Sentencing Partners (June 2013) Part III

Sentence Adjustments (Chapter 3)

United States v. Greig 2013 WL 2129437 (1st Cir. 2013)
Defendant’s false pre-trial statements supported obstruction enhancement

In 1994, the defendant and her boyfriend, Bulger, a reputed organized crime leader, fled the
Boston area after they learned that Bulger was going to be charged with an assortment of federal crimes. They traveled to several locations using false identification documents and ultimately settled in Santa Monica, California. They rented a twobedroom apartment where they lived in until their 2011 capture. Neither one was employed, but instead survived on the cash they had hidden in the walls of the apartment. When they were arrested, police found $822,000 in cash in the apartment, along with approximately thirty weapons, most of them firearms. The defendant pled guilty to a three count superseding information charging her with: conspiracy to harbor a fugitive; conspiracy to commit identity fraud; and identity fraud. While conducting a bail investigation, the defendant told pretrial services that she did not have any assets in her name. In reality, she had a bank account with nearly $135,000 in it, as well as a house valued at $300,000, a fact that she mentioned in opposition to the government’s detention motion. Four days before her detention hearing, she executed a power of attorney in favor of her sister, who cleaned out the bank account. The district court imposed a sentence of 96 months, which included a two-level enhancement for obstruction of justice. On appeal, the defendant argued that her statements about the house and bank account were not intentionally false because she assumed that they were no longer there due to sixteen years of inactivity. She also argued that the statements were not material. The First Circuit found no merit in either argument, holding that there was no evidence in the record supporting that the defendant signed the power of attorney for the bank account and referred to the house in her pretrial motion belied the her claims. As for the second argument, the court explained that under §3C1.1, the “term ‘material,’ refers to a fact statement, or information that if believed, would tend to influence or affect the issue under determination.” Here, the district court focused on the effect of the defendant’s misrepresentations on bail. “This was not clearly erroneous. [The defendant’s] financial condition is certainly material to the issue of bail, and the advisability of her pretrial release in general, especially given that [she] ultimately sought release based on financial conditions. [Her] omitting the fact that she had a home and large bank account would tend to affect the issues being determined by pretrial services. The judge did not abuse his considerable discretion.”

United States v. Chu
2013 WL 1876582 (2nd Cir. 2013)
Smuggling drugs into jail while awaiting sentence precluded reduction for acceptance of responsibility

The defendant sold various drugs, including ecstasy, heroin, marijuana, and ketamine, to a
confidential source (“CS”) working with the DEA. After the CS arranged to buy 20 grams of heroin, law enforcement officers initiated a traffic stop on the defendant’s vehicle and ultimately found the 20 grams of heroin he had planned to sell the CS, as well as additional quantities of heroin, crack cocaine, powder cocaine, oxycodone, clonazepam, and marijuana. More drugs were found in the defendant’s home. While he was being detained, the defendant was held at the Metropolitan Detention Center (“MDC”). Both before and after pleading guilty, he attempted to smuggle drugs into the MDC, which was corroborated by emails and phone conversations between the defendant and other individuals. At sentencing, the district court
declined to reduce the sentence for acceptance of responsibility. On appeal, the defendant claimed that he qualified for the two-level acceptance reduction because he pled guilty to the charged offense in a timely fashion, did not deny his criminal conduct, only attempted to smuggle drugs into MDC, and was addicted to drugs and was forced to quit immediately without medical assistance. The appeals court disagreed, noting that “A defendant who enters a guilty plea is not entitled to an adjustment [for acceptance of responsibility] as a matter of right. Rather, the defendant bears the burden of demonstrating that he qualifies for such a reduction.” The court held that attempting to smuggle drugs into the MDC showed a “lack of sincere remorse.” “Although we have not explicitly adopted this position, we have suggested that a defendant’s attempt to commit a crime before being sentenced is just as inconsistent with accepting responsibility as succeeding in committing the crime. And today, we hold that a defendant’s attempt to smuggle drugs into a detention center after pleading guilty to a drug-related offense can serve as a sufficient basis for a District Court to deny a sentence reduction for acceptance of responsibility.” Further, the court’s holding United States v. Olvera, 954 F.2d 788 (2d Cir. 1992), “forecloses [the defendant’s] argument that he should not be denied acceptance-of-responsibility credit on account of his addiction to drugs.”

