Legal Question in Criminal Law in California

Federal Plea Question
RE: Plea Agreement in US District Court, Southern District of California. One Count 18 U.S.C. 1341 Mail Fraud.

The plea was prepared 6/02. The USSG manual dated 11/01 was used to calculate the 15 point offence level offered in the plea. 1.1.11(a) directs the court to use the Sentencing Guidelines in effect on the date the defendant is sentenced. However 1.1.11(b)(1) states that if the use of the Manual in effect at sentencing violate the ex post facto clause of the US Constitution then the Court shall use the Guideline Manual in effect when the crime was committed. For a crime between 98 and 01, the Manual would be dated 11/00 and the offence level would have been calculated at 14 rather than the 15 in the plea, however the Court started with the offence level calculations contained in the plea and took the downward departures from there. If the 11/00 manual had been used for the initial calculation of the level (14) and the 4 points of departure had been granted from there the result would have been 10 points rather than 11 and would have put the defendant in Zone B rather than Zone C.

In light of the plea having a �no appeal� clause, are any motions that could be filed to address this issue?

Asked on 2/14/03, 3:59 am

David Diamond Diamond & Associates

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Re: Federal Plea Question

YOU HAVE A GREAT ARGUMENT, and the argument would be that the appeal clause does not apply. CALL IF WE CAN HELP. LARRY WOLF 310 277 1707

Answered on 2/16/03, 2:43 am

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