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William Mallory Kent is a noted appellate and
criminal trial lawyer, having argued and won the precedent setting
federal sentencing guidelines case, Stinson
v. United States before the United States Supreme Court, which has been
cited by hundreds of courts in cases across the country, including both Blakely
v. Washington and United States v. Booker.
He has numerous other published appellate decisions to his credit, including United States v. Willie Washington, the Eleventh Circuit case which held that drug enforcement bus passenger searches were per se unconstitutional. This decision, which was profiled by Harvard Law Review, resulted in many similar convictions being set aside.
William Mallory Kent has a reputation for excellence in federal and state appeals and post-conviction relief, from direct appeal of sentencing or trial errors, to subsequent habeas motions under 28 U. S. C. Sections 2241, 2254, 2255, or Rule 60(b), as well as comparable state provisions such as Rule 3.800 and Rule 3.850 of the Florida Rules of Criminal Procedure, and Habeas Petitions for Ineffective Assistance of Appellate Counsel. As of March 25, 2005, William Kent has been counsel on 129 federal criminal appeals and over 57 Florida state appeals.
William Mallory Kent is also noted for his sentencing expertise and is often consulted or retained just for the sentencing proceeding and sentencing appeal. For more information about how he can assist you with sentencing, or an appeal or post-conviction relief matter, federal or state, call Mr. Kent at 904-398-8000 or email him firstname.lastname@example.org. For additional general appellate information click on Appeal Information.
To see a sample recent federal brief, click here. To see more sample briefs, state and federal go to our brief bank page.
Stinson v. United States, 508 U.S. 36 (United States Supreme Court, 1993); United States v. Thigpen, 4 F.3d 1573 (11th Cir. en banc 1994); United States v. Herman Venske, William McCorkle, et al. 15 Fla. L. Weekly Fed. C 765, 2002 WL 1491640 (11th Cir. July 12, 2002); United States v. Bull, 214 F.3d 1275 (11th Cir. 2000); United States v. MacAllister, 160 F.3d 1304 (11th Cir. 1998); United States v. Washington, 151 F.3d 1354 (11th Cir. 1998); United States v. Grimes, 142 F.3d 1342 (11th Cir. 1998); United States v. Lopez-Iraeta, 136 F.3d 143 (11th Cir. 1997); Anderson v. Singletary, 111 F.3d 801 (11th Cir. 1997); United States v. Stinson, 97 F.3d 466 (11th Cir. 1996); United States v. Hofierka, 92 F.3d 108 (11th Cir. 1996); United States v. Wescott, 83 F.3d 1354 (11th Cir. 1996); United States v. Hofierka, 83 F.3d 357 (as amended and as modified on denial of rehearing)(11th Cir. 1996); United States v. Brown, 71, F.3d 845 (11th Cir. 1996); United States v. Stinson, 30 F.3d 121 (11thCir. 1994); United States v. Be.., 22 F.3d 274 (11th Cir. 1994); United States v. Williams 958 F.2d 337 (11th Cir. 1992); United States v. Stinson, 957 F.2d 813 (11th Cir. 1992); United States v. Young, 953 F.2d 1288 (11th Cir. 1992); United States v. Stinson, 943 F.2d 1268 (11th Cir. 1992); United States v. Gilbert, 942 F.2d 1537 (11th Cir. 1991); United States v. Lazarchik, 924 F.2d 211 (11th Cir. 1991); United States v. McCorkle, 143 F. Supp. 2d 1311 (M.D.Fl. 2001); United States v. McCorkle, 143 F. Supp. 2d 1311 (M.D.Fl. 2000); United States v. McCorkle, 78 F. Supp. 2d 1311 (M.D. Fl. 1999); United States v. Grimes, 911 F. Supp 1485 (M.D.Fl. 1995); Castro v. State, 794 So. 2d 680 (Fla. 2nd DCA 2001); Holcombe v. State, 553 So. 2d 1337 (Fla. 1st DCA 1989).
WILLIAM KENT has twenty-seven years experience as an attorney. He graduated from Harvard University with honors, then returned to his home in Florida to attend the University of Florida College of Law, graduating with honors in 1978. Prior to starting his boutique criminal defense practice, Mr. Kent served for ten years as an Assistant Federal Defender handling a multitude of cases across the largest district in the United States. He is experienced in all phases of federal practice, from pre-indictment consultations, grand jury practice, motion hearings, and pretrial negotiations, to trials and appeals.
