Sentence Adjustments
(Chapter 3)
United States v. Chychula
2014 WL 2964597 (7th Cir. 2014) False statements to grand jury supported obstruction of justice enhancement
The defendant was found guilty of nine counts of wire fraud resulting from a large investment scheme in which she and her co-defendants defrauded more than 60 investors of almost $4.5 million. As part of the scheme, she sent false information to investors by electronic mail and facsimile. In calculating the sentence, the PSR recommended a two-level enhancement for obstruction of justice pursuant to §3C1.1, based on her testimony to the grand jury where she “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice when she testified falsely before the grand jury.” The PSR listed a number of her false statements made to the grand jury, which had been proven false by trial evidence, regarding statements made to investors about the companies they were investing in, personal use of the investment funds, and contracts she had advised investors that the companies were entering into with major businesses. The PSR calculated a sentencing range of 168 to 210 months. The defendant objected to the obstruction enhancement and argued that the evidence was insufficient to find that she intended to obstruct justice, and that she suffered from diminished capacity. The government argued that she had committed perjury in her testimony to the grand jury and detailed several of the statements that were perjury and attempts by the defendant to defend the lies she told investors in emails, until the district court stated that it had “enough examples.” The district court adopted the PSR in its entirety, including the obstruction enhancement, but imposed a below-guideline sentence of 48 months. The defendant appealed, arguing that the obstruction enhancement was error. The court of appeals found that the statements made by the defendant were material, because, while they did not keep her from being indicted by the grand jury, they could have had an effect on the grand jury’s decision to indict, or as to how many counts for which to indict. As set forth in the guidelines, a statement need only “tend to influence or affect the issue under determination” to be material, §3C1.1, cmt. n.6. Whether the statement actually had any influence or effect was not of consequence. The court further gave no weight to the defendant’s argument that any discrepancies in her grand jury testimony and the e-mails she sent investors were caused by diminished capacity. Prior to trial the district court had reviewed a psychological report regarding the defendant’s competency and after taking argument, found that she was fit to stand trial. The court found that this “clearly resolved the mental status issue against the defendant at trial.” As a result, the sentence was affirmed.
Plea Agreements (§ 6B)
United States v. Noriega
2014 WL 3732618 (9th Cir. 2014) Plea agreement stipulating drug quantity did not bar government from seeking rolein- offense enhancement
The defendant pled guilty to conspiracy to distribute methamphetamine. The plea agreement contained a stipulation that the conspiracy involved 5 kilograms of a mixture and substance containing methamphetamine, for a base offense level of 36, pursuant to §2D1.1. The agreement did not contain any stipulation regarding a possible enhancement based on the defendant’s role in the offense under §3B1.1. The PSR recommended a four-level enhancement for organizer/leader under §3B1.1(a). The defendant objected, arguing that based on the drug-quantity stipulation in the plea agreement, his relevant conduct was limited to the drug quantities in connection with one delivery only. The district court overruled the objection and imposed a sentence of 210 months, which included the four-level enhancement. After raising the same argument on appeal, the Ninth Circuit affirmed the sentence, finding that the argument “impermissibly seeks to expand the drug-quantity stipulation to bind the Government on issues of relevant conduct and [the defendant’s] role in the offense in a manner not supported by the plain meaning of the plea agreement’s text.” The relevant portion of the plea agreement “merely constitutes an agreement between the parties as to the base offense level and in no way purports to limit the scope of relevant conduct from which the court could determine whether to apply a role-in-the-offense enhancement.” Therefore, the government did not breach the plea agreement. Judge Bright wrote a concurring opinion, agreeing with the outcome, but wrote separately to express his “concern that the 210-month sentence is excessive, and to reiterate, as the Attorney General stated just last year, that our sentencing system is broken and a new approach must be taken. Until reforms come to the Guidelines and other sentencing provisions, those in the system-the probation officers, the U.S. Attorneys, defense counsel, and judges-must seek ways to correct this broken system and ensure that sentences are commensurate with the underlying crime. That did not happen in this case and, as a result, [the defendant] has suffered a severe penalty that is unwarranted given his lack of a criminal history. Probation/Supervised Release
(Chapter 7)
United States v. Daniels
2014 WL 3608716 (9th Cir. 2014) Error in not personally addressing supervised releasee before sentencing
The defendant was sentenced, upon revocation of supervised release, to a term of 40 months imprisonment and 20 months of supervised release. He appealed, arguing that the district court committed plain error in failing to ask if he wanted to make allocution prior to imposition of the sentence. Federal Rule of Criminal Procedure 32.1(b)(2)(E) provides that supervised releasees are to be given “an opportunity to make a statement and present any information in mitigation” at the revocation proceeding. The government argued that: (1) a district court did not have to affirmatively ask the defendant if he would like to allocute; (2) the statute requiring allocution only required that the releasee’s lawyer speak before sentencing; and (3) the district court’s obligations under Rule 32.1 were satisfied as it did not have to affirmatively advise him of his right to allocution. The Ninth Circuit rejected all of these arguments, finding that the rule required that a releasee be apprised of his right to allocution. “Allocution by a supervised releasee gives the court more information on which to base its sentence. It also encourages the supervised releasee to participate in post-revocation sentencing, enhancing his dignity.” The court held Rule 32.1(b)(2)(E) required a district court to address a supervised releasee personally and inquire as to whether he wants to speak before the court imposes a post-revocation sentence.
