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William Mallory Kent - Federal Criminal
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Supreme Court granted cert March 24, 2008 to determine if a domestic relationship is an element of the offense of domestic battery for purposes of the federal possession of a firearm by a convicted felon statute, when the underlying offense is a misdemeanor domestic battery. United States v. Hayes, 482 F.3d 749, 751-752 (4th Cir. 2007).
TABLE OF CONTENTS - SAMPLE BRIEFS - RESUME AND EXPERIENCE
As of June 25, 2007, William Kent has been attorney of record on 229 criminal appeals - 147 federal criminal appeals and 82 Florida state appeals.
RECENT MATTERS OF INTEREST
Mr. Kent is filing a petition for certiorari at the United States Supreme Court challenging automobile searches made incident to an arrest under the Belton v. New York rule. A copy of the cert petition can be read here. Shortly after filing this petition the Supreme Court granted certiorari on this issue in Arizona v. Gant.
RECENT APPELLATE, POST CONVICTION AND SENTENCING NEWS FROM OUR CASES
April 21, 2008 the Solicitor General of the United States files brief in support of Mr. Kent's petition for certiorari filed on behalf of client Oscar Arreguin-Aguilar, which argued that 11th Circuit Court of Appeals misapplied United States Sentencing Guidelines section 2L1.2's definition of "crime of violence" in enhancing Mr. Arreguin-Aguilar's sentence 16 level's for a prior felony conviction for carrying a concealed firearm. The Solicitor General argued in its brief that the petition for certiorari should be granted and the judgment of the 11th Circuit vacated. If the Supreme Court accepts the SG's recommendation, it should result in Mr. Arreguin-Aguilar's release upon resentencing.
March 13, 2008, Eleventh Circuit Court of Appeals ordered resentencing for Mr. Kent's client, Joseph Stratton, after supplemental briefing on Kimbrough issue. The Stratton decision was highlighted in Prof. Doug Berman's Sentencing Law and Policy Blog March 13, 2008 as a notable Kimbrough application.
March 6, 2008 United States District Court grants COA in federal habeas (2254) of state homicide case.
February 28, 2008, Florida Circuit Court in West Palm Beach granted 3.800 motion for client Christopher Reinhart, reducing his sentence five years.
February 22, 2008, Florida Circuit Court in Volusia County granted 3.850 motion for client Roberto Campuzano based on Peart claim. Mr. Campuzano was transported to the 3.850 hearing from ICE custody in Texas where he faced imminent deportation for this conviction which was set aside today.
January 7, 2008, the United States Supreme Court granted certiorari, and vacated the judgment and conviction of Mr. Kent's client, Joseph Stratton, for further consideration in light of Kimbrough v. United States, which held that a district court was free to disregard the 100:1 crack to powder guideline ratio. Unlike persons who simply file a 3582 motion under the new crack guideline amendment, Mr. Stratton will now be entitled to a de novo resentencing and may have his sentence reduced more than the two levels under the new guideline. Mr. Kent was one of the first attorneys to challenge the 100:1 ratio restriction on Booker grounds at the Supreme Court and had filed his petition for Mr. Stratton before certiorari was granted on Kimbrough.
November 7, 2007, State concedes Mr. Kent's 3.800 motion agreeing that client's sentence imposed fifteen years ago violated double jeopardy and must be reduced by five years.
June 22, 2007 - Federal Court of Appeals denies Government motion to dismiss belated appeal Mr. Kent won for his client in a habeas proceeding. The Government had challenged the District Court's jurisdiction to grant the belated appeal, which the court did relying on Mr. Kent's novel argument of first impression that Barnes v. Jones does not apply to the failure of appellate counsel to challenge a count of conviction.
June 11, 2007, Federal Eleventh Circuit Court of Appeals grants COA on federal habeas alibi issue challenging life sentence for state armed robbery conviction.
May 29, 2007, State Circuit Court in Sarasota, Florida grants Mr. Kent's 3.850 post conviction motion for client Jason Dostie, reducing sentence from 15 years to 10 years Florida State Prison.
May 23, 2007 -The BNA Criminal Law Reporter highlighted Mr. Kent's certiorari petition for his client Joseph Stratton. The petition raises the following questions:
(1) Did application of United States v. Booker, 543 U.S. 220, 76 CrL 251 (2005), remedy result in de facto Sixth Amendment violation? (2) Under reasoning of Apprendi v. New Jersey, 530 U.S. 466, 67 CrL 459 (2000), Ring v. Arizona, 536 U.S. 584, 71 CrL 373 (2002), Blakely v. Washington, 542 U.S. 296, 75 CrL 284 (2004), and Booker, must any fact essential to imposition of sentence be established by proof beyond reasonable doubt? (3) Did use of 100:1 crack to powder cocaine ratio in determining guideline range on facts of defendant's case result in unreasonable sentence and did district court err in concluding that under Booker it was not free to disregard guideline-mandated disparity? [June 11, 2007 the Supreme Court granted certiorari in Kimbrough v. United States, which raises the crack v. powder cocaine disparity issue.] The Supreme Court later granted certiorari on this petition and remanded the case for further consideration in light of Kimbrough.
