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United States v. Palacios 2014 WL 2119096 (5th Cir. 2014)
Refusal to waive right to appeal no basis for withholding acceptance
The defendant pled guilty to reentry following deportation, but was denied the third point for acceptance of responsibility based on his refusal to waive his right to appeal. Amendment 775 to the guidelines became effective November 1, 2013, while the defendant’s appeal was pending, and clarified that the “government should not withhold [a §3E1.1(b)] motion based on interests not identified in §3E1.1, such as whether the defendant agrees to waive his or her right to appeal.” The Fifth Circuit held that the amended guidelines apply to the defendant’s case, as the amendment clarified the application of §3E1.1 and was not a substantive change to the guidelines. The sentence was vacated and the case remanded for resentencing.
United States v. Pena 751 F.3d 101 (2nd Cir. 2014)
Improper application of obstruction of justice under §3C1.1
Finding that the obstruction of justice enhancement had been applied in circumstances that would make a defendant subject to the enhancement every time a motion to suppress was denied, the Second Circuit vacated and remanded for resentencing. The defendant had swallowed 57 pellets containing a total of 534 grams of cocaine and boarded a plane from the Domincan Republic to New York. Upon arrival in New York, customs officers who had been tipped off that he was smuggling drugs, stopped him and conducted a patdown, but obviously found nothing. He subsequently consented to an x-ray, at which time the pellets were found. He was arrested and he later confessed having swallowed the pellets. In a motion to suppress he made several claims, including the fact that he requested an attorney at least seven times before consenting to the x-ray, and that the officers obtained consent via threats of physical force. At the hearing on the motion to suppress, the officers’ testimony conflicted as to whether the defendant requested an attorney and as to how many time he did so. As to the threat of physical force allegation, one officer testified that another officer told the defendant that if he didn’t consent to the x-ray, “they had other ways to make this happen.” In denying the motion to suppress, the court found that the defendant only asked for an attorney one time, and he was not threatened with physical force. A second judge handled the sentencing, and reviewing the record of the suppression hearing, applied the obstruction enhancement requested by the government. The Second Circuit cried foul and held that the application of the enhancement was only proper when the evidence showed that a defendant acted with the purpose of obstructing justice, and such intent was unambiguous. Regarding the requests for an attorney, the court found “multiple requests could have been made to different persons; and he had plenty on his mind other than counting his requests for counsel. Without details, there is nothing here that could be categorically contradicted by the police.” Regarding the threat of physical force, the court recognized that the defendant could have believed the officer meant physical force would be used. He was “isolated, surrounded by customs officer, and without counsel, [which] could reasonably put a sinister and threatening cast on the statement” The evidence did not support the application of the enhancement; thus, the sentence was vacated and remanded.
United States v. Garcia-Figueroa 753 F.3d 179 (5th Cir. 2013)
Incorrectly grouping offenses was not harmless
The defendant was convicted of (1) conspiracy to bring illegal aliens into the United States (2) bringing illegal aliens into the United States, and (3) beingunlawfully present in the United States following a prior deportation. He was caught smuggling 12 to 17 aliens on an inflatable raft across the Rio Grande River. In calculating the sentence, the district court grouped counts 1 and 2, but did not group them with count 3. On appeal, the defendant argued that grouping all three offenses was appropriate because they were all immigration crimes involving the same victim, as set out in §3D1.2. The government argued that whil the offenses occurred on the same day and could be considered as part of a single transaction, the victims of counts 1 and 2 were the smuggled aliens, while there was no victim of count 3. Disagreeing with the government, the Fifth Circuit found that the application notes to §3D1.2 reflect that the victim of immigration offenses is the “societal interest protected by laws governing immigration” and the victim was the societal interest that was harmed. There was no evidence of they were not “victims” of counts 1 and 2. As the offenses were all immigration offenses, part of the same transaction, and had the same victim, grouping of all three offenses was required. The sentence was vacated and remanded.
United States v. Collins 2014 WL 2598767 (8th Cir. 2014)
Post-arrest conduct did not warrant enhancement for assaulting law enforcement officer
In this case of first impression, the Eighth Circuit held that §3A1.2(c)(1), a six-level enhancement for assaulting a law enforcement officer “during the course of the offense or immediate flight therefrom,” cannot be applied based on relevant conduct. The defendant had fled from police during a pursuit of the stolen vehicle he was driving, and he ultimately fled the scene after crashing the vehicle. Officers found a loaded firearm in a flowerpot nearby. Following arrest, the defendant was shackled in an interview room and prepared a written statement. Prior to signing the statement, he decided he did not want to continue and assaulted the officer who tried to obtain the statement from his hand. He was convicted of felon in possession of a firearm and the district court applied §3A1.2(c)(1), based on the assault of the officer in the interrogation room. On appeal, the defendant argued that the assault occurred during his post-arrest interrogation and not during the offense or flight from the offense. The appeals court agreed, holding that the assault occurred after the the defendant wasarrested, transported to the police station and shackled to the floor of the interview room, and was not during the course of the offense nor in flight from the offense. Despite the government’s argument, the court found, after engaging in a statutory construction analysis, that enhancement could not appropriately be applied based on relevant conduct. The sentence was vacated and remanded.