Before starting criminal defense practice, Mr. Kent was a senior associate at Rogers & Wells, now the world's largest law firm, Clifford Chance Rogers & Wells, where he handled complex corporate investment matters.
Mr. Kent's current practice focus is on appeals and post-conviction relief in criminal cases, which generally comprise 85% or more of his case load, but In the past fifteen years, Mr. Kent has also served as lead trial counsel in numerous federal criminal cases of all types, obtaining successful outcomes in cases ranging from bank fraud to drug conspiracy.
His unique combination of trial, appellate and complex corporate experience gives him a special advantage in advising his clients on the best course of action when confronted with federal criminal charges.
You can put this training, education and experience to work for you in your case. Call 904-398-8000 or email Mr. Kent at email@example.com for a free initial consultation.
July 24, 2004 - Motion to vacate plea in burglary case based on argument that plea was involuntary due to defendant being under medication at time of plea results in compromise settlement with state and ten year reduction in sentence.
June 30, 2004 - Florida state court sets aside guilty plea, conviction and sentence for DUI with accident based on Mr. Kent's post-conviction motion challenging inadequate plea colloquy.
May 13, 2004 - Florida Circuit Court sets aside illegal sentence for client Brandy Edwards, based on Mr. Kent's argument that the court was limited in violation of probation proceeding to imposition of a sentence of imprisonment no greater than that which had previously been suspended. Court reduced sentence from 21 to 13 months based on this argument.
April 8, 2004 - Eleventh Circuit Agrees with Mr. Kent's Sentencing Argument for client B. D. - B. D. was convicted of making a false statement in connection with the purchase of a number of firearms, one of which was a banned AK-47 assault weapon. However the particular weapon was a "grandfathered" in pre-ban weapon. Mr. Kent argued that the sentencing commission's guidelines were inconsistent with the predicate federal statute, which makes a distinction between banned versus grandfathered assault weapons. The district court disagreed. The difference took B. D. from what would have been a probation sentence to almost three years in prison. In a published decision the Eleventh Circuit on April 8, 2004 agreed with Mr. Kent's argument.
February 2, 2004, Federal Eleventh Circuit Court of Appeals reversed mandatory life sentence imposed under drug three strikes law in cocaine conspiracy case against Mr. Kent's client Charles Coleman. Click here to read decision.
The United States District Court for the Middle District of Florida granted a motion to withdraw plea filed after the presentence investigation report had already been completed, on the basis of a claim that the original attorney for the defendant had misadvised the defendant as to the potential application of the sentencing guidelines, despite the fact that the magistrate judge had repeatedly advised the defendant during a lengthy and extensive plea colloquy that such advice of counsel was only an estimate and if it were wrong would not be a basis to withdraw his plea.
Twenty-two year cocaine trafficking conviction reversed by First District Court of Appeal February 6, 2003, Reyneldon Davis v. State of Florida based on illegal search and seizure of 2.2 kilograms of cocaine. To see the winning brief of Mr. Kent click here - to see Mr. Kent's reply brief which destroyed the State's "Tipsy coachman" argument, click here.
The United States District Court for the Middle District of Florida terminated an order of restitution in a fraud case relieving Mr. Kent's client of an approximate $100,000 restitution balance based on Mr. Kent's motion grounded on the authority of Title 18 U. S. C. Section 3664(k). This order, which modified the client's probation, was entered approximately two years after the original sentencing.
The Florida Fourth Judicial Circuit in its capacity as a Court of Appeals reversed on appeal the lower court's decision denying Mr. Kent's client's 3.850 motion to withdraw his plea to a fourth DUI, entered seven years earlier, resulting in the permanent, lifetime revocation of his driving license. The appellate issue was the failure of the trial court to clearly advise the defendant of the duration of the loss of his driving privileges. The result of this appellate decision is that the client will be entitled to the reinstatement of his driving license, which had been revoked for life. To see the winning brief, click here. To see Mr. Kent's reply brief which overcame the State's answer brief, click here.
A Florida County Court granted Mr. Kent's client's Brady motion under Rule 3.850 setting aside a prior no contest plea to a DUI following a minor accident based on the invalidity of the alcohol reference solutions used in certifying the accuracy of the breath test machine in the case. The unique feature of this case was that the state had expressly advised the trial court that the breath test in this case was not subject to this Dauth challenge because it was outside the window of application of Dauth. The state later entered into a consent order that extended the Dauth window in certain cases which included this case.
