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Russell S. Babcock
Attorney at Law - Certified Specialist, Criminal Law

1901 First Avenue, Suite 138 San Diego CA 92101

Archive for the ‘Questions & Answers’ Category

What if I receive a federal criminal charge of unlawful re-entry because I came back to see my family member ?

Sunday, April 19th, 2015

      Unfortunately, the only way you remain free from deportation and exclusion from the United States is if you are a United States citizen. I urge all individuals living in the United States who are eligible for citizenship to apply immediately. If you find yourself in a car with any drugs case as methamphetamine, cocaine, or heroin, you might lose your green card and any chance of coming back in the United States.

Many people who are deported for drug crimes do come back to the United States because they need to work or to see a family member. The penalties for unlawful entry after deportation depend primarily on the criminal record of the individual who is being excluded from the United States.
The United States Sentencing Commission though has said that the judge may take into consideration a defendant’s ties to the United States in fashioning a fair sentence. The idea is that if a person has spent a great deal of time in the United States and has family here that the court should consider these circumstances.

This consideration or “departure” is called “cultural assimilation . More specifically federal law provides in Application Note 8 to U.S.S.G. § 2L1.2 :

There may be cases in which a downward departure may be
appropriate on the basis of cultural assimilation. Such a departure
should be considered only in cases where (A) the defendant
formed cultural ties primarily with the United States from having
resided continuously in the United States from childhood, (B)
those cultural ties provided the primary motivation for the defendant’s
illegal reentry or continued presence in the United States,
and (C) such a departure is not likely to increase the risk to the
public from further crimes of the defendant.
In determining whether such a departure is appropriate, the court
should consider, among other things, (1) the age in childhood at
which the defendant began residing continuously in the United
States, (2) whether and for how long the defendant attended
school in the United States, (3) the duration of the defendant’s
continued residence in the United States, (4) the duration of the
defendant’s presence outside the United States, (5) the nature and
extent of the defendant’s familial and cultural ties inside the
United States, and the nature and extent of such ties outside the
United States, (6) the seriousness of the defendant’s criminal history,
and (7) whether the defendant engaged in additional criminal
activity after illegally reentering the United States.

Here in the San Diego border zone, there are many families divided by the United States-Mexico International boundary. At the Law Offices of Russell S. Babcock, we will make sure the judge understands the background of our client and the law which indicates that a person’s cultural assimilation can be taken into consideration.

If you are lawfully deported from the United States, you are subject to prosecution if you return unlawfully. But you may also be able to have your sentence greatly reduced if the above factors of cultural assimilation are favorable to you. At the Law Offices of Russell Babcock, we are the preeminent federal criminal lawyers in border crimes and we will educate you about all the possible factors that may help you or a loved one receive a reduced sentence.

What if I am forced to bring illegal drugs into the United States?

Saturday, April 11th, 2015

Suppose for instance that you are sipping a margarita in Rosarito Beach , Mexico. You are approached by armed men and told that you must carry a package of methamphetamine, cocaine, or heroin in your car into the United States or your relatives who live in Mexico will be killed. Or perhaps you are visiting an ex-boyfriend in Tijuana. He tells you that he knows where your family lives and unless you do him “this little favor” of smuggling narcotics across the international border, he will hurt you.

If you bring drugs into the United States and are caught do you have a defense under federal criminal law? The short answer is unless you tell authorities at the border that you have drugs in your car and why you have them, you probably don’t have a defense.

The defenses to federal drug crimes, as determined by the appellate court that controls the border area in Southern California, the Ninth Circuit Court of Appeals, has greatly restricted a duress related defense. A defendant must show three things in order to even allow a jury to consider whether there was duress or coercion that justified the commission of the crime:

1) An immediate threat of death or serious bodily injury,
2) a well- grounded fear that the threat will be carried out, and
3) lack of a reasonable opportunity to escape the threatened harm.

The defendant must prove to the jury that all of the foregoing are true to be entitled to a finding of not guilty.

Duress defenses most often fail in federal court for several reasons. First, the threat may not still be present once you have left Mexico and are entering the United States in your car. Most important the court found in a case called Ibarra-Pino that in most instances you must report the threat to the border agents when you first enter the United States. The idea is that they will give you a “reasonable opportunity to escape the threatened harm.

Every case is different, but under federal criminal law, a defense based on duress or threats is very difficult to establish. So, if you ever find yourself in a situation where you are forced to bring drugs into the United States, the moral is report it immediately to the agents if you can. Better yet don’t put yourself in a position where you are vulnerable to being asked to carry narcotics into the United States.

Finding the Best Defense Attorney

Sunday, April 5th, 2015

Suppose for a minute that you live in San Diego, California. Someone in your family has just been arrested for a serious federal drug crime, importation of methamphetamine, “crystal,” into the United States at the San Ysidro Port of Entry.

