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Published By Joaquin & Duncan, L.L.C.;
A Law Firm of Federal Sentencing Attorneys January 2015
S e n t e n c i n g P a r t n e r s
Crime of Violence
United States v. Hood
2014 WL 7172398 (10th Cir. 2014)
Prior guilty plea to pointing firearm at another was “violent felony” under ACCA
The defendant was arrested after police found him in possession of a 9mm Taurus pistol in the right inside pocket of his jacket. He was charged with being a felon in possession of a firearm. The district court imposed a sentence of 262 months after finding that the defendant’s criminal history, which included an Oklahoma conviction for pointing a firearm at a person, qualified him as an armed career criminal. On appeal, the defendant argued that the Oklahoma conviction (Okla. Stat. tit. 21, §1289.16) was not a “violent felony.” Both parties agreed that the modified categorical approach applied. Under that approach, the Tenth Circuit affirmed the sentence, finding that the Information charging the defendant charged him with “pointing a firearm ‘for the purpose of threatening and intimidating [the victim],’ regardless of what injury [he] intended to inflict.” Both charges in the Information contained the words “for the purpose of threatening and intimidating him,” thus, “either method of committing the crime listed in the Information to which [the defendant] pled guilty is a ‘violent felony’ under the ACCA.” So long as the “crime of conviction necessarily required proof that he had pointed a firearm in a threatening manner, we need not concern ourselves with what injury [the defendant] intended to inflict.”
United States v. Vigil
2014 WL 7150485 (5th Cir. 2014)
Louisiana conviction for sexual battery was crime of violence under §2L1.2(b)(1)(A)(ii)
The defendant pled guilty to illegal re-entry. His 41-month sentence included a 16-level enhancement, pursuant to §2L1.2(b)(1)(A)(ii), based on a prior Louisiana conviction for sexual battery under §14.43, which the district court found to constitute a “crime of violence.” On appeal, the defendant contended that the prior conviction was not a crime of violence. The Fifth Circuit explained that when it applies the categorical approach it looks “not to the facts of the particular prior case, but instead to whether the state statute defining the crime of conviction categorically fits . . . the generic definition of the enumerated offense category.” Where an offense category in the guidelines is undefined, a four-step analysis is applied: “First, we identify the undefined offense category that triggers the federal sentencing enhancement. We then evaluate whether the meaning of that offense category is clear from the language of the enhancement at issue or its applicable commentary. If not, we proceed to step two, and determine whether that undefined offense category is an offense category defined at common law, or an offense category that is not defined at common law. Third, if the offense category is a non-common-law offense category, then we derive its ‘generic, contemporary meaning’ from its common usage as stated in legal and other well-accepted dictionaries. Fourth, we look to the elements of the state statute of conviction and evaluate whether those elements comport with the generic meaning of the enumerated offense category.” Because the court had previously held that the offense of “sexual abuse of a minor” was neither clearly defined in the guidelines nor an offense defined at common law, see United States v. Rodriguez, 711 F.3d 541 (5 th Cir. 2013) (en banc), the court proceeded to the third and fourth steps. Comparing the elements of a “generic, contemporary meaning” of “sexual battery” to the elements of the Louisiana statute, the court determined that the elements of the state statute was “a categorical fit that justifies the district court’s imposition of a sentencing enhancement.”
United States v. Martinez-Lugo
2014 WL 6997647 (5th Cir. 2014)
Prior Georgia conviction for possession with intent to distribute marijuana was not “drug trafficking offense” under §2L1.2(b)(1)(A)(i)
The defendant pled guilty to being unlawfully present in the United States following removal. He was sentenced to 46 months, which included a 16-level increase pursuant to §2L1.2(b)(1)(A)(i) for having been removed following a conviction for a drug trafficking offense for which the sentence was greater than 13 months. The increase was based on the defendant’s 2002 Georgia conviction for possession with intent to distribute marijuana, for which he was sentenced to five years of imprisonment with two of those years probated. On appeal, the defendant argued that his Georgia conviction did not qualify as a “drug trafficking offense” under the Supreme Court’s reasoning in Moncrieffe v. Holder, — U.S. —-, 133 S. Ct. 1678 (2013), where the Court emphasized that “trafficking” generally requires remuneration, and the Georgia statute was overbroad because it criminalized possession with intent to distribute for no remuneration. On the other hand, the Application Note to §2L1.2(b)(1)(A)(i) seemed to define the Georgia conviction as a “drug trafficking offense,” creating “an irreconcilable tension” between the guideline and the application note. The Fifth Circuit agreed: “As illustrated by Moncrieffe, possession with intent to distribute under the Georgia statute may also include distribution for no remuneration. Thus, the Application Note included within the definition of ‘drug trafficking offense’ possession with intent to distribute for no remuneration. Therefore, the Application Note’s purported definition of ‘trafficking’ conflicts with ‘the everyday understanding of trafficking, which ordinarily . . . means some sort of commercial dealing.’ Accordingly, we hold that ]the defendant’s] conviction under Ga.Code Ann. §16-13-30(j)(1), which did not necessarily require remuneration, cannot support the 16- level sentence enhancement under §2L1.2(b)(1)(A)(i) for a ‘drug trafficking offense,’ which according to the Supreme Court in Moncrieffe requires remuneration, notwithstanding anything in the Application Note to the contrary.”
