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Published By Joaquin & Duncan, L.L.C.
A Law Firm of Federal Sentencing Attorneys
November 2014
Sentence Adjustments
(Chapter 3)
United States v. Castro-Ponce 2014 WL 5394061 (9th Cir. 2014)
Explicit findings are required for obstruction enhancement
The government began investigating the defendant when a wiretap intercepted him speaking with someone thought to be involved in narcotics trafficking. The government began wiretapping his phones, tracking his car, and physically monitoring his movements over several months. The surveillance revealed that in a six-month period, he made at least eighteen trips to destinations often hundreds of miles from his home, staying at his destinations for only minutes or hours before returning. The defendant was arrested and charged with mu l t i p le dru g of f e n s e s in v o lv in g methamphetamine, as well as money laundering charges. During his six-day trial, the defendant testified regarding the trips and offered explanations for each. The jury found him guilty on all of the drug charges. At sentencing, the district court imposed a two-level enhancement for obstruction, pursuant to §3C1.1, after finding that the defendant “clearly lied on the stand with respect to the activities that he testified about and the offer of innocent and not credible explanations for those activities.” On appeal, the Ninth Circuit explained that for perjury to be deemed obstruction, the district court must find that: “(1) the defendant gave false testimony, (2) on a material matter, (3) with willful intent.” Here, the district court expressly found that the defendant testimony was false, but did not explicitly find that the testimony was willful or material. “For that reason, we conclude that the sentencing enhancement was incorrectly applied, and so the sentence must be vacated.” See United States v. Jimenez-Ortega, 472 F.3d 1102 (9th Cir. 2007). The court held that an express finding of materiality was required. “Absent a requirement of express findings on all three prongs necessary for perjury to amount to obstruction of justice, we would have to speculate about the district court’s legal conclusions on obstruction. Rather than engage in such speculation, we require the fact-finder to make those determinations explicitly for our review.”
United States v. Sinclair
2014 WL 5336486 (7th Cir. 2014)
Offenses were not grouped under §§3D1.2(c)
The defendant was charged with being a felon in possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. §924(c), and possession of marijuana with intent to distribute. A jury convicted him on both counts. The PSR recommended
grouping the drug count with the felon-inpossession count under §3D1.2, which directs the court to combine “[a]ll counts involving substantially the same harm” into a single group
and determine the offense level for the group. The government objected to the grouping recommendation, noting that grouping did not apply because the defendant was convicted of a §924(c) offense, which carried a mandatory 60- month consecutive sentence, thus removing the otherwise applicable basis for grouping under §3D1.2(c). Absent grouping, the offense level was 17 instead of 16, resulting in a slightly higher guidelines range for the two counts. The judge agreed with the government and imposed a sentence of 57 months on the drug count and tacked on the mandatory consecutive 60-month term for the §924(c) conviction, for a total sentence of 117 months. On appeal, the Seventh Circuit affirmed the sentencing, holding: “In the ordinary case, the drug and felon-in-possession counts are treated as specific offense characteristics of each other, triggering offenselevel enhancements and thus the grouping rule of §3D1.2(c). But the guidelines specifically provide that enhancements for firearm possession do not apply when the defendant is also convicted of violating §924(c), which carries a mandatory consecutive sentence. See §2K2.4 cmt. n. 4. “Because the otherwise applicable offense-characteristic enhancements were not applied here, there was no basis for grouping under §3D1.2(c).” The court noted that the Eighth Circuit reached a contrary conclusion in United States v. Bell, 477 F.3d 607 (8th Cir. 2007). The Eighth Circuit relied “on the introductory comment to Part D of Chapter Three of the guidelines, which explains that the grouping rules implement a general policy of incremental punishment and seek to avoid unwarranted increases in punishment for the same essential conduct.” The Seventh Circuit disagreed with that interpretation of the guidelines, stating that “[t]he introductory comment to the grouping guideline [§3D1.2(c)] doesn’t alter the language of the relevant offense guidelines” and “[t]he relevant Chapter Two guideline directs the court not to apply offensecharacteristic enhancements for firearm possession when a §924(c) conviction is in the sentencing mix.” §2K2.4 cmt. n. 4.