United States v. Rodriguez-Lopez 2014 WL 2884677 (5th Cir. 2014)
District court erred in applying manager/supervisor enhancement
The defendant in this appeal, Barron, was charged for his part in a widespread drug and firearm conspiracy. He was found guilty by a jury, which found that the conspiracy involved more than 1,000 kilos of marijuana. The district court imposed a sentence of 216 months, which included a three-point enhancement under §3B1.1(b), after the court found that the defendant was manager or supervisor of the conspiracy. The district court based the enhancement on its belief that the defendant was using a co-defendant as a straw buyer for guns and as a recruiter for other straw buyers. On appeal, the Fifth Circuit explained that the §3B1.1 role enhancement “consists of two elements: (1) the defendant exercised managerial control over one or more of the other participants in the offense and (2) the offense involved five or more participants.” Regarding the first element, the following factors should be considered: “the defendant’s participation in planning, recruitment of accomplices, and exercise of control and authority over others.” The appeals court reversed, holding that there was no evidence that the defendant was using any members of the conspiracy as straw buyers or that he recruited others to join the conspiracy. Further, there was no evidence that the defendant exercised control over others involved with the conspiracy or that he was involved in planning the operations.
Determining the Sentence
United States v. Payton 2014 WL 2609612 (6th Cir. 2014)
45-year sentence was unreasonable
The defendant, a serial bank robber, would find an accomplice, usually a woman, and usually a woman addicted to drugs or engaged in prostitution, and convince the accomplice to rob a bank on his behalf in exchange for a cut of the proceeds. He would provide the accomplice with a costume, a threatening note to give to the teller, bags, a toy gun, and everything else needed for the robbery. He would perform the necessary reconnaissance, and both drop off and pick up his accomplice. He was caught in this scheme several times and sent to prison several times. After being released on July 29, 2011, he was arrested again for robbing four more banks. The defendant, 45 years old at the time of his trial, maintained his innocence and was convicted. The PSR recommended a sentencing range of 210 to 262 months, or between 17 and a half to 22 years. Neither party objected to the PSR, and the district court found the report accurate. The government urged a more serious sentence of “at least” 300 months, or 25 years, while the defendant’s counsel requested a sentence within the guidelines range, arguing that the defendant would be released as an elderly man somewhere between 63 to 68 years old who would present little threat to the public. After hearing each side, the judge sentenced the defendant to 540 months, or 45 years, focusing on the defendant’s “brazen recidivism and the threat he posed to the public” but without specifically addressing any other factors. The defendant argued on appeal that the upward variance was unreasonable. The Sixth Circuit explained that when a district court varies from the guideline range, “we must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance” and “the greater the district court’s variance, the more compelling the evidence must be.” Here, the sentence was a “major departure” and one that demanded a “significant explanation,” which did not occur. The court failed to adequately respond to the defendant’s argument that his advanced age diminished the public safety benefit of keeping him in prison an extra twenty years. Citing statistics from the Sentencing Commission and the Bureau of Justice, the appeals court noted that “[r]ecidivism rates decline relatively consistently as age increases.” Further, “a defendant’s age, and specifically old age, is a relevant consideration in sentencing.” §5H1.1; United States v. Berry, 565 F.3d 332 (6th Cir. 2009); United States v. Davis, 537 F.3d 611 (6th Cir. 2008). “The district court did not address [the defendant’s] argument on this issue, and therefore did not provide an adequate explanation for imposing such a harsh sentence.”
