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Resentencing Allowed Upon Vacatur of Prior State Drug Conviction
United States v. Cuevas, 2015 WL 545132 (1st Cir. 2015)
The defendant was convicted for conspiracy to distribute heroin. The PSR calculated a base offense level at 24 and a criminal history category at IV, which included two prior felony drug convictions in Massachusetts state court: an October 3, 2007, conviction for possession of a Class A substance and a November 30, 2007, conviction for possession with intent to distribute a Class A substance. The court imposed a sentence of 84 months on the heroin charges.
While the defendants appeal of his conviction (but not his sentence) was pending in the First Circuit, it came to light that Annie Dookhan, a chemist for the State, had falsified certificates of drug analysis and contaminated negative samples so that they would test positive. Further, it was determined that Dookhan had participated in the drug analysis leading to both of the defendant’s state drug convictions. The defendant filed motions that resulted in both convictions being vacated. In the mean time, the appeal of his conviction was denied.
The defendant filed a pro se §2255 motion requesting relief in light of the vacatur of the state convictions, which lowered his criminal history to a category III. The district court denied relief, holding that the defendant’s claim was not cognizable. On appeal, the issue was: “whether, under Mateo v. United States, 398 F.3d 126 (1st Cir. 2005) and Johnson v. United States, 544 U.S. 295 (2005), [the defendant’s] claim is cognizable under [28 U.S.C.] §2255, including whether he claims the right to be released on the ground that the sentence was imposed in violation of the Constitution or is otherwise subject to collateral attack.”
The First Circuit explained that under §2255, a federal prisoner “may move the court which imposed the sentence to vacate, set aside or correct the sentence on one of the following four grounds: [1] that the sentence was imposed in violation of the Constitution or laws of the United States, or [2] that the court was without jurisdiction to impose such sentence, or [3] that the sentence was in excess of the maximum authorized by law, or [4] is otherwise subject to collateral attack.” The court ultimately analyzed the defendant’s claim under the fourth ground noting that it “encompasses assignments of error that reveal fundamental defects which, if uncorrected, will result in a complete miscarriage of justice, or irregularities that are inconsistent with the rudimentary demands of fair procedure.”
Under the facts of this case, the court found “that the facts in [the defendant’s] case – namely, the vacatur of his state convictions in light of Annie Dookhan’s involvement in those cases – are sufficiently exceptional such that his claim is cognizable under §2255. Our holding is narrow. We need not and do not address the cognizability of a claim . . . that the sentencing court legally erred in applying the Guidelines.” Finally, the court observed that it was “aware of no Court of Appeals case taking a contrary position.” See Purvis v. United States, 662 F.3d 939 (7th Cir. 2011); Stewart v. United States, 646 F.3d 856 (11th Cir. 2011); United States v. Pettiford, 612 F.3d 270 (4th Cir. 2010); United States v. Doe, 239 F.3d 473 (2d Cir. 2001); United States v. LaValle, 175 F.3d 1106 (9th Cir. 1999); United States v. Cox, 83 F.3d 336 (10th Cir. 1996); United States v. Nichols, 30 F.3d 35 (5th Cir. 1994). “Accordingly, we join our sister circuits and hold that claims such as [the defendant’s] are cognizable under the fourth prong of §2255(a).”
Case Summaries
Offense Conduct
(Chapter 2)
United States v. Iovino
2015 WL 405583 (2nd Cir. 2015)
Tenants of condominium association qualified as “victims” of fraud
The defendant worked as the property manager of a condominium association (”Association”) that had more than 70 tenants. The condominium board discovered that the defendant had taken out an unauthorized loan in the name of the Association and had also made several unauthorized withdrawals from its bank accounts. The defendant pled guilty to wire fraud and bank fraud. The evidence showed that because of the defendant’s crime, the association raised its common charges by roughly $100 per month to replenish the accounts depleted by the fraud. The PSR calculated a loss amount of $139,292.00, and recommended a four-level enhancement under §2B1.1(b)(2), based on the 70 plus tenants of the condominium association being victims of the offense. The district court adopted the PSR and sentenced the defendant to 60 months. On appeal, the defendant contended that the district court erred by finding that each owner of a unit in the condominium qualified as a victim, rather than just the Association itself. The Second Circuit began by explaining that for the enhancement to apply, “a victim must have sustained part of the actual loss determined under subsection [2B1.1](b)(1).” The defendant, citing United States v. Abiodun, 536 F.3d 162 (2d Cir. 2008) and United States v. Skys, 637 F.3d 146 (2d Cir. 2011), argued that the only person or entity that “sustained . . . part of the actual loss determined” was the Association. The court found the argument to be without merit. The Association had to increase its common charges to replenish its bank accounts, therefore, “the individual tenants ‘sustained [a] part of the actual loss determined under subsection (b)(1),’ and were properly counted as victims. Accordingly, the judgment and sentence of the district court are hereby AFFIRMED.”
