S e n t e n c i n g P a r t n e r s – M A R C H – 2 0 1 5 (PART III)

We would like to thank our friends Joaquin & Duncan, L.L.C. for sharing this information with us.

Probation/Supervised Release
(Chapter 7)

United States v. Price
2015 WL 427712 (4th Cir. 2014)

Failing to register as sex offender under SORNA not a sex offense

The defendant was charged with knowingly failing to register as a sex offender as required by the Sex Offender Registration and Notification Act (“SORNA”). The indictment alleged that he was subject to SORNA’s registration requirement because of his prior South Carolina conviction for assault and battery of a high and aggravated nature (“ABHAN”).The PSR determined that the defendant’s SORNA conviction was for a sex offense, and thus calculated the upper-end of the advisory range to be life, under 5D1.2(b)(2), and concluded a range for supervised release of five years to life. The defendant argued in the district court that his ABHAN conviction was not for a “sex offense” under SORNA. After the district court denied the defendant’’s motion, he conditionally pled guilty to the §2250(a) offense and was sentenced to two years and a life term of supervised release, under §5D1.2(b)(2). On appeal, the defendant maintained that failing to register as a sex offender in violation of §2250(a) was is not a “sex offense” under §5D1.2(b)(2). Citing United States v. Collins, 773 F.3d 25 (4th Cir. 2014), the Fourth Circuit reversed, holding that “a clarifying amendment to the Guidelines, effective November 1, 2014, makes clear that failing to register as a sex offender under SORNA is not a sex offense for the purposes of the Guidelines. Thus, [the defendant] was not subject to the enhanced advisory Guidelines range for supervised release under section 5D1.2(b)(2).” Further, under §5D1.2(c) and a second clarifying amendment, also effective November 1, 2014, defendant should have been subject to a five-year term of supervised release, rather than a term within a range of five years to life. “We thus conclude that the district court’s calculation of [the defendant’s] advisory Guidelines range concerning supervised release was plainly erroneous and that the error should be recognized and corrected. We therefore vacate and remand for resentencing on the supervised release question.”

United States v. Dunn
2015 WL 525698 (10th Cir. 2015)

Special condition mandating computer and internet monitoring was plain error

The defendant, previously employed as both a computer technician and computer teacher, was convicted of possession, receipt, and distribution of child pornography. The PSR calculated a sentencing range of 210 to 262 months. The district court sentenced him to 144 months and a 25-year term of supervised release. One of the special conditions for supervised release required him to participate in the Computer and Internet Monitoring Program conducted by Probation and Pretrial Services. This program restricted the defendant’s ability to use and access computers and the Internet, and required him to obtain preapproval from his probation officer prior to engaging in certain computer-related activities. The defendant appealed this condition, arguing that it unreasonably restricted his ability to seek and maintain employment. Reviewing for plain error, the Tenth Circuit noted that “conditions of supervised release must comport with the requirements set forth in 18 U.S.C. §3583(d). Additionally, conditions of release that impinge on a defendant’s ability to seek, obtain, and maintain employment are subject to ‘special scrutiny,’ the standards of which are set forth in §5F1.5.” Under that section, when a sentencing court imposes occupational restrictions, it must first determine that: “(1) a reasonably direct relationship existed between the defendant’s occupation, business, or profession and the conduct relevant to the offense of conviction; and (2) imposition of such a restriction is reasonably necessary to protect the public because there is reason to believe that, absent such restriction, the defendant will continue to engage in unlawful conduct similar to that for which the defendant was convicted.” Here, the district judge made no such findings. “It is  unclear to us whether the district judge even considered the effect of the computer monitoring program on [the defendant’s] prospects for future employment or his ability to pay restitution to his victims.” Because of the required scrutiny associated with occupational restrictions, “we conclude we must vacate the occupational restriction relating to computer use and monitoring and remand for further consideration, including making the findings required before imposition of any occupational restriction. On remand, the district court should vacate the restrictions and reconsider the matter with proper findings.”

Restitution
United States v. Dunn
2015 WL 525698 (10th Cir. 2015)

Restitution order was improper

The defendant, previously employed as both a computer technician and computer teacher, was convicted of possession, receipt, and distribution of child pornography. The PSR calculated a sentencing range of 210 to 262 months. The district court sentenced him to 144 months, a 25- year term of supervised release, and ordered him to pay $583,955 in restitution to one of the victims (“Vicky”) depicted in images he possessed and distributed. The defendant had requested that Vicky produce an up-to-date economic report establishing the amount of her losses and a causal link between his conduct and those losses. The district court denied the request and concluded that all of Vicky’s losses were caused by the defendant. In light of Paroline v. United States, — U.S. —-, 134 S. Ct. 1710 (2014), the Tenth Circuit reversed the restitution order. In Paroline, the Court explained that while a single defendant who possessed or even trafficked in child pornography undoubtedly “plays a part in sustaining and aggravating this tragedy,” the Court outright rejected the notion that any one such defendant should be held liable for “the conduct of thousands of geographically and temporally distant offenders acting independently, and with whom the defendant had no contact.” On remand, the district court should assess the defendant’s “relative role in the causal process for restitution purposes, . . . [and] consider the facts underlying that conviction – i.e., did the government show that others had actually downloaded files from [the defendant] and, if so, had only one or two other people downloaded those images from him, or had hundreds or thousands over a period of years. We think these are proper considerations in light of Paroline’s guidance that the amount of restitution be a reasonable and circumscribed award imposed in recognition of the indisputable role of the offender in the causal process underlying the victim’s losses and suited to the relative size of that causal role.”

Cases In This Issue
United States v. Iovino, 2015 WL 405583 (2nd Cir. 2015)
United States v. Cuevas, 2015 WL 545132 (1st Cir. 2015)
United States v. Sarabia-Martinez, 2015 WL 736009 (5th Cir.2015)
United States v. Morrison, 2015 WL 526031 (2nd Cir. 2015)
United States v. Garcia-Perez, 2015 WL 753759 (5th Cir. 2015)
United States v. Wilbourn, 2015 WL 627377 (7th Cir. 2015)
United States v. Jones, 2015 WL 727969 (1st Cir. 2015)
United States v. Price, 2015 WL 427712 (4th Cir. 2014)
United States v. Ferdman, 2015 WL 619629 (10th Cir. 2015)
United States v. Dunn, 2015 WL 525698 (10th Cir. 2015)
United States v. Burgos-Figueroa, 2015 WL 627170 (1st Cir. 2015)
United States v. Rogers, 2015 WL 452862 (7th Cir. 2015)
United States v. Castillo, 2015 WL 818566 (5th Cir. 2015