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Published By Joaquin & Duncan, L.L.C.
A Law Firm of Federal Sentencing Attorneys
November 2014
S e n t e n c i n g P a r t n e r s
Supreme Court to Determine ACCA Issue
Johnson v. United States, 13-7120
In 2010, the FBI began investigating the defendant Johnson based on his involvement in an organization called the National Social Movement. Later in 2010, the ` left that group to found the Aryan Liberation Movement (ALM). Later, the ` told an undercover FBI agent that he manufactured napalm, silencers, and other explosives for the ALM in addition to possessing an AK-47 rifle, several firearms, and a large cache of ammunition. He was arrested at a meeting with his probation officer and admitted to possessing some of the mentioned weapons.
The ` was charged with six counts of firearm possession. The district court classified him as an “armed career criminal” based on three prior violent felony convictions – attempted simple robbery, simple robbery, and possession of a short-barreled shotgun. The ACCA classification made the ` subject to a mandatory minimum sentence of 15 years. He argued that the convictions in question should not be considered violent felonies and that the ACCA was unconstitutionally vague. The district court disagreed and imposed a 15-year sentence. The Eighth Circuit affirmed. The Supreme Court granted certiorari in the following issue: Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act. Oral argument was held on November 5, 2014.
Case Summaries
Sentencing Partners – November 2014
Offense Conduct – (Chapter 2)
United States v. Hernandez
2014 WL 5314991 (9th Cir. 2014)
California’s felon-in-possession of firearm not an aggravated felony under §2L1.2(b)(1)(C)
The defendant came to the United States as an illegal alien in 1982, when he was two months old. In the past twelve years, he was deported six times, but returned illegally each time. He was again deported in December 2012, but by January 2013, he had returned and was arrested. He pled guilty to violating 8 U.S.C. §1326(a), (b)(2) (for being an illegal alien found in the United States following deportation). The district court enhanced his sentence by eight levels, pursuant to §2L1.2(b)(1)(C), finding that the defendant’s prior conviction for being a felon in possession of a firearm in violation of California Penal Code §12021(a)(1), was an aggravated felony. Citing its recent decision in United States v. Aguilera-Rios, —F.3d —-, 2014 WL 4800292 (9th Cir. 2014), the appeals court reversed, holding that the statute under which the defendant was convicted “criminalizes more conduct than the federal felon in possession of a firearm statute,” therefore there is no categorical match. “Without the benefit of our recent precedent, the district court erred in applying the eight-level enhancement, and we remand [the defendant’s] case for re-sentencing.”
United States v. Fernandez
2014 WL 5365686 (5th Cir. 2014)
Defendant was subject to ransom sentencing enhancement under §2A4.1(b)(1)
The defendant, along with several others, planned and executed a conspiracy to abduct an
older man in an attempt to collect a drug debt from him. When they executed their plan, instead of finding the older individual, they found nineteen-year-old “CG.” Believing CG was the son of the intended target, they abducted him and turned him over to a different group of kidnappers. The new group made a ransom demand of $700,000, but released CG the next day without being paid. The defendant was charged with one count of conspiracy to take a hostage; and one count of hostage taking. He pled guilty to the first count. The PSR calculated a total offense level was 38, which included, among other things, a six-level enhancement pursuant to §2A4.1(b)(1) for a ransom demand (the “Ransom Enhancement”), resulting in a sentencing range of 235 to 293 months. At sentencing, the defendant objected to the Ransom Enhancement because he “was unaware of any ransom demand made by other codefendants,” instead believing “the kidnapping was related to a debt owed by the father, not for a ransom demand.” Therefore, he argued the ransom demand was not foreseeable to him and was outside the scope of the conspiracy. The district court overruled the objection and sentenced the defendant to 234 months. The defendant raised the same objection on appeal and met with the same result – the sentence was affirmed. The Fifth Circuit explained that “the ransom enhancement applies anytime a defendant demands money from a third party for a release of a victim, regardless of whether that money is already owed to the defendant. Thus, the [defendant’s] belief that he and his coconspirators would demand repayment of a debt was a sufficient ground to apply the Ransom Enhancement.” “In sum, the district court properly applied the Ransom Enhancement to [the defendant] because it was foreseeable when he participated in the kidnapping conspiracy that money would be demanded for the release of the victim. That it was the wrong victim and a different demand does not change the result.”
