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Sentencing Commission Selects Policy Priorities for 2014-2015 Guidelines Amendment Cycle
The United States Sentencing Commission unanimously approved its list of priorities for the coming year, including consideration of federal sentences for economic crimes and continued work on addressing concerns with mandatory minimum penalties.
These priorities include:
• Top priority – implement recommendations that Congress reduce the severity and scope of some mandatory minimum penalties and consider expanding the “safety valve.”
• Continue to work with Congress to reduce guidelines for federal drug sentences.
• Consider potential changes to the guidelines federal sentences for economic crimes.
• Continue to work on multi-year projects to study recidivism.
• Consider whether any amendments are appropriate to facilitate consistent and appropriate use of terms including “crime of violence” and “drug trafficking offense.”
• New efforts to study whether changes are needed in the guidelines applicable to immigration offenses and whether structural changes to make the guidelines simpler are appropriate, as well as reviewing the availability of alternatives to incarceration, among other issues.
Sentencing Commission Issues Two More “Quick Facts”
The Sentencing Commission has published two more in its series of “Quick Facts.” The two latest are entitled “Native Americans in the Federal Offender Population” and “Women in the Federal Offender Population.”
Both contain summaries of sentencing data that could prove helpful when writing motions for non-guideline sentences.
For instance, for each of the past five years, female offenders were sentenced within the guideline range in less than half of all cases (49.7% in fiscal year 2009 and 40.2% in fiscal year 2013), compared to 55.3% and 49.8% for male offenders; and the percentage of female offenders who received a non-government sponsored below range sentence increased over the last five years (from 21.1% of cases in fiscal year 2009 to 25.8% in fiscal year 2013), compared to 16.3% and 19.2% for male offenders. Both Quick Facts are available on the Commission’s web site, along with past issues covering Drug Trafficking; Powder Cocaine Trafficking; Methamphetamine Trafficking; Marijuana Trafficking; Crack Cocaine Trafficking; Heroin Trafficking; Oxycodone Trafficking; Theft, Property Destruction, and Fraud; Section 924(c); Felon in Possession of a Firearm; Alien Smuggling; Illegal Reentry; Career Offenders; National Defense; andMandatory Minimum Penalties.
United States v. Valdovinos
2014 WL 3686104 (4th Cir. 2014) Prior N.C. drug trafficking conviction qualified as felony narcotics trafficking offense under §2L1.2(b)(1)(B)
The defendant entered the United States in November 2008 and was soon arrested in North Carolina on drug trafficking charges. He pled guilty in state court to four counts of selling heroin, each a Class G felony offense under N.C. Gen. Stat. §90- 95(a) & (b). The offense carried a maximum statutory sentence of 16 months in prison, but he was sentenced pursuant to a plea agreement that, upon acceptance by the court, established a binding sentencing range of 10 to 12 months. The state judge accepted the plea and imposed a sentence of 10 to 12 months. In January 2010, after serving his sentence, the defendant was removed to Mexico. Five months later he reentered without permission and returned to North Carolina, where he was arrested a few weeks later for resisting a public officer, and charged with illegal reentry by a removed alien. He pled guilty to the charge. The PSR recommended a 12-point enhancement based on the prior N.C. conviction being a “felony drug trafficking offense,” under §2L1.2(b)(1)(B), applicable to “any federal, state, or local offense punishable by imprisonment for a term exceeding one year.” The defendant contended that because his N.C. plea agreement capped his sentence at 12 months once the court accepted his plea, the conviction was not punishable by more than one year in prison and did not constitute a felony under §2L1.2(b)(1)(B). The district court rejected the argument and sentenced the defendant to 27 months. The defendant raised the same argument on appeal, citing Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), where the Court held that, for purposes of the Immigration and Nationality Act, a prior conviction constitutes an “aggravated felony” – i.e., a crime for which the maximum term of imprisonment exceeds one year – only if the defendant was “actually convicted of a crime that is itself punishable as a felony under federal law.” See also United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). The Fourth Circuit affirmed, explaining that “North Carolina’s unique sentencing regime, not a plea agreement, determines whether a defendant’s conviction is punishable by imprisonment exceeding one year and so qualifies as a federal sentencing predicate.” In this case, the N.C. statute “authorized a maximum sentence of 16 months’ imprisonment for his prior conviction. That the sentence ultimately imposed pursuant to his plea deal was 10 to 12 months’ imprisonment is irrelevant. [the defendant’s] North Carolina conviction was punishable by imprisonment exceeding one year based on his prior record level, offense class, and sentencing range. It therefore qualifies as a federal sentencing predicate.” Senior Circuit Judge Davis dissented, writing that he “would treat such an offender as if the state court judge had found him statutorily ineligible for a sentence of more than one year, which of course was true once the judge accepted his guilty plea and before imposing sentence.”