May 2, 2007 - Anonymous client of Mr. Kent released from federal penitentiary where he was serving a natural life sentence based on a Rule 35 motion, in which Mr. Kent persuaded the Government and court that the Government had the legal authority to file the motion and the court had the authority to grant the motion reducing an "old law" sentence.
April 26, 2007 - Government loses its appeal of Booker resentencing in which district court had dramatically departed from 11 years to 4 years in ecstasy drug conspiracy case. Mr. Kent wrote the winning brief upon which the court of appeals upheld the district court's extraordinary downward departure. The decision can be found at the court's webpage in the daily log for April 26.
March 28, 2007, federal district court vacates mandatory life sentence for Henry Manns, who was convicted after trial for heading a cocaine conspiracy known as "the Miami Boys."
January 30, 2007, federal district court, the Honorable Harvey E. Schlesinger, reduced Avise Hunter's sentence from mandatory life to ten years imprisonment (29 year old client has already served six years leaving two years nine months to be served) after life sentence in drug conspiracy case was vacated based on Mr. Kent's pro bono 2255 petition arguments. This reduction was based purely on legal arguments regarding the sentence and was not based in any way on substantial assistance. The client refused to provide substantial assistance. - Judge Schlesinger deserves recognition for this good deed.
January 12, 2007, District of Columbia Circuit Court of Appeals orders Booker resentencing for client sentenced to life imprisonment in heroin conspiracy case (but otherwise affirms convictions and appeal following first resentencing). In a special concurring opinion, Judge Kavanaugh added some interesting observations in response to my argument that the Booker remedy provision itself was unconstitutional.
Click here for additional recent criminal appeal and habeas wins.
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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 a 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: kent@williamkent.com.
William Mallory Kent is a noted criminal appeal and habeas lawyer, having argued and won the precedent setting federal sentencing guidelines appeal 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 having been cited by the Supreme Court in both Blakely v. Washington and United States v. Booker, the two cases that revolutionized criminal sentencing.
He has numerous other published criminal appeal and habeas decisions to his credit, including United States v. Willie Washington, the Eleventh Circuit criminal appeals 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 criminal 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 June 25, 2007, William Kent has been counsel of record on 229 criminal appeals -147 federal criminal appeals and 82 Florida state appeals. This webpage contains a Briefbank containing sample briefs and motions that William Kent has prepared for clients. If you are interested in seeing a sample of his work, click here.
William Mallory Kent is also noted for his sentencing expertise and is often consulted or retained for the sentencing proceeding as well as the 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 William Kent at 904-398-8000 or email him at kent@williamkent.com. For additional general criminal appeal and habeas 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-eight 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 appellate 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.
June 21, 2007 - Rita - A Great Disappointment
RITA v. UNITED STATES (No. 06-5754)
Web-accessible at:
http://www.law.cornell.edu/supct/html/06-5754.ZS.html
June 18, 2007 - Supreme
Court decided Brendlin v. California, holding:
When police make a traffic stop, a passenger in the car, like the driver,
is seized for Fourth Amendment purposes and so may challenge the stop's
constitutionality.
June 11, 2007 - Supreme Court grants
certiorari in crack vs. powder cocaine sentencing disparity case out of the
Fourth Circuit, Kimbrough v. United States.
Mr. Kent has a petition pending on the same issue, Stratton
v. United States.
June 11, 2007 - Supreme Court decides in Fry v. Pliler that a federal court sitting in habeas corpus review of a state conviction is to apply the "substantial and injurious effect" standard to determine the harmlessness of a constitutional error, regardless of whether the state courts ever applied the "beyond a reasonable doubt" standard" on direct review of the conviction, the U.S. Supreme Court unanimously held June 11. The court rejected a rule under which federal courts would apply the reasonable-doubt standard on habeas review in those cases in which the state courts did not apply that standard in the first instance. (Fry v. Pliler, U.S., No. 06-5247, 6/11/07)
June 6, 2007 - Supreme Court dismissed the Claiborne sentencing guideline case as moot. Mario Claiborne, the petitioner in one of the two pending Supreme Court cases intended to resolve key sentencing guideline issues, has been killed in a robbery. His case has been dismissed as moot due to his death. Claiborne's question was whether a substantial deviation from the guidelines required an equally proportional ground for departure. The Court has granted cert on two "replacement" cases, Kimbrough and Gall, but not ordered expedited briefing in either, so they will not be decided until next Fall at the soonest.
Other News
Orlando, Florida federal Magistrate Judge James Glazebrook passed away May 3, 2007. Our condolences to his family. Judge Glazebrook was a kind and thoughtful judge who extended courtesy to all who appeared before his court. He will be greatly missed.
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 kent@williamkent.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.
