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District Court’s Statement During Plea Colloquy Regarding
Immigration Consequences of Plea Did Not Automatically
Foreclose Ineffective Assistance Claim
United States v. Batamula
2015 WL 3477473 (5th Cir. 2015)
The defendant, a citizen of Tanzania, entered the United States on a student visa. He married a United States citizen and applied for a change in his immigration status. He also applied for and obtained a United States passport for his biological son, then resident of Tanzania, but used the name and birth date of a different Tanzanian child. When the deception was discovered, the defendant denied any knowledge. He pled guilty to one count of false representation to a United States agent and one count of making a false statement in an application for a United States passport. Before accepting the plea, the district court addressed both the defendant and another defendant present at the proceeding, stating: “The offenses that you’re pleading guilty to are felonies. That means that each of you will likely be deported after you serve your sentence.”
On May 1, 2012, the defendant filed a petition under 28 U.S.C. § 2255, contending that his attorney failed to provide effective assistance of counsel by failing to advise him that pleading guilty to both charges would result in his deportation. Included with the petition was an affidavit from trial counsel stating that he did not advise the defendant regarding the immigration consequences of accepting the plea. The district court denied the § 2255 motion without an evidentiary hearing, holding as a matter of law that if a judge informs a defendant that deportation is a likely result of his guilty plea, any prejudice caused by counsel’s failure to advise his client regarding that danger is thereby cured, or the defendant’s claim based thereon is forfeited or waived, and the defendant is therefore categorically foreclosed from subsequently demonstrating prejudice.
The Fifth Circuit reversed, concluding “that a judge’s statement at the guilty plea proceeding that deportation is ‘likely’ is not dispositive of whether a petitioner whose counsel failed to advise him regarding the immigration consequences of his plea can demonstrate prejudice as a result therefrom. [The defendant] thus is not foreclosed from challenging his guilty plea under Padilla solely because the district court notified him that deportation following the service of his sentence is ‘likely,’ and the district court erred in holding to the contrary.”
Two New “Quick Facts” Available from Sentencing Commission
Two new Quick Facts data sheets has been published by the Sentencing Commission covering Felon in Possession of a Firearm and Section 924(c) Firearms Offenses. Both are available athttp://www.ussc.gov/research-and-publications/quick-facts
Case Summaries
Offense Conduct
(Chapter 2)
United States v. Mathews 784 F.3d 1232 (8th Cir. 2015)
Two-level increase for possession of stolen firearm warranted
The Eighth Circuit upheld a two-level enhancement under §2K2.1(b)(4) for possession
of a stolen firearm in calculating the defendant’s sentence for felon in possession of a firearm. The enhancement applies if the firearm was “stolen.” The defendant argued at sentencing and on appeal that the firearm had not been “stolen,” but instead he had taken it from the mother of his child after she threatened him with it during an argument and it discharged. He argued that he gave it to his mother to hold and intended to return it to the mother of his child, and did not intend to steal the firearm. However, she had reported the theft of the firearm to police approximately one month prior to the defendant’s arrest. She also told officers that the defendant may be dealing heroin. Her information was corroborated by drug dog alerts outside the defendant’s apartment, and that information had been used to obtain a search warrant that led to the officers finding the weapon. The court held that the enhancement did not require “common law larceny” elements of intent to permanently deprive in order for the enhancement to be applicable. The enhancement was upheld. However, the court did note that it would have been a more difficult decision had the defendant not kept the firearm for several months, but for only several days.
United States v. Maisonet-Gonzalez 785 F.3d 757 (1st Cir. 2015)
Offset from amount of loss for money returned did not apply
The defendant owned an auto sales company and submitted fraudulent loan applications in the names of third parties, some of whom were deceased, using a friend who had access to the Puerto Rico Department of Treasury database to obtain necessary information about the third parties. The loan applications were submitted toPentagon Federal Credit Union (“Pentagon”). Pentagon eventually caught on and brought a civil suit against the defendant, seeking reimbursement of the money he fraudulently obtained, which was a total of $445,000. Ultimately, the parties settled and the defendant paid back $327,297.32. Approximately two years later, the defendant was indicted and pled guilty conspiracy and attempt to defraud a financial institution. The parties made a nonbinding agreement that the defendant’s total offense level would be calculated with a base offense level of seven, an enhancement based on an amount of loss between $70,000 and $120,000, a two-level enhancement for number of victims between 10 and 49, and a three-level reduction for acceptance. The parties asked for a sentence of time served, six months of home confinement, three years of supervised release, and two hundred hours of unpaid community service. However, the PSR calculated a total offense level of 20, using Pentagon’s total loss of $445,000, which required a 14-level increase, instead of only the 8-level increase recommended by the parties. The defendant argued that the victim’s losses were only $117,703, since he had made restitution for the additional amounts. This objection was overruled, as the court found that it was not bound by the stipulation of the parties, and that the defendant should not receive credit for the amounts he paid back as this was done only after the victim had identified the fraud. The court sentenced the defendant to 151 months, and he appealed, arguing that the court used an incorrect amount of loss by failing to consider §2B1.1(b)(1) Application Note 3(E) (Credits Against Loss). He argued that he was not aware of or put on notice of any criminal investigation and the victim did not press criminal charges prior to his payment in the civil suit, such that the district court should have used only the amount not returned to the victim in calculating the amount of loss. This argument was flatly rejected by the First Circuit, which found that Application Note 3(E)(i) to §2B1.1(b)(1) only applied when the defendant returned money before the offense was detected, either by the had detected the offense at the time it filed the civil lawsuit, which was prior to the defendant’s return of any money to the victim. The fact that the government was not alerted to the defendant’s offense conduct at that time was not relevant. As a result, the application note did not apply, and the defendant’s sentence was affirmed.
