Georgia Criminal Law News

Supreme Court Rulings

Supreme Court rejects categorical approach from deciding if fraud offense is aggravated felony.
An alien who sustains a conviction for an “aggravated felony” is subject to a deportation. Under 8 U.S.C. § 1101(a)(43)(M)(i), the term “aggravated felony” is defined to include an offense that “involves fraud or deceit in which the loss to the victim exceeds $10,000.” The Supreme Court, in a unanimous decision written by Justice Breyer, held that to satisfy this definition of “aggravated felony,” an offense need not require proof of the loss of $10,000 as an element of the offense. Instead of using the “categorical approach” to determine whether a fraud offense satisfies the definition of “aggravated felony” in this context, a court should look to the particular circumstances in which an offender committed the fraud to determine whether it resulted in a loss of more than $10,000. The Court noted that under 8 U.S.C. § 1326, a defendant who reenters the U.S. after deportation following conviction for an aggravated felony is subject to an enhanced sentence, and it acknowledged that its “circumstance-specific” approach “could create potential constitutional problems” if the government prosecuted an alien who had a prior fraud conviction under § 1326. The Court noted, however ,that the government had conceded that in a prosecution under § 1326, the jury would have to find that defendant’s prior fraud conviction involved a loss of more than $10,000. Nijhawan v. Holder, 129 S.Ct. 2294 (2009).

Case Law from the Circuits

Application Principles

2nd Circuit holds that guideline amendment to gross receipts provision was substantive change.
Section 2F1.1(b)(7)(B) of the 1998 Guidelines provided for a four-level enhancement if the offense “affected a financial institution and the defendant derived more than $1,000,000 in gross receipts from the offense.” In 2001, the Sentencing Commission amended this provision to provide, in relevant part, for a two-level enhancement “if the defendant derived more than $1,000,000 in gross receipts from one or more financial institutions as a result of the offense.” The Second Circuit joined the Sixth, Seventh, and Tenth Circuit in holding that the 2001 amendment was a substantive change, rather than a clarification, and therefore did not apply retroactively. U.S. v. Amico, 573 F.3d 150 (2nd Cir. 2009).

8th Circuit says court could not reduce crack sentence below amended range.
Defendant’s original advisory guideline range for his crack offense was 188-235 months, and he received a 188-month sentence. Defendant moved under 18 U.S.C. § 3582(c)(2) for a sentence reduction based on the recent guideline amendments that retroactively reduced the offense level for crack cocaine offenses. If Amendment 706 had been in effect when defendant was sentenced, his advisory guideline range would have been 151-188 months. Defendant sought a reduction in his sentence to the statutory minimum of 120 months. The Eighth Circuit found that defendant’s argument was foreclosed by its recent decision in U.S. v. Starks, 551 F.3d 839 (8th Cir. 2009), which held that a court may not reduce a defendant’s sentence to a term less than the minimum of the amended guideline range. While Starks involved a defendant who was initially sentenced under the mandatory sentencing guidelines, there was no reason not to apply it to cases where the defendant was initially sentenced under the advisory sentencing guidelines. U.S. v. Wagner, 563 F.3d 680 (8th Cir. 2009).

9th Circuit says order denying reduction based on amended range is appealable.
Under 18 U.S.C. § 3582(c)(2), a defendant may file a motion to reduce his sentence when the sentence was based on a sentencing range that has subsequently been lowered by an amendment to the Sentencing Guidelines. In U.S. v. Lowe, 136 F.3d 1231 (9th Cir. 1998), the Ninth Circuit held that an order denying a motion under §3582(c)(2) is not reviewable on appeal. In a short order, the Ninth Circuit held that Lowe is no longer good law in light of Booker and that an order denying a motion for reduction of sentence under §3582(c)(2) is now reviewable for abuse of discretion. U.S. v. Colson, 573 F.3d 915 (9th Cir. 2009).

