Criminal History
(Chapter 4)
United States v. Reyes-Ceja
712 F.3d 1284 (9 Cir. 2013) § 4A1.1(d) applied to a deportee “found in” U.S. while imprisoned and unable to depart
In this case, the Ninth Circuit decided the legal issue of whether ICE finding someone in penal
custody suffices for a “while under any criminal justice sentence” enhancement to criminal history, under §4A1.1(d), when the individual had been confined by state authorities some time earlier and was not free to depart the United States on or about the date specified in the federal “found in” charge. The defendant had serious prior criminal history and had been deported and reentered the United States on numerous occasions. He pled guilty to a violation of 8 U.S.C. §1326, for being found in the United States on or about November 25, 2009 following prior deportation. The plea agreement stipulated that he had reentered the United States on March 15, 2004, and that ICE found him in a state correctional facility in Riverside, California, where he had been servingtime for a state conviction since 2007. A conviction for being “found in” the United States necessarily required that a defendant commit an act: he must re-enter the United States without permission within five years after being deported. At sentencing, the defendant’s criminal history computation was increased by two points because he committed the instant offense while under a criminal justice sentence; he was “found in” the United States while serving a criminal justice sentence. The defendant objected and argued that the increase did not apply because he was “found” in the correctional facility while serving unrelated time. Instead, he argued that he should be considered to have been “found” when found by the California authorities in 2007. The district court rejected that argument and sentenced him to 37 months. Without the two points, his guideline range would have been 30-37 months. On appeal, the defendant raised the same argument – that he was “found in” the United States when located by California authorities in 2007. He could not help the fact that he was incarcerated in California in 2009, since he was imprisoned and unable to leave the United States. Noting that unlawful presence in the United States is a continuing offense, and citing to decisions in the Fifth, Tenth and Eleventh Circuits, the court of appeals upheld the two-point increase. “Though [the defendant] could not avoid being ‘found in’ the United States while he was incarcerated, he could have avoided committing the ‘found in’ crime by not re-entering. As for the possibility that he might have avoided the enhancement had he been reported to ICE when he was arrested but before he was convicted for his grand theft, his criminality would not have been any the less. He was not supposed to come back, and he was not supposed to commit grand theft. He voluntarily took the risk of a “while under” enhancement by committingthe grand theft after his illegal reentry.”
Restitution
United States v. Benoit
2013 WL 1298154 (10 Cir. 2013) th
Restitution award to victim did not satisfy proximate cause requirement
The defendant was charged in a two-count indictment with receipt of child pornography in violation of 18 U.S.C. §2252(a)(2) and (b)(1) (“Count One”) and possession ofchild pornography in violation of 18 U.S.C. §2252(a)(4)(B) and (b)(2) (“Count Two”). At trial, a juryfound him guilty on both counts. The district court sentenced him to concurrent terms of 125 and 120 months and ordered him to pay $11,466 in restitution to one of the victims who appeared in the possessed images. On appeal, the defendant argued that the restitution order was erroneous because no proximate cause was shown. Acknowledging a circuit split on the issue (see below), the Tenth Circuit agreed with the majority of other courts and held: “in determining the scope of restitution to be awarded to a childpornography victim, §2259 requires a showing that the victim’s losses are proximately caused by the defendant’s offense.” In this case, the evidence that the defendant was specifically responsible for any losses related to the identified victim (Vicky) “was relatively thin.”“The total restitution amount was reached by adding together two totals. First, the [district] court awarded $5,950 for attorney fees based on a conservative estimate of hours devoted to this case multiplied by an hourly rate. We have no issue with this portion of the award. Second, the district court apparently divided the total loss claimed by Vicky, $1,224,694.04, by 222, the number of restitution judgments Vicky had received at the time of the hearing. This implicit calculation does not meet the proximate cause standard we have announced on the record before us. Despite our sympathy for Vicky, show[ing] only that [defendant] participated in the audience of persons who viewed the images of [the victim] . . . may be sufficient to establish that [defendant’s] actions were one cause of the generalized harm [victims] suffered due to the circulation of their images on the internet, [but] it is not sufficient to show that they were a proximate cause of any particular losses.”