United States v. Catone
2014 WL 5158197 (4th Cir. 2014)
Enhancement under §2B1.1 for loss amount was not warranted
The defendant worked for the United States Postal Service. In August 2006, he submitted a
claim for federal workers’ compensation benefits based on injuries arising from extended periods of driving. He began receiving payments in March 2007. In successive years, the defendant completed eligibility forms stating that he was receiving no additional compensation from other sources and that he was “unemployed for all periods.” From March 2007 to September 2009, the defendant received $121,729.80 in benefits. It was subsequently learned that the defendant had failed to disclose that he was employed by, and received income from a maintenance company for custodial work that he performed during the period that he obtained federal benefits. He was charged with making false statements in connection with his receipt of benefits, and for knowingly and willfully making a “materially false, fictitious, or fraudulent statement” to a federal official. A jury convicted him on the first count. The PSR calculated a loss amount, pursuant to §2B1.1(b)(1)(F), of $128,124.75, which constituted the entire amount of benefits the defendant received. Over the defendant’s objections, the district court adopted the PSR and imposed a sentence of 16 months. On appeal, the defendant argued that the loss amount should have been based on the difference between the amount of benefits that he actually received and the amount that he would have received but for the false statement. The Fourth Circuit explained that although “loss is the greater of actual loss or intended loss, [a] different rule applies, however, for government benefits offenses. We have held that, when a defendant obtains both proper and improper benefits, the amount of loss is calculated based on ‘the difference between the amount of benefits [the defendant] actually received and the amount he would have received had he truthfully and accurately completed the [CA-]1032 forms.’” Here, the record contained no evidence that supported a finding of loss in excess of $5,000. According to government witnesses who testified at trial, the precise amount of any reduction in the loss amount was calculated under a so-called “Shadrick Formula” published by the U.S. Department of Labor. However, the government “failed to present any evidence at trial or at sentencing showing how the Shadrick Formula would be applied in this case, nor did it present any other evidence otherwise establishing the amount of benefits [the defendant] would have been entitled to receive had he truthfully reported his outside income. While a sentencing court need only make a reasonable estimate of loss based on the available information in the record, an estimate that is unsupported by any evidence cannot be reasonable.” “Because there is no evidence in the record that could support a loss amount exceeding $5,000, we direct the district court on remand to resentence [the defendant] under §2B1.1(b)(1)(A), without any offense-level enhancements for loss amount.”
United States v. Dodd
2014 WL 5462536 (4th Cir. 2014)
Correctional officer occupied sensitive position, warranting §2C1.1(b)(3) enhancement
The defendant, an inmate at Rivers Correctional Institution paid two correctional officers thousands of dollars to smuggle cellular telephones and tobacco products into the facility. He then sold the items to other inmates. His scheme was foiled when prison staff found various prohibited items in another inmate’s cell. The defendant pled guilty to bribing one of the
correctional officers, and to a conspiracy charge. The PSR recommended a sentencing range of 37 to 46 months, based in part on a four-level enhancement under §2C1.1(b)(3), which applies when “the offense involved an elected public official or any public official in a high-level decision-making or sensitive position.” The defendant objected to the enhancement, arguing that the officers did not occupy a high-level decision-making or sensitive position. The district court overruled the objection and sentenced the defendant to 37 months. On appeal, the defendant raised the same argument and met with the same fate. The Fourth Circuit noted that the commentary to §2C1.1 states that “[h]igh-level decision-making or sensitive position” is defined as one that is “characterized by a direct authority to make decisions for, or on behalf of, a government department, agency, or other government entity, or by a substantial influence over the decision-making process.” The court explained that the officers were empowered to make decisions on behalf of the Bureau of Prisons, and the defendant’s “bribes caused the officers to wield their authority in at least two improper ways: they used their position to circumvent Rivers CI security, and they ignored their duty to enforce the institution’s regulations.” The court affirmed the sentence, holding: “the correctional officers [the defendant] bribed occupied a sensitive position within the meaning of §2C1.1(b)(3). Accordingly, the district court did not abuse its discretion by applying this enhancement to [him] at sentencing.”