United States v. Sarabia-Martinez
2015 WL 736009 (5th Cir. 2015)
Florida conviction for trafficking methamphetamine (14 grams or more) not categorically “drug trafficking offense” The defendant pled guilty to illegal reentry.
His sentence was enhanced sixteen levels, pursuant to §2L1.2, based on a previous “drug
trafficking offense” conviction. The district court based the enhancement solely on information in the PSR and sentenced the defendant to 50 months. On appeal, the defendant argued it was plain error to treat his prior “Trafficking in Methamphetamine 14 Grams or More” (Florida Stat. Ann. §893.135(1)(f)) conviction as a “drug trafficking offense.” The Fifth Circuit reversed, holding that because the Florida statute classified mere possession as drug trafficking, it was defined more broadly than defined in the sentencing guidelines, and “[u]nder the categorical approach, application of the ‘drug trafficking offense’ enhancement would therefore be improper.” See United States v. Garza-Lopez, 410 F.3d 268 (5th Cir. 2005) and United States v. Lopez-Salas, 513 F.3d 174, 178-79 (5th Cir. 2008). A “conviction under the Florida drug trafficking statute does not categorically constitute a drug trafficking conviction for purposes of the sentencing guidelines. We further hold the district court plainly erred by relying on the PSR in applying the sentence enhancement. Because the error affected [the defendant’s] substantial rights, we vacate the sentence and remand for resentencing.”
United States v. Garcia-Perez
2015 WL 753759 (5th Cir. 2015)
Florida manslaughter conviction was not “crime of violence” under §2L1.2
The defendant was brought to the United States as an infant in 1969. In 1996, he pled no
contest to manslaughter under Florida Statute §782.07 and was deported. He re-entered the
United States several times. In 2013, he pled guilty to being an alien unlawfully present in the United States after deportation following an aggravated felony. The PSR recommended a 16- level enhancement under §2L1.2(b)(1)(A)(ii), based on the Florida manslaughter conviction being a “crime of violence.” Over the defendant’s objection, the district court adopted the PSR and sentenced him to 87 months, the top of the guideline range, noting that it was tempted to depart upwards, but did not do so. On appeal, the Fifth Circuit reversed: “Because §782.07(1) neither has an element of force nor punishes only generic contemporary manslaughter, it is not a crime of violence for purposes of §2L1.2(b)(1)(A)(ii). It was thus error to enhance [the defendant’s] offense level by 16 levels on the basis of his manslaughter conviction. Had the 16- level ‘crime of violence’ enhancement not been erroneously applied, [the defendant] would have been subject to, at most, an 8-level ‘aggravated felony’ enhancement under §2L1.2(b)(1)(C). All else being equal, the smaller enhancement would produce a total offense level of 13, which . . . would result in a Guideline range of 30 to 37 months. This range is 50 to 57 months less than the 87-month prison sentence imposed. We VACATE the judgment of sentence and REMAND for resentencing.”