Plea Agreements (§ 6B)
United States v. Heredia
2014 WL 5018109 (9th Cir. 2014)
Government breached plea agreement under Rule 11(c)(1)(C)
The defendant, a native and citizen of Mexico, repeatedly crossed the border into the
United States without authorization. After being removed from the United States in 1992, 2009, and 2010, he again entered and was charged with illegal reentry. The government provided notice that one of the defendant’s prior removals had occurred subsequent to an aggravated felony conviction. The defendant entered into a fasttrack plea agreement under Rule 11(c)(1)(C), whereby the parties agreed to a total offense level of nine and the government agreed to recommend a sentence at the low end of the sentencing range. The PSR calculated a criminal history score of II and a sentencing range of six to twelve months. The government filed a sentencing memo stating that the criminal history “communicates a consistent disregard for both the criminal and immigration laws of the United States.” The district court informed the parties that it would not accept the plea agreement. The defendant argued that the agreement had been breached and moved for specific performance,
which was denied. The defendant decided not to withdraw his guilty plea and was sentenced to 21 months. On appeal, the Ninth Circuit noted that “when the prosecutor makes a promise to the defendant, that promise must be fulfilled.” Further, “[t]he government breaches its
agreement with the defendant if it promises to recommend a particular disposition of the case, and then either fails to recommend that disposition or recommends a different one.” Under Rule 11(c)(1)(C), the same principles apply as those governing standard plea agreements. Here, the “government breached its agreement, however, through its repeated and inflammatory references to [the defendant’s] criminal history in its sentencing memorandum.” “Accordingly, when a defendant timely objects, moves for specific performance, and successfully appeals the district court’s post-breach order rejecting a Rule 11(c)(1)(C) plea agreement, the appropriate remedy is to vacate the conviction and sentence and remand for further proceedings before a different judge. The defendant must have the opportunity to withdraw his plea after the district court exercises its discretion to accept or reject the agreement in a manner unaffected by the government’s breach.” Here, the defendant challenged only his sentence; therefore the sentence was remanded for resentencing before a different district judge.
United States v. Bell
2014 WL 5352792 (9th Cir. 2014)
Specific conditions of supervised release were improper
The defendant filed five false tax forms (1099-OID) and assisted others in filing the same
forms. The forms collectively requested over $2.7 million in unwarranted refunds, and caused the IRS mistakenly to make refund payments exceeding $670,000. He was sentenced to 97 months in prison and three years of supervised release. Among the conditions of his supervised release, the district court ordered the defendant to undergo substance abuse treatment and to abstain from consuming alcohol. On appeal, the defendant contended that the two conditions were erroneous. The Ninth Circuit agreed, explaining that while a district court has broad discretion to impose special conditions on supervised release, the conditions must be “no greater deprivation of liberty than is reasonably necessary” and must be “reasonably related to (1) the nature and circumstances of the offense; (2) the history and characteristics of the defendant; (3) the need for adequate deterrence to criminal conduct; (4) the need to protect the public from further crimes of the defendant; and (5) the need to provide the defendant with needed training, medical care, or other correctional treatment in the most effective manner.” Reviewing for plain error, the court found that the record contained no evidence showing that the defendant abused alcohol or other substances, and no relevant findings were made during the sentencing hearing. The government responded that the record contained no information about the defendant’s substance abuse history because he refused to cooperate with the Probation Department. “If [the defendant’s] refusal to cooperate is the reason for the district court’s silence in its fact finding, the district court should make a finding explaining that, but without more evidence it is difficult to infer merely from [his] intransigent refusal to cooperate with the court that he had a drug or alcohol abuse problem. We vacate the challenged conditions and remand with instructions that the district court explain its reasons for imposing the special conditions.”
United States v. Hinds
2014 WL 5422977 (7th Cir. 2014)
Failure to make findings as to ability to pay required remand
The defendant was involved in a conspiracy where he and others obtained approximately 300
counterfeit credit and debit cards, embossed their names on the cards, which were linked to accounts held by other account holders with two banks, then went on a shopping spree. They were caught after several of the cards were denied when they tried to use them at a Sam’s Club. A search of the defendant’s car revealed approximately 275 fraudulent credit and debit cards. The defendant pled guilty to conspiracy to use counterfeit devices, possession of forged securities, and conspiracy to commit bank fraud. The district court sentenced him to three concurrent terms of 30 months. The defendant was also ordered to pay restitution, but the court found that he did not have the ability to pay either interest or a fine. Further, as a condition of supervised release, the court imposed a special condition requiring him to pay a portion of his substance abuse treatment and drug testing during his period of supervised release. On appeal, the defendant argued that ordering him to pay part of his treatment costs was erroneous. The Seventh Circuit noted that the payment condition was authorized under 18 U.S.C. §3672, but “just because a court can do something does not mean that it should.” Here, the district court failed to make sufficient findings regarding the connection of the payment condition to the defendant’s offense, thus resulting in an undeveloped record on appeal. “More troubling, the part of the record that is developed appears inconsistent with itself. For example, the district court expressly found [the defendant] lacked the ability to pay the interest requirement on the restitution amount. So it waived it. The district court also did not order a fine based on the defendant’s financial resources.” Despite this finding, the district court imposed the payment condition without making it contingent on his ability to pay. “Absent this contingency, the district court’s payment condition is not only unsupported, but also inconsistent with its previous findings regarding [the defendant’s] Hinds’s indigence.” See United States v. Siegel, 753 F.3d 705 (7th Cir. 2014).
