S e n t e n c i n g P a r t n e r s – F E B R U A R Y 2 0 1 5 – P a r t I

Published By Joaquin & Duncan, L.L.C.;
A Law Firm of Federal Sentencing Attorneys

Introduction of the Justice Safety Valve Act
On February 4, 2015, the Justice Safety Valve Act (S. 353/H.R. 706) was introduced in the Senate and House of Representatives. The Justice Safety Valve Act would give federal judges the ability to impose sentences below mandatory minimums in appropriate cases based upon mitigating factors. The bill was introduced by Senator Patrick Leahy (D-VT), Senator Rand Paul (RKY), Representative Thomas Massie (R-KY), and Representative Bobby Scott (D-VA). The Act would apply the current “safety valve” provision to all federal crimes, allowing federal judges to tailor sentences on a case-bycase basis. Such judicial discretion would go a long way in helping to reduce the bloated federal prison population while also ensuring sentences fit the circumstances of the crime.

Child Porn Restitution Bill Passes Senate, Sets Minimum Damages for Victims

The Supreme Court held in Paroline v. United States, 134 S. Ct. 1710 (2014), that restitution in child porn cases was proper under § 2259 only to the extent the defendant’s offense proximately caused a victim’s losses, and that defendants should only be made liable for the consequences and gravity of their own conduct, not the conduct of others. In response, a new bill was passed by the Senate by a 98-0 vote. The Amy and Vicky Child Pornography Victim Restitution Improvement Act would establish a minimum amount for damages for certain child pornography offenses and make any single perpetrator responsible for the full damages created by a crime that involves multiple perpetrators. Further, defendants, instead of victims, would have the burden of suing each other to recover damages they paid beyond their offenses. Medical costs, lost income and therapy are included in compensable damages. 

Sentencing Commission Offers Latest Quick Facts

 “Federal Offenders in Prison – January 2015”

The Sentencing Commission’s latest Quick Facts Publication sets out various statistics regarding the 210,000+ inmates serving time in federal prison. A sampling of the information includes: • The average age of incarcerated offenders is 40 years; • Nearly one-quarter (23.7%) of all offenders serving a federal sentence possessed a firearm or other weapon in connection with their offenses; • Sentences were increased for 15.5% of offenders because they qualified as a career offender or armed career criminal and 11.6% for having a leadership or supervisory role in the offense; • Half of all offenders (50.0%) were sentenced to more than ten years; • More than half (52.6%) were sentenced within the recommended guidelines range. The report is available at the Commission’s website: http://www.ussc.gov/research-and-publications/quick-facts

Case Summaries
Sentencing

Offense Conduct
(Chapter 2)

United States v. Sweet
2015 WL 234760 (6th Cir. 2015)
No double counting

The defendant and a co-defendant, Cook, broke into two licensed firearms dealers and
stole a total of thirty-two firearms. Both were arrested and both cooperated with authorities,
admitting to stealing the firearms and selling several for drugs and cash. The defendant reported that he had sold two of the guns to his “dope dealer” in exchange for $200 and three $20 rocks of cocaine base. He also told authorities that he and Cook had sold an additional eight firearms for approximately $500 and four grams of heroin. They both pled guilty to two counts of theft of firearms from a licensed dealer. The PSR recommended, and the district court applied two, four-level enhancements: 1) engaging in the trafficking of firearms, §2K2.1(b)(5); and 2) using a “firearm . . . in connection with another felony offense” – the distribution of heroin – when the defendants traded the firearms for drugs, §2K2.1(b)(6)(B). On appeal, the defendants contended that applying both of the enhancements constituted impermissible double counting because the two enhancements punished the same conduct – the act of selling firearms for drugs. The Sixth Circuit affirmed the sentence, holding that the enhancements addressed different aspects of the same action: selling firearms and purchasing drugs. “Each could have occurred without the other: the stolen firearms could easily have been sold for cash, or the stolen firearms could have
been kept and used to facilitate the purchase of drugs. There is accordingly no double counting, and both enhancements were properly applied.” “While the §2K2.1(b)(5) enhancement punished [the defendants] for trafficking in firearms, regardless of whether anything of value was exchanged, the §2K2.1(b)(6)(B) enhancement punished them for facilitating drug distribution when they accepted heroin as consideration for the firearms. Consequently, no double counting occurred.”

Sentence Adjustments
(Chapter 3)

United States v. Kimber
2015 WL 394199 (2nd Cir. 2015)
Enhancements for use of special skills and vulnerable victim were warranted