Circuit Split
All but one of the circuit courts to consider this issue have determined that the government must show the victim’s losses were proximately caused by the particular defendant in question and that a showing of causation more generally is insufficient.
See United States v. Burgess, 684 F.3d 445 (4 Cir. th 2012); United States v. McGarity, 669 F.3d 1218 (11 Cir. 2012); United States v. Gamble, 709 F.3d th 541 (6 Cir. 2013); United States v. Laraneta, 700 th F.3d 983 (7 Cir. 2012); Amy & Vicky v. United th States (In re Amy & Vicky), 698 F.3d 1151 (9 Cir. th 2012) United States v. Aumais, 656 F.3d 147 (2nd Cir. 2011); United States v. Monzel, 641 F.3d 528 (D.C. Cir. 2011); United States v. Crandon, 173 F.3d 122 (3 Cir. 1999).
Only one circuit has reached the opposite conclusion. On rehearing en banc, the Fifth Circuit held “that §2259 only imposes a proximate result requirement in §2259(b)(3)(F); it does not require the Government to show proximate cause to trigger a defendant’s restitution obligations for the categories of losses in §2259(b)(3)(A)-(E).” United States v. Wright (In re Amy Unknown), 701 F.3d 749, 752 (5 Cir. 2012) (en banc.)
Fair Sentencing Act
United States v. Blewett
2013 WL 2121945 (6 Cir. 2013) th
Former crack sentencing law was racially discriminatory and non-retroactive application of FSA violates Equal Protection Clause
In 2005, the defendants were sentenced to mandatory minimum sentences of 10 years under the “old” 100-to-1 crack cocaine laws. They both filed motions under 18 U.S.C. § 3582(c)(2) and 28 U.S.C. § 994(u), seeking retroactive resentencing pursuant to the Fair Sentencing Act (FSA). Had the defendants been sentenced under the FSA, neither would have been subject to a mandatory minimum because the quantity of crack involved fell below the threshold for any statutory minimum. The district court denied the motion and the defendants appealed. The government argued on appeal that mthe defendants were not eligible for a sentence reduction under the FSA because they were sentenced under the old mandatory minimums or received a career offender designation. The Sixth Circuit noted that the preamble to the FSA recognized the racial injustice under the old law and cited statistics from the Sentencing Commission to conclude that more than 17,000 inmates were sentenced under the “old, racially discriminatory law” could not benefit from the new law. Further, the court explained that “[t]he 100-to-1 ratio had long been acknowledged by many in the legal system to be unjustified and adopted without empirical support. The Fair Sentencing Act lowered the ratio to a more lenient 18-to-1 ratio. However, thousands of inmates, most black, languish in prison under the old, discredited ratio because the Fair Sentencing Act was not made explicitly retroactive by Congress.” Although equal protection was not argued by either party, the court held, “inter alia, that the federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old crack sentencing law, as thegovernment advocates, would violate the Equal Protection Clause, as incorporated into the Fifth Amendment by the doctrine of Bolling v. Sharpe, 347 U.S. 497 (1954).” The court regarded the “most important consideration” to be “the clear congressional purpose to end the long, racially discriminatory sentences imposed in crack cocaine cases over the past 25 years and the fact that the perpetuation of such sentences is unconstitutional” and determined that “[t]he interpretation the government puts forth to deny retroactive application of the Fair Sentencing Act would result in a violation of equal protection.” Acknowledging the racially discriminatory aspects of the old law, the court found it obvious that it “should not place a meaning on the new statute and guidelines that would perpetuate proven racial discrimination and
United States v. Lucero
2013 WL 1501954 (10 Cir. 2013) Lower mandatory minimum under FSA did not apply to sentencing before effective date