Adjustments

11th Circuit remands for reconsideration of acceptance issue.
Defendant was convicted of one count of possession of MDMA (ecstasy) with intent to distribute. He argued that the district court improperly denied him a three-point reduction for acceptance of responsibility. The Eleventh Circuit agreed this was an unusual case, and remanded. Defendant confessed to the factual elements of the crime of conviction during a December 2001 meeting with a police investigator, several months before he was indicted. After his initial and lengthy confession, defendant proceeded to cooperate with the government to provide information as to his co-defendants. Defendant’s original PSR recommended that defendant receive an acceptance reduction. After multiple superseding indictments, defendant offered to plead guilty to the sole count of which he was ultimately convicted – possession of MDMA. Defendant declined to plead guilty to the full indictment, and was vindicated when the judge directed a verdict in his favor on eight of the counts, and the jury acquitted him on the remaining other count. Significantly, defendant did not take the stand in his defense, and never denied having possessed the ecstasy. U.S. v. Barner, 572 F.3d 1239 (11th Cir. 2009).

5th Circuit says lack of remorse and acceptance of responsibility can be separate sentencing factors.
Defendant pled guilty to possession of ammunition by a convicted felon. After receiving a three-level reduction for acceptance of responsibility, defendant’s advisory guideline range was 18-24 months. The court varied upward to a 36-month sentence, citing defendant’s lack of remorse and his repeated statements to the judge that he should not have returned from Mexico, where he had been living to avoid arrest on other state charges. Defendant contended that “lack of remorse” is essentially the same as acceptance of responsibility, and the court committee procedural error when it did not first consider defendant’s lack of remorse in calculating the applicable guideline range before using that factor to justify a higher, non-Guidelines sentence. The Fifth Circuit held that lack of remorse and acceptance of responsibility can be separate factors and a court may consider each independently of the other. It was not inconsistent for the district court to have determined that defendant accepted and admitted his culpability for the crime but at the same time demonstrated a lack of remorse for his conduct. U.S. v. Douglas, 569 F.3d 523 (5th Cir. 2009).

7th Circuit says government motion is prerequisite for three-level acceptance reduction.
Defendant received a two-level reduction for acceptance of responsibility, but argued that he should have received an additional one-level reduction under §3E1.1(b). The Seventh Circuit held that defendant was not entitled to an additional reduction because the government never made a motion for the third-level reduction. A government motion is a necessary prerequisite to a §3E1.1 reduction. U.S. v. Sainz-Preciado, 566 F.3d 708 (7th Cir. 2009).

6th Circuit holds that defendant did not hold position of trust vis-à-vis the IRS.
Defendant was the sole director and president of a financial advisory firm. Under his instruction, the firm withheld the proper amount of taxes from employees’ paychecks but never transferred those funds to the IRS. The Sixth Circuit reversed a §3B1.3 abuse of trust enhancement, holding that defendant did not hold a position of trust vis-à-vis the IRS, who was the victim of defendant’s offenses. The money deducted from the employees’ paychecks was meant for the IRS, and thus the IRS was the victim, and not the employees. Defendant’s position was like that of a bank teller – the law simply required defendant to collect the payroll taxes from his employees and transfer the funds to the IRS. There was no discretion. U.S. v. May, 586 F.3d 597 (6th Cir. 2009).

9th Circuit overturns obstruction enhancement based on attorney’s use of false declaration.
In seeking a severance from a codefendant, defendant filed a false sworn declaration executed by the codefendant. The district court granted the severance. Later, the district court learned that the declaration was false. In sentencing defendant, the district court held that the submission of the false declaration constituted obstruction of justice and enhanced defendant’s sentence under §3C1.1, holding that defendant acted willfully in allowing her attorney to submit the false declaration. The Ninth Circuit held that the district court erred because the evidence did not show that defendant caused or helped bring about the submission of the false declaration. U.S. v. Reyes, 577 F.3d 1069 (9th Cir. 2009).

Criminal History

11th Circuit says government failed to show that escape and obstruction were committed on separate occasions.
Defendant was sentenced under the Armed Career Criminal Act based in part on a conviction for escape and a conviction for obstruction or opposing an officer with violence. Defendant argued that after Begay, his escape conviction should not be considered a violent felony. The Eleventh Circuit found that even if escape was categorically a violent felony, the record did not support the ACCA enhancement. For crimes to be committed “on occasions different from one another,” the crimes must be committed successively rather than simultaneously. The records of convictions submitted by the government contained no information on whether defendant’s crimes of escape and obstructing or opposing an officer with violence were committed successively or simultaneously. Both crimes were committed on the same day and were evidenced by a single judgment of conviction. The government was not entitled to a remand to present additional evidence on this issue. U.S. v. Canty, 570 F.3d 1251 (11th Cir. 2009).