Restitution
United States v. Howard
2014 WL 3511798 (8th Cir. 2014) Restitution authorized only for loss caused byspecific conduct in offense of conviction
In June 2011, the defendant connected with the victim, D.D., through a gay social networking website. D.D. is not openly gay, and revealing his sexual orientation would likely have caused him to lose his job. The defendant started asking D.D. for money soon after they began corresponding, and D.D. gave it to him voluntarily. Beginning of August 7, 2011, however, the defendant repeatedly asked D.D. for money and began threatening to disclose D.D.’s sexual orientation if the money was not sent. When D.D. finally ran out of money, he went to law enforcement for help. After the defendant made another demand for money on July 16, 2012, D.D. sent him $100, which was provided by law enforcement. By this time D.D. had sent the defendant a total of $53,625.25. The defendant was indicted on one count of extortion for conduct committed “[f]rom on or about July 16, 2012, to on or about July 27, 2012,” in violation of 18 U.S.C. §875(d). He pled guilty, agreeing in his Factual Statement that his plea was limited to conduct “between the dates listed in the indictment.” The district court sentenced him to 21 months and ordered restitution of $53,625.25. On appeal, the defendant argued that the restitution order was not authorized by the Mandatory Victims Restitution Act of 1996, 18 U.S.C. §3663(a). The Eighth Circuit agreed, explaining that under the statute, district courts may award restitution “only for the loss caused by the specific conduct that is the basis of the offense of conviction.” Here, for restitution purposes, the defendant’s conduct was limited by the dates in the Indictment and Factual Statement. “[The defendant’s] conduct prior to the dates listed in the indictment and guilty plea – July 16 to 27, 2012 – was in preparation for the offense of conviction, rather than part of the offense itself. As such, absent a provision to the contrary in the plea agreement, this conduct may not give rise to liability for restitution. The only loss incurred during the dates of conviction was the $100 provided by law enforcement. We therefore reverse the restitution award.”
United States v. Doering
2014 WL 3456802 (8th Cir. 2014) Restitution could not be ordered without considering defendant’s financial resources
The defendant was an actor in a western-themed charity event, where he and other actors were to engage in a shoot-out, firing blanks. Unfortunately, the defendant’s gun had live ammunition and when he fired it, three spectators were injured and one vehicle was damaged. When he realized that he had fired live rounds, he hid the spent shell casings and remaining ammunition, and lied to investigators. He subsequently confessed and showed them where he had hidden the items. He was indicted for unlawful possession of a firearm as a previously convicted felon, and pled guilty to tampering with evidence. In the plea agreement, he agreed that he would pay restitution to the four victims “pursuant to 18 U.S.C. §§3663 and 3663A.” He was sentenced to 90 months, which was an upward variance from the sentencing range of 24 to 30 months. He was also ordered to pay $45,382.88 to the three victims he shot. On appeal, he argued that restitution under the Mandatory Victims Restitution Act was improper as the act did not apply to the offense of tampering. He also argued that restitution under the Victim and Witness Protection Act did not authorize restitution. As an alternative, he argued that the district court erred by failing to consider his ability to pay restitution. The Eighth Circuit agreed that restitution was not proper under the Mandatory Victims Restitution Act, as tampering with evidence was not an enumerated offense for which restitution applied. However, restitution under the Victim and Witness Protection Act was proper, even though the victims of the shooting were not victims of the tampering offense, as the parties had agreed in the plea agreement that restitution would be ordered. However, under that statute, a defendant’s financial resources must be considered prior to restitution being ordered. As the district court did not address the defendant’s ability to pay, the restitution order was vacated and the case remanded.