The federal Eleventh Circuit Court of Appeals reversed the sentencing of Mr. Kent's client Sylvestre Barrera who was convicted after trial of conspiracy to distribute a large quantity of marijuana and possession with intent to distribute marijuana, in an unpublished decision remanding the case for resentencing as to both an unobjected to criminal history matter and as to an objection to an enhancement on the basis of constitutionally unreliable hearsay.
The federal Eleventh Circuit Court of Appeals vacated the sentence for Mr. Kent's client, infomercial king William J. McCorkle, and ordered a resentencing in a decision published July 12, 2002. This sentencing appeal victory was accomplished despite the fact that the sentencing error had not been objected to at the trial court level by Mr. McCorkle's trial attorney, F. Lee Bailey. Click here to read the decision.
Mr. Kent has been a member of the Florida Bar since 1978. He graduated from Harvard College, A.B. cum laude, 1975, and the University of Florida College of Law, J.D. with honors, 1978. Mr. Kent has an AV rating, the highest rating available from Martindale-Hubbell. Mr. Kent has been a continuing legal education lecturer for the Florida Bar, the Federal Criminal Justice Act training program, the Florida Association of Criminal Defense Lawyers, and others. Mr. Kent is a member of the Florida Bar Appellate Court Rules Committee. He is the immediate past President of the Northeast Florida Chapter of the Florida Association of Criminal Defense Attorneys. There is no charge for initial in-office or telephone consultations. Please call 904-398-8000 to schedule an appointment or email your inquiry to: Email Contact - Click Here.
January 12, 2005 the United States Supreme Court issued its decisions in Booker and Fanfan, the two initial cases interpreting the application of Blakely v. Washington to the federal sentencing guidelines. Click here for a copy of the decisions in Booker and Fanfan.
What Booker and Fanfan decided is that the federal sentencing guidelines are no longer mandatory, that is, the judge must consider the guidelines as one of several factors under 18 U.S.C. Section 3553 in deciding what is an appropriate sentence, but they are just a factor to be considered, they are no longer binding on the judge and the judge may disregard the sentence recommended by the guidelines should he choose to do so based on any information that is presented at sentencing. In other words, subject only to statutory restrictions apart from the guideline statute, such as minimum mandatory sentences, or crimes for which the law prohibits imposition of probation as a matter of separate statutory law, the judge may impose any sentence she chooses from probation to the statutory maximum.
Booker apparently does not affect the consideration of prior criminal convictions. For a discussion of Booker and prior criminal convictions in a recent case click here.
There is some uncertainty whether under Booker the advisory guidelines will require proof of the relevant factors be made to and decided by the jury. At least one court has decided that this is not required and granted a defendant's motion to strike as surplusage the government's notice of intent to prove such factors at trial. For the decision in that case, click here.
Some federal judges will no doubt continue to slavishly follow the guidelines, even though the Supreme Court has held that they are no longer mandatory. For an early example, see Judge Cassell's order in United States v. Wilson. Other judges will use the new discretion to reduce sentences. For an example click here.
A second aspect of the decision is that defendants (and the government) retain a right to appeal a judge's sentence, but the appellate review will be limited to a determination of the "reasonableness" of the sentence. That the judge refused to follow the guidelines will not invalidate the sentence.
The best explanation so far by a Court of Appeal of the application of Booker to cases at the district court and on direct appeal has been done by the Second Circuit in United States v. Crosby. Click here for the pertinent text of the Crosby decision.
Booker/Fanfan and Cases Pending at the District Court
The application of Booker and Fanfan to cases pending at the district court, either pretrial, pre-plea, or pre-sentencing, is fairly simple and will follow the above rules. That is, the judge can impose any sentence he chooses from probation up to the statutory maximum. The only additional consideration to note, which is not mentioned in the decision, is that if a person pled guilty before Booker and Fanfan, he or she may now, should he or she choose, move to withdraw the guilty plea, on the basis that the plea was induced by advice from the court or counsel that the sentence would be determined by the sentencing guidelines, which is no longer the case.
Blakely Waivers in Plea Agreements
If the plea had been entered pursuant to a written plea agreement with the government, the government may have attempted to have the defendant waive any Blakely claim, but in my opinion such a waivers will be ineffective or invalid, given that no one could have explained to the defendant what the waiver meant, because no one could have known what the court was going to say in Booker and Fanfan. More importantly, a Blakely waiver only waives Blakely, and does not waive the decision in Booker and Fanfan, which goes beyond Blakely in making the guidelines advisory and not mandatory. This same argument may be available for persons who are within time to file or amend a first federal habeas under 28 U.S.C. Section 2255.