United States v. Bercian-Flores
2015 WL 2239325 (4th Cir. 2015)
Prior conviction was predicate offense for§2L1.2 enhancement
In 1997, he defendant pled guilty totransportation of an alien in violation of 8 U.S.C §1324(a)(1)(A)(ii). The offense carried a statutory five-year maximum term, but his sentencing range was calculated as zero to six months, and he was sentenced to only 107 days. He was removed to El Salvador on August 27, 1997. In May 2012, the defendant was arrested in North Carolina and pled guilty to re-entering the United States as an illegal alien. At sentencing, the district court imposed a twelvelevel enhancement based on the 1997 conviction, which the district court determined was an “offense punishable by imprisonment for a term exceeding one year” under §2L1.2 cmt. n.2. On appeal, the defendant argued the ruling in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) precluded the enhancement because the guidelines range for his 1997 conviction (under the then-mandatory guidelines) was zero to six months’ imprisonment. The Fourth Circuit disagreed, holding that extending Simmons in the way requested by the defendant was precluded by the Supreme Court’s decision in United States v. Rodriquez, 553 U.S. 377 (2008), where the Court held that the “maximum term of imprisonment . . . prescribed by law” for an offense was not “the top sentence in a guideline range.” “The U.S. Sentencing Guidelineswhether mandatory or advisory-cannot change a defendant’s offense of conviction; that has been defined by Congress. Congress set the maximum term of imprisonment for that offense at five years . . . [thus] we hold that the statutory maximum term of imprisonment of five years set by Congress, and not the top sentence in [the defendant’s] pre-Booker Sentencing Guidelines range, is determinative of whether he committed a predicate felony under §2L1.2(b)(1)(A)(vii). Therefore the district court did not err in overruling [the defendant’s] objection and imposing a twelve-level enhancement for [the] 1997 alien-smuggling conviction.”
United States v. Alphas
2015 WL 2124771 (1st Cir. 2015)
Amount-of-loss must exclude sums that fraudster would have been paid absent fraud
The defendant owned and operated The Alphas Company, a wholesale produce
distributor. He purchased large quantities of produce, and purchased insurance on the shipments. In or around March of 2007, he devised a scheme to submit fraudulent claims to his insurers seeking reimbursement for the value of allegedly lost, stolen, or damaged produce, together with disposal expenses, shipping fees, and the cost of procuring replacement stock. He supported his submissions with documents that had been fraudulently altered or, in some cases, completely fabricated. Four of the claims were never paid: three were withdrawn after suspicions surfaced, and another one was thwarted by early detection of the fraud. The other six claims were paid, but mostly in amounts less than their face value. In sum, the claims totaled over $490,000, yet the defendant received payments totaling only $178,568.41. The defendant pled guilty to a single count of wire fraud, stipulating to a base offense level of 7. The PSR recommended a loss amount of approximately $480,000, derived from the conclusion that intended loss should be measured by the face amount of the claims, less a $1,000 per claim deductible. The defendant objected, arguing that the loss figure should exclude legitimate losses embedded in the fraudulent claims, resulting in an intended loss amount of roughly $178,000. The district court concluded that where, as here, insurance policies contained void-for-fraud clauses, intended loss was equal to the aggregate face value of the claims submitted. This resulted in a sentencing range of 27 to 33 months. The district court varied downward and imposed a sentence of 12 months and 1 day. On appeal, the defendant contended that the district court should have based the loss on the amount fraudulently claimed, as opposed to the entire amount of the insurance claims. The First Circuit agreed, noting that when “[a]pplying the degree-of-culpability approach to the insurance fraud context, it is appropriate for the loss-computation method to distinguish between a fraudster who wholly fabricates a non-existent claim and a fraudster who artificially inflates a legitimate claim. A fraudster who has suffered no loss at all but invents a $100,000 claim out of thin air is not the same as a fraudster who has suffered a legitimate $50,000 loss but artificially inflates his claim to $100,000.” The court concluded that “[t]he best way to gauge the seriousness of a fraud offense is to determine how much the fraudster set out to swindle and no fraudster sets out to swindle sums that he would have been paid anyway. That is also the best way to gauge a fraudster’s culpability. On remand, the district court should compare what the appellant sought to bamboozle his insurers into paying with what they would have paid had the appellant submitted only bona fide claims.”
Determining the Sentence
(Chapter 5)
United States v. Downs
2015 WL 2058735 (7th Cir. 2015)
Failure to calculate range and assess its appropriateness required remand
The defendant was sentenced in 2013 to five years of probation for a drug offense.
Approximately six months later, he violated the terms of his probation by, among other things, causing an accident and a resulting injury to another person by driving while drunk. At a hearing to revoke, the judge sentenced the defendant to a year and a day in prison, to be followed by ten years of supervised release. The defendant appealed, challenging the length of the term of supervised release. The Seventh Circuit reversed, finding that the supervised release term was erroneous because the district court failed to determine the guidelines range for supervised release applicable to the defendant’s case. Under §5D1.2(a)(2), (c), the top of the supervised-release guidelines range applicable to his offense was three years. However, “[t]he judge was not bound by that ceiling; he could have (if circumstances warranted) sentenced the defendant to supervised release for life because there is no statutory ceiling on the length of supervised release for his offense. But he was required, before deciding on the length of the defendant’s term of supervised release, to calculate the guidelines range and assess its appropriateness as a guide to sentencing the defendant, in light of the sentencing factors in 18 U.S.C. §3553(a), and he failed to do these things.” Consequently, the sentence was vacated and remanded.