United States v. Zayas
2014 WL 3377797 (8th Cir. 2014) Conduct outside U.S. did not preclude use of §2G2.2 cross reference
After officials discovered that the defendant had received child pornography, they used a peer-to-peer the network to download five videos containing child pornography from his computer. A search of his home revealed a computer, two USB drives, and a compact disc all containing hundreds of images and videos of child pornography. After his arrest, the defendant admitted to officers that eight years earlier, while residing in Mexico, he had taken pictures of himself sexually abusing his eleven year old nephew. The defendant pled guilty to receiving child pornography in violation of 18 U.S.C. §2252(a)(2). At sentencing, the district court applied §2G2.1 based on the cross reference in §2G2.2, the applicable guideline for receipt of child pornography. The cross reference applies “[i]f the offense involved causing, . . . [or] permitting . . . a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct.” The district court applied a base offense level of 32 required by §2G2.1, added: 1) four levels under §2G2.1(b)(1)(A) for an offense involving a minor under 12 years of age; 2) two levels under §2G2.1(b)(2)(A) for an offense involving the commission of a sexual act or sexual contact; and 3) two levels under §2G2.1(b)(5) for an offense by a parent, relative, or legal guardian of the minor. This resulted in a sentencing range of life, but a statutory maximum of 20 years. The court imposed a 20-year sentence and the defendant appealed, arguing that it was improper to apply §2G2.1 (on cross reference from §2G2.2) and to add the other enhancements because his underlying sexual act occurred in Mexico. The defendant also argued that under 18 U.S.C. §§2242 and 2243, which apply to sexual abuse and sexual abuse of a minor by those “in the special maritime and territorial jurisdiction of the United States,” the cross-reference did not apply. Noting that the Seventh Circuit had considered and rejected the same territorial issues raised here, the Eighth Circuit affirmed the use of the cross reference. See United States v. Dawn, 129 F.3d 878 (7 Cir. 1997). Se the actions 2G12.1 and 2G2.2 “contain no geographic limitation but rather depend upon the factual and logical relationship between the offense of conviction and the defendant’s other acts, wherever they may have occurred.” As for the second argument, the court pointed out that the defendant was charged under 18 U.S.C. §2252, “a statute containing no such geographic limitation.” The sentence was affirmed.
United States v. Estrella
2014 WL 3362166 (11th Cir. 2014) Prior Florida conviction was not a crime of violence under §2L1.2(b)(1)(A)(ii)
The defendant pled guilty to illegal reentry after deportation. The PSR recommended a 16-level increase, under §2L1.2(b)(1)(A)(ii), based on a prior Florida conviction under Fla. Stat. §790.19 for “wantonly or maliciously throwing, hurling, or projecting a missile, stone, or other hard substance at an occupied vehicle,” stating that it was a crime of violence. The PSR calculated a sentencing range of 46 to 57 months. Without the increase, the range would have been 10 to 16 months. The district court adopted the PSR but varied downward to a sentence of 26 months. On appeal, the defendant argued that his conviction under §790.19 was not a crime of violence because the statute did not have an element requiring the use, attempted use, or threatened use of physical force against the person of another, and that the statute was not on its face a crime of violence because its elements would permit conviction even if a defendant directed physical force against property rather than a person. In a very detailed opinion discussing all aspects of the crime-of violence analysis, the Eleventh Circuit reversed, holding that, under both the categorical and modified categorical approaches, the conviction under Fla. Stat. §790.19 was not a crime of violence under §2L1.2.
United States v. Rosales-Miranda
2014 WL 3033419 (10th Cir. 2014) Treating prior Virginia misdemeanor domestic-violence convictions as felonies was plain error
The defendant pled guilty to illegal reentry after being deported. The PSR recommended a sixteen level enhancement under §2L1.2(b)(1)(A)(ii), based on two 2004 Virginia convictions for Assault and Battery on a Family Member, a Class 1 misdemeanor under Va. Code §18.2-57.2(A). The enhancement is applied where a defendant illegally reenters after receiving a felony conviction for a crime of violence. No objections were made to the PSR. After addressing a policy disagreement with §2L1.2, noting that “this particular guideline’s sentencing enhancements are divorced from empirical data,” the district court varied downward to a sentence of 36 months. On appeal, the defendant argued that the district court erred in using the two Virginia convictions as support for the crime-of-violence enhancement where the language of the statute clearly showed that they were misdemeanors. Reviewing for plain error, the Tenth Circuit reversed, finding that the error was plain and clear. It also found that that there was a reasonable probability that, absent the district court’s error, the defendant would have received a different sentence. Without the 16-point enhancement, his sentencing range would have been either 30 to 37 months or 33 to 41 months. This error affected the defendant’s substantial rights. Finally, the court concluded that the error seriously affected “the fairness, integrity, or public reputation of judicial proceedings” because the PSR “disregarded the express language of the Virginia statute in treating [the defendant’s] domestic-violence convictions as felonies – instead of, properly, as misdemeanors – and the district court endorsed this obvious error and predicated its Guidelines computation on it. The result was a dramatic increase in [the defendant’s] Guidelines range – that is, a doubling of it – and we have determined that there is a reasonable probability that this error prejudiced him.” Because the defendant met all four prongs of plain error, the sentence was vacated and remanded.