Booker/Fanfan and Substantial Assistance
One further note on the application of Booker and Fanfan to cases pending at the district court: the effect of Booker and Fanfan on substantial assistance or attempts to do substantial assistance. Except in the case of statutory minimum mandatory sentences [click here for a recent case explaining Booker's lack of application to minimum mandatory sentences], defendants will no longer be at the mercy of the United States Attorney's office in deciding to file or not file a substantial assistance motion. The defendant can present on his own behalf at sentencing the efforts he made toward substantial assistance and the judge can reward such efforts irrespective whether the government agrees that it amounted to substantial assistance or not. This is a great step forward for defendants and a terrific blow to the government. The only cases in which the defendant will be at the mercy of the government on substantial assistance will be minimum mandatory cases, because the judge cannot go below a minimum mandatory sentence without a motion from the government, but even there, once the government files a substantial assistance motion the judge will now be able to impose as low a sentence as he chooses without any binding regard for the lockstep reductions of the government's guideline reduction suggestion.
Booker/Fanfan and Cases on Direct Appeal, Certiorari or Habeas
At this point what many persons will want to know is how does this apply to cases (1) pending on appeal, (2) pending on certiorari, (3) pending a first 2255 habeas, or (4) to possible successive or belated 2255 habeases.
Booker/Fanfan and Cases on Direct Appeal or Pending Certiorari
The simple answer is that these new sentencing rules will apply to cases that are pending on direct appeal and pending on certiorari, entitling persons to resentencing, subject to one possible exception in my own circuit, the Eleventh Circuit.
Defendants on appeal who have not already briefed Blakely, or who have briefed Blakely, but did not have the benefit of the ruling in Booker will need to file motions asking for supplemental briefing, or perhaps simply file a motion asking the court of appeals to remand the case to the district court for resentencing, and bypass the appellate process at least as to sentencing issues.
The Supreme Court stated in Booker and Fanfan that cases on appeal will be subject to plain error and harmless error review. Time will tell exactly what that means, but it is my opinion that unless a district judge stated on the record at sentencing that he would have applied the same sentence even if the guidelines were not binding, all guideline sentences will meet a plain error test and there cannot be harmless error. There is already case law to the effect that when a judge misapplied the guidelines that even if he could have imposed the same sentence had he gotten the guidelines application right (that is, overlapping guideline ranges and a sentence imposed at a point in the overlapping ranges), then the case has to be remanded for resentencing. I think this same principle applies to Booker.
Thus, everyone on direct appeal should be entitled to resentencing so long as the court will entertain a motion for supplemental briefing on Booker or will entertain a motion to remand for resentencing in light of Booker.
To qualify for resentencing a case on direct appeal in which the defendant did not make an express Blakely objection at sentencing must meet the plain error test. The Fourth Circuit has issued a very good decision finding Booker error to be plain error because the sentencing judge did not understand that the guidelines were only advisory. United States v. Hughes, 2005 WL 147059 (4th Cir. Jan. 24, 2005). This decision may be especially influential due to the fact it was authored by Judge Wilkins. The Sixth Circuit has also agreed that Booker error is plain error, in United States v. Oliver, and the Second Circuit has not only said that Booker error is plain error, but ruled that all Booker error cases must be remanded for reconsideration by the district court whether it would impose a lower sentence. United States v. Crosby. Only the Eleventh Circuit, so far, has disagreed, and in an odd decision issued February 4, 2005, United States v. Rodriguez, held that Booker error is not plain error.
What can the judge do at resentencing? Impose any sentence he chooses to impose - up or down.
The Eleventh Circuit has applied a rule prohibiting supplemental briefing on Blakely. It is not clear that this rule will continue given the mandate in Booker that courts consider the application of Booker/Fanfan to all pending cases on appeal. The Eleventh Circuit has also ruled that Blakely is not plain error, but that decision is no longer binding because it was premised on the conclusion that Blakely did not apply to the federal guidelines.
Booker/Fanfan and an Initial Federal Habeas under 28 U.S.C. 2255
The application of Booker/Fanfan to a first habeas under 2255 is not as clear as its application to direct appeals, but my initial thoughts are that it will be available to any person who made a Blakely challenge on direct appeal but lost his appeal because the court of appeals refused to apply Blakely to the federal guidelines.
