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Can a person's sentence be 'enhanced' with a firearm if they did not charge them with it?

Charleston, SC |

My fiance told me the following: My circuit used that youthful offender act years and years ago to career me out. The prosecutor used my youthful offender to career me out. remember...... i was 17 when i did time back then..... i caught this time when i was 32 years old. also, they enhanced me for a firearm"but" didnt charge me with it!
Is this something he can do about this?

Attorney Answers 4

Posted

Unless sealed, juvenile adjudications can be used as a reason for more penalties in an adult case. Not sure what you mean by "career me out." The presence of a firearm almost always brings a stiffer sentence than in the same case without the firearm. Enhance means give a sentence greater than that allowed for the underlying crime. That can't be done unless it it charged.

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Asker

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What he told me was the following: He was sentenced 1-6 on 6/24/92. This was the first trouble he was ever in He did about 11 months got out and did 8 months to a year on probation. His YOA was closed at early termination on 3/24/94. He got a federal charge in 2005 when he got sentenced they used the YOA which was the first predicate offense towards characterizing him as a career offender. They gave him 3 points for that under the guideline 4A1.1 (a) Does that affect them using it?

Charles K. Kenyon Jr.

Charles K. Kenyon Jr.

Posted

No. Technically this is not an enhancement. It is a factor under the sentencing guidelines. It makes for a stiffer sentence within the range of sentences set by the statutes. Note, these are questions to ask his lawyer.

Posted

A yoa can be used as a prior for sentencing guideline purposes.

Also the don't have to charge you with the firearm to use it to enhance your sentence.

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Asker

Posted

What he told me was the following: He was sentenced 1-6 on 6/24/92. This was the first trouble he was ever in He did about 11 months got out and did 8 months to a year on probation. His YOA was closed at early termination on 3/24/94. He got a federal charge in 2005 when he got sentenced they used the YOA which was the first predicate offense towards characterizing him as a career offender. They gave him 3 points for that under the guideline 4A1.1 (a) Does that affect them using it?

Posted

I'm guessing you're in federal court, yes they can enhance your sentence w/o charging you with the firearm.

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Asker

Posted

Yes federal court regarding the YOA: What he told me was the following: He was sentenced 1-6 on 6/24/92. This was the first trouble he was ever in He did about 11 months got out and did 8 months to a year on probation. His YOA was closed at early termination on 3/24/94. He got a federal charge in 2005 when he got sentenced they used the YOA which was the first predicate offense towards characterizing him as a career offender. They gave him 3 points for that under the guideline 4A1.1 (a) That can be used against him?

Dale Martin Savage

Dale Martin Savage

Posted

Yes that can be used against him. A YOA sentence is a criminal conviction and the government used it to determine his offense level in the sentencing guidelines which in this case was 3 points. I'm sure he either retained a lawyer or had a PD assigned that would/should have gone through the sentencing range under the guidelines prior to pleading and conviction. There should have been a pre-sentence report performed prior to his sentencing as well.

Posted

If this is a federal case, yes, if the facts of the case and the prior conviction support the enhancement. However, there are many ways in which prior convictions for firearms offense may enhance sentences (increased US Sentencing Guidelines ranges; Armed Career Criminal status; Career Offender status; increased mandatory minimum penalties for statutory offenses, just to name a few); therefore, more information is needed.

Joshua Sabert Lowther, Esq.
NATIONAL FEDERAL DEFENSE GROUP
jlowther@nationalfederaldefense.com
http://www.NationalFederalDefense.com
866.380.1782

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