Offense Conduct

6th Circuit holds that drug quantity in indictment did not control application of mandatory minimum.
Defendant was convicted of conspiracy to distribute cocaine based on his role in collecting money owed to a co-conspirator for the sale of two kilograms of cocaine. The indictment specified that the offense involved five kilograms of cocaine, which would trigger a mandatory minimum sentence of 240 months. The district court found that defendant’s “known offense conduct” involved only two kilograms of cocaine, which would yield a guideline range of 97-121 months. However, the court believed that it was constrained to sentence defendant according to the five kilograms of cocaine specified in the indictment, and imposed a 240-month sentence. The Sixth Circuit reversed, holding that the court erred in finding that it was bound by the drug quantity charged in the indictment. It is unnecessary to allege drug quantity in an indictment, and the quantity alleged does not dictate the applicable mandatory minimum. The only exception, not applicable here, is when drug quantity would increase the penalty for a crime beyond the prescribed stator minimum. U.S. v. Cox, 565 F.3d 1013 (6th Cir. 2009).

10th Circuit rules reimbursed account holders were not victims of credit card fraud.
Defendant was convicted of credit card fraud. He challenged a two-level enhancement under §2B1.1(b)(2)(A) for an offense involving 10 or more victims, arguing that one can only be counted as a victim if that person or entity has suffered monetary harm. Here, the persons whose credit cards were fraudulently used were not victims under this definition because their losses were reimbursed by the credit card companies. This left only five credit card companies as countable victims. The Tenth Circuit agreed that the district court erred in counting the reimbursed cardholders as victims. Section 2B1.1 and its application notes all focus on actual loss, and if an individual credit card account holding is fully and timely reimbursed by his or her credit card company or issuing bank for any fraudulent charges made with the account, then he or she has suffered no actual loss. U.S. v. Orr, 567 F.3d 610 (10th Cir. 2009).

9th Circuit to reconsider whether docket sheet and sex offender registration satisfy modified categorical approach.
A defendant convicted of receipt or possession of child pornography, in violation of 18 U.S.C. § 2252A, is subject to an enhanced sentence if he has a prior conviction “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor.” Defendant, convicted under §2252A, had a prior conviction in Maryland for child abuse. The government submitted an uncertified docket sheet from the Maryland case showing that when defendant was charged with child abuse, he was also charged with sexual abuse and “perverted practice.” The judgment in that case required defendant to register as a sex offender, and at defendant’s sentencing on the §2252A charge, the government introduced documents showing that defendant had registered as a sex offender in two states. In registering as a sex offender, defendant admitted that the victim of his Maryland offense had been his 16-year-old stepson. The district court found that defendant’s Maryland conviction triggered the enhanced sentence under §2252A. The Ninth Circuit found that the Maryland statute did not categorically define an offense relating to sexual abuse, but, applying the modified categorical approach, held that the Maryland conviction related to sexual abuse. On June 19, 2009, the court granted rehearing en banc of that decision. U.S. v. Strickland, 556 F.3d 1069 (9th Cir.) (Rehearing en banc granted June 19, 2009).

6th Circuit says resisting a police officer was not a crime of violence.
Defendant received an enhanced offense level under §2K2.1(a)(3) because the court found that his prior Michigan conviction for resisting and obstructing a police officer was a crime of violence. The Sixth Circuit reversed. The statute applies to an individual who assaults, batters, resists, or obstructs a police officer. The offense does not contain a use-of-force element, since at least one of the prohibited actions does not involve the use or threat of force. The offense does not appear in §4B1.2(a)’s list of covered crimes. The offense also did not otherwise involve conduct that presents a serious potential risk of physical injury to another. The law contains at least two categories – violations involving an individual who physically injures an officer and violations involving an individual who “obstructs” an officer, which includes failing to comply with a lawful command. These offenses involve behavior that differs so significantly that they must be treated as different crimes. Thus, the law contains two distinct crimes, and one of them, a knowing failure to comply with a lawful command, is not a crime of violence because it does not involve purposeful, violent, and aggressive conduct. U.S. v. Mosley, 567 F.3d 241 (6th Cir. 2009).

