We read about the number of criminals that are being set free on a catch and release basis. This is happening in the prosecutor’s office. The prosecutor looks at the person being charged and decides on what charges to bring. PoC in blue city, low charges, white cis, higher charges. The prosecutor looks at what the cops say they are charging the person with. He then decides what the actual charges will be.

Example, a white female, 85 years of age, no criminal history, walking in the people’s house taking pictures. Charged by the special investigator with unlawful entry and interfering with an official proceeding. The prosecutor, looking at the totality of the person, the person’s history, the charges brought to them by the special investigator, decides to charge her with all of the above as well as incitement. He tells the court that she is a flight risk.

Counter example, a black male, 19 years of age, two felony convictions, a long history of gang involvement, multiple charges of violence against person. The cops picked him up for stabbing a pregnant white woman, at the scene, with the bloody knife in his pocket. He has previously attempted to evade arrest when warrants were issued. Including out of state flight. The prosecutor charges him with illegal possession of a weapon recommends that he be released with no bail.

This is “prosecutorial discretion”. It means that when the suspect gets to court, the court will try him for illegal possession of a weapon. That’s it. The attempted murder will never be heard by the court.

This is not what this article is about.

This article is about what happens after the suspect is found guilty.

Early in our country’s history, Judges had a great deal of leeway regarding sentencing. The Judge could decide that a person was guilty and issue a death sentence. It didn’t matter what the actual crime was. The Judge could do that.

The judge could also decide that a murderer was “a good person” and just release them after they were found guilty. It was the case that there was really no lasting harm from being found guilty and released. You lost no rights just because you were guilty. You didn’t lose your right to keep and bear arms. Likewise, you didn’t lose your right to vote or hold office or anything else.

That is no longer the case. Just being found guilty of many crimes will cost you substantial rights.

The absolute power of the Judge led to abuses. It led to well-connected defendants getting off with very light sentences, while those that were not well-connected “had the book thrown at them.” The “cure” for this was “sentencing guidelines”.

Sentencing guidelines are used to determine the severity of the sentence.

This, in turn, is ripe for abuse. Whenever you have rules, there are people that will game them.

Years ago I was doing work for the government. I was an outside contractor. I had my own IP network and was going to use that network when I connected my office. I spoke to my contact at the installation, and they decided it would be better for me to use a subnet owned by them. We checked with all the right people and I had written permission, so we went forward.

A couple of years goes by, everything is good when I’m asked to attend a meeting with some of my government contacts. The FBI was there. They had a stack of intercepts of the data that went across that wire. That was in the clear. Nothing that was of any interest to them or me. It was just intimidation.

The investigator starts accusing me of stealing from the Government. Then he tells me that they have proof that I had this connection for the at least 12 months. The cost of an internet connection was at least $3000/month, and I was going to be charged with stealing $36,000 worth of services from the government.

This was before I was particularly paranoid about people like the FBI agent there in that room. They didn’t expect what happened next. I laughed at them. They didn’t understand and asked me to explain.

“A T1 connection costs around $750/month, not $3000. I didn’t have a T1 with the government, I had dial up. When I heard that you were upset about me doing what I was asked to do by my government contacts, I moved my service to a new provider.”

“Here’s the bill for the next 12 months.”

The total bill for that service was around $500. Much less than the levels to bring big charges. Their case evaporated.

I tell this story because the intention of the FBI was to get me in a big crime. They knew what was happening on day one. They could have said something then. It would have been so far under the charging limits that nothing would have happened.

They knew that wouldn’t make them any points, so they just waited, letting that meter run the price of things up. The result, they thought, was a big case. It got sunk.

Sentencing Guild Lines

The way this table works is on a point system. Each offense is assigned a point value. This is cross-referenced with points give for criminal history. The box at the intersection is the recommended time of imprisonment.—Annotated 2021 Chapter 5, United States Sentencing Commission, (last visited Aug. 11, 2023)

I have not done research into Hoover’s criminal history. I am going to assume that he has no criminal history, which puts him in category I with 0 or 1 criminal history points.

Nest, we have to determine his offenses. 1 Count of conspiracy to transfer unregistered machine gun conversion devices and 5 counts of transferring unregistered machine gun conversion devices.—United States v. Ervin, No. 3:21-cr-00022 (District Court, M.D. Florida)

We have to find the official offenses. Hoover was found guilty of 5 counts of violation of 26 U.S.C. §5851. This gives him 12 points. —189, United States Sentencing Commission, (last visited Aug. 11, 2023). IANAL. They only accused him of transferring one “conversion device” to each of 8 people.

If he had sold a dozen of these novelty items to one person, that would 2 more points to that particular count.

With just the transfer counts, Hoover is looking at 10 to 16 months for each count. 50 to 80 months in prison. Around 4 to 7 years for selling a picture of a lighting link.

Presentencing Report

The person who uses this table to make that determination is the judge. The judge does not have to figure it all out on his own, though. He can order a presentencing report. This report looks up the exact rules in the sentencing guidelines. It looks into the person to determine the type of person the convict is. It examines the convict’s history to make sure that they have all the information regarding criminal history.

All the sentencing guidelines have extra information regarding adjustments. There are adjustments for having a silencer. There are adjustments for who received the items. There are adjustments if the item is used in some other crime and what type of crime it is.

All of that information comes in this report.

The report also includes financial reports on the convict. The idea being that a person who has $5000 in the bank is going to feel a $100,000 fine a lot more than a person with $1,000,000 in the bank.

This report has boilerplate language in it. According to the Assistant US Attorney that is prosecuting this case:

It strikes me that the wording is “policy”. Again, IANAL,

§9-27.720 – Establishing Factual Basis for Sentence, discusses the presentence report. It does so from the perspective of the prosecutor. It tells the prosecutor what they must do:

This implies that the defense, Hoover in this case, has access to the report before it is seen in court.

Normally, when there are restrictions, they are in bold, easy to find. It seems to me that the state is reaching here.

Government busy-bodies often overstep their powers. It looks like this is one of those cases. The DoJ made up a policy, they applied it. The people that they apply it to don’t normally have millions of viewers/subscribers. They don’t have a voice, it doesn’t matter what they do or don’t do with the report.

The AUSA listened to two jailhouse calls from Hoover to Crump and Hoover to his wife.

On page 5, we finally get to the source of that warning. “Local Rule 3.11.”. Everything else is case law and restrictions on the courts, not on the defendant.

The restrictions on the defendant are a stretch. Local Rule 3.11 states that a lawyer directly or through a surrogate must not extrajudicially and publicly disclose” information including several categories of information that are contained in the PSR.

When I deal with the education industry, I’m frequently told that I can’t do something because it is against some rule, policy, or regulation. My answer has always been, “Show me the LAW, your policies do not apply to me.” Generally, it is about some sort of privacy rule that restricts the school administration.

Then we find the real reason:

She gives some examples:

It appears that Laura Cofer Taylor, Assistant United States Attorney, whose email and work numbers are available on court documents, is feeling a little butt hurt. The People don’t like her.

She blames the presentencing report, totally blind to the fact that The People are upset at her for bringing this bogus case. She knows it is bogus. Not only that, but she proved it in her recommended jury instructions. Those instructions would have told the Jury that it didn’t matter if the thing actually worked. The fact that the people buying the card thought it would work made it a machine gun conversion device.

Postscript