So what do you do? Not everyone has a friend who is a criminal defense attorney. And your instincts are that Uncle Joe, who obtained his law degree in correspondence classes, just won’t fit the bill. After all–this is not “My Cousin Vinny,” but reality.

If you are like so many people in the cyber age, you will run to Google. You are “not feeling lucky” so you probably will type a search like this into your browser,
“Best San Diego Federal Criminal Defense Attorney”

Voila, google works its magic and you have a list of local criminal defense attorneys. As you go down the list some of the websites look like you would be better off with “Saul”, from better Call Saul. Some are stuffy and pompous. And some of the attorneys tout themselves as “aggressive.” But wait a minute, this is not a boxing match, do I want an “aggressive attorney.”? How do I find the “best federal San Diego criminal defense attorney?”

My first tip is “Go with your gut.” Did the attorney ask you for a credit card number before he even asked for the name of your family member? Bad sign. Go meet the attorney. Better yet, have him meet the client. It is not unreasonable for the best attorneys to charge a fee to see a client especially if a drive is involved. Like an in demand surgeon, the best attorneys are busy.

Tip number two is Check the Attorney out on the California Bar Website. This will tell you how long the attorney has been practicing, if the attorney is a criminal law specialist, and very important, if the attorney has ever been disciplined.

Tip Number Three: Don’t let price be your only consideration. Most of us are on a budget even at the supermarket. But if you search and find the “cheapest attorney,” you are probably going to get a “cheap attorney.” Competent attorneys have a great deal invested in their careers and will charge a fair price for their services that might seem expensive to someone who has never had a family member accused of a serious crime.

Tip number four: Find an attorney who has handled the kind of cases before that you want the attorney to handle. You don’t want to select an experienced DUI attorney for a homicide case, however good the attorney is in drunk driving defense. Also, avoid attorneys who do not have several years practicing law because your case may be part of their learning curve.

Tip number five: Check the attorney’s online reputation. When you have the name of an attorney you are interested in, do a google search of that name. You will quickly have an idea of how long the attorney has been around and the attorney’s reputation in the community. Do not eliminate an attorney just because they have a couple of bad internet reviews. Unfortunately, those reviews could be from competitors or from a disgruntled client who has no reason to be unhappy with the services rendered.

A google search is a very good starting point to find the best criminal lawyer but should not be your ending point. Remember there are many very good attorneys who show up high in a google search and unfortunately some that are not so good. And there are many good attorneys who may not show up at all in a google search. Just vary your search words by a couple of words and you will see what a crap shoot it actually is to locate the best attorney just by a google search.

What is the federal criminal Holder Amendment?

Monday, October 27th, 2014


Soon to be ex Attorney General Eric Holder circulated a memo among the office of the United States Attorney directing that in routine drug cases, including border busts, that the amount of the drugs not be specified in the charges. This way many individuals will not be subject to the harsh mandatory minimums in federal drug cases. For information about the minimum sentences, click here. That means that in cases in which a person does not provide substantial assistance coooperation with the federal government or they are not eligible for safety valve, primarily because of a prior criminal record, they can still escape the long obligatory sentences. At the Law Offices of Russell Babcock we know how to navigate you through the maze of complex federal criminal laws and sentences and to obtain the lowest sentence possible, which means excaping the federal mandatory minimum sentences whenever possible.

Why an attorney for a federal sentencing reduction?

Monday, October 20th, 2014

Several individuals have asked me why the need for an attorney to reduce federal drug sentences.  If the law is going to change, why do I need to hire a criminal defense lawyer?

In the first place, the reduction in sentence is not automatic.  The court will decide if one qualifies for the two level reduction.

Second, courts are not appointing attorneys for the sentence reductions. This means the inmate must find someone competent to bring the petition.

Third, a person only has one chance to bring the petition.  If the petition is not brought well, the inmate could spend several additional years in jail.

Finally, the drafting of these petitions is difficult.  Only a lawyer with lots of experience in federal law will no now to best present the petition and whether an inmate qualifies for the program.

Each day of liberty is precious.  We are the experts in the bringing of motions for a sentence reduction.






Who is eligible for the federal drug and narcotic sentence reductions?

Tuesday, September 2nd, 2014

Approximately 46,000 inmates, those inmates convicted of federal drug offenses and who are scheduled to still be in jail until November are eligible for a sentencing reduction.  The reductions may be as much as  24 months for inmates serving longer sentences.  The punishment range for almost all drug offenses is being reduced.

This is a one time chance to have a criminal sentence greatly reduced.  Act now and call the law firm that has more than a quarter century defending federal drug crimes.

Will I automatically have my federal drug sentence reduced?