It may also be available in guilty plea cases if the person wishes to challenge the plea, and he may wish to do so, simply to trigger a new sentencing. The argument would be that the plea was not a knowing and intelligent plea because the decision to plead guilty was made under the mis-advice of the court and counsel that the court had to apply the guidelines. Think of all the people who pled guilty because the lawyer said that was the only way to get the reduction for acceptance of responsibility for example. However, the Eighth Circuit has rejected a version on this argument in United States v. Parsons, 2005 WL 190495, Jan. 28, 2005 (8th Cir. 2005). However, compare the Eleventh Circuit's treatment of a change in the law/plea claim in United States v. Brown, 117 F.3d 471 (11th Cir. 1997) (allowing withdrawal of plea based on Ratzlaf claim).
This same argument may be made in reverse for persons who went to trial - that is, the trial decision was made because if he pled guilty the judge had to impose the mandatory guidelines. I think that these are in fact legally sound arguments, but I do not doubt that "conservative" courts will attempt to rationalize their way around such arguments.
If a habeas has been filed but not ruled on the merits, and the one year time limit has not expired, it should and could be amended to add one or more Booker/Fanfan arguments.
However, persons who did not raise Booker/Fanfan on direct appeal of a plea may be foreclosed from raising it at this time because the court has not made it retroactive. Clearly arguments can, will and should be made that in fact Booker/Fanfan meets the retroactivity tests of Teague v. Lane, but this may be a hard argument to prevail on.
It can be expected that many federal courts will try to argue that Booker is not applicable to even a timely, initial 2255.
For a summary of the latest case law as of February 9, 2005 on Booker retroactivity, click here.
For an example of a current court decision holding that Booker and Fanfan is not applicable to an initial, timely 2255, click here.
Booker/Fanfan and Successive or Belated (After the One Year Time Limit) 2255 Habeases
Unless and until Booker/Fanfan is held to be retroactive the gateway test for a successive or belated 2255 cannot be met and it will not authorize a second or belated 2255. For a recent court decision explaining the application of Booker to a belated or successive 2255 click here.
Former Analysis of Blakely Before Booker/Fanfan
The United States Supreme Court's decision in Blakely v. Washington, handed down June 24, 2004, may offer dramatic relief for persons sentenced under the federal sentencing guidelines because it raises questions about the constitutionality of the federal guidelines. The U.S. Supreme Court will soon decide the issue. The Supreme Court granted certiorari August 2, 2004 in Booker and Fanfan, the two cases that will determine whether Blakely applies to the federal sentencing guidelines, and if so, what the effect will be. Oral argument was held Monday, October 4, 2004, and based on the oral argument [click here to read a transcript of the oral argument], it seems clear that the court will strike down the guidelines, at least the enhancements. Please click on this link for more information about Blakely. There is confusion as to the deadline for filing a federal habeas raising a Blakely challenge. The Eleventh Circuit holds (Dodd v. United States, 365 U.S. 1273 (11th Cir. 2004) that the one year time limit runs from the date of the original decision, not the date that the Supreme Court (or a Circuit Court), later holds it to be retroactive. That means that under the 11th Circuit's interpretation you must file a successive 2255 within one year of Blakely (no later than June 24, 2005) or you will be outside the time limit. [November 29, 2004 the United States Supreme Court granted certiorari on the Dodd case.]
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Federal Prison Guidebook - 2002 Edition, a 350-page manual that contains comprehensive descriptions of every federal prison facility in the United States. This book, written by Alan Ellis, Esq..
Jailhouse Lawyers Manual (4th Edition) which is published by the Columbia Human Rights Law Review, Box B-25, Columbia University School of Law, 435 West 116th St., New York, NY 10027.
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This page last edited: 06/01/09 02:36:14 PM
From October 2, 2003
William Kent, Federal Criminal Appeals and Post-conviction Relief
Best criminal appeal and habeas lawyer for federal and Florida crimiinal appeals and habeas petitions, 2255, 2254, 3.850, 3.800. Contact William Kent at firstname.lastname@example.org or call 904-398-8000
William Kent, Federal Criminal Appeals and Post-conviction Relief
Best criminal appeal and habeas lawyer for federal and Florida crimiinal appeals and habeas petitions, 2255, 2254, 3.850, 3.800. Contact William Kent at email@example.com or call 904-398-8000
Best criminal appeal and habeas lawyer for federal and Florida crimiinal appeals and habeas petitions, 2255, 2254, 3.850, 3.800. Contact William Kent at firstname.lastname@example.org or call 904-398-8000 http://williamkent.com