Sentencing Commission Seeks Comment on Potential
Reduction to Drug Trafficking Sentences
Requests Feedback on Proposed
Amendments for 2013-14 Amendments Cycle
On January 9, 2014, the Sentencing Commission voted to publish proposed guideline amendments, including possible reductions to the sentencing levels for federal drug trafficking offenses. The Commission voted to seek comment on a proposed amendment to lower by two levels the base offense levels in the Drug Quantity Table across drug types in §2D1.1. Analysis performed by the Commission indicates that such a change would result in a reduction of approximately 11 months for those drug trafficking offenders who would benefit, resulting in a reduction in the federal prison population of approximately 6,550 inmates by the fifth year after the change.
“The Commission’s proposal reflects its priority of reducing costs of incarceration and overcapacity of prisons, without endangering public safety.” A Commission study of offenders who received a reduced sentence pursuant to a similar two-level decrease in guideline levels for crack cocaine offenders in 2007 found no difference in recidivism rates for those offenders released early compared to those who served their full sentence.
The Commission also voted to publish a proposed amendment responding to the Violence Against Women Reauthorization Act of 2013. In addition, the Commission asked for comment on whether the guidelines adequately address the environmental and other harms of drug production operations, in particular the cultivation of marijuana, and requested comments on issues related to the alien smuggling guideline and on resolving circuit court conflicts regarding the sentencing guidelines, among other matters.
The proposed amendments and issues for comment will be subject to a 60-day public comment period running through mid-March. A public hearing on the proposed amendments will be scheduled in Washington, D.C., on March 13, and a hearing concerning issues related to the reauthorization of the Violence Against Women Act will be held February 13.
The Commission’s press release is available at: http://www.ussc.gov/Legislative_and_Public_Affairs/Newsroom/Press_Re
Editor’s Note: The proposed two-level reduction could certainly be used now as a basis for a downward variance. If it’s good enough to possibly be implemented in the next amendment cycle, it’s good enough now. Ask for a two-level reduction – the worst that can happen is the judge denying your request.
United States v. Castaneda
2013 WL 6672994 (5th Cir. 2013)
Texas conviction of burglary of habitation not “crime of violence” under §2L1.2(b)(1)(A)(ii)
The defendant pled guilty without a plea agreement to illegal reentry. The PSR added a 16-
level enhancement pursuant to §2L1.2(b)(1)(A)(ii) because of a prior conviction for a crime of violence: a 2001 Texas felony conviction for burglary of a habitation. The defendant did not object to the enhancement and the court imposed a sentence of 54 months. On appeal, the defendant argued that the burglary of a habitation conviction was under subsection (a)(3) of Texas Penal Code §30.02, which did not constitute a crime of violence. The Government conceded that the district court plainly erred, but the appeals court noted that it was “not bound by the Government’s concession.” Analyzing the Texas statute, the court noted that “[n]o subsection of §30.02(a) requires as an element the use, attempted use, or threatened use of force.” Consequently, the conviction did not constitute a crime of violence under the residual clause, “and the only issue in this appeal is whether the district court erred in deciding that [the defendant’s] burglary of a habitation conviction constituted an enumerated offense.” The court explained that it had “held that §30.02(a)(1) coincides with the generic, contemporary definition of burglary, so it constitutes . . . a crime of violence. However, this court has held that a conviction under §30.02(a)(3) is not a generic burglary because it lacks the requisite element of specific intent to commit a crime at the time of entry.” Reviewing the judgment, the indictment, and the judicial confession and stipulation, the court found that the judicial confession “tracked the language” of §30.02(a)(3), but did not include “with the intent to commit a theft,” which is the specific intent required under §30.02(a)(1). Because the defendant only admitted to the elements of §30.02(a)(3), “which does not include an element of the generic offense of burglary – intent to commit a crime at the time of entry. The Government therefore failed to show that [the defendant] necessarily admitted to all of the elements of a generic ‘burglary of a dwelling’ offense. As a result, the district court erred in holding that the Government had satisfied its burden of proving [the defendant] was convicted of a crime of violence.”