Plea Agreements (§ 6B)
United States v. Harrell
2014 WL 1910342 (11th Cir. 2014) United States v. Hemphill
2014 WL 1758416 (5th Cir. 2014)
District court improperly participated in defendant’s plea negotiations
In both of these cases, the defendants argued on appeal that the district court impermissibly participated in the plea negotiations, in violation of Federal Rule of Criminal Procedure 11(c (1). In Harrell, the district court, on its own, instigated possible plea agreement discussions with counsel, warned the defendant and his co-defendant about the “extremely high sentences they were facing” upon conviction, and that it would have “less latitude to fashion a fair sentence” if convicted and “took the lead in orchestrating the plea agreement ultimately entered into by [the defendant].” In Hemphill, the district court also got involved with the plea negotiations including relating details of a prior case where the defendants had turned down a plea offer of seven years and received 35 years after being found guilty. Both cases were reversed on appeal. The Eleventh Circuit in Harrell noted that while the district court was acting in what it believed to be the defendant’s bests interests, “there is no good motives exception to the bar on judicial participation in plea discussions.” The Fifth Circuit in Hemphill explained that under Rule 11, “the court must not participate” in plea discussions and this prohibition was “a bright line rule” that constituted “an absolute prohibition on all forms of judicial participation in or interference with the plea negotiation process.” Further, the Rule serves several purposes: 1) “it serves to diminish the possibility of judicial coercion of a guilty plea”; 2) it reduces or eliminates the possibility of the trial court’s impartiality being questions due to its participation in plea negotiations; and 3) it prevents “a misleading impression of the judge’s role in the proceedings” as a neutral arbiter instead of but an advocate for the suggested plea agreement
United States v. Farmer 2014 WL 2808079 (7th Cir. 2014)
Condition of supervised release precluding selfemployment lacked nexus with underlying crime
The defendant attempted to extort money from an individual (“Allen”) after learning that Allen had used a company credit card without authorization. He was arrested after Allen contacted law enforcement. He pled guilty to attempted extortion and using interstate communications in the execution of his plot. The PSR stated in general terms that the defendant had been self employed since 2002, selling sports schedules and related marketing products, but had reported only $1,203 of income between 2002 and 2012. The PSR also detailed his criminal history, which included five prior felony convictions, including extortion obtaining property by false pretenses, and one conviction for larceny relating to the fraudulent purchase of a golf cart. The defendant was sentenced to 22 months, to be followed by three years of supervised release. One condition, suggested by the government, was that the defendant be banned from self-employment during his term of supervised release. Over the defendant’s objection, the district court imposed the condition. On appeal, the Seventh Circuit reversed, explaining that under §5F1.5, a court may impose occupational restrictions only if: “(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.” In other words, “and occupation restriction requires a nexus between the underlying offense of conviction and the occupational ban.” Here, the district court’s explanation for imposing the restriction “did not provide the necessary nexus between [the defendant’s] underlying crime – attempted extortion – and the self-employment ban. The district court did not determine that [the defendant’s] activities as a self-employed entrepreneur caused him to attempt to extort Walter Allen. The court’s explanation focused instead on its belief that [his] lack of success as an entrepreneur was causing him to turn to con activities to fund himself: perhaps not an incorrect conjecture, but one that is insufficient to meet the requirement that the occupation being restricted or banned bear a reasonably direct relationship to the conduct relevant to the offense of conviction.”
United States v. Johnson
2014 WL 2854996 (7th Cir. 2014)
Special condition requiring participation in sex offender treatment program not warranted
The defendant was charged with one count of distributing crack cocaine, and one count of being a felon in possession of a firearm. A jury found him guilty of both counts and the district court imposed a sentence of 210 months, followed by three years of supervised release. Without prior notice and without a stated reason, the district court imposed a special condition of supervised release requiring the defendant to participate in an approved sexual offender treatment program, as directed by the probation officer. On appeal, the Seventh Circuit noted that the defendant had no notice that the condition was even under consideration until it was imposed, the PSR had said nothing about such a condition, and the government had not requested it before or during the hearing. It also noted that the only possible reason for imposing the condition was the defendant’s 1997, conviction of misdemeanor criminal sexual abuse after he had sex with a girl who was over the age of 13 but less than 17. He was 17 years old at the time and was sentenced to one year of probation. Special conditions “must be reasonably related to (1) the defendant’s offense, history and characteristics; (2) the need for adequate deterrence; (3) the need to protect the public from further crimes of the defendant; and (4) the need to provide the defendant with treatment.” Here, the district court gave no reason for imposing the special condition and the appeals court found that there was no nexus between the 1997 sexual misconduct and the applicability of the §3553(a) factors for his current offense. “We do not see any link shown between [the defendant’s] misdemeanor for having sex with someone who was between thirteen and seventeen when he was seventeen years old and the applicability of the Section 3553(a) factors for the current offense. A single misdemeanor for which [he] received no jail time does not suggest that sexual misconduct is prominent in [the defendant’s] behavior. And there is no suggestion that he is likely to commit any future sex related offenses.” The special condition was vacated.