Tuesday, September 2nd, 2014

On November 1, 2014 the most comprehensive sentence reductions for federal drug offenses are scheduled to go into effect if not repealed by Congress.  The United States Sentencing Commission has made it clear that the defendant must petition the court to obtain this sentence reduction.  It will not be given automatically.  It is important to have attorneys who are experts in federal law handle your petition because it is discretionary and you will probably only have one shot at bringing the petition. It may be opposed by law enforcement and the United States Attorney’s Office.

At the Law Office of Russell Babcock we are the experts in obtaining federal sentencing reductions. We have been handling narcotic and drug offenses in federal court for more than twenty-five years and Russell Babcock is a certified criminal law specialist.  Act now so that your application or your loved one’s application will be handled with the greatest chance of success.  Call today for a free consultation.

Can I file an appeal after I plea guilty in a federal or state criminal case?

Friday, January 3rd, 2014

Generally, when a person pleads guilty, they give up the majority of constitutional rights including the right to trial and the right to present evidence. After a guilty plea a person only has limited rights to appeal including from an illegal or excessive sentence.

In California state court if a person wants to appeal from something other than a sentence after pleading guilty, that person must generally obtain a certificate of probable cause. That is a document from the court saying that an appellate issue has possible merit.

In federal criminal matters, the government will often have a person sign a plea agreement saying that they give up rights to an appeal except when a judge gives a sentence greater than the plea bargaining range, the upper end of the guidelines.

In the Law Offices of Russell Babcock , we are unique in having both a great deal of trial and appellate experience. Mr. Babcock has tried more than one hundred fifty criminal trials and also written more than two hundred appeals, including working on six death penalty appeals. We are uniquely qualified to be your attorneys in any federal or state criminal matters.

What is the federal “Criminal Justice Act”?

Sunday, November 3rd, 2013

The federal Criminal Justice Act allows a defendant with little money to receive a defense attorney appointed by the court. Many of the cases in federal court have more than one defendant so each defendant receives a separate court appointed attorney.

There are downsides though to receiving a federal appointed attorney. First, a defendant cannot choose the lawyer. Some lawyers on the panel are much more qualified than others. Second, the court apponted attorneys often are time pressured by the court and limited in the amount of resources they can spend on the case. They have to apply to the court to receive money for investigation after a very low minimum amount has been made.

Finally, in the United States Southern District, the panel is selected by the judges of the district. This varies from other districts where the panel is administered by federal criminal defense attorneys. The CJA attorneys in the Southern District at times may feel pressure to please the judges more than their clients. Since the panel selection process is secret, a judge may have a defendant removed for almost any reason and without explanation.

Attorney Russell Babcock learned federal law by being on the panel for more than twenty years. But now, the law firm is one of the few in the city that remains completely free of panel membership. Many criminal lawyers in San Diego accept both federal appointments through the CJA panel and private clients.

The philosophy of our firm is to always serve the client, not the judiciary. Our constitutional obligations are to fight as hard as we can for every client. Not all judges like this approach to the practice of the law, but the most respected judges in San Diego respect us for our high ethics, which always include zealous representations of a client.

Your best choice as a defendant or for your family member is to hire a private attorney who works for you and does not have to answer in any way to the court. If you are unable to afford a private attorney, your next choice is to try to establish the best rapport you can with your court appointed attorney keeping in mind how busy they may be and the atmosphere in which they must operate. Do not hire an attorney who is unqualified for too little money because they will only harm your case.

At our office we limit the number of cases we work on to best serve you. We always have at least two attorneys available on call to serve you and we work with a team approach. Finally, we are completely independent and work only for you. We enjoy giving the extra time and attention to the cases in our law firm. That is what has shaped our practice, helped us to be so successful in our results, and distinguished us from the many other criminal defense lawyers in San Diego.

What is the procedure in federal court in El Centro, CA?

Thursday, October 17th, 2013

Many individuals are confused with the procedure for federal criminal cases in the United States District Court in El Centro.

There are enough arrests, primarily for methamphetamine, cocaine, heroin, and marijuana offenses, as well as money laundering and unlawful entry into the United States that the federal government decided to construct a courthouse in El Centro. The only problem is that while many defendants are arraigned here, there is only one judge, a magistrate judge, who is not empowered to sentence defendants for felony crimes. (For a further explanation, see the difference between a federal magistrate and district court judge.)

What this means is that all the El Centro felonies will eventually be transferred to San Diego for trial or sentencing. The transferring of serious drug cases, alien smuggling, and unlawful entry cases between El Centro and San Diego can be confusing and stressful. Attorney Russell Babcock has more than fifteen years of experience handling cases that orginate in El Centro and eventually come to the downtown San Diego federal court.

Call today for your free consultation. Sometimes we describe ourselves as “tour guides” to help get you through the complex maze of federal criminal laws and procedure. We are the preeminent criminal defense lawyers in defense of all cases in the Imperial Valley area including Calexico and Mexicali.

© 2010 Russell S. Babcock - Bilingual San Diego Criminal Defense Attorney & Lawyer