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Published By Joaquin & Duncan, L.L.C.;
A Law Firm of Federal Sentencing Attorneys January 2015
S e n t e n c i n g P a r t n e r s
Sentence Adjustments
(Chapter 3)
United States v. Melendez
2014 WL 7269777 (1st Cir. 2014)
Defendant not entitled to reduction for acceptance of responsibility
The defendant was arrested followed a reverse sting operation conducted by DEA agents posing as members of a Colombian drugtrafficking organization. One of the undercover agents contacted co-defendant, Guzman, the target of the investigation, who expressed an interest in buying kilogram quantities of cocaine, and the agent agreed to sell him five kilos. Later, the defendant approached Guzman in search of a cocaine supplier and, although he was not involved in any of the communications between Guzman and the DEA, agreed to supply the money to purchase the cocaine from the undercover agent. The DEA was unaware of the defendant’s involvement until the day of the sting operation when the parties met for the drug. The agents seized two firearms from the center front console of the vehicle and approximately $92,000 in cash. The defendant was charged with conspiring to distribute over five kilograms of cocaine and with possession of a firearm in furtherance of a drug offense. The defendant argued at trial that he was guilty of drug possession, but he challenged the weight of the drugs. The jury returned a verdict of guilty on the drug offense and of not guilty of the firearm offense. He was sentenced to 144 months, a
downward variance from a range of 151 to 188 months. On appeal, he argued that he should have received a two-level reduction for acceptance of responsibility, under §3E1.1(a), because he acknowledged his guilt and merely challenged the drug weight and that the weight of the substance was not a core element of the crime of conspiracy but only an aggravating element. “We cannot accept this contention. First, the record clearly reveals that [the defendant] did not admit his participation in the conspiracy until trial commenced. In his pretrial memorandum, submitted to the court thirty days before trial, [the defendant] continued to contest his guilt and to argue that he did not conspire to distribute cocaine but, instead, simply entered into a buyer-seller arrangement with Guzman.” The court explained that contending that he did not participate in a conspiracy, “on its own, would be sufficient to uphold the district court’s decision to deny the reduction.” In addition, the defendant’s “dispute of the drug weight would be an adequate and independent basis for refusing the reduction . . . requesting a trial about drug weight is not consistent with the acceptance of responsibility.”
United States v. Trinidad-Acosta
773 F.3d 298 (1st Cir. 2014)
Defendant’s letter threatening prosecution witness warranted obstruction enhancement
The defendant was convicted of drug conspiracy charges and the quantity attributed to
him was based in part on testimony of a government informant. After the trial, while the PSR was being prepared, the defendant sent a letter to a second government informant, in which he stated that after he served his sentence and was on supervised release, he would have his “people” kill the government informant while he watched. At sentencing, the district court applied the obstruction of justice enhancement, pursuant to §3C1.1. The defendant appealed, arguing that he did not obstruct justice since the government informant had already testified at trial, and that the letter was not an attempt to influence the witness as it was not directed at the witness, the witness did not receive it, and the defendant had no reason to believe that the recipient of the letter would relay the threats to the witness. The First Circuit held that it was irrelevant whether the trial was over, as the witness was agovernment informant and could still be needed to testify at sentencing, particularly regarding drug quantity. Further, the court found it irrelevant that the threat was not made directly to the witness, rejecting the Fourth Circuit’s decision in United States v. Brooks, 957 F.2d 1138 (4th Cir. 1992), which required the threat to have been made directly to the witness or under circumstances in which there is potential that the witness would learn of the threat. Instead, the court agreed with the Second, Fifth, Sixth, Eighth, Ninth, Tenth and Eleventh Circuits, holding that indirect threats made to third parties can be obstructive. The court found that the letter was an attempted obstruction, and that the threat was specific, serious, and material, and would tend to influence or affect the witness, and that there was a reasonable probability that the recipient would relay the information to the witness. The enhancement was affirmed.