Miscellaneous Issues
United States v. Flores-Mejia
2014 WL 3450938 (3rd Cir. 2014) (en banc) Defendant must object after sentence is pronounced to avert plain error review;
District Court did not meaningfully consider lower sentence for attempts at cooperation The defendant pled guilty to one count of reentry after deportation. This was his sixth illegal entry into the United States and he had an extensive criminal record with 18 prior convictions. The PSR calculated a sentencing range of 77 to 96 months. In his sentencing memorandum, the defendant raised several grounds for downward departures and variances, including his attempted cooperation with the government by providing information regarding a homicide and a prostitution ring. The, the District Court heard argument on several grounds for mitigation and denied them. As for the cooperation, the government argued that the homicide had already been solved and that the information about the prostitution ring fell outside the ordinary purview of federal law enforcement. For those reasons, the government asserted that the cooperation did not warrant a variance. Following this colloquy, the district court stated: “Okay, thanks. Anything else?” There was no reply from either party; instead each side summed up its position on sentencing and the district court imposed a sentence of 78 months. At that time, defense counsel did not object to the court’s failure to rule on the request for variance based on the cooperation, nor did she point out the failure to explicitly address or give further consideration to that argument. Two issues were addressed on appeal: 1) the sentence was procedurally unreasonable because the district court failed to sufficiently consider his argument that his attempts at cooperation warranted a lower sentence; and 2) whether the lack of objection after the sentence was imposed resulted in plain error review. Based on the district court’s failure to meaningfully consider the defendant’s argument regarding attempted cooperation, the Third Circuit reversed: “there was no specific ruling provided by the court or any other effort to address the argument.” Regarding the lack of objection, the court announced a new procedural requirement that, once the sentence is announced, any objection to the district court’s failure to give meaningful consideration to a sentencing argument must be raised at that time. Failure to do so would result in plain error review on appeal. “[W]e now hold that a defendant must raise any procedural objection to his sentence at the time the procedural error is made, i.e., when sentence is imposed without the court having given meaningful review to the objection. Until sentence is imposed, the error has not been committed. At the time that sentence is imposed, if the objection is made, the court has the opportunity to rectify any error by giving meaningful review to the argument.”
Circuit Split Compare
United States v. Davila-Gonzalez, 595 F.3d 42 (1st Cir. 2010); United States v. Mondragon- Santiago, 564 F.3d 357 (5th Cir. 2009); United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc); United States v. Rice, 699 F.3d 1043 (8th Cir. 2012); United States v. Rangel, 697 F.3d 795 (9th Cir. 2012); United States v. Romero, 491 F.3d 1173 (10th Cir. 2007); United States v. Wilson, 605 F.3d 985 (D.C. Cir. 2010) with United States v. Lynn, 592 F.3d 572 (4th Cir. 2010) (Rule 51 “does not require a litigant to complain about a judicial choice after it has been made.”).
United States v. Garrett
2014 WL 3397144 (6th Cir. 2014) Defendant eligible for sentence reductionunder crack cocaine amendment
After entering into a Rule 11(c)(1)(C) plea agreement, the defendant pled guilty to one count of conspiracy to distribute more than 50 grams of crack cocaine and was sentenced to 151 months, the bottom end of his sentencing range as calculated in his PSR and agreed to by the parties. At sentencing, the district court found that the disparity between crack and powder cocaine should be one-to-one, resulting in a sentencing range of 41 to 51 months, but that the 120-month statutory minimum “trumped” that range, and then varied upward by 31 months to arrive at the 151-month sentence agreed to in the plea agreement. Later, the defendant filed for a reduction under 18 U.S.C. §3582(c)(2) because his original sentence was “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” The district court denied the motion on the ground that it had “applied a guidelines range of 120 months,” which range had not been lowered by the amendment. On appeal, the question was whether Amendment 750 had the effect of lowering the defendant’s applicable guideline range. The defendant relied on Freeman v. United States, — U.S. —-, 131 S. Ct. 2685 (2011), a 4-1-4 decision with a controlling concurrence by Justice Sotomayor. The Sixth Circuit explained that “[t]he upshot of Justice Sotomayor’s concurrence appears to be that, in the Rule 11(c)(1)(C) context, what the sentencing judge said and did is largely irrelevant; instead, what matters is the agreement itself. As long as that sentencing range is evident from the agreement itself, for purposes of §3582(c)(2) the term of imprisonment imposed by the court in accordance with that agreement is based on that range.” Here, the defendant’s “sentence was based on a Rule 11(c)(1)(C) plea agreement in which the parties agreed on a sentence between 120 and 188 months. That agreement ‘employ[ed] a particular Guidelines sentencing range’ – 151 to 188 months – ‘to establish the term of imprisonment’ by capping [his] sentence such that it could not exceed the upper end of that guideline range. The range was subsequently lowered by the Sentencing Commission. Therefore, [the defendant’s] sentence was based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” Further, a reduction in the sentence would be consistent with the Commission’s applicable policy statements. The case was reversed and remanded.