Sentencing Hearing

United States v. Johnson
2013 WL 2347693 (11th Cir. 2013)
Sentencing court’s bias against defendant results in reversal

The defendant pled guilty to multiple counts related to possession and distribution of more than 400 grams of cocaine. The PSR calculated a sentencing range of 46 to 57 months. At sentencing, the district court stated that it was considering an upward variance based on the defendant being a supplier and distributor of drugs, as well as his extensive criminal history. The court imposed a sentence of 66 months, then continued to address the defendant stating, among other things, that the defendant “is a person who has been out of control, smoking marijuana on a daily basis. And it has led to, no doubt, a distraught and broken family, the lives of so many people, both victims and the victims by virtue of their dependency on him has been occurring a long period of time.” On appeal, the defendant argued that the district court relied on “clearly erroneous facts” to arrive at the sentence.
The appeals court agreed, holding that “[t]o the extent that the district court relied on these clearly erroneous facts in varying upward, we hold that the district court erred.” The court noted that neither the PSR nor the government presented any facts that supported the district court’s conclusion regarding the defendant’s actions. Further, the defendant’s attorney informed the district court that the defendant had consistently provided support for his children and that he was engaged to be married. “Although we cannot be sure how much the district court relied on these factual findings when sentencing [the defendant], we must conclude that the district court failed to adequately explain its reasons for [the defendant’s] sentence in a way that allows for meaningful appellate review and promotes the perception of fair sentencing. There is simply no evidence in the record to support the district court’s factual findings regarding [his] family or any victims resulting from their dependency on him.” Because the court could not “ascertain what effect any such reliance had on thedistrict court’s decision to vary upwardly, and because the district court failed to explain that, [the]sentence is procedurally unreasonable. Accordingly, we vacate Johnson’s sentence andremand for resentencing.”

Post-Conviction/Habeas/2255

United States v. Brown
2013 WL 1920931 (7th Cir. 2013) §2255 was inadequate or ineffective to test
legality of detention; thus prisoner could pursue habeas relief under §2241

In 1996, a jury convicted the defendant of one count of possession with intent to distribute cocaine base and one count of possession of a firearm by a felon. At sentencing, the district court classified the defendant as a “career offender” under §4B1.1, based on a finding that his two prior convictions (second degree assault and Arson in the Third Degree) were crimes of violence. The district court disagreed and imposed a sentence of 360 months
under the then-mandatory guidelines. Without the career offender enhancement, the defendant’s sentencing range would have been 262 to 327 months. The sentence was affirmed by the Third Circuit. In 2000, the defendant filed a timely motion under §2255, arguing that his counsel was ineffective for failing to object to the career offender
classification. This motion was denied in the district court and affirmed on appeal. On February 7, 2012, the defendant filed a pro se habeas petition under 28 U.S.C. §2241 claiming that under Begay v. United States, 553 U.S. 137, (2008), his prior Delaware conviction for Arson in the Third Degree did not qualify as a crime of violence under §4B1.1. The district court dismissed the petition sua sponte, reasoning that “the savings clause embodied in 2255(e) requires a claim of actual innocence directed to the underlying conviction, not merely the sentence.” The defendant appealed. The Seventh Circuit first found that a motion
under §2241 was proper in this case because; 1) Begay was a statutory-interpretation; 2) Begay could not have been invoked in the first §2255 motion because it had not yet been decided; and 3) the defendant’s argument could not have been raised in his first §2255 motion because it was foreclosed by binding precedent at that time. Further, “the erroneous application of the mandatory career offender Guideline is a fundamental sentencing
defect that can be remedied under §2241.” See Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011). Therefore, “the district court erred in concluding that challenges to a sentence (rather than the underlying conviction) are categorically barred under 28 U.S.C. §2241.” Turning to the merits of the defendant’s claims, the court found that Arson in the Third Degree, under Delaware law, was not a crime of violence because it did not “satisfy the elements clause, the enumerated offenses clause, or the residual clause” under §4B1.2. In response to the government’s argument that the defendant had to show more than just that the prior conviction was not a crime of violence, the court held that “[i]t is sufficient, for present purposes, that it is now clear that [the defendant] . . . never should have been classified as a career offender and never should have been subjected to the enhanced punishment reserved for such repetitive and violent offenders.” The matter was reversed and remanded with instruction to reduce the defendant’s “sentence to reflect our finding that he is not a career offender within the meaning of §4B1.1.”