United States v. Suarez-Gonzalez
2014 WL 3623131 (1st Cir. 2014) Alteration of postal money orders warranted §2B5.1(b)(2)(A) enhancement
The defendant was a construction worker and was remodeling a United States post office in Puerto Rico, where he stole and cashed four postal money orders. He then made a key to the post office and gave it to another individual who entered and printed 126 money orders using the post office machinery. The two then sent other people to area post offices to cash the money orders. Postal inspectors received a tip about an attempt to cash a suspicious money order, and the defendant’s actions were discovered. He ultimately pled guilty to 126 counts (from two separate indictments) of aiding and abetting others instealing or knowingly converting postal money orders. At sentencing, the district court applied a two-level enhancement under §2B5.1(b)(2)(A), as he had “possessed or had custody of or control over a counterfeiting device or materials used for counterfeiting.” On appeal, the defendant argued that the enhancement was improper, as he did not use a counterfeiting device since the money orders were genuinely printed with conventional post office equipment on authentic money order blanks. The First Circuit reviewed the Sentencing Commission’s definition of “counterfeit,” which is “an instrument that has been falsely made, manufactured, or altered” under §2B5.1, comment (n. 1). The court found that the defendant, by having arranged for the printing of fake dollar amounts on money order blanks that otherwise had no value, he altered the blanks and the alteration was committed using a machine. The enhancement was upheld.
United States v. Batts
2014 WL 3361158 (8th Cir. 2014) Prison camp not a “non-secure facility”.
defendant walked away from the prison camp in Forrest City, Arkansas, and was caught approximately one month later. He pled guilty to one count of escape of a prisoner in custody. He argued that he was entitled to a four-level reduction under §2P1.1(b)(3), where “the defendant escaped from the non-secure custody of a community corrections center, community treatment center, halfway house, or similar facility.” The district court denied the reduction and sentenced him to 24 months. He appealed, arguing that a prison camp was a non-secure facility similar to a community corrections center, community treatment center, or halfway house. The Eighth Circuit disagreed and cited other circuit court decisions holding that the reduction did not apply in cases of escape from a prison camp: United States v. McCullough, 53 F.3d 164 (6th Cir. 1995); United States v. Stalbaum, 63 F.3d 537 (7th Cir. 1995); United States v. Hillstrom, 988 F.2d 448 (3rd Cir. 1993); United States v. Tapia, 981 F.2d 1194 (11th Cir. 1993); United States v. Shaw, 979 F.2d 41 (5th Cir. 1992); United States v. Brownlee, 970 F.2d 764 (10th Cir. 1992); United States v. McGann, 960 F.2d 846 (9th Cir. 1992). A prison camp, unlike the facilities listed in the guideline, is not integrated into the community, but instead is separate from the community, and the Sentencing Commission did not list prison camps in the guideline, although they were in existence at the time the guidelines were written. The sentence was affirmed.
United States v. Charles
2014 WL 3031267 (11th Cir. 2014) §2B1.1(b)(11)(B) enhancement for trafficking in unauthorized access devices was not proper
The defendant and an accomplice were found with ten prepaid debit cards in their possession. The cards were issued in other people’s names and had been fraudulently obtained by the defendant who filed fraudulent tax returns submitted in the individuals’ names to the IRS, which then sent the debit cards loaded with the tax refunds. The defendant and his accomplice would use them to withdraw money from ATM machines or buy Western Union money orders. The defendant pled guilty to trafficking in one or more unauthorized access devices in violation of 18 U.S.C. § 1029(b)(2), and to aggravated identity theft in violation of 18 U.S.C. § 1028A. The aggravated identity theft charge was based on the defendant having transferred an access device to his accomplice. This offense carried a mandatory two year consecutive sentence where a defendant was convicted of certain predicate crimes and during or in relation to those crimes, he knowingly transferred, possessed or used without authority a means of identification of another person. In this case, the conviction for trafficking in unauthorized access devices was a predicate offense, requiring the two year consecutive sentence for the §1028A offense. The district court sentenced him to 24 months on the trafficking in unauthorized access devices offense, followed by the mandatory two years for aggravated identity theft. In calculating the 24-month sentence, the district court included a two-level enhancement for the production or trafficking of unauthorized devices under §2B1.1(b)(11)(B), to which the defendant objected, and ultimately appealed. On appeal, the Eleventh Circuit agreed with the defendant. The guideline relevant to the aggravated identity theft offense, §2B1.6, specified that when the sentence was being imposed along with a sentence for an underlying offense, the court was not to apply an enhancement for the transfer, possession, or use of a means of identification when determining the underlying offense sentence. The guidelines explained that this prohibition was because a sentence under §2B1.6 already accounted for the factor. The sentence was vacated and the case was remanded.