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Do I Qualify for Probation?

Categories: Criminal Law & Process

Probation

Perhaps the most frequently asked question federal criminal defense lawyer hear is: “Can I get probation?” Probation is one of several sentencing options within the federal judiciary system by which the defendant will not go to prison but will remain free, subject to the successful completion of a period of supervision and the abiding of conditions that is supervised by a U.S. probation officer.

Who decides whether I qualify for probation? It is this probation officer who will assess whether the defendant is eligible for probation. The relevant statute that describes the criteria for probation can be found at 18 U.S.C. Sect 3561. This statute provides that a defendant who has been found guilty of an offense may be sentenced to a term of probation unless one of three conditions exists.

First, probation is not possible if the offense is a Class A or B felony and the defendant is an individual. Second, probation does not apply if the offense is an offense for which probation has been expressly precluded. Third, a defendant is not eligible for probation if the defendant is sentenced to a term of imprisonment at the same time for the same or a different offense that is not a petty offense.

Immigration, firearms, and violent offenders are least likely to receive alternative sentences such as probation or home confinement. Offenders sentenced for financial crimes such as larceny, fraud, and other white collar offenses are sentenced to probation more often than other types of criminal offenders. Some financial offenses may be more suited to alternative sentences because of restitution, which is reimbursement of losses to the victim of a financial crime.

If a defendant qualifies for probation, 18 U.S.C. Sect. 3561(b) explains that probation for a felony cannot be less than one year and not exceed five years.

If the defendant is eligible for probation, one of the most important conditions during the probation term is that the defendant does not commit another state or federal crime, see 18 U.S.C. Sect. 3563. Often, defendants are also ordered to submit random drug tests to ensure that the defendant does not consume illicit drugs. Failure to do so or failure of compliance may result in the immediate conversion from probation to incarnation. Specifically for sex offenders, the court may order sex offender registration as a condition of probation as one form of supervision. Additionally, courts will add the so-called standard conditions that apply to supervised release as described in judgment form AO 245B.

Likely, the most common reason to revoke probation is a violation of 18 U.S.C. 922 (g). According to that statute, it is unlawful for a convicted felon to possess a firearm. That is, the mere possession of a firearm will result in mandatory revocation of probation for all felony offenses.

Contact our offices today to speak to an experienced attorney to see if you qualify for probation.

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