Circuit Split

The court in Brown acknowledged that its decision regarding the “savings clause” of §2255(e) was in conflict with other circuits. See e.g., Gilbert v. United States, 640 F.3d 1293 (11th Cir. 2011) (en banc) (savings clause relief unavailable to claims that “sentencing guidelines were misapplied in the pre-Booker mandatory guidelines era in a way that resulted in a substantially longer sentence that does not exceed the statutory maximum.”); In re Bradford, 660 F.3d 226 (5th Cir. 2011) (federal prisoners not allowed to pursue relief under savings clause when challenging only career offenders status, reasoning that savings clause is available only to prisoners asserting actual innocence (i.e., that they were convicted of a nonexistent crime)). The court in Brown disagreed with these interpretations of the savings clause, stating that the text of the clause “focuses on the legality of the prisoner’s detention” and “does not limit its scope to testing the legality of the underlying criminal conviction.” “[S]entences imposed pursuant to erroneous interpretations of the mandatory guidelines bear upon the legality of the petitioner’s detention for purposes of the savings clause. For a prisoner serving a sentence imposed when the guidelines were mandatory, a §2241 habeas petition raising a guidelines error tests the legality of his detention within the meaning of the savings clause, §2255(e), because the guidelines had the force and effect of law; the only lawful sentence was a guidelines sentence.”

Miscellaneous Issues

United States v. Joseph
2013 WL 2321443 (9th Cir. 2013) Consecutive sentences not required for violations involving different items of drugs

The defendant was serving a state sentence for sexual abuse at the Federal Detention Center
Honolulu. In February 2011, he was found with 2.916 grams of marijuana after a visit with family members. The FBI interviewed him later that month, and he admitted that he had received about 1 gram of marijuana through a family member in December 2010 and had provided it to another inmate. The government charged him with three counts of violating 18 U.S.C. §1791(a)(1) and (2): counts 1 and 2 related to the December incident (possession of marijuana and providing it to another inmate), and another count related to the February incident (possession of marijuana). The defendant pled guilty to all counts. At the sentencing hearing, the district court calculated a sentencing range of 10 to 16 months, and imposed a total sentence of 24 months, assuming that §1791(c) required imposition of consecutive sentences on all three counts. On appeal, the defendant argued that the district court plainly erred in interpreting §1791(c) to require consecutive sentences for convictions when they are based on two separate items of contraband. The Ninth Circuit explained that the punishment portion of the statute stated, in part: “Any punishment imposed . . . for a violation of this section involving a controlled substance shall be consecutive to any other sentence imposed by any court for an offense involving such a controlled substance.” The issue was whether the phrase “such a controlled substance” referred to any controlled substance or the specific item of drugs that was involved in the violations of §1791(a). The government argued that the phrase referred to any controlled substance. The defendant countered that counts 1 and 2 involved possession and providing the same item of drugs, but the third count involved a separate item of drugs and therefore §1791(c) did not require a consecutive sentence as to that count. The court found the defendant’s reading of the statute “the only plausible interpretation that comports with the text of the statute and congressional intent.” Under plain error review, the court held that “the first provision of §1791(c) . . . only requires consecutive sentences when there is more than one conviction resulting from the same item of controlled substance contraband. Therefore it was error for the district court to assume that the statute required the sentence for [the third count] be imposed consecutively to Counts 1 and 2.” Further, the 24- month sentence, which was above the 10 to 16 month range, affected the defendant’s “substantial rights” and seriously affected “the fairness, integrity, or public reputation of judicial proceedings.” Because the district court committed plain error by interpreting 18 U.S.C. §1791(c) to require consecutive sentencing for controlled substances offenses that arose out of separate items
of drugs, the sentence was vacated and remand.

