you are interested, please let me know in the comments.

The comments are open, go for it.

B.L.U.F.Brick by Brick, Row by Row, we build our freedoms.

The 9th Circuit court of Appeals got it right. What does it mean? What did the state attempt? How did the court opine?

In April 2019, another legal battle began. A long shot case that the plaintiffs knew would drag out for years if they made any progress, or they would be shutdown almost immediately.

This is from the good guys. In the original complaint, they are giving the state the presumption of the power to regulate. They also give the state the power to regulate “unusually dangerous arms”. This is not what Heller said, and we know this because the Bruen court made it absolutely clear that it is dangerous and unusual. If the arm is in common use, it is not unusual, and it cannot be banned.

This was Bruen quoting and explaining Heller

This is the equivalent of watching the puppy cower when their owner comes home. They try so hard to be good, but they fear being smacked again. Or maybe the battered spouse is a better analogy.
Read More

Today we heard a great opinion out of the Ninth Circuit Court of Appeals. They found that knives are arms. As arms, they are presumptively protected by the plain text of the Second Amendment. Finally, they found that the government had not met their burden of finding a law from the founding that supported their modern infringement.

There is another court ruling out today. This one out of the Supreme Court.

There will be a great gnashing of teeth over this. It affects many people, it isn’t great, but it isn’t horrible either.

In late June and early July, the District court found the ATF’s frame and receiver rule to be a violation of law, NOT on Second Amendment grounds. The ruling basically said, “The ATF can’t make law, this “regulation” is them attempting to re-write the law. If Congress wants the law to be as the ATF wants it to be, Congress has to pass that bill.”

Currently, gun control bills in the Congress are fraught with risk for both sides. The gun grabbers do NOT want people looking hard at §921 and exactly what the GCA of 1968, as amended, is worded. §922 is under attack in multiple cases, having somebody challenge the rest of the GCA on constitutional grounds is not something that they want to see happen.

The state had asked the Fifth Circuit for a stay of the injunction granted by the District Court. The state was asking for a stay until the Fifth Circuit heard the case. The Fifth Circuit told them to go pound sand. The state then made an emergency appeal to the Supreme Court looking for that stay.

Normally, these are quick. This took a little longer than Alito wanted.

What this means is that the frame and receiver rule is back until the Fifth Circuit renders their opinion. It looks like that could happen rapidly. The Fifth doesn’t like having their decisions overturned.

It is important to note that the Supreme Court did not rebuke the Fifth. Unlike what was done to the Second and Seventh circuits.

Now the state will drag their heels on this. The 3 judge panel will issue their findings. Regardless of how that goes, the losing party will ask for an en banc hearing. That will happen. If the Vanderstok loses, they will appeal. Their goal has always been to get this to the Supreme Court.

If the state loses, they might just tuck tail and take the L rather than get the Supreme Court involved.

So while this was a step back, I consider it an “ok” outcome. We will win in the end.

On the “Well, that’s to be expected.” Roberts came down on the side of the state. There is nothing strange about that. I just don’t trust him.

I would like to know what Amy Coney Barrett was thinking. She didn’t join with Thomas, Alito, Gorsuch, and Kavanaugh.

How I’m feeling today. Of course Heavy Metal was the naught animated movie of my University days.

There is a pseudo quote which says something like “The definition of insanity is doing the same thing over and over again and expecting a different outcome.”

The spokesperson for the event claimed that they purchased 356 firearms. Only 17 were semiautomatic. The reality is much more likely that they are claiming 17 semiautomatic rifles. We are watching in real time as the left warps’ language. In 5 years we will be hearing about “sniper rifles”, which will mean any bolt action rifle. Or any rifle with an optic on it.

The claim is that by buying these firearms, they are removing these guns from the criminal element. Jill is talking shit, she is suggesting that it is FFLs that are the causing the problems. We know that isn’t the case.

What she really wants to say but is too much of a coward to say is “The criminal animals have taken over our city. Our cops aren’t willing to put their lives on the line to arrest them when the politicians are going to release them.”

I can remember an often quoted line from a cop show, “It isn’t worth arresting him. He’ll be out before I finish writing up the paperwork.”

These insane people keep trying to “prevent violence.” The only thing they ever seem to try is disarming people.

Meanwhile, this “buy back” was busy ripping off older people that buy into the bs.

So there you have it, instead of sending these people to an FFL where they would get reasonable dollars for the firearms. These people under paid for the firearms and then handed them to the police to be????, destroyed?

[xCiteBib]