United States v. Jones
2015 WL 727969 (1st Cir. 2015)
Two-level §2D1.1(b)(12) stash house enhancement was justified
DEA agents observed a drug dealer (“CW”) meeting the defendant at an apartment before CW sold crack cocaine to a confidential informant. The surveillance team saw the defendant’s coconspirator, Murphy, enter and leave the apartment on several occasions. Later, Murphy again met with CW, who then sold crack to an undercover police officer. CW was detained and found in possession of 63 grams of crack cocaine. At this point, CW began cooperating with the DEA. On three occasions, CW contacted the defendant by text message to set up controlled buys, resulting in two sales by Murphy and one sale by the defendant himself. The agents eventually searched the apartment and recovered over 600 grams of crack cocaine and nearly 500 grams of powdered cocaine. The defendant pled guilty to five counts of drugrelated offenses in exchange for the government’s withdrawal of a sentenceenhancing information under 21 U.S.C. §851. The PSR recommended a two-level enhancement for maintaining the apartment as a stash house, under §2D1.1(b)(12). The district court adopted the PSR and sentenced the defendant to 135 months. On appeal, the First Circuit explained that the “stash house enhancement applies when a defendant knowingly maintains a premises for the purpose of manufacturing or distributing a controlled substance” and that courts are to consider, among other things, “whether the defendant held a possessory interest in (e.g., owned or rented) the premises” and “the extent to which the defendant controlled access to, or activities at, the premises.” Further, “for the enhancement to apply, drug distribution need not be the sole reason that a defendant maintains the premises.” The court noted that the evidence showed that the defendant did not own or rent the apartment, did not receive mail there, did not use the address on any official forms, and did not contract for any of the utilities. On the other hand, the evidence showed that the defendant had ready access to the apartment, had gotten a key from the tenant, had given a duplicate key to Murphy, from time to time spent the night there, kept clothes and a toothbrush there, and elt free to come and go as he pleased. Based on these facts, the court affirmed the enhancement, holding that “[t]here was ample evidence that the defendant exercised dominion and control over the apartment. He had a key, came and went at will, and slept there whenever he pleased. He – and no one else – kept clothes and toiletries there. In addition, he controlled the activities that took place at the apartment (by, for example, furnishing a key to his coconspirator) and ensured that the premises would remain available by delivering rent payments.”
United States v. Ferdman
2015 WL 619629 (10th Cir. 2015)
Unverified letter from Sprint, as victim insufficient to justify restitution
The defendant and three co-conspirators illicitly obtained the account information of
numerous Sprint corporate customers and used that information to purchase phones by impersonating the corporate account representatives. The defendant charged the price of the phones to the corporate accounts, and then sold at least some of the phones to one of his coconspirators for online resale. He pled guilty to (a) conspiracy to transport in interstate commerce fraudulently obtained goods valued at $5,000 or more, and (b) conspiracy to use unauthorized access devices to obtain goods valued at $1,000 or more. The district court imposed a sentence of 15 months and ordered the defendant to pay Sprint $48,715.59 in restitution, under the Mandatory Victims Restitution Act (“MVRA”). The court calculated this amount based on what Sprint referred to as the “retail unsubsidized price” of 86 cell phones the defendant fraudulently procured, plus Sprint’s shipping and investigative costs. As support for this amount, the government offered an unverified two-page letter, prepared by Sprint’s regional manager of investigations, purporting to list the amount of losses Sprint sustained. On appeal, the defendant asserted that in awarding Sprint criminal restitution, the district court abused its discretion by basing the “value” of Sprint’s cell phones on their “retail unsubsidized price,” absent any evidence that his fraud diverted sales from Sprint, thereby affecting its profits. The Tenth Circuit explained that “in a case where a merchant claims its actual loss encompasses petail sales, the MVRA imposes on the
Government the task of producing some evidence that the defendant’s theft in fact caused the victim to lose retail sales.” In addition, “[u]nlike loss under the Guidelines, the MVRA requires proof of actual loss and does not allow alternative metrics, such as intended loss.” Here, the government presented a mere claim that but for the defendant’s theft, Sprint may have made additional sales. “The Government must present at least some evidence . . . from which the court could reasonably infer lost sales. And . . . unless the Government can show the defendant’s crime depleted the stock of a particular fungible or readily replaceable good like a cell phone, at a time when the victim might otherwise have been able to sell that good to a willing buyer, something akin to replacement or wholesale cost clearly appears the more accurate measure of actual loss. Of course, because the MVRA’s controlling metric is actual loss, the Government still must satisfy its burden to prove the amount of the victim’s cost.” Finally, the unverified letter from Sprint was insufficient to support the estimated expenses Sprint incurred in investigating the fraud. “The record contains no actual proof, not even an affidavit, of what those expenses were. That those expenses for the most part appear reasonable is not enough to satisfy the evidentiary dictates of the MVRA. The likelihood that certain facts exist to confirm Sprint’s estimates, no matter how probable, does not relieve the Government of its burden, after proper objection, to establish their actuality.” The restitution order was vacated and remanded.