1st Circuit holds that escape from secure custody was violent felony.
Defendant was sentenced as an armed career criminal based in part on the district court’s finding that his escape conviction was a violent felony. However, in Chambers v. U.S., 129 S.Ct. 687 (2009), the Supreme Court ruled that failure to report and escape from custody, although sometimes grouped together within a single criminal statute, do not belong to the same category of crimes for purposes of the “violent felony” provision of the Armed Career Criminal Act. This eroded First Circuit cases holding that all escape crimes should be treated the same in making the violent felony or crime of violence

determination. The court must now identify the category of escape crime applicable to defendant’s conviction, and determine whether crimes in that category should be considered ACCA predicate violent felonies. Defendant’s indictment revealed that his was not a failure to report crime but an escape from secure custody, by crawling under a fence at a county jail. The First Circuit held that this was a violent felony within the meaning of the ACCA. U.S. v. Pratt, 568 F.3d 11 (1st Cir. 2009).

2nd Circuit holds that defendant’s escape conviction was not a violent felony.
Defendant was sentenced under the Armed Career Criminal Act in part based on the district court’s finding that his prior conviction for first-degree escape, in violation of Conn. Gen. State §53a-169, was a violent felony. Defendant argued, and the government conceded, that under the Supreme Court’s recent decision in Chambers v. U.S., 129 S. Ct. 687 (2009), the matter should be remanded for resentencing without reference to the ACCA. The Connecticut Supreme Court has made clear that a violation of §53a-169 is consistent with both an affirmative escape from custody and a mere failure to return. Under Chambers, a failure to return is not a violent felony. The Second Circuit remanded for resentencing. U.S. v. Mills, 570 F.3d 508 (2nd Cir. 2009).

4th Circuit finds insufficient evidence that prior convictions belonged to defendant.
The district court found that defendant was subject to statutorily enhanced life terms on two drug counts, pursuant to 21 U.S.C. § 841(b)(1)(A), because of her prior felony drug convictions in Maryland and Virginia. To prove the convictions, the prosecution introduced (1) a certified copy of the judgment order on the Virginia conviction, and (2) a copy of the criminal docket, charge summary, and complaint on the Maryland conviction. The Fourth Circuit ruled that this evidence was insufficient to establish that defendant had suffered the two prior convictions. The record contained a number of discrepancies with respect to the issue of identify. The names of the defendants used in the supporting documents and in this prosecution were inconsistent. Defendant’s last name was spelled in three different ways, and used two different middle names. The prosecution did not produce other compelling evidence of identity, such as fingerprint records or photographs. Finally, at sentencing, the court failed to ask defendant if she affirmed or denied that she had been previously convicted of the state drug offenses. U.S. v. Kellum¸586 F.3d 125 (4th Cir. 2009).

1st Circuit says safety valve requirements are mandatory despite Booker.
Defendant argued that the district court erred in concluding that it had no authority to sentence him below the mandatory minimum sentence because he did not satisfy all of the safety valve factors in 18 U.S.C. §3553(f). He argued that because the safety-valve requirements reference the Guidelines and Booker made the Guidelines advisory, then the safety valve requirements were also advisory. The First Circuit noted that this argument has been rejected by all the courts of appeals that have considered it. U.S. v. Zayas, 568 F.3d 43 (1st Cir. 2009).

11th Circuit holds that erroneous increase for being “prohibited person” was prejudicial.
Defendant was convicted of possessing unregistered destructive device and aiding and abetting an arson. The district court erroneously found that he was a prohibited person under §2K2.1(a)(4)(B), which increased his offense level by two, and increased his advisory guideline range from 87-108 months to 135-168 months. Defendant failed to challenge this finding below, but the Tenth Circuit held that the mistake met all four prongs of the plain error test. The government conceded that defendant met the first two prongs of the plain-error test – there was error and the error was plain. In addition, the error was prejudicial and likely affected the defendant’s sentence. The court believed the Guidelines range was 135-168 months, and varied downward to a 120-month sentence. The correct range was 87-108 months. The sentence imposed was thus 12 months higher than the top of the proper guideline range. This was plain error. U.S. v. Meacham, 567 F.3d 1184 (10th Cir. 2009).