United States v. Park
2014 WL 3289493 (2nd Cir. 2014)
Sentence was procedurally and substantively unreasonable
In 2004 and 2005, the defendant diverted his business’s cash receipts from the corporate bank account, filed false corporate tax returns that significantly understated the business’s gross receipts, and underpaid payroll taxes. He pled guilty to an information charging him with filing a false corporate tax return. The PSR calculated a sentencing range of 15 to 21 months, based on the defendant’s prior convictions for fraud offenses and a total tax loss of $133,601. Sentencing occurred during the October 2013, “government shut-down.” At sentencing, the district court initially stated that it was inclined to impose a sentence of incarceration in light of the defendant’s prior convictions. However, based on the “economic problems” caused by thegovernment shut-down, the court imposed a sentence of three years probation, including six months home confinement. The government appealed, arguing that the sentence was both procedurally and substantively unreasonable. The Second Circuit reversed, finding that the sentence was procedurally unreasonable for two reasons: 1) the only sentencing factor the district court deemed relevant was the cost of incarceration to the government and the economic problems allegedly caused by the government shutdown; and 2) the cost of incarceration to the government “is not a relevant sentencing factor under the applicable statutes” and “no sentencing factor [under §3553(a)] can reasonably be read to encompass the cost of incarceration. Nor does the statute permit the sentencing court to balance the cost of incarceration against the sentencing goals enumerated in §3553(a).” As for substantive unreasonableness, the district court’s remarks that it would have incarcerated the defendant but for the shut-down indicated that a prison sentence was “needed to satisfy the parsimony clause – that is incarceration would have been ‘sufficient, but not greater than necessary’ to satisfy the purposes of sentencing outlined in 18 U.S.C. §3553(a)(2). But the fact that the government was experiencing widespread budgetary challenges did not somehow grant the District Court ‘a blank check to impose whatever sentence[ ] suit[ed][its] fancy.’” “We therefore hold that, in light of the need for deterrence and just punishment and the District Court’s own conclusion that, based on the record before it, a term of imprisonment was warranted, the probationary sentence imposed here was substantively unreasonable.”
Editor’s Note: While the listed factors under
§3553(a) do not include the cost of incarceration, it appears that the Second Circuit ignored 18 U.S.C.
§3661, which provides that “[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” If there is no limitation on what can be considered, then cost of incarceration could certainly be considered in determining a sufficient sentence.
Cases In This Issue
United States v. Batts, 2014 WL 3361158 (8th Cir. 2014)
United States v. Charles, 2014 WL 3031267 (11th Cir. 2014)
United States v. Chychula, 2014 WL 2964597 (7th Cir. 2014)
United States v. Daniels, 2014 WL 3608716 (9th Cir. 2014)
United States v. Doering, 2014 WL 3456802 (8th Cir. 2014)
United States v. Estrella, 2014 WL 3362166 (11th Cir. 2014)
United States v. Flores-Mejia, 2014 WL 3450938 (3rd Cir. 2014) (en banc)
United States v. Garrett, 2014 WL 3397144 (6th Cir. 2014)
United States v. Howard, 2014 WL 3511798 (8th Cir. 2014)
United States v. Noriega, 2014 WL 3732618 (9th Cir. 2014)
United States v. Park, 2014 WL 3289493 (2nd Cir. 2014)
United States v. Rosales-Miranda, 2014 WL 3033419 (10th Cir. 2014)
United States v. Suarez-Gonzalez, 2014 WL 3623131 (1st Cir. 2014)
United States v. Valdovinos, 2014 WL 3686104 (4th Cir. 2014)