United States v. Martin
2013 WL 2302103 (7th Cir. 2013)
Failure to address arguments regarding recidivism and child-pornography guidelines warranted remand

An undercover officer discovered that the defendant had made available on a file-sharing
network nine images and videos depicting child pornography. A search of the defendant’s home uncovered hundreds more images and several videos of child pornography on two computers. He pled guilty to possessing child pornography. The PSR calculated a total offense level at 30, and a category III criminal history, which yielded a sentencing range of 121 to 151 months. Due to the ten-year statutory maximum, however, the defendant’s effective guidelines range was 120 months. The PSR described the defendant’s significant mental-health issues including major depressive disorder, dysthymia, alcohol and marijuana dependency, and polysubstance abuse, and a “possible, but doubtful” diagnosis of bipolar disorder. The PSR also noted that the defendant was not receiving medication or treatment at the time of his arrest because he could not afford it. The defendant argued for a below-guidelines sentence on several grounds including: (1) that his personal characteristics indicated a low likelihood of recidivism; and (2) that the child-pornography guidelines produced sentences longer than necessary to serve the goals of sentencing in cases of mere possession. The district court adopted the PSR and imposed a sentence of 120 months, explaining that “it did not place much weight on deterrence given its view that child-pornography offenders were undeterrable because they are not rational thinkers in the first place,” but went on to explain “specific deterrence,” the seriousness of the offense, and the need to protect the public, as justifying its sentence. On appeal, the Seventh Circuit explained that a district court must consider a defendant’s principal, nonfrivolous arguments for a lower sentence. “Here, the district court’s failure to address [the defendant’s] arguments regarding his likelihood of recidivism particularly in regard to his mentalhealth issues warrants remand. The district court was not required to accept [the defendant’s] argument that treatment of his mental-health issues would reduce his likelihood of reoffending, but [his] position was not so lacking in merit as to warrant no response.” In addition, “[t]he district court also should have addressed [the defendant’s] argument that the child-pornography guidelines do not approximate the goals of sentencing when applied to defendants convicted only of possession who have no history of contact offenses.” Here, the defendant “did not argue that the child-pornography guidelines should never be applied. Rather, he argued that they produce disproportionately long sentences for child-pornography possessors, like himself, with no history of contact offenses.” Because the district court failed to adequately address these arguments, the sentence was vacated and remanded.

United States v. Bloch
2013 WL 2149888 (7th Cir. 2013)
Firearms convictions were multiplicitous; merger was required