3rd Circuit says court cannot toll supervised release while defendant is out of country.
Defendant pled guilty to illegal reentry into the U.S. The district court sentenced defendant to 71 months in prison and three years of supervised release. As a “special condition of supervision,” the court ordered that defendant’s term of supervised run “inactive if the defendant is deported. Should the defendant re-enter the United States after deportation, such action will be considered a violation of supervised release.” The Third Circuit held that such tolling exceeded the district court’s power to set conditions of supervised release. Tolling is not a condition of supervised release. Rather, it is a suspension of the supervised release period, a way of removing the defendant from the effects of his sentence for a specified period of time. The error was plain. Even though the district court had no precedent from the Third Circuit to guide its decision, all of the other circuits that have addressed the issue have found that such tolling is impermissible based up the statutory provisions. U.S. v. Cole, 567 F.3d 110 (3rd Cir. 2009).

5th Circuit says unauthorized use of motor vehicle is not crime of violence.
The Fifth Circuit originally affirmed an eight-level enhancement based on defendant’s prior conviction for unauthorized use of a motor vehicle, in violation of Texas law. The Supreme Court granted certiorari and remanded for reconsideration in light of Begay v. U.S., 128 S. Ct. 1581 (2008) and Chambers v. U.S., 129 S.Ct. 687 (2009). Those opinions hold that the generic crime of violence or aggravated felony must itself involve purposeful, violent and aggressive conduct. On remand, the Fifth Circuit reversed defendant’s sentence. The risk of physical force may exist where the defendant commits the offense of unauthorized use of a vehicle, but the crime itself has no essential element of violence and aggressive conduct. U.S. v. Armendariz-Moreno, 571 F.3d 490 (5th Cir. 2009).

9th Circuit says operating a “chop shop” is not an aggravated felony.
The federal immigration laws in 8 U.S.C. § 1101(a)(43)(G) define an “aggravated felony” to include a “theft offense.” Defendant had a prior conviction under California Vehicle Code 10801, which makes it a crime to operate a “chop shop.” A “chop shop” is defined as a premises for storing, disassembling, or altering a motor vehicle known to be illegally obtained. The Ninth Circuit held that a violation of §10801 did not categorically qualify as a “theft offense” and therefore was not categorically an aggravated felony. Camillo-Jaime v. Holder, 572 F.3d 747 (9th Cir. 2009).

11th Circuit reverses where court failed to calculate loss.
Defendant, a private health care consultant, and ten home healthcare agencies were convicted of multiple counts of Medicare fraud. Defendant argued that there was no loss, while the government presented evidence of a loss of $3.4 million. The district court stated that the government overstated the loss, and the defense probably understated it. Therefore, it was “just going to pick a figure, like any jury would, about halfway in between.” It found that $1.5 million was a “reasonable estimate.” The Eleventh Circuit reversed, holding that the district court committed a procedural error by failing to calculate loss. In addition, although the court considered expert reports from both sides, the court failed to resolve several issues the government raised about how to calculate loss. The government expert testified that the defense expert had erroneously relied on figures from a federal tax audit of defendant’s company that would have been different if the IRS had known that the company was related to the home healthcare agencies. The district court failed to resolve this issue, and did not make any specific factual findings upon which to base the loss amount. The court’s approach was arbitrary. U.S. v. Gupta, 572 F.3d 878 (11th Cir. 2009).

10th Circuit says prior drug conviction increased the maximum, but not the minimum sentence.
Defendant was convicted of possession with intent to distribute, in violation of 21 U.S.C. § 841(b)(1)(C). He argued that the district court erred in finding that defendant was subject to a 20-year statutory minimum, and the Tenth Circuit agreed. While the government did file an information under 21 U.S.C. § 851(a) to establish defendant’s prior felony drug conviction, that only increased the applicable statutory maximum sentence, and there was no statutory minimum. The error was not harmless because the district court indicated it would have imposed a much lower sentence but for the fact that it believed it was bound by the statutory minimum sentence. U.S. v. Hutchinson, 573 F.3d 1011 (10th Cir. 2009).

Guidelines Sentencing

10th Circuit says sentence manipulation claim is not governed by pre-Booker standard for departure.
Defendant sought a variance based on alleged sentencing factor manipulation by government agents and application of the §3553(a) factors. He contended that the court had discretion to consider sentencing factor manipulation or entrapment as a basis for a variance under 18 U.S.C. §3553(a). Before Booker, the court analyzed claims of sentencing entrapment or manipulation under the rubric of “outrageous government conduct.” The Tenth Circuit, agreeing with the Eighth Circuit’s holding in U.S. v. Torres, 563 F.3d 731 (8th Cir. 2009), ruled that Booker did not alter the standard for defendant to succeed on a claim of outrageous governmental conduct, but a defendant’s claim of sentencing factor manipulation may also be considered as a request for a variance under the §3553(a) factors. Defendant requested a variance rather than a departure, and there was no indication that the court applied the stricter standard for a departure to defendant’s request. The court here did not abuse its discretion by denying defendant’s request for a variance. U.S. v. Beltran, 571 F.3d 1013 (10th Cir. 2009).