In 2003, the defendant pled guiltyto possession of more than fifty grams of cocaine base with intent to distribute, and possession of a firearm in furtherance of a drug trafficking crime. At the time of his sentencing, the defendant’s sentencing range for the crack cocaine (126.3 grams) was 121 to 151 months, witha mandatoryminimum of 120 months. The district court sentenced him to 121 months on the drug count and a consecutive 60-months on the firearm count. In 2007, the guidelines were amended to reduce the offense level for possession of cocaine base by two levels. The amendment lowered the defendant’s guideline range to 120 to 125 months on Count 1. The defendant filed a motion to reducehis sentence pursuant to 18 U.S.C. §3582(c)(2). The district court denied the motion after considering factors of public safety and the defendant’s post-sentencing conduct in prison. In 2010, the Fair Sentencing Act was passed to remedy the 100 to 1 ratio crack/powder cocaine disparity. The defendant again filed for a sentence reduction based on the new guideline amendments and Dorsey v. United States, — U.S. —-, 132 S. Ct. 2321 (2012), arguing that the 126.3 grams now fell below the amount required to trigger the ten-year mandatory minimum, resulting in a new sentence range of 84 to 105 months on Count 1, and reducing the mandatory minimum sentence from ten years to five years. The district court denied the motion after concluding that the statutory mandatory minimum in effect when the defendant was sentenced continued to apply to him, but did reduce his sentence to 120 months. The defendant appealed, contending that the FSA, and its new mandatory minimum sentences, applied retroactively. The Tenth Circuit was not persuaded that the reasoning in Dorsey “warrants application of the FSA to a defendant’s post-FSA §3582(c)(2) motion. [T]he exception outlined in Dorsey is limited to sentences imposed post-FSA, and does not extend to adjudications of motions to reduce sentences entered post-FSA. The Court’s holding in Dorsey narrowly applies to post-FSA sentencing for preFSA conduct.” Further, modification of a sentence under §3582(c) “does not amount to ‘resentencing,’ and a district court does not have discretion to sentence below the statutorily mandated minimum sentence that applied when the defendant wasi nitially sentenced. Accordingly, the district court did not have authority to grant [the defendant’s] motion to reduce his pre-FSA sentence below the mandatory minimum sentence that was applicable at his sentencing in 2003.”
Miscellaneous Issues
United States v. Richardson
2013 WL 1294610 (5 Cir. 2013) th
Storing child porn images in shared folder accessible to other users was distribution
After searching the defendant’s computer, police found a peer-to-peer file-sharing programrunning with files being actively transferred to his computer. His “shared” file contained 144 videos determined to be known child pornography. Police also examined two computer hard drives; each contained images and videos of children under the age of 18 participating in sexual activities. The defendant admitted that he was the only person in the home using the computer, that he was a computer technician, was very knowledgeable about computers, and knew that what was in his “shared” folder was made available to others through file sharing. Following a bench trial on stipulated facts, the defendant was found guilty of distribution of child pornography and possession of child pornography involving the sexual exploitation of minors. The district court imposed a sentence of 151 months. On appeal, the defendant argued that his use of the peer-to-peer program did not amount to distribution, which required him to deliver or transfer possession to another person. He claimed that there was no evidence that he actually delivered or transferred possession of his child pornography to another person and that he did not control whether or not others would download files from his account; he merely kept files in a “shared folder,” such that others could gain access to the files on the computer only if they affirmatively initiated a download. Citing decisions from the First and Tenth Circuits, the appeals court concluded that “downloading images and videos containing child pornography from a peer-to-peer computer network and storing them in a shared folder accessible to other users on the network amounts to distribution under §2252A(a)(2)(B) under the stipulated facts in this case. Considering that [the defendant] was a computer technician with computer experience, he affirmatively downloaded the LimeWire program, he maintained 144 videos of child pornography in his shared folder, he knew that others could access the materials stored in his shared folder, . . . the evidence was sufficient to support a finding that [the defendant] distributed child pornography in violation of §2252A(a)(2)(B).” See United States v. Chiaradio, 684 F.3d 265 (1 Cir. 2012) and United st States v. Shaffer, 472 F.3d 1219 (10 Cir. 2007).