Police officers responded to a report of gunfire at an apartment and were greeted at the door by the defendant, who was obviously intoxicated. While the officers checked in the apartment to see if anyone was injured, they found a loaded Glock handgun and an SKS assault rifle in plain view. As the officers removed the firearms, the defendant protested that the guns were his and demanded their return. Unfortunately, the defendant was a convicted felon and also had a conviction for a domestic-violence misdemeanor, making his firearm possession a federal crime. A jury found him guilty of unlawful possession of a firearm by a felon, under §922(g)(1); and unlawful possession of a firearm after having been convicted of domesticviolence misdemeanor, under §922(g)(9). At sentencing the district court grouped the convictionspursuant to §3D1.2(d) and arrived at a sentencing range of 120 to 150 months. After considering the §3553(a) sentencing factors, the court imposed a sentence of 138 months, structured as follows: 120 months the maximum on the §922(g)(1) count, and a consecutive 18 months on the §922(g)(9) count. On appeal, the defendant challenged his sentence, arguing that the district court committed error by imposing consecutive terms of imprisonment. The government raised a different and more fundamental error; i.e., that a single incident of firearm possession can yield only one conviction under §922(g), no matter how many disqualified classes the defendant belongs to or how many firearms he possessed. The appeals court agreed with the government and reversed, holding that because the defendant’s convictions for violating §922(g)(1) and §922(g)(9) arose out of the same incident of firearm possession, they should have been merged into a single count of conviction. See United States v. Parker, 508 F.3d 434 (7th Cir. 2007) (“§922(g) cannot support multiple convictions based on a single firearm possession because the allowable unit of prosecution is the incident of possession, not the defendant’s membership in a class (or classes) of persons disqualified from possession.”). “Moreover, a single act of possession can yield only one conviction under §922(g) even if the defendant possessed multiple firearms at the same time.” Consequently, the defendant’s two convictions were multiplicitous and should have been merged. “The convictions arose from the same incident of firearm possession, and the only difference between them is the disqualified class to which [he] belonged. That [the defendant] possessed two firearms does not affect this conclusion. The proper remedy for the multiplicity error is merger; one conviction must be vacated and merged into the other. Once the convictions are merged, the statutory maximum is [120 months. Because [the defendant’s] sentence exceeds that maximum, he must be resentenced.”

United States v. Luna-Acosta
2013 WL 1848761 (10th Cir. 2013) Oral sentence not final; court lacked jurisdiction to alter later judgment

In August 2011, the government filed a onecount information charging the defendant with
illegal re-entry. He pled guilty under the “fast track” program whereby the government agreed to a downward departure of the final offense level and the defendant agreed not to seek any further reduction, departure, deviation, or variance. The government represented that the sentencing range would be 12 to 18 months. The PSR calculated a higher offense level, which resulted in a sentencing range of 33 to 41 months. At sentencing, trial counsel argued that it would be unfair to sentence the defendant under the PSR because he had relied on the government’s representation when he pled. The district court did not address this argument and then stated that it would impose a 33-month sentence. Trial counsel then asked that the
sentencing be continued until after November 1, 2011, because the new guidelines would no longer recommend supervised release in illegal re-entry cases. The district court immediately agreed. At the second sentencing hearing, trial counsel recapped the first hearing and again urged the unfairness of sentencing the defendant under the PSR. The district court imposed a 12-month sentence with no supervised release. More than five months later the district court, without warning to either party, entered a written judgment imposing a sentence of 33 months, explaining that, under Rule 35, it had lacked jurisdiction at the November 16 hearing to impose the twelve-month sentence. The court reasoned that it had continued sentencing only for the purposes of setting the term of supervised release, and that the 33 month sentence imposed on October 19 was a final sentence. Citing United States v. Meza, 620 F.3d 505 (5th Cir. 2010), the Tenth Circuit reversed, holding that the sentence was not final until the end of the second hearing. “Most important is the very fact the district court continued the first hearing on October 19 without finalizing all of the terms of the sentence. At that point, the parties had not had the opportunity to raise any other objections, and [the defendant] had not had an opportunity to allocute. These circumstances all suggest the oral announcement of the sentence was not yet final.” “Because the sentence was not final for the purposes of Fed. R. Crim. P. 35(a) at the end of the first hearing on October 19, the district court had jurisdiction to impose the twelve-month sentence at the second hearing on November 16. However, the district court lacked jurisdiction under Rule 35(a) when it altered that twelve-month sentence of imprisonment in its written judgment on April 26. We REVERSE and REMAND with instructions for the district court to vacate its written judgment of April 26, 2012, and enter a new judgment consistent with the November 16, 2011, sentencing.”