Determining The Sentence

2nd Circuit says waiver of right to appeal “full restitution” did not waive appeal of how “full restitution” is calculated.
Defendant was convicted of multiple counts of producing, receiving and possessing child pornography. In his plea agreement, defendant agreed to pay “restitution in full to any person who would qualify as a victim . . .” Defendant also waived his right to appeal any sentence “incorporating the agreed disposition specified herein . . .” Defendant challenged on appeal the district court’s calculation of his restitution. The Second Circuit ruled that while defendant waived the right to appeal “full restitution,” he did not waive appeal of possible errors in the determination of what amount constituted full restitution. U.S. v. Pearson, 570 F.3d 480 (2d Cir. 2009).

Departures (§5K) And Booker Variances

denied the motion, stating in effect that it was not required to rule on the merits of departure motions. It noted that its general practice was to consider arguments for a Guidelines departure as part of its evaluation of the §3553(a) sentencing factors. The Third Circuit remanded for resentencing, holding that the court erred in considering the departure motion as part of its consideration of the statutory sentencing factors. Post-Booker, there is a three-step process for incorporating consideration of the Guidelines into a court’s sentencing procedure. First, courts must calculate a defendant’s Guidelines sentence precisely as they would have before Booker. In so doing, they must formally rule on the motions for both parties and state on the record whether they are granting a departure. Finally, they are required to exercise their discretion by considering the relevant §3553(a) factors. Here, the district court did not rule directly on the merits of defendant’s departure motion. U.S. v. Lofink, 564 F.3d 232 (3rd Cir. 2009).

5th Circuit reverses for failure to consider extent of disruption of government function.
In the wake of Hurricane Katrina, defendant sought disaster relief benefits for a Mississippi home that had been rendered inhabitable by fire a year before Katrina. The district court applied a two-level upward departure under §5K2.7 for significant disruption of a governmental function. The district court relied on U.S. v. Bankston, 182 F.3d 296 (5th Cir. 1999), rev’d on other grounds, Cleveland v. U.S., 531 U.S. 12 (2000), which held that §5K2.7 applies to any disruption of an important government function. The Fifth Circuit reversed, ruling that the district court incorrectly interpreted Bankston to require it only to examine the importance of the government function. The court must apply a two-step approach in considering an upward departure under §5K2.7. First, the court must determine if there was a “significant disruption of a government function.” If the first inquiry is answered in the affirmative, the court must then consider both “the nature and extent of the disruption and the importance of the government function affected” to determine the size of the upward departure. U.S. v. Conroy, 567 F.3d 174 (5th Cir. 2009).

4th Circuit reverses where court improperly presumed that guideline sentence was reasonable.
After determining defendant’s advisory guideline range, the court stated: “That’s a range that shows the Court what might be a reasonable sentence, and it is viewed under the law as a presumptively reasonable sentence because that’s what this Court is supposed to do; it’s to sentence you to a reasonable amount of time.” The court then selected a sentence at the top of the guideline range. The Fourth Circuit vacated the sentence and remanded for resentencing. The district court’s statement suggested that the court improperly presumed that a sentence within the guideline range would be reasonable. However, while an appellate court reviewing a sentence may presume that the sentence within a properly calculated guideline range is reasonable, the sentencing court may not rely on this presumption. U.S. v. Smith, 566 F.3d 410 (4th Cir. 2009).

6th Circuit remands for failure to properly calculate guideline range or explain sentence.
The PSR found that defendant’s guideline range was 37-46 months, based on a criminal history category of IV. Defendant argued that he fell within criminal history category III, making his guideline range 30-37 months. At sentencing, the district court stated that defendant had a criminal history level of “either III or IV, but I’m calling it a IV . . .” The court sentenced defendant to 48 months. Two months later, the court issued a written statement of reasons, revealing that the court found defendant’s criminal history category was III, his guideline range was 30-37 months, and that the court had departed upward based on underrepresented criminal history. The Sixth Circuit remanded, holding that the district court’s failure to properly calculate the guideline range or adequately explain its chosen sentence made the sentence procedurally unreasonable. The court’s oral sentence failed to calculate clearly the appropriate guideline range, and did not adequately explain its chosen sentence. The written statement of reasons issued months later failed to provide the necessary explanation of the sentence. U.S. v. Barahona-Montenegro, 565 F.3d 980 (6th Cir. 2009).

