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Joshua Sabert Lowther
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Joshua Lowther’s Answers

1,726 total


  • In the federal court does the home electronic monitor count toward your sentence

    if you are already sentenced can you get that time on house arrest to go toward your sentence

    Joshua’s Answer

    Any time spent on federal pretrial release—that is, specifically pursuant to an Order of Release—doesn't count as time served toward any future sentence, regardless of how onerous the conditions of release are. - Joshua Sabert Lowther, Esq., National Federal Defense Group.

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  • Filing a motion under the 5K rule

    Can defense counsel file the motion for a downward departure under the USSG 5K rule or does it have to be the prosecutor? Thanks.

    Joshua’s Answer

    The statute (18 U.S.C. § 3553(e) and the US Sentencing Guidelines provision (U.S.S.G. § 5K1.1) require that the Government file the motion; otherwise, the District Court has no jurisdiction to grant the downward departure or sentence the defendant below the mandatory minimum penalty. - Joshua Sabert Lowther, Esq., National Federal Defense Group.

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  • Substantial assistance question

    In Federal Law, is there any statute in the sentencing guidelines that allows for a downward departure for the defendants full cooperation with the government in their investigation that does NOT involve another person?

    Joshua’s Answer

    Yes. Although U.S.S.G. § 5K1.1, 18 U.S.C. § 3553(e), and Federal Rule of Criminal Procedure 35(b) all require the defendant's cooperation against another person, U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f), known as the "Safety Valve," only requires information about the offense and relevant conduct of the defendant is eligible for that reduction. - Joshua Sabert Lowther, Esq., National Federal Defense Group.

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  • My friend is being held on a complaint and has a federal hold. How long do they have to indict him before he is released?

    He has no priors and the charges are transporting a minor over state lines for prostitution

    Joshua’s Answer

    The Government must indict a defendant who has been arrested on a federal complaint within 30 days from the date of the arrest, or 60 days if no grand jury is empaneled in the charging district during the initial 30 day period. Regardless, the defendant must appear before a judicial officer for a detention hearing "without unnecessary delay," which usually is held on the day of the arrest or the next business day. - Joshua Sabert Lowther, Esq., National Federal Defense Group.

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  • If a person is identified as a career offender in a federal criminal drug case But the person's prior and curren convictions

    involves the possession of crack cocaine 1st- 0.2 grams 2nd 15 - bags valued at $5 each 3rd- 17 grams of powder cocaine . Can a petition be filed to have the current sentencing of 180 months be reduced based on the fact that the drugs we...

    Joshua’s Answer

    If at least two of the prior convictions involved something more than simple possession of a controlled substance, such as the possession with the intent to distribute or distribution, the US Sentencing Guidelines Career Offender enhancement applies. However, that enhancement only establishes a certain offense level and a criminal history category of IV; it does not impose any statutory mandatory minimum penalty. Therefore, there are many arguments similar to the ones that you suggest that may be argued for a sentence below the advisory Guidelines range. - Joshua Sabert Lowther, Esq., National Federal Defense Group.

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  • Closing statements and letters.... when being sentenced...

    when it comes to being sentenced in federal court, what is the correct way to write a letter .... ??? in behalf or for the person who is being sentenced.. showing support for... to the judge for the judge???

    Joshua’s Answer

    Address the letter to the district judge, and (1) identify yourself; (2) state how you know the defendant; (3) state how long you've known the defendant; and (4) describe the defendant's character, considering that the judge may be reading the letter while asking himself or herself "what makes this defendant different from every other defendant that asks for leniency, and what can I expect from this defendant if released into the community on a non-custodial or after a short custodial sentence?" Unless you are an immediate family member or have an extraordinary contribution regarding the defendant's character, the letter should be no more than one page. All letter should be submitted directly to the defendant's attorney for vetting before submission to the court. - Joshua Sabert Lowther, Esq., National Federal Defense Group.

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  • Double Jeopardy and Jurisdiction when it comes to State Offenses and Federal Offenses that are the same Offense.

    I actually came across this by accident. I was on an Attorneys Website about a different subject. I came across a Motion that he filed in a case and a template motion that he made out of it that said Counterfeiting Currency under 720 ILCS 5/17-3(a...

    Joshua’s Answer

    Federal and state governments are separate sovereigns and aren't bound by the other's rules of double jeopardy: the federal government may prosecute you for the same crime for which you've already been prosecuted in state court, and vice-versa. However, many state governments have enacted legislation prohibiting the prosecution of a crime that's been adjudicated already in federal court, and the Department of Justice, although not restricted by law, won't prosecute a crime that's been adjudicated in state court unless a compelling federal interest exists (the "Petite Policy," named after Petite v. United States). - Joshua Sabert Lowther, Esq., National Federal Defense Group.

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  • Federal drug conspiracy getting a bond in indiana

    in jail on federal drug conspiracy charge want to know how to get release on a bond

    Joshua’s Answer

    A defendant who is charged with a federal crime will appear before a US Magistrate Judge shortly after arrest. At that time, a detention hearing will be held, although the defendant has a right to a 5-day continuance, and the Government has the right to a 3-day continuance. If the drug offense has a penalty of 10 years or more (as most drug offenses do), the court will presume that there is no condition or combination of conditions of bond that will assure the defendant's presence in court or the safety of the community. However, the defendant may rebut that presumption by demonstrating by a preponderance of the evidence that he or she is not a risk of flight or threat to the community. Residency, employment history, lack of criminal history, and family support are all relevant factors to present to the court in favor or release. I recommend that you retain an attorney who is experienced in representing clients in federal criminal cases to present that argument in the most effective way to the court. - Joshua Sabert Lowther, Esq., National Federal Defense Group.

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  • Although I cannot get my federal bank robbery charges expunged, is it a way that on background checks that it no longer show up?

    I,be gotten my state charges expunged but federal bank robbery charge isn't expunged, and on background checks for jobs it shows up. I was told that after completion of sentence and probation that judge would order all agencies that possess my cr...

    Joshua’s Answer

    There is no means under federal law by which a conviction for any federal crime, felony or misdemeanor, can be expunged (including a presidential pardon). - Joshua Sabert Lowther, Esq., National Federal Defense Group.

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  • Can you get below the mandatory minimum if you don't cooperate nor get the safety valve?

    I was locked up with people with mms and they still got sentences below. Was the absolute only way they were getting below is because cooperation or safety valve? Arent mandatory minimums only if you get found guilty at trial?

    Joshua’s Answer

    Mandatory minimum penalties apply to all offense that are punishable by them regardless of whether the defendant pleads guilty or is convicted at trial. A district court has no authority to sentence a defendant below a mandatory minimum penalty except in consideration for that defendant's cooperation in the investigation or prosecution of another individual (18 U.S.C. § 3553(e)) and the "Safety Valve" which you mention that applies to certain drug offenses if the defendant is eligible (18 U.S.C. § 3553(f)). - Joshua Sabert Lowther, Esq., National Federal Defense Group.

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