United States v. Van Mead
2014 WL 6863679 (2nd Cir. 2014)
Prior NY conviction for statutory rape categorically was not “crime of violence”
In 2006, the defendant, who was 30 years old at the time, was convicted of violating
N.Y.P.L. §130.40-2 for engaging in repeated sexual encounters with his 15- year old girlfriend. In 2010, officers stopped his vehicle and found stolen firearms and evidence that the defendant had sold other stolen firearms. He pled guilty to one count of failing to register as a sex offender and one count of possession of stolen firearms. The PSR recommended a sentencing range of 130 to 162 months, based on two prior “crimes of violence,” including a 1996 conviction for attempted burglary in New York and the 2006 conviction for statutory rape under N.Y.P.L. §130.40-2. Relying on United States v. Daye, 571 F.3d 225 (2d Cir. 2009), in which it was held that violation of a Vermont law prohibiting sexual contact with a minor aged fifteen or younger constituted a “violent felony,” the district court adopted the PSR and imposed a sentence of 130 months. On appeal, the defendant argued that the violation of N.Y.P.L. §130.40-2 was not a crime of violence. Employing the categorical approach, the Second Circuit found that the New York statute was distinguishable from the Vermont statute reviewed in Daye. “Considering the structure of New York’s statutory scheme as a whole, and given that consensual sexual contact with sixteen-year olds (who constitute a major portion of those minors protected by N.Y.P.L. §130.40- 2) would be lawful in many American jurisdictions, we are hard-pressed to conclude that the conduct at issue would necessarily, in the ordinary’ case, pose a serious potential risk of physical injury to another or be generally purposeful, violent, and aggressive in character.” The court concluded that, “for purposes of the particular statutory provision before us, a conviction pursuant to N.Y.P.L. §130.40-2 falls outside the scope of §4B1.2 as §130.40-2 is not categorically a ‘crime of violence’ pursuant to that Guidelines provision.”
Reasonableness Review
United States v. Howard
2014 WL 6807270 (4th Cir. 2014) Upward departure to life sentence was substantively unreasonable Over the course of several months, narcotics investigators used multiple confidential informants to buy cigarettes saturated in PCP, as well as vials of PCP, from the defendant.
At the time, the defendant was on supervised release based on a 1997 federal narcotics trafficking conviction. Upon his arrest for the current charges, his probation officer filed a petition for revocation. The PSR for the new drug trafficking convictions originally recommended a base offense level of 26 and a criminal history category of III, which equated to a sentencing range of 78 to 97 months. Because the government had filed a notice of enhanced sentence pursuant to 21 U.S.C. §851, the enhanced range was 120 months, plus a consecutive 60-month sentence for a firearm count. The government and the district court agreed that the drug weight in the PSR underestimated the amount of PCP and adopted an increased drug weight, which bumped the base offense level from 26 to 28. The government also argued that under §4A1.3(a)(1), an upward departure was warranted because the criminal history category (III) substantially under-represented the seriousness of his criminal history. It requested an upward departure to a criminal history category of VI, which yielded a sentencing range of 140 to 175 months. Not satisfied, the district court elected to analyze the defendant as a “de facto” career offender and thereby considered his otherwise stale (and thus unscored) prior convictions. This resulted in an offense level of 37, and a sentencing range of 420 months to life for the conspiracy charge. After considering the §3553(a) factors, the court concluded that the defendant deserved the maximum sentence of life. At the revocation hearing, the court imposed the maximum possible sentence of 60 months. On appeal, the defendant argued that the life sentence was substantively unreasonable. The Fourth Circuit reversed, holding: “we are persuaded that the extent of the upward departure is unwarranted and amounts to an abuse of discretion, and because, in any event, a sentence of life in prison on this record is not