United States v. Mathis
738 F.3d 719 (6th Cir. 2013)
Environmental-related enhancements under §2Q1.2 were warranted
The defendant was hired by Donald and Gary Fillers (Fillers) to demolish an unused factory site in Chattanooga, Tennessee in exchange for some of the salvageable materials. The Fillers knew the site contained asbestos and hired an asbestos-removal company (“ADC”), but did so without telling them about an asbestos survey that showed “a large amount of duct, pipe, and equipment insulation containing asbestos.” Temporary laborers were hired to remove debris and salvage materials, but the workers were not equipped with protective gear and
were not trained in asbestos removal. The workers used power tools to cut through pipes wrapped in insulation, then threw the materials out of windows. The defendant’s company would then move in and demolish the portions of the site that had been cleared by the temporary workers. A routine inspection by the local Air Pollution Control Bureau revealed the site had debris containing asbestos piled all over it, with no fences or security guards to keep the public out. The defendant, along with others, was charged with conspiracy to violate the Clean Air Act, and the defendant was convicted by a jury. The district court determined that the sentencing range was 27 to 33 months. This calculation included two enhancements: a six-level adjustment under §2Q1.2(b)(1)(A) for engaging in an “ongoing continuous, or repetitive discharge, release, or emission of a hazardous or toxic substance or pesticide into the environment,” and a nine-level adjustment under §2Q1.2(b)(2) for conduct “result[ing] in a substantial likelihood of death or serious bodily injury.” After a downward variance, the defendant was sentenced to 18 months. On appeal, he contended that neither enhancement should have been applied. As for the first enhancement, he argued that the evidence did not sufficiently show that asbestos was released into the environment. The Sixth Circuit disagreed, explaining that “[t]o trigger the provision, the government must show that some amount of hazardous or toxic substance contaminated the environment, but it need not show actual harm to the environment. Moreover, . . . direct evidence of a substance’s release into the environment is not necessary; rather, in most cases reasonable inferences from available evidence will suffice to support a conclusion that illegal acts resulted in contamination.” Testimony showed that workers removed material likely containing asbestos without following correct removal protocol by wetting it, but instead dumped the material out the back of the building for collection and removal. Therefore, the enhancement was properly imposed.
Regarding the §2Q1.2(b)(2) enhancement, the defendant argued that the evidence failed to show that someone suffered substantial exposure to a hazardous material for a substantial period of time, citing Lindstrom v. A-C Product Liability Trust, 424 F.3d 488 (6th Cir. 2005). Again, the appeals court disagreed, holding that the enhancement was proper. Citing United States v. Thorn, 317 F.3d 107 (2nd Cir. 2003), the court held that “a district court should apply the §2Q1.2(b)(2) enhancement if the defendant’s offense made it considerably more likely that a person would die or develop a serious bodily injury. Actual death or serious bodily injury need not occur to apply the enhancement.” Here, the district court “found that ‘no exposure to asbestos is proven safe’ and ‘any exposure to asbestos is potentially hazardous,’ that ‘workers were necessarily exposed to asbestos fibers released by’ their improper removal procedures, and that ‘members of the salvage crew were not only exposed to asbestos fibers, but inhaled them.’ Evidence put forth at trial and the sentencing hearing supports each of these conclusions.” Consequently, “we see no clear error in the court’s assessment. The district court properly applied the §2Q1.2(b)(2) enhancement.”
United States v. Roybal
737 F.3d 621 (9th Cir. 2013)
Allowing child to print child pornography qualified as “distribution”
The defendant pled guilty to one count of receiving child pornography. The PSR stated that
the defendant had sexually abused an eleven-year-old child over a four month period prior to his arrest, explaining that the victim had disclosed multiple occasions where the defendant provided her with alcohol and had her watch pornography with him. Based on these claims, the PSR recommended a sixlevel enhancement under §2G2.2(b)(3)(D) because the offense involved “distribution to a minor that was intended to persuade, induce, entice, or coerce
the minor to engage in any illegal activity.” The victim testified that the defendant allowed her to print images of both adult and child pornography so she could make a book of the images. Over the defendant’s objection, the district court adopted the PSR and sentenced him to 216 months. On appeal, the defendant argued that the six-level enhancement was inapplicable because his conduct of “showing” child pornography to the victim did not qualify as
“distribution.” The Ninth Circuit declined to address this question because the defendant’s act of permitting the child victim to print copies of child pornography stored on his computer independently qualified as “distribution.” Under §2G2.2, “distribution” is defined as “any act, including possession with intent to distribute, production, transmission, advertisement, and transportation, related to the transfer of material involving the sexual exploitation of a minor.” Further, the court had previously held that “permitting a third party to copy images of child pornography within one’s possession through an electronic file sharing service qualifies as distribution.” See United States v. Budziak, 697 F.3d 1105, 1109 (9th Cir. 2012). “Just like an individual who allows others to access and copy images of child pornography via an online filesharing program, [the defendant] allowed the child victim to access the pornographic images stored on his computer and create copies of those images. The fact that the access given to the child victim was inperson rather than over the internet is inconsequential; [the defendant’s] act was certainly ‘related to the transfer of material involving the sexual exploitation of a minor,’ fulfilling §2G2.2’s definition of distribution.”