United States v. Benoit 2013 WL 1298154 (10 Cir. 2013) Sentencing for receipt and possession of child porn violated Double Jeopardy Clause
The defendant was found guilty on a two-count indictment with receipt of child pornography in violation of 18 U.S.C. §2252(a)(2) and (b)(1) (“Count One”) and possession of child pornography in violation of 18 U.S.C. §2252(a)(4)(B) and (b)(2) (“Count Two”). The district court sentenced the defendant to concurrent terms of 125 and 120 months. On appeal, the defendant claimed that his convictions for receipt of child pornography and possession of child pornography violated his rights under the Double Jeopardy Clause, in that possession is a lesser included offense of receipt; therefore, the multiplicitous punishments for bothoffenses was improper. The Tenth Circuitexplained that the Double Jeopardy Clause is“implicated if two statutes prohibit the same act ortransaction, typically because one is a lesser included offense of the other.” Applying Blockburger v. United States, 284 U.S. 299 (1932), the court concluded “that possession of child pornography is a lesser included offense of receipt of child pornography.” As a result, the defendant could not be subject to “multiplicitous punishments absent a clear indication of contrary legislative intent.” Joining the other circuits that have considered the issue, the appeals court held that “Congress has not expressed a clear intent to impose multiplicitous punishments for both receipt of child pornography and the lesser included offense of possession of child pornography.” In addition, the indictment in this case used identical language in both counts and the jury was not instructed that the two counts referred to distinct visual depictions. See United States v. Frierson, 698 F.3d 1267 (10th Cir. 2012). “In light of the record as a whole, it is clear that [the defendant] was convicted of both receipt of child pornographyunder §2252(a)(2) and possession under §2252(a)(4) based on the same conduct. Although the government may submit multiplicitous counts to the jury, multiplicitous sentences violate the Double Jeopardy Clause. Under these circumstances, the district court must vacate one of the convictions.”
United States v. Yuman-Hernandez
712 F.3d 471 (9 Cir. 2013) Defendant failed to establish sentencing entrapment
The defendant was convicted of charges arising from a conspiracy to rob a cocaine stash house and the use of a firearm, and received a 180-month statutory mandatory-minimum. At sentencing, he argued sentence entrapment, which occurs where a defendant who is predisposed to commit a minor or lesser offense is entrapped in committing a greater offense subject to greater punishment. Evidence showed that the defendant had unknowingly been involved in a reverse sting operation targeting home-invasion crews, when he was invited to participate in the armed robbery of a stash housecontaining 20-25 kilograms of cocaine. Upon meeting with undercover agents, all participants were given the opportunity to withdraw, and the defendant did not do so. Additionally, prior to meeting to proceed to the house, the defendant had recruited a co-defendant, drove the lead defendant to obtain an additional firearm, and drove to the lead defendant’s home to obtain marijuana which was used in trade to obtain an assault rifle and ammunition for use in the robbery. The defendant and others were to be paid when the lead defendant sold the cocaine that was to be stolen. The government alleged that 20-25 kilograms of cocaine was an amount commonly found in a stash house. At sentencing, the district court found that the weight of 20-25 kilograms was chosen by the government in order to create a believable sting, and was not sentenceentrapment. The district court alson found that the defendant failed to present any evidence to support a claim of sentence entrapment. Finally, the district court found that there was no outrageous governmental conduct as the defendant was provided numerous opportunities to withdraw and did not, and the defendant recruited others for participation and helped retrieve marijuana that was traded for a firearm. The defendant appealed arguing that because he lacked a predisposition to commit an offense involving the amount of cocaine charged, he was entrapped. The Ninth Circuit noted, that it was the defendant’s burden to show a lack of intent and a lack of capability to supply or purchase more drugs than he might have otherwise been predisposed to deal. However, the court also noted that when a defendant was tricked into conspiring and attempting to steal fictitious drugs, the government could inflate the amount of drugs in the house in order to obtain a greater sentence for the defendant. “As a result, it makes little sense to require that a defendant establish both a lack of intent and lack of capability in the context of a fictitious stash house robbery. . . . Thus, in the case of fictitious stash house robberies, the defendant need only show a lack of intent or lack of capability to deal in the quantity of drugs charged.” Therefore, in this type of case, in order to determine whether the government acted outrageouslyor with active inducement, the question was whether the defendant established a lack of predisposition either through a lack of intent or a lack of capability. The evidence showed the defendant’s affirmative intent to participate, andheoffered noevidence to suggest otherwise. The district court’s finding was upheld.
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