After receiving medical treatment from a hospital, the defendant, a licensed pharmacist, was irate over what he considered to be substandard care and excessive billing. He decided to retaliate by dispersing elemental mercury throughout the hospital. Elemental mercury is a neurotoxin that can cause death, brain and nervous system damage, and other serious bodily injuries, with particularly severe effects on young children and in utero fetuses. On four occasions, he planted the mercury at various locations within the hospital, including near the triage window in the emergency room, which caused the closure of the emergency  room, delaying care for many waiting patients. He also planted mercury in the hospital cafeteria, placing it in, among other places, a salad bar, a toaster, a freezer, and in a container of chicken tenders being warmed under a heat lamp. He pled guilty to one count of use of a chemical weapon, one count of possession of a chemical weapon, and one count of consumer product tampering. In the plea agreement, the defendant admitted that the purpose of the attacks was to cause “panic at the hospital [and its] cafeteria and an attendant loss of business when people became fearful of gaining treatment and eating there.” The PSR recommended an enhancement under §3B1.3, for use of a special skill in the commission of the offenses. The government argued that an additional two-level increase applied for “vulnerable victim,” pursuant to §3A1.1, because the emergency room patients whose care was delayed were victims of the offenses. The district court agreed and imposed a sentence of 168 months. On appeal, the defendant argued that neither enhancement applied. The Second Circuit explained that a “special skill” is “a skill not possessed by members of the general public and usually requiring substantial education, training or licensing,” such as chemists. The defendant claimed that there was no finding or evidence that he used his special skill as a licensed pharmacists in the commission or concealment of his offenses. The court disagreed, finding that “[b]y placing mercury in the cafeteria’s toaster and under its heat lamp, [the defendant] used his special knowledge of chemicals to facilitate his offense because the special skills increase[d] his chances of succeeding. The fact that the same offenses could have been committed by a person without the defendant’s special training is immaterial. Thus, the court properly found that [the defendant] used a special skill in the commission of his offenses.” Regarding the vulnerable victim enhancement, the defendant contended that the enhancement did not apply because no one was poisoned by the mercury, and since there was no harm there was no victim – vulnerable or otherwise. Again the court disagreed. “We have never held that actual infliction of harm is a prerequisite to the application of a vulnerable victim adjustment. . . . Thus, a defendant who deliberately exposes hospital patients to a dangerous chemical may well be subject to a vulnerable victim adjustment even if by sheer luck no patients happen to be harmed.” Regardless, the court found that some patients were indeed harmed when the hospital had to close down the emergency room. “While the record does not indicate that any patient suffered lasting injury from the shutdown, the delay in care necessarily caused some of these patients to endure additional pain and suffering. This constitutes sufficient harm to render the patients ‘victims’ for purposes of the adjustment.” Finally, in response to the defendant’s argumentthat he did not intend to harm patients and did not single out any individuals based on their vulnerability, but instead intended to disrupt the financial and business operations of the hospital, the court noted that the adjustment “does not require that the defendant select the victim because of his or her vulnerability – it is sufficient that he knew or should have known of this quality when deciding to go ahead with the crime. Clearly, a defendant who attempts to disrupt the functioning of a hospital emergency room would know or should know that his conduct is likely to harm particularly vulnerable individuals needing immediate care.”

The two defendants pled guilty to illegally reentry. The PSR recommended a two-level
adjustment for acceptance of responsibility pursuant to §3E1.1(a). The PSR further stated
that the government would not move for the additional one-level reduction under §3E1.1(b) due to the defendants’ failure to waive their appellate rights. At the sentencing hearings, the defendants requested that the district court either vary downward or refrain from varying upward to compensate for the lack of the third-level reduction under §3E1.1(b). Both judges refused to award the one-point reduction. On appeal, both defendants argued that it was improper for to withhold the §3E1.1(b) motion based on the defendants’ refusal to waive the right to appeal. The government conceded error. The Fifth Circuit agreed, noting that the Commission issued a clarifying amendment, Amendment 775 (effective on November 1, 2013) stating that the government should not withhold a motion for an additional one-level reduction based on an interest not identified in §3E1.1 such as a defendant’s waiver or non-waiver of his right to appeal. Therefore, the district courts committed error and the “error in these cases was not harmless. There is insufficient evidence in the records for these cases to establish that the district court would have imposed the same sentence in the absence of its error. To the contrary, there are aspects of both records that indicate the district court would have likely imposed a different sentence but for the error.”

Criminal History
(Chapter 4)

United States v. Banks
2015 WL 122019 (2nd Cir. 2015)

Sentence imposed under Alford plea qualified as “prior sentence” pursuant to §4A1.2(a)(1)
The defendant pled guilty to unlawful possession of a firearm by a convicted felon after police caught him carrying a Beretta Model 21A, .22 caliber semi-automatic pistol. The criminal history section of the PSR listed prior felony convictions in state court for sale of a controlled substance, assault in the first degree, and robbery in the third degree, with the latter two entered under an Alford plea. The prior offenses made the defendant subject to a 180-month mandatory minimum sentence under the ACCA. The district court imposed a sentence of 180 months, but this sentence was vacated after it was discovered that the 2008 conviction for sale of a controlled substance did not qualify as a “serious drug offense” under the ACCA. At resentencing, the district court calculated a base offense level of 24, under §2K2.1(a)(2), based on the Alford pleas to both third-degree robbery and attempted first degree assault. The defendant argued that the two sentences imposed as a result of his Alford pleas should be disregarded. The district court rejected the argument and sentenced the defendant to 57 months. The sole issue on appeal was whether the district court could rely on sentences imposed for convictions entered pursuant to Alford pleas when calculating the base offense level and criminal history category. The defendant argued that the sentences resulting from his Alford pleas did not constitute “prior sentences” within the meaning of §4A1.2, because that section enumerates several dispositions qualifying as an  “adjudication of guilt” but omits any reference to Alford pleas. Relying on United States v. King, 673 F.3d 274 (4th Cir. 2012); United States v. Mackins, 218 F.3d 263 (3d Cir. 2000), where the same argument had been raised, the Second Circuit held that “a sentence imposed after an Alford plea qualifies as a prior sentence under §4A1.2(a) for purposes of calculating an offender’s criminal history. Accordingly, we now join our sister circuits in concluding that a sentence imposed for a conviction resulting from an Alford plea constitutes a ‘prior sentence’ within the meaning of Section 4A1.2(a)(1).”