Criminal History
(Chapter 4)
United States v. Coppage
772 F.3d 557 (8th Cir. 2014)
Defendant failed to show uncounseled prior convictions excluded from criminal history
The defendant was charged with felon in possession of a firearm and, in calculating his
sentence, ten of his fifteen total criminal history points stemmed from five Kansas City, Missouri municipal court convictions from 2010. On appeal he argued that using those convictions in his criminal history category calculation was error, as records from the municipal court failed to establish that he had been represented by municipal court records from 2010, which made no mention of an attorney, to records from his 2012 cases in the same municipal court, which listed his attorney in those cases. He argued that the district court should have inferred from this discrepancy that the 2010 convictions were obtained in violation of his right to counsel. The Eighth Circuit explained that it was the defendant’s burden of proof to show that the convictions were obtained in violation of his right to counsel and the inconsistency in court forms did not prove the convictions were uncounseled. Further, the court had no duty to guess at ambiguous records when the defendant did not carry his burden of proof. Similarly, Missouri law requires a signed waiver of counsel if a defendant was not going to be represented by counsel, and the 2010 convictions contained no such waiver. Based on the “presumption of regularity,” where the defendant presented no affirmative evidence to rebut the presumption, there was no error.
United States v. Jenkins
772 F.3d 1092 (7th Cir. 2014)
Error in assessing criminal history points
The defendant was convicted of an interstate kidnaping offense and, when calculating his
criminal history score, the PSR included three points based on a prior 2011 Illinois firearm conviction – aggravated unlawful use of a weapon in violation of 720 ILCS 5/241.6(a)(1). In December 2012, the Seventh Circuit held, in an unrelated case, that the Illinois firearm statute violated the Second Amendment to the United States Constitution. In September 2013, the Supreme Court of Illinois held likewise and found the statute to be facially unconstitutional (and therefore void ab initio) in People v. Aguilar, 377 Ill.Dec. 405, 2 N.E.3d 321 (Ill. 2013). The defendant’s sentence was imposed one month later, but he did not raise any objections regarding the criminal history points calculated on the firearm offense. The underlying firearm conviction was vacated on May 2, 2014. On appeal in the present matter, the defendant argued that the district court erred when it relied on the firearm conviction in calculating his criminal history points, as the statute had already been held facially unconstitutional at the time of sentencing. The Seventh Circuit held that the defendant’s sentence was based on an incorrect guideline range, such that remand was required. App. Note 6 to §4A1.2 states that if a conviction has been “reversed or vacated because of errors of law” or “ruled constitutionally invalid in a prior case,” they are not to be counted. The court found that the statute had been held invalid by both the Seventh Circuit and the Supreme Court of Illinois. Likewise, the decisions so holding were rendered prior to the defendant’s sentencing, and were therefore “prior” cases. The sentence was vacated.
Restitution
United States v. Beacham
2014 WL 7014366 (5th Cir. 2014)
Original loan amounts could not be used to calculate restitution for victims who purchased mortgages on secondary market
In 2002, William Tisdale and former Dallas Cowboy Eugene Lockhart formed America’s Team Mortgage and KLT Realty. Evidence at trial indicated that Tisdale and Lockhart devised a “pass-through” real estate scheme where “straw” purchasers were used to inflate the value of real estate. In the process, Tisdale and Lockhart used members of the real estate industry to assist in the procurement of the loans, the defendant among them. He provided falsified information regarding the buyers’ ability to make the loan payments. A jury found the defendant guilty of conspiracy to commit wire fraud. The district court calculated the restitution amount by subtracting the victims’ foreclosure proceeds from the original loan amounts. However, for several transactions, the victim financial institution was not the original lender, but instead had purchased the mortgages on the secondary market. On appeal, the defendant claimed that the loss amount for a victim who purchased a mortgage on the secondary market could not be based on the amount of the original loan. The Fifth Circuit reversed, holding: “Because the value of that loan is not necessarily its unpaid principal balance, but may vary with the value of the collateral, the credit rating of the borrower, market conditions, or other factors, the loan purchaser may have purchased the loan for less than its unpaid principal balance.” Because the purchase prices paid by many of the victims who were not the original lenders were not in the record, “the government has not carried its burden of establishing the restitution amount as it pertains to the secondary-market purchasers. Accordingly, the district court abused its discretion by using the original loan amounts to calculate restitution for these victims. The restitution orders must be vacated.”