7th Circuit suggests judges make clear that §3553(a) factors drive sentence to avoid “nit-picking review” of guideline issues.
In one case, defendant challenged the court’s finding that a prior conviction for false imprisonment was a crime of violence, thus warranting a 16-level enhancement. In a separate bank robbery case, the issue was whether the proper amount of loss was the value of a stolen car or just the amount of damage done to the car while it was in the robbers’ possession. The Seventh Circuit consolidated these unrelated cases to “illustrate how guideline calculations can sometimes bog a case down and generate an appeal – even if the end result has little importance in the big picture.” For the first defendant, the issue of whether his false imprisonment offense was a crime of violence did not have to be decided – the judge could have applied the crime of violence enhancement based on a battery conviction. The judge also could have increased his sentence pursuant to §3553(a) factors, regardless of whether the crime technically qualified as a crime of violence. If the judge makes clear that the §3553(a) factors drive the sentence, this can “make the often nit-picking review of issues like this under our now advisory guideline scheme unnecessary.” Similarly, with the second defendant, the judge could have considered the §3553(a) factors and imposed the same sentence. U.S. v. Sanner, 565 F.3d 400 (7th Cir. 2009).

6th Circuit says Rule 35(b) allows consideration of more factors than §5K1.1 substantial assistance.
Defendant pled guilty to heroin trafficking, and was originally sentenced to 25 years’ imprisonment, the statutory mandatory minimum. He later provided substantial assistance to the government in several other cases. The prosecutor filed a motion to reduce defendant’s sentence pursuant to Rule 35(b), and the district court lowered his sentence to 16 years. In so doing, the court found that the only factor it could consider was the degree of defendant’s substantial assistance. The Sixth Circuit reversed and remanded, holding that a district court is permitted to consider other factors normally required by §3553(a). Cases holding that §5K1.1 departure may not reflect any consideration beyond the degree of assistance do not control Rule 35(b) motions. Section 5K1.1 explicitly lists the factors that should properly be considered when ruling on the merits, while Rule 35(b) does not. It was legal error for the district court to conclude that it was forbidden to consider other factors beyond substantial assistance when evaluating the Rule 35(b) motion. Judge Gibbons dissented, believing that the appellate court lacked jurisdiction over defendant’s appeal. U.S. v. Grant, 567 F.3d 776 (6th Cir. 2009).

6th Circuit reverses for failure to adequately explain reasons for sentence.
The probation office calculated a total offense level of 19 and a criminal history category of IV, resulting in an advisory guideline range of 46-57 months. At sentencing, the court stated that an upward departure of two levels was appropriate, which would result in a range of 57-71 months. The court, however, imposed a sentence of 72 months. When the government pointed out the discrepancy, the court responded that “one month is negligible in my opinion.” In its written statement of reasons, rather than check the box for an upward departure under §4A1.3, the court indicated that it had made an upward variance above the Guidelines range “based upon the provisions of 18 U.S.C. §3553.” The Sixth Circuit remanded, finding that the district court failed to adequately explain its sentence. The district court did not state what it considered to be the applicable Guidelines range or whether it adopted the factual findings in the PSR. The court also did not clearly identify whether it was granting an upward departure or an upward variance. This confusion might have been harmless had the court sentenced defendant within the adjusted range. U.S. v. Grams, 566 F.3d 683 (6th Cir. 2009).

7th Circuit rejects variance based on unsupported claims of poor conditions of confinement.
Prior to sentencing, defendant was housed in a county jail that contracted with the U.S. Marshals Service to house federal prisoners. He claimed that he was not given nutritious food, reasonable medical care, clothing, educational classes or sanitary conditions in which to live. The judge found that none of these conditions rose to the level warranting sentencing relief, and the Seventh Circuit agreed. Conditions of presentencing confinement are not considered as part of the §3553(a) factors. Although the circuit has not determined whether “extraordinarily harsh conditions of confinement” might justify a reduced sentence, defendant did not support his claims of poor presentencing confinement with any evidence. U.S. v. Turner, 569 F.3d 637 (7th Cir. 2009).