justified by consideration of the §3553(a) factors as articulated by the district court, we conclude that the sentence imposed is substantively unreasonable.” The court noted that most of the defendant’s serious criminal convictions occurred when he was eighteen years old or younger and “the district court abused its discretion by focusing too heavily on the [defendant’s] juvenile criminal history in its evaluation of whether it was appropriate to threat him as a career offender and in its weighing of the §3553(a) factors.” The court found that “sound empirical evidence strongly suggests that the likelihood that [the defendant] will recidivate upon his release is substantially lower than the district court suggested.” Citing a 2014 Bureau of Justice Statistics report, the court noted that three years after release from prison, 75.9% of inmates age 24 or younger at the time of release had been rearrested for a new offense, compared to 69.7% of inmates ages 25 to 39, and 60.3% of inmates age 40 or older. The defendant was 41 years old at sentencing. Finally, the court noted that the defendant “was not a drug kingpin,” was not the only one selling PCP in the area, had not dealt drugs near children or school zones, and he has not resorted to violence. “The district court plainly sought to intone all of the principles underlying §3553(a)(2) when it announced its sentence. It stated the need for individual and general deterrence, incapacitation, and just punishment. There is no doubt that the sentence sent a ‘message’ of deterrence . . . . The district court made those intentions clear. But we simply fail to see, on the whole record, how the lifeplus- 60-months sentence reasonably reflects the seriousness of the offense or just punishment. Manifestly, it is a sentence ‘greater than necessary,’to achieve the purposes of §3553(a)(2).”
Miscellaneous Issues
United States v. Catrell
2014 WL 7242835 (10th Cir. 2014)
Illegal sentence required remand
The defendant was charged with various crimes of wire and bank fraud, and aggravated identity theft. He posted bond, then fled. Upon his return, he pled guilty pursuant to Rule 11(c)(1)(C), and was to receive a total sentence of 120 months. Later, the defendant was allowed to withdraw his plea and the government secured a superceding indictment charging him with over a dozen new criminal counts. Within weeks, he entered into a new Rule 11(c)(1)(C) agreement wherein he pled guilty to the same four crimes as before and would receive a sentence of 132 months. To reach this total, the parties agreed to a 24-month sentence for aggravated identity theft, to run consecutively with concurrent 108-month sentences for bank fraud, wire fraud, and money laundering. At sentencing, the district court imposed a sentence of 132 months comprised of 54 months for the aggravated identity theft and 78 months for the remaining counts, to be served consecutively On appeal, the defendant claimed that the 54- month sentence was illegal because aggravated identity theft carried a maximum of 24 months. Reviewing for plain error, the Tenth Circuit reversed, holding that even though the district court imposed a sentence for the correct total of months, as set out in the plea agreement, “the imposition of an illegal sentence constitutes plain error even if the sentence favors the defendant.” See United States v. Gonzalez-Huerta, 403 F.3d 727 (10th Cir. 2005) (en banc). “A prison sentence exceeding a statutory maximum” is an “illegal sentence” that “trigger[s] per se, reversible, plain error.” “Per our precedent, the district court clearly gave Defendant an ‘illegal sentence’ for aggravated identity theft, and we must remand for this plain error to be corrected.” The defendant further argued that on remand, thedistrict court should be instructed to change only the 54-month sentence and leave intact the 78- month portion of the sentence. The court refused to give such an instruction, citing the “sentencing package doctrine” that “takes into account all counts upon which the defendant has been convicted. When one of these counts is set aside or vacated, the district court is free to reconsider the sentencing package de novo.” The sentence was reversed with instructions to that the district court was free “to resentence on all counts in accordance with the agreement.”