Click Here for a Podcast on Diaz and Possible Booker Retroactivity for 2255 Purposes - Podcast Directory
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appellate decisions which have resulted in reversals, see our Criminal Appeals, Habeas Corpus and Sentencing
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The United States Supreme Court has ordered the Solicitor General to file a response by January 8, 2007 to a petition filed in Diaz v. United States, a case out of the Second Circuit Court of Appeals. The case presents two questions: (1) whether Crawford v. Washington (the hearsay case) and (2) whether Booker v. United States (the federal sentencing guidelines case), should be applied retroactively for habeas corpus (2255) purposes.
As you may know, an order that the Solicitor General respond to a cert petition is a prerequisite to certiorari being granted. Very few cases result in orders for a response from the Solicitor General. It does not necessarily mean that cert will be granted, but it is a harbinger that cert may be granted. If cert is granted it could come sometime later in January.
What the Diaz case would mean, if cert is granted and the court goes in favor of the defendant and holds Booker retroactive, is that persons who were not still in the direct appeal pipeline when Booker came out, and therefore got sentenced under the mandatory guidelines, and were not able to raise the issue successfuly on appeal, could now file a 2255 habeas and raise Diaz/Booker and be entitled to its application in their 2255 proceeding.
That by itself would not cure all problems for such persons -For example, first off, there would be three or more categories of such persons in terms of the one year deadline for a 2255:
1. Those still in their one year time period before their original 2255 deadline (who in turn may have already filed a 2255 or may not, and if they have, may have already raised Booker issues or may not, and possibly may already have had their 2255 ruled on or may not - possibly six subsets);
2. Those outside the one year time limit, but who had raised a Booker claim within one year of Booker coming out and were denied; and
3. Those outside the one year time period who failed to raise a Booker claim within one year of it coming out.
The first two groups are probably able to raise a Diaz/Booker claim as soon as Diaz is ruled on (except if someone is in the first group and did not include a Booker claim and have already been denied, they may be out of luck, and if they are in the first group and did not raise a Booker claim but their 2255 has not been ruled on, the question would be whether the court would allow their 2255 to be amended, which may turn on whether they now are past the one year and whether the Government has already filed an answer, if no to both, then they can amend, if yes to either, then probably can amend only in the discretion of the court).
Persons in the third group are probably out of luck and cannot raise a Diaz/Booker claim.
Second, even if a defendant can raise a Diaz/Booker claim, whether they will be entitled to a resentencing based on their claim may well turn on the same "jurisprudential" concerns already developed in each circuit - and this varies circuit by circuit - on whether the claim was preserved at the trial court, whether it was waived by not presenting it on direct appeal if it was preserved at the trial court, if it was not preserved at the trial court, whether the defendant can show plain error.
The bottom line is that such persons will probably be in the same position as persons in their circuit were in who were in the direct appeal pipeline when Booker was decided, meaning some could get relief, some not. The Supreme Court may also revisit those rules in either Rita or Claiborne, two cases on review at this time.
But for those cases that fit the above criteria, there could be resentencing granted and the court would be able to impose sentence using the Booker principles, that is, advisory guidelines/reasonableness.
The Supreme Court appears to be holding petitions that raise Booker "reasonableness" questions, pending decision of a case to further address Booker's remedies. Friday, November 3, 2006 the Supreme Court granted certiorari in two new cases, Rita and Claiborne v. United States, to decide whether a sentence within the guideline range is presumptively reasonable and to decide if a sentence outside the guideline range must be supported by extraordinary factors.
The Washington Legal Foundation has filed an amicus brief in both cases. Click here for a copy of their brief, and here for a copy of their press release on the cases. The NACDL has also filed an amicus brief. As have the ACLU and Sentencing Project and the Association of Community Defenders and Federal Defender Association. The New York Council of Defense Lawyers has a page on Rita/Claiborne where all the pertinent materials are gathered. Click here for that link.
Click here for a transcript of the oral argument at the Supreme Court on the Cunningham v. California case, October 11, 2006.
Click here for the Supreme Court's Cunningham decision issued January 22, 2007.
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Prison Handbooks:
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.
Federal
Cure (Citizens United for Rehabilitation of Errants Federal Prison
Chapter) - a non-profit organization that deals solely with issues faced by
Federal inmates and their families. In addition to the Web site it maintains at
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St. Mark, Patron Saint of Prisoners and Lawyers
One of the criminals who were hanged railed at him, saying, "Are you not the Christ? Save yourself and us!" But the other rebuked him, saying, "Do you not fear God, since you are under the same sentence of condemnation? And we indeed justly; for we are receiving the due reward of our deeds; but this man has done nothing wrong." And he said, "Jesus, remember me when you come into your kingdom." And he said to him, "Truly, I say to you, today you will be with me in Paradise." (Luke 23:39-43)
This page last edited: 04/21/08 10:40:31 PM
From October 2, 2003
William Kent, Federal Criminal Appeals and Post-conviction Relief
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