Criminal History
Chapter 4
United States v. Ingram
2013 WL 2666281 (2nd Cir. 2013)
Sentence was substantively reasonable; Concurring opinion explains “horizontal” departures
The Defendant pled guilty to selling one-half gram of crack cocaine, in two separate transaction, to an undercover officer. Because he had two prior drug convictions, the PSR recommended the career offender enhancement under §4B1.1, which resulted in an offense level of 31, a criminal history category of VI, and a sentencing range of 188 to 235 months. The defendant argued that the criminal history overstated the seriousness of the felony crimes that put him there. The district court adopted the PSR, but varied downward to a sentence of 144 month. On appeal, the defendant raised the same overstated affirmed the sentence, finding it substantively reasonable.
In a concurring opinion, Circuit Judge Calabresi went into great detail regarding the use of a “horizontal” departure in cases where a defendant’s criminal history is overstated. “ I write separately, however, to call attention to a procedural challenge that has been strangely absent from this case. The fact that [the defendant] never called the district court’s attention- or our own- to United States c. Preacely, 628 F.d 72 (2s Cir. 2010), the case that most closely corresponds to [his] situation and that would have afforded him his best support both below and on appeal, leads me to believe that Preacely’s holding has not been sufficiently understood. My comments here are directed, then, to those in the bar and on the bench who may not have recognized the subtle but important contribution Preacely has made to our Circuit’s law regarding career offenders.” In Preacely, the court explained sentencing court’s discretion to make a horizontal departure under §4A1.3 (b) differs in its discretion [under Booker] to choose a sentence either above or below the guidelines’ recommended range. Simply put, a horizontal departure is a decision to shift to a new guideline range. Thereafter, a court must choose whether to depart from the new range in light of the statutory sentencing factors outlined at 18 U.S.C. §3553 (a).” Judge Calabresi summed up his opinion by stating: “My hope is that by reiterating Preacely’s distinction between pre-booker adjustment to the applied guidelines range, this opinion will help make somewhat more effective the assistance given career offenders who might not fully deserve that label or the dramatic sentencing consequences it brings.”
United States v. Davis
2013 WL 3156606 (4th Cir. 2013)
Consolidated sentence for separate robberies precluded career offender enhancement
In July 2004m the defendant used a handgun to rob a Burger King in Charlotte, North Carolina. He was arrested and indicted in state court for robbery with a dangerous weapon. On February 23, 2005, he used a gun to rob a McDonald’s, and a day prior to this robbery, he used a gun to assault one individual and rob another. In an eight-count indictment for the February 2005 robberies, the defendant was charged with five counts of robbery with a dangerous weapon, among other things. He pled guilty in North Carolina state court and all of the charges were consolidated pursuant to N.C. Gen. Stat. §15A01340. On July 31, 2010, the defendant used a handgun to rob a Wendy’s Restaurant and was charged federally with three counts: (1) Hobbs Act robbery; (2) use of a firearm in furtherance of a violent crime; and (3) possession of a firearm by a convicted felon. He pled guilty to all charges, The PSR recommended the career offender
enhancement under §4B1.1 based ib the defendant’s two prior North Carolina robbery offenses. The defendant objected, arguing that he had received a “consolidated sentence” for the robbery offense and thus did not have “at least two prior felony conviction.” The government asserted that because the offense were separated by an intervening arrest, the career offender enhancement applied. The district court agreed with the government and applied the enhancement. On appeal, the defendant contended that under the plain language of the guidelines, a single consolidated sentence could not be counted as separate sentences. The Fourth Circuit agreed, noting that “the existence of two prior felony convictions alone is not dispositive; the defendant must also have at least two prior sentences for those convictions. Specifically the “two prior felony convictions’ prong is satisfied if: (1) the defendant has previously sustained at least two felony convictions of either a crime of violence or a controlled substance offense; and (2) the sentences for at least two of the aforementioned felony convictions are counted separately.” Here, the defendant received only one sentence for his prior state felonies. Under the plain language of the §4B1.2 (c), the basic principle is that “there must be more than one prior sentence for the enhancement to apply. In the absence of ‘multiple prior sentences’ the existence of an intervening arrest is irrelevant.” “We hold today that where a defendant receives a ‘consolidated sentence’ (or ‘consolidated judgement’) under North Carolina Law, it is one sentence under North Carolina law, it is one sentence and absent another qualifying sentence, the enhancement is applicable.” Further, “we find that the career offender enhancement is inapplicable to [the defendant] because the third prong of the career offender enhancement requiring ‘two prior felony convictions,’ as defined by the guidelines, in nos satisfied.”
United States v. Gonzalez-Vasquez
2013 WL 3040310 (9th Cir. 2013)
Driving with suspended license not included in criminal history
The defendant was pulled over for a routine traffic stop in September 2010, but could not produce his registration and proof of insurance, and his license was suspended. He was arrested, his van his license was suspended. He was arrested, his van was impounded, and the police found a bag of methamphetamine and a drug ledger. In calculating the criminal history category, the PSR included one point for a prior conviction from Washington for driving while license was suspended. The one point moved the defendant from a criminal history category of I to a category II. Although the judgement was not in record, the PSR stated that the defendant had plead guilty to driving while license suspended , with “90 days custody imposed with 84 days suspended for 24 months; $873 fine.” On appeal, the defendant claimed that the prior conviction should have been included in his criminal history because he was sentenced neither to a term of probation nor to imprisonment for at least thirty days, as required by §4A1.2 (c) (1). The Ninth Circuit reserved, noting that the defendant’s sentence for the prior driving offense did not contain any conditions that restrained his conduct or require anything beyond that of a law abiding individual, thus indicating there was no probation imposed. “Because [the defendant’s] Washington driving while license suspended sentence did not expressly impose any probation, and Washington law does not establish that a suspended sentence implies probation, the better inference is that [the defendant] was not sentenced to probation. The guidelines require that his driving with suspended license conviction not to be counted. We therefore conclude that he should not have received an additional point for that conviction and sentence.”
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