United States v. Polanco-Ozorto
2014 WL 6865892 (5th Cir. 2014)
Issues related to guilty plea/conviction could not be raised in response to counsel’s Anders brief
The defendant pled guilty to being an alien unlawfully found in the United States after
deportation and was sentenced to 72 months. Following his sentencing and prior to filing a notice of appeal, the defendant signed a APPEAL,” indicating that, after discussing his appeal rights with his attorney, he wished to appeal his sentence only. His appellate counsel filed an Anders brief addressing only issues related to sentencing. The defendant filed a pro se brief, arguing that the Anders brief was insufficient in that it did “not address whether there are any nonfrivolous issues related to [his] guilty plea.” The issue before the court was one of first impression: “where a criminal defendant who has pleaded guilty signs a statement indicating that he wishes to appeal only his sentence, and where the defendant’s appellate counsel files an Anders brief addressing only issues related to sentencing, may the defendant raise issues related to his guilty plea and conviction in response to the Anders brief?” The Fifth Circuit explained that it had previously held that a criminal defendant’s motion to proceed pro se on appeal would be denied if it is filed after the defendant’s counsel had filed an Anders brief, as such a request is invoked “too late.” See United States v. Wagner, 158 F.3d 901 (5th Cir. 1998). Further, if a defendant “can later broaden the scope of his appeal in contradiction of his prior expressed intent, this could create significant administrative burdens on the courts and on appellate counsel. Such a rule would create the possibility of two rounds of Anders briefing – one addressing the issues the defendant initially indicates he wants to challenge, and another addressing any additional issues raised in response to the first Anders brief.” Therefore, the court held “that where a defendant provides sufficient indication . . . that he intends to challenge only his sentence, the defendant may not revoke that decision after counsel has filed an Anders brief pretermitting any discussion of a defendant’s guilty plea.” After reviewing the Anders brief and the relevant portions of the record, the court concurred that the appeal presented no nonfrivolous issues for appellate review.
United States v. Sabillon-Umana
772 F.3d 1328 (10th Cir. 2014)
Reversal due to error in determining base offense level; denying request for greater substantial assistance decrease
At sentencing in this drug conspiracy case, the district court decided on an appropriate base offense level and then asked the probation officer for evidence to support that level. The probation officer suggested a finding that the defendant was involved in distributing 1.5 kilograms of cocaine and 1.5 kilograms of heroin, both of which were sold by the larger conspiracy. The district court adopted these findings and used them for imposing the sentence. The defendant objected, and appealed the district court’s methodology. The Tenth Circuit held that the district court committed reversible error because the district court was to begin the sentencing analysis by determining the criminal activity of the conspiracy the defendant agreed to and could have reasonably foreseen. The district court then should calculate the base offense level and guideline range, and may grant a variance, if warranted, to arrive at an appropriate sentence. The district court is not allowed to begin with a conclusion of the appropriate sentence and back into factual findings to support the sentence. The Tenth Circuit found the district court had erred in this procedure, and likewise found an additional error. The government had filed a §5K1.1 motion and the defendant urged a greater departure than that recommended by the government. The government responded by arguing that the district court did not have authority to grant the relief the defendant requested. The district court agreed, stating that it is “really the Government rather than the court that evaluates the value of the substantial assistance.” This was error, as the district court, not the prosecutor, controls the decision as to the appropriate length of a 5K1.1 departure. While the defendant did not object to the district court’s misstatement and misapplication of the law, the Tenth Circuit found that it was plain error, as there are “few things that affect an individuals’ substantial rights or the public’s perception of the fairness and integrity of the judicial process more than a reasonable probability an individual will linger longer in prison than the law demands only because of an obvious judicial mistake.” The case was remanded for resentencing.
Cases In This Issue
United States v. Beacham, 2014 WL 7014366 (5th Cir. 2014)
United States v. Catrell, 2014 WL 7242835 (10th Cir. 2014)
United States v. Coppage, 772 F.3d 557 (8th Cir. 2014)
United States v. Correy, 2014 WL 6790759 (1st Cir. 2014)
United States v. Hood, 2014 WL 7172398 (10th Cir. 2014)
United States v. Howard, 2014 WL 6807270 (4th Cir. 2014)
United States v. Jenkins, 772 F.3d 1092 (7th Cir. 2014)
United States v. Martinez-Lugo, 2014 WL 6997647 (5th Cir. 2014)
United States v. Melendez, 2014 WL 7269777 (1st Cir. 2014)
United States v. Norwood, 2014 WL 7182129 (8th Cir. 2014)
United States v. Polanco-Ozorto, 2014 WL 6865892 (5th Cir. 2014)
United States v. Sabillon-Umana, 772 F.3d 1328 (10th Cir. 2014)
United States v. Sykes, 2014 WL 7355653 (7th Cir. 2014)
United States v. Trinidad-Acosta, 773 F.3d 298 (1st Cir. 2014)
United States v. Van Mead, 2014 WL 6863679 (2nd Cir. 2014)
United States v. Vigil, 2014 WL 7150485 (5th Cir. 2014)
Whitfield v. United States, 2015 WL 144680 (2015)
