If you’ve previously read our blog, you’ll know that it is an effort to provide an interesting read on funny or hot button topics from the perspective of a Tampa criminal lawyer. Our hope is that we can bring some knowledge on the law while also giving a perspective of how a case is viewed from our side of the fence. Today I’ll break from that trend as there is nothing funny about the acts of Dzhokhar Tsarnaev and his older brother. These individuals robbed our Country and one of our finest cities of a sense of security while taking with that the lives and quality of life of innocent bystanders supporting something so pure as the challenge of the Boston Marathon. Those of us that practice Federal criminal law stand before our Judges every month in an effort to introduce them to an individual as opposed to a case number. We squeeze every bit of good in a person onto a sentencing memorandum in the hope that we can shave off a fraction of the person’s sentence. As a general rule, within each of our clients there is some good and it can be argued that though the individual may be before a particular judge on a particular day, the act for which they are there is not the sum total of who the person is. With the freshness of this massacre as it currently stands, it would be tough to make that argument here. Some will demand Tsarnaev’s head on a stake, some will beg for mercy due to his age. Both are entitled to their opinion. This great country and its resolve is to thank for the ability to own your opinion.
As it stands on the date of this blog, Tsarnaev has been charged by criminal complaint in Federal Court. Rest assured a Grand Jury will be empaneled on this case and they will provide an indictment and this case will move forward based on that. As for now, Tsarnaev is charged via complaint with “Use of a Weapon of Mass Destruction” under 18 USC 2332(a) and “Malicious Destruction of Property Resulting in Death” under 18 USC 844(i). Someone died as a result of the deeds of these brothers. As with any Federal Case one of the first steps in sentence calculation is to take a look at the Federal Guidelines to get a rough idea as to where the potential sentence may stand. Going in order, the charge of “Use of a Weapon of Mass Destruction” is most likely to be guided under Federal Guideline 2M6.1. Immediately because a little boy died, this guideline could call for a cross reference with Guideline 2A1.1 for first degree murder as the death was most definitely caused intentionally or knowingly. The base offense level for that, regardless of criminal history is 43, which equates to life. However, under 2M6.1(c)(1) because a higher offense level could be built using 2M6.1 by taking the base offense level of 42 and adding 4 levels for death, the first degree murder cross reference doesn’t happen. Generically, for Tsarnaev’s use of a weapon of mass destruction, he’s looking at a potential total offense level of 46 which would equate to life. As for the “Malicious Destruction of Property Resulting in Death” the applicable guideline is 2K1.4. Again there calls for a first degree murder cross reference under 2A1.1, this time applicable as that guideline is higher at 43.
What does all this mean? Not much at this point as there is no indictment. In practice, were this the exact result of an indictment and the death penalty was not sought, Tsarnaev would get life in prison based strictly on the weapons of mass destruction charge should he be convicted. That would produce a total offense level of 46. Even with a 3 level reduction for acceptance of responsibility Tsarnaev is looking at a life sentence. I agree with other Tampa Federal criminal attorneys in that there is no doubt in my mind the United States Attorney will seek the death penalty upon indictment of Tsarnaev. That said, if he’s convicted you can toss out the guidelines as the only issue for both the United States Attorney and the Defense will be fighting over the life of this Defendant.
All said, everyone has the right to their opinion on this issue. I believe this trial will dwarf the litigation of Casey Anthony, OJ, and Jodi Arias. As an attorney I’ll take a specific interest in the outcome. As a human being, I’ll hope justice is served whatever that may be.