United States v. Perez-Perez
737 F.3d 950 (4th Cir. 2013)
N.C. conviction for taking indecent liberties with minor qualified as “sexual abuse of a minor”
After unlawfully entering the United States for a second time, the defendant pled guilty to illegal reentry after deportation by an aggravated felon. The district court concluded that the defendant’s prior North Carolina conviction for taking indecent liberties with a minor constituted a crime of violence, applied a sixteen-level enhancement under §2L1.2(b)(1)(A), and imposed a sentence of 46 months. On appeal, the defendant contended that his prior conviction did not qualify categorically as sexual abuse of a minor, and thus was not a crime of violence. The Fourth Circuit explained that the “categorical approach” involved four steps: “First, we identify which of the listed crimes in the Commentary to the Guideline (“the Guideline crime”) most closely approximates the prior state crime. Second, we identify the ‘generic definition’ of the Guideline crime. Third, we compare the elements of the prior state crime to those in the generic definition of the Guideline crime. If the elements of the prior state crime ‘correspond in substance’ to those of the Guideline crime, then the prior state crime is a crime of violence and our inquiry comes to an end. If, however, the elements do not correspond in substance, then we proceed to the fourth step, which involves an assessment of whether the scope of conduct criminalized by the prior state crime is categorically overbroad when compared to the generic definition of the Guideline crime. A prior state offense whose elements criminalize a broader scope of conduct than the Guideline crime is not categorically a crime of violence.” Using this framework, the court found that the defendant’s prior offense “qualified categorically, at step three, . . . as sexual abuse of a minor, and therefore as a crime of violence” under §2L1.2(b)(1)(A). In this case, the court found, under the elements of the state statute in question, “[i]t would be difficult, if not impossible, to conceptualize a situation in which a perpetrator ‘willfully’ took or attempted to take an ‘immoral, improper, or indecent liberty’ with a minor that did not involve his ‘physical or nonphysical misuse or maltreatment of [that] minor for a purpose associated with sexual gratification.’ Even if we could come up with such a case, it would likely run counter to the Supreme Court’s admonishment that the categorical analysis requires more than the application of legal imagination to a state statute’s language. We are tasked instead with assessing whether there is a realistic probability, not a theoretical possibility, that North Carolina would apply its statute to conduct that falls outside the generic definition of a crime. Accordingly, we hold that a conviction for taking indecent liberties with a minor qualifies categorically as sexual abuse of a minor . . . and is therefore a crime of violence.”
United States v. Doss
2013 WL 6698046 (7th Cir. 2013)
Enhancement for trafficking of unauthorized access device was plain error
The defendant was the organizer of an identity theft scheme in which he obtained stolen identities and created fake documents. He sold this information to others who used it to obtain credit cards and gift cards in the stolen names. The purchasers would then buy items using the credit and gift cards, and provide the items to the defendant, who resold them for cash, paying a portion of the profits to the information purchasers. The scheme was discovered during two traffic stops in which names, social security numbers, credit cards and gift cards were located, which led to a search of an apartment used by the defendant where further evidence was located. The defendant pled guilty to one count of possessing with intent to use unlawfully or transfer unlawfully five or more identification documents; one count of possessing, with intent to defraud, fifteen or more counterfeit and unauthorized access devices; and one count of aggravated identity theft. He received a sentence of 78 months on the first two counts, which were grouped, and a mandatory consecutive two-year sentence on count three. He appealed the application of §2B1.1(b)(11), which provides a two-level enhancement if the offense involved “the production or trafficking of any (i) unauthorized access device or counterfeit access device, . . . .” The sentencing court found that while he did not produce the credit cards, he had trafficked in the credit cards, as he had provided the necessary information for the cards to be obtained, and then profited from their use. Without the enhancement, the sentencing range would have been 51 to 63 months. On appeal, the defendant argued for the first time that Application Note 2 to §2B1.6, which applied to count three and required a mandatory two-year consecutive sentence, precluded the district court from applying the trafficking enhancement in §2B1.1(b)(11)(B). Reviewing for plain error, the Seventh Circuit noted that the application note specified that when the sentence was imposed at the same time as the sentence for an underlying offense, “do not apply any specific offense characteristic for the transfer, possession, or use of a means of identification when determining the sentence for the underlying offense. A sentence under this guideline accounts for this factor for the underlying offense of conviction, including any such enhancement that would apply based on [relevant] conduct.” The court found that personal identification information, such as Social Security numbers and driver’s licenses qualified as “means of identification,” and that the defendant’s transfer to the purchasers was sufficient evidence of trafficking under §2B1.1(b)(11)(B) because the defendant had transferred information to the purchasers so that they could obtain credit cards to continue his scheme. As a result, Application Note 2 precluded the application of the enhancement under §2B1.1. The court also found that the error affected the defendant’s substantial rights as it increased the guideline range, and the error impacted the fairness of the proceeding. As a result, the sentence was vacated and the case was remanded.