Tulsa Criminal Defense Attorney | Experience You Need | Cale Law Office
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A jury convicted the defendant of possession of a firearm after a felony conviction. The prosecution tries to enhance a sentence on the ground that the defendant was in career criminal. At sentencing, the defendant challenges classification is a career criminal. He argued that his larceny conviction cannot be a violent felony because the residual cause of the act was unconstitutional. He also argued that his bomb threat conviction cannot be a violent felony because the threat of force against another is not required for that offense. The district court rejected this argument.

The U. S. Supreme Court held that the residual clause of the act was vague and that using it to enhance the defendant sentence violated due process. The defendant filed a motion for his relief. He asserted that in the absence of a residual clause, none of his prior convictions qualifies violent felonies. Therefore he is entitled to be resentenced. The prosecution conceded that in light of Supreme Court precedent defense prior conviction for larceny was no longer applicable for a sentencing enhancement. However, the prosecution argued that the defendant is not entitled to relief because his remaining three convictions qualify for a felony and with the elements clause.

Tulsa criminal defense attorney Stephen Cale handles criminal appeals. He is an excellent writer, having previously had a journalism career. Having someone who can write well is a must for in appeals. That’s because the appellate court must be persuaded by written briefs filed by the attorney. If you need a criminal appeals attorney, call the Cale law office at 918-277-4800.

Since the U. S. Supreme Court’s decision, courts have received thousands of motions from federal prisoners challenging their enhancement. To evaluate this merits of these claims, the circuit has established a two-step analytical framework in which the court will determine: first, whether the enhancement is erroneous; and second, whether any identified error is harmless. Under the first step, the movement has the burden to make a threshold showing that his sentence is erroneous. The movement sentence is erroneous only the relied on it was authorized by the residual clause. If the movement can make the showing, the British as to the government to prove that the reliance on the residual clause was harmless. Reliance on the residual clause is harmless only if the government can prove that, even without relying on the invalidated clause, the movement had three qualifying predicate offenses.

Several principles govern the determination whether the movant can successfully show mistaken reliance on the residual clause. First, whether the amended sentence relied on the clause is a question of historical fact pack. The question asked whether the sentence court imposed an enhancement based on the residual clause of the time of sentencing current law. Secondly, the accuracy of the sentencing court’s determination that a prior offense is a predicate under the elements or enumerated defenses cause is not within the scope of the challenge. When the records and clear as to which clause the sentencing court relied on, the appellate court will look to the relevant background legal environment the time of sentencing. For instance was a controlling law at the time of sentencing that rendered the sentence. This test applies only when the record is silent. So the question before the reviewing court of the stage is whether the sentencing court relied on the residual clause.

An error in this instance is harmless only if the prosecution can identify three qualifying predicate offenses without relying on the residual clause. The defendant does not tell the classification is assault with a dangerous weapon conviction is a violent felony. The prosecution has conceded that his larceny conviction no longer qualifies as an enhancement predicate. The next step is to look to see whether not the trial court made a mistake.

Since the court determined that the sentence rested on an error, the burden shifts to the prosecution to prove there was harmless. However, before analyzing the merit of his claim, the appellate court must determine the standard review. The first question is asked his whether is a matter of historical fact since the court relied on the residual clause. The sole objective of this stage is to determine what the sentencing court did. To answer this question to permit means whether the movant is entitled to relief at all. The second part of the analysis Texas with deciding whether the defined error is harmless as a matter of law.

If you or someone you know has been charged with a crime, you want somebody that has a great deal of experience. Attorney Stephen Cale’s been practicing for nearly 20 years. She also will look for someone who focuses on a certain area of law. In this instance, you want somebody who focuses his practice on criminal defense. That’s exactly what attorney Stephen Cale does. He focuses his practice on criminal defense.

Tulsa criminal defense attorney Stephen Cale has handled numerous jury trials. He has handled cases ranging from misdemeanors to felonies, including murder. Attorney Cale is an aggressive criminal defense attorney. He is highly rated by his clients. He has had numerous successes in getting cases dismissed and keeping his clients from going to prison.

In the previous case, the court considered the meaning of use which at the time imposed increase penalties that the defendant used a firearm during certain crimes. The court concluded that the use as for purposes of the statute included only active employment of a firearm, not your possession. The decision was superseded by a later amendment to the statute the added possession. Sometimes when the legislature does not like a case, it will be mixed changes by making new statutory law.