D.C. Circuit reverses longer prison sentence intended to promote rehabilitation.
At defendant’s sentencing, the district court noted his long history of drug use, and found that he could benefit from some of the treatment programs available in the federal prison system. The D.C. Circuit held that sentencing courts may not treat rehabilitation as a reason for a longer term of imprisonment. Under 18 U.S.C. § 3582, a court shall consider the factors set forth in 3553(a), “recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.” This straightforward language leaves no room for the government’s distinction between selecting prison rather than a non-prison sentence and imposing a longer term of imprisonment. Here, the court stated that defendant would benefit from prison rehabilitation programs over a “somewhat longer period of time,” indicating that it believed rehabilitation was a reason to lengthen a term of imprisonment. Given the plain statutory language, the court’s error was plain, even though there is a circuit split on the issue. In re Sealed Case, 573 F.3d 844 (D.C. Cir. 2009).

8th Circuit rejects variance based on post-sentencing rehabilitation and cost of incarceration.
Defendant argued that the district court should have considered defendant’s post-sentencing rehabilitation and the cost of his incarceration as bases for varying downward under 18 U.S.C. § 3553(a). Defendant acknowledged that the court had explicitly stated that post-sentencing rehabilitation is not a permissible factor to consider in granting a downward variance, but suggested his case was unique. The Eighth Circuit commended defendant for the positive changes he made in his life, but found that it was bound by precedent and could not overrule an earlier decision by another panel. The district court also properly refused to consider the cost of incarceration as a basis for varying downward. U.S. v. Pepper, 570 F.3d 958 (8th Cir. 2009).

Sentencing Hearing

8th Circuit remands to different judge where judge improperly relied on his personal knowledge of defendant’s history.
At sentencing, the parties disputed the significance of a 1987 armed confrontation between defendant and local police. The judge, however, stated that he had been a city prosecutor at the time of the incident, and that his recollection was that the case was an attempt at suicide that went wrong. Further, the judge noted that one of the officers involved in the incident “suffered until the day he died” and “was never the same” after the incident. The Eighth Circuit held that the district court plainly erred in sentencing defendant based on information at sentencing that was not presented in advance to the defendant. Defendant established a reasonable probability that but for the error he would have received a more lenient sentence. Both before and during the hearing, defendant requested a below-guideline sentence. The district court cited the effect – undisclosed to defendant – of the incident on police officers, and then sentenced him to 120 months, the statutory maximum. Without advance notice, defendant could not contest the judge’s description of the police officer’s emotional state. Defendant showed a reasonable probability, but for the Rule 32 error, the court would have imposed a more favorable sentence. U.S. v. Lovelace, 565 F.3d 1080 (8th Cir. 2009).

Plea Agreements

8th Circuit reviews claim of breach of plea agreement for plain error where not raised below.
In defendant’s plea agreement, both parties agreed that his base offense level was 20. The PSR, however, concluded that defendant had an additional qualifying felony, and recommended a base offense level of 24. At sentencing, the prosecutor stated that the “correct” offense level was 24. Defendant did not object, although he later appealed his sentence. The government moved to dismiss the appeal, citing the waiver of appellate rights in the plea agreement. The Eighth Circuit held that when a defendant seeks to avoid an appellate waiver contained in a plea agreement by arguing, for the first time on appeal, that the government breached the plea agreement, it will review the forfeited claim under the plain error test of Fed.R.Crim.P. 52(b). Here, the government breached the agreement by advocating a higher offense level than it agreed to in the plea agreement. However, defendant did not show that the breach affected his sentence. There was no indication that but for the government’s comments, the district court would not have adopted the base offense level in the PSR. U.S. v. Lovelace, 566 F.3d 1080 (8th Cir. 2009).

Objecting to the PSR is as important as objecting during trial. Must object to get it reviewed on appeal but may be enough for 2255.

From the Federal Sentencing Guide:
Vol. 20, No. 17, August 17, 2009
Vol. 20, No. 13, June 22, 2009
Vol. 20, No. 14, July 6, 2009
Vol. 20, No. 16, August 3, 2009
Vol. 20, No. 15, July 20, 2009
Vol. 20, No. 18, August 31, 2009