Presentence Report & Sentencing

Presentence report includes police reports, former convictions
Presentence report includes police reports, former convictions

Computer crimes, bank robbery, or other federal offenses, Darren Chaker discusses presentence reports and how used in federal court. Courts cannot consider facts in the presentence report in determining whether a conviction is a crime of violence. E.g., United States v. Martinez-Vega, 471 F.3d 559, 561-62 (5th Cir. 2006). Instead, courts must consider “adequate judicial record evidence,” including but not limited to, the charging instrument, jury instructions, the judge’s “formal rulings of law and findings of fact,” and a statement of the factual basis for the charge, as shown by the plea colloquy transcript, written

plea agreement, or “record of comparable findings of fact adopted by the defendant upon entering the plea.” Shepard v. United States, 544 U.S. 13, 20-21 (2005); see United States v. Castillo-Morales, 507 F.3d 873, 876 (5th Cir. 2007) (reviewing Shepard-approved documents to determine whether a conviction was the enumerated offense of burglary of a dwelling).

The court can also consider “any explicit factual finding by the trial judge to which the defendant
assented.” Shepard, 544 U.S. at 16;Castillo-Morales, 507 F.3d at 876 n.3(noting that Shepard-approved documents for a crimeof-violence determination include [11]  “explicit factual findings by the district court to which the defendant assented upon entering the plea, or some comparable judicial record of this information”). In addition, facts alleged in the indictment can be used to determine which statutory subsection is implicated. See United States v. Calderon-Pena, 383 F.3d 254, 257-58 (5th Cir. 2004) (en banc).

In determining whether an offense is an enumerated crime of violence under section 2L1.2, this court applies a “common sense approach,” which defines an offense according to its “ordinary, contemporary, common meaning.” United States v. Mungia-Portillo, 484 F.3d 813, 816 (5 Cir. 2007) (applying the common sense approach to th the enumerated offense of aggravated assault); United States v. Mendoza-Sanchez, 456 F.3d 479, 481-82 (5th Cir. 2006) (applying the common sense approach to the enumerated offense of burglary of a dwelling); see also United States v. Izaguirre-Flores, 405 F.3d 270, 273-75 (5th Cir. 2005) (applying the common sense approach to the enumerated offense of sexual abuse of a minor). Last, the common sense approach looks to the Model Penal Code, Professor LaFave’s treatise, and dictionaries. Mungia-Portillo, 484 F.3d at 816 & n.3 (declining to exhaustively survey all state codes), however most crimes don’t correlate with using common sense.

© 2015 Darren Chaker. All Rights Reserved.

Written by 

Greetings - I am Darren Chaker. I litigated a cutting edge First Amendment case for 7 of its 10 year lifespan. Chaker v. Crogan, 428 F.3d 1215 C.A.9 (Cal.),2005, Cert. denied, 547 U.S. 1128, 126 S.Ct. 2023, invalidated a statute on First Amendment grounds and overruled the California Supreme Court‘s unanimous decision in People v. Stanistreet, 127 Cal.Rptr.2d 633. Soon after Chaker v. Crogan, it was also used to strike down Nevada's analogous statute forcing the legislature to rewrite the law and used as the backbone authority in Gibson v. City of Kirkland, 2009 WL 564703, *2+ (W.D.Wash. Mar 03, 2009). My case is a leading case on viewpoint discrimination. In a recent case, Chaker v. Crogan was used to vindicate people who filed a complaint against police. Those people were arrested and charged with a law Chaker v. Crogan invalidated! They sued for being arrested and charged with an unconstitutional statute, Penal Code 148.6. The federal court denied the City's motion to dismiss and the case settled. See Cuadra v. City of South San Francisco, 2010 WL 55875, *1+ (N.D.Cal. Jan 04, 2010) I love the fight and made cutting edge case law in the end. No doubt without the support of the ACLU (Ramona Ripston, Mark Rosenbaum, Peter Eliasberg, & Dan Tokaji) winning on appeal, and Joshua Rosenkranz www.orrick.com/lawyers/Bio.asp?ID=225990 assembling a small army of the best attorneys to defeat the California Attorney General's efforts to have the U.S. Supreme Court reverse the Ninth Circuit---this case would not have had a backbone to stand on. The case has been cited over 196 times as authority, and written about extensively. * Police Misconduct: Law and Litigation s 2:28, Denial of First Amendment rights (2009) * Smolla & Nimmer on Freedom of Speech s 3:11, Viewpoint discrimination--Cross-burning reprised: Commonwealth of Virginia v. Black--Heavy presumption against viewpoint discrimination (2010) * Smolla & Nimmer on Freedom of Speech s 10:22.50, Brandenburg v. Ohio: Intent and imminence standard--Bond and Watts decisions--"True threats" (2010) * CHAKER V. CROGAN, 5 Cardozo Pub. L. Pol'y & Ethics J. 425, 444+ (2007) My case is active, living and breathing—forever helping people who once felt oppressed.

Leave a Reply