United States v. Johnson 2013 WL 1846582 (6th Cir. 2013) Higher sentence on resentencing was not vindictive, thus due process rights not violated

In 2001, the defendant began communicating online with an individual he believed to be a 14-
year-old girl. In reality, that person was an FBI agent posing as an underage female. Over a twomonth period, the defendant sent the “girl” multiple images of child pornography and arranged a meeting for the two to engage in sexual activity. Upon his arrival, he was arrested and pled guilty to charges of transmitting child pornography and using a facility
in interstate commerce to attempt to persuade a minor to engage in sexual activity. He was sentenced to 63 months. Shortly after completing his supervised release, the defendant began communicating online with another individual he believed to be a 13-year-old girl. Once again, the individual turned out to be an undercover agent. The defendant sent the agent numerous pornographic images featuring children. After seizing the defendant’s computer, authorities found over 500 images of child pornography. The defendant pled guilty to transporting child pornography in interstate commerce by computer; using a communication facility to transfer obscene material to a minor under the age of sixteen; and possession of child pornography. The PSR recommended a sentencing range of 360 months to life. The district court imposed a sentence of 320 months, but this sentence was reversed on appeal
due to an “ambiguity” in the sentencing process; i.e., it was unclear whether the sentence imposed by the district court, in response to objections to a fivelevel enhancement under §2G2.2(b)(5), was the result of a downward or an upward variance. On remand, the district court applied the five-level increase and sentenced the defendant to 360 months, 40 months more than originally imposed. On appeal, the defendant argued that the new sentence was vindictive and substantively unreasonable. “While a trial court is free to imposea higher sentence upon remand, a sentence based on vindictiveness violates a defendant’s due process rights. To ensure that the higher sentence is properly motivated, a rebuttable presumption of vindictiveness applies when, as here, a sentence after remand is higher than that originally imposed. We must ask whether it is more likely than not that the judge who imposed the higher sentence was motivated by vindictiveness.” Here, the district court reexamined its decision with respect to the five-level enhancement and determined that the five-level enhancement applied because the defendant’s two child pornography convictions constituted a pattern for purposes of §2G2.2(b)(5). The district court also “described the other factors that necessitated application of the enhancement, namely, the seriousness of [the defendant’s] conduct and the strong likelihood of recidivism. Because no factors under 18 U.S.C. §3553 justified a downward departure or variance, it felt compelled to sentence [the defendant] to 360 months. While the possibility of vindictiveness is not to be taken lightly, in this case the presumption has been overcome. As a result, the district court did not plainly err in sentencing [the defendant] to 360months imprisonment upon remand.”

All Cases In This Issue

Alleyne v. United States, 2013 WL 2922116
Descamps v. United States, 2013 WL 3064407 (2013)
McQuiggin v. Perkins, 133 S. Ct. 1924 (2013)
Peugh v. United States, 2013 WL 2459523 (2013)
United States v. Bloch, 2013 WL 2149888 (7th Cir.
2013)
United States v. Brown, 2013 WL 1920931 (7th Cir.
2013)
United States v. Chu, 2013 WL 1876582 (2nd Cir. 2013)
United States v. Crockett, 2013 WL 2300480 (11th Cir.
2013)
United States v. Flores-Olague, 2013 WL 2248961 (7th
Cir. 2013)
United States v. Greig, 2013 WL 2129437 (1st Cir. 2013)
United States v. Johnson, 2013 WL 2347693 (11th Cir.
2013)
United States v. Johnson, 2013 WL 1846582 (6th Cir.
2013)
United States v. Joseph, 2013 WL 2321443 (9th Cir.
2013)
United States v. Luna-Acosta, 2013 WL 1848761 (10th
Cir. 2013)
United States v. Martin, 2013 WL 2302103 (7th Cir.
2013)
United States v. Philidor, 2013 WL 2321689 (11th Cir.
2013)
United States v. Reynolds, 2013 WL 1891294 (7th Cir.
2013)