United States v. Burgos-Figueroa
2015 WL 627170 (1st Cir. 2015)
Enhancement for possessing firearms during conspiracy was not clear error
The defendant operated a “drug point” for a large drug conspiracy that operated in Puerto Rico and he ultimately entered into a plea agreement pleading guilty to conspiracy to distribute large quantities of cocaine, heroin and marijuana. The agreement contained a stipulation that he would receive a two-level role in the offense enhancement and a three-level reduction for acceptance of responsibility. The PSR detailed that the conspiracy involved the use of a firearm for protection against rival organizations, and detailed that there had been gunfights with rival gangs. The defendant did not object to these factual statements in the PSR; however, he did object to the two-level firearm enhancement recommended pursuant to §2D1.1(b)(1). He argued that the enhancement should not apply as there was no direct evidence that he or any person working under his supervision possessed firearms. The district court imposed the enhancement, finding that as a drug point owner and leader of the conspiracy, he reasonably could have foreseen that co-conspirators would possess firearms. The defendant was sentenced to 168 months. He appealed, arguing that the district court erred in imposing the enhancement where others used the firearm and he did not, where there was no evidence that any of the individuals he supervised used a firearm, and where he was not charged with a weapons count. On appeal, the First Circuit found that the enhancement was properly applied. The PSR contained an unchallenged factual basis to establish that the conspiracy involved firearms, including evidence of turf wars and shoot outs with rivals. The district court could appropriately infer that it was reasonably foreseeable to the defendant that the conspiracy involved firearms. The court further found that the fact that the conspiracy involved large amounts of drugs bolstered the reasonable belief that firearms were involved as where “large quantities of drugs are involved, firearms are common tools of the trade.” The fact that the defendant had not been charged with a weapons offense was irrelevant to the question of whether it was reasonably foreseeable that the conspiracy involved the use of weapons. The enhancement was upheld and the case was affirmed.
United States v. Rogers
2015 WL 452862 (7th Cir. 2015) §2B3.1(b)(5) enhancement for carjacking was proper
The defendant and his cohorts were involved in a bank robbery in which they accosted a bank employee upon her arrival at the back door of the bank, drew weapons on her, led her into the bank and directed her to turn on the lights, deactivate the alarm, and unlock the front door. They then made her attempt, unsuccessfully, to open the bank vault, while they took her car keys from her purse. The vault would not open due to a safety feature requiring more than one employee to be present, and they did not get any cash. The defendant and one other robber left in the employee’s car, while the others left in the two vehicles they had driven to the bank. The FBI had been watching one of the robbers for several months and was sitting outside of the bank. The defendant pled guilty to conspiracy to commit bank robbery, armed bank robbery and knowingly using, carrying and brandishing a firearm during and in relation to a crime of violence, and received consecutive sentences of 60 months on the bank robbery counts, followed by a consecutive sentence of 84 months on the firearm count. At sentencing, the district court applied a two-level enhancement for carjacking pursuant to §2B3.1(b)(5), which applies to the “taking or attempted taking of a motor vehicle from the person or presence of another by force and violence of by intimidation.” The defendant argued that the guideline did not apply to “keyjacking,” where the keys were taken from the presence of the victim without force, violence or intimidation. On appeal, the Seventh Circuit found that this “person and presence” argument had not been accepted by any court that had examined it, and would not be accepted in this court. Thus, the court joined other circuits and held that there was no distinction under the facts of this case between taking a car outright from a victim and taking keys from a victim. See, e.g., United States v. Savarese, 385 F.3d 15 (1st Cir. 2004); United States v. Soler, 759 F.3d 226 (2d Cir. 2014); United States v. Lake, 150 F.3d 269 (3d Cir. 1998); United States v. Davis, 233 Fed. Appx. 292 (4th Cir. 2007) (unpublished); United States v. Edwards, 231 F.3d 933 (5th Cir. 2000); United States v. Casteel, 663 F.3d 1013 (8th Cir. 2011); United States v. Burns, 701 F.2d 840 (9th Cir. 1983); United States v. Brown, 200 F.3d 700 (10th Cir. 1999). The court further found that the Sixth Circuit had examined a similar case in United States v. Boucha, 236 F.3d 768 (6th Cir. 2001), and had found that the broader interpretation of “person or presence” from the robbery statute conformed with the language and purpose of the Guidelines. The court rejected these arguments, holding: “for the purpose of §2B3.1(b)(5), a defendant who takes a victim’s keys by force or threat of force, and who later takes the car (which is sufficiently proximate for the owner to access it), may be sentenced as if he took the victim’s car in the presence of the victim by force or threat of force.”
