Sentencing Partners – March 2014
Three Decisions on Child Pornography Distribution Enhancement and Use of Peer-to-Peer Programs . . . Two Different Results
Criminal History
(Chapter 4)
United States v. Robinson
2014 WL 661574 (4th Cir. 2014)
Prior marijuana possession conviction was
not relevant conduct under §4A1.2;
Two-point increase in criminal history score under §4A1.1(d) was warranted
In 2010, police officers videotaped the defendant and two others making six crack-cocaine sales to a police informant. He was indicted on one count of conspiring to distribute crack cocaine from 2002 to 2011, one count of aiding and abetting the distribution of crack cocaine, and six counts of distribution of crack cocaine. He pled guilty to all of the counts. The PSR assigned one criminal history point based on a 2003 conviction for marijuana
possession, and added two more points under §4A1.1(d) because the crime of conviction was committed while the defendant was on probation. The PRS reasoned that the defendant had been given a one-day sentence of probation based on the 2003 marijuana conviction, and that this term coincided with the ongoing drug conspiracy. The district court adopted the PSR and imposed a sentence of 140 months. The defendant appealed, raising two arguments: 1) that the 2003 marijuana conviction should have been considered relevant conduct of the cocaine distribution offense; and 2) that the two points under §4A1.1(d) was not warranted because he was in transit for the 24-hour period and could not have sold cocain during that time. The Fourth Circuit affirmed the sentence. Regarding relevant conduct, the court explained that any sentence resulting from conduct constituting relevant conduct to the current offense is excluded from the definition of “prior sentences” under §4A1.2. “Thus, if an offense qualifies as relevant conduct for offense-level purposes, it cannot also yield a prior sentence for criminal-history purposes.” However, because the 2003 marijuana sentence was for possession, while the ongoing conspiracy involved the crack cocaine distribution, there were two distinct crimes. Further, the 2003 sentence was for simple possession, which suggested that the marijuana was for personal use and played no role in a drug-dealing conspiracy. “The fact that an unrelated drug conviction and sentence occur during the timeframe of a drug conspiracy does not automatically convert them into relevant conduct of the conspiracy.” Regarding the two-point increase under §4A1.1(d), the court noted that the adjustment was “warranted if the defendant committed any part of the instant offense while on probation. Under the plain language of this provision, an enhancement must be imposed if any part of the defendant’s crime coincides with a term of probation.” Even assuming that the defendant did not sell cocaine during his 24 hours of probation, the two-point adjustment was proper. “Given the plain language of the Guidelines, even a short period of probation imposed during an ongoing conspiracy triggers an enhancement under §4A1.1(d). [The defendant’s] instant offense was a drug-dealing conspiracy that spanned from 2002 to 2011. Because this timeframe included [his] day of probation in 2003, the enhancement was proper.”
Determining the Sentence
(Chapter 5)
United States v. Rachuy
2014 WL 563587 (7th Cir. 2014)
§5G1.3(b)(1) did not apply
By the time the defendant had committed the offense involved in this case, he had accumulated nearly 30 convictions, mostly for fraud. His offense this time involved purchasing six cars by writing bad checks drawn on accounts that he knew were either closed or had no funds, and driving the cars away. Ultimately, he was charged with five counts of transporting a stolen vehicle across state lines and he pled guilty to one count. The PSR calculated a sentencing range of 37 to 46 months, but the district court found that the defendant’s Criminal History Category VI significantly underrepresented the seriousness of his criminal history and imposed a sentence of 90 months. Under §5G1.3(c), the court ordered the federal sentence to run concurrently with a related Minnesota conviction for fraud. On appeal, the defendant argued that the district court should have used §5G1.3(b), which would have allowed the court to adjust his sentence “for any period of imprisonment already served on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons.” Reviewing for plain error, the Seventh Circuit disagreed, holding that the defendant did not qualify for sentencing under §5G1.3(b). The court explained that “under §5G1.3(c), a sentencing judge has the discretion to impose a sentence that runs concurrently with a prior undischarged term of imprisonment, which the court did here by ordering [the defendant’] federal sentence to run concurrently with his Minnesota sentence.” However, a sentencing judge is to use §5G1.3(b) only if the term of imprisonment “resulted from another offense that is relevant conduct to the instant offense of conviction . . . and was the basis for an increase in the offense level for the instant offense.” While the defendant met the first requirement, he did not meet the other one; his Minnesota conviction was not the basis for an offense-level increase, therefore the
option of being sentenced under §5G1.3(b) was not available. “Even though the state conviction was included as relevant conduct, [the defendant] received no criminal history points for that offense, and the loss associated with it was not used to calculate his offense level. Given that the state conviction was not the basis for an increase in the offense level for [his] federal transporting stolen vehicle conviction, he was not eligible to be sentenced under §5G1.3(b) and the court did not err by sentencing him under §5G1.3(c).”
Probation/Supervised Release
(Chapter 7)
United States v. Shannon
2014 WL 607497 (7th Cir. 2014)
Lifetime ban on possession of pornography was erroneous
The defendant pled guilty to one count of possessing child pornography and was sentenced to 46 months. He completed the sentence on August 20, 2010, and he began his supervised release. About thirteen months later, his probation officer filed a petition alleging the defendant had violated conditions of his supervised release by, among other things, viewing internet pornography sites where the models were intended to depict teenage girls. The district court revoked the defendant’s supervised release, and sentenced him to 28 days. The court also reinstated the standard and special conditions previously imposed, along with an addition special condition that forbid him, for his lifetime, from “possessing any material containing sexually explicit conduct, . . . including pictures, photographs, books, writings, drawings, videos, video games and child pornography.” On appeal, the defendant argued that
the new special condition was not reasonably related to his offense of conviction and was imposed without adequate findings. The Seventh Circuit explained that a district court may impose a special condition if three requirements are satisfied: 1) the condition must be reasonably related to the penological purposes set forth in 18 U.S.C. §3553(a); 2) a special condition cannot involve a greater deprivation of liberty than is reasonably necessary to achieve the goal of deterrence, incapacitation, and rehabilitation; and 3) a special condition must be consistent with any pertinent statement that the Sentencing Commission issues. The court vacated the special condition, holding that “the district court did not at all explain the tie between the possession of any material containing sexually explicit conduct, even legal material depicting adults, and [the defendant’s] conduct. And it gave no reason or explanation for the ban on even legal adult pornography. In light of the lack of findings, we vacate Special Condition No. 10 and remand this case to the district court for further consideration.
Restitution
United States v. Joseph
2014 WL 658057 (8th Cir. 2014)
Oral sentence offsetting restitution obligation was contrary to law; did not control
While incarcerated in a Florida state prison, the defendant participated in a multi-year scheme to fraudulently obtain tax refunds from the IRS by filing numerous fabricated income tax returns using the personal information of other Florida inmates. He ultimately pled guilty to 41 of the 46 counts brought against him. The counts to which he pled guilty involved $173,016 in false refund claims, of which the IRS actually disbursed $37,196.27. Before sentencing, the district court entered a preliminary order of forfeiture for $29,514.91 incurrency seized by government officials. The PSR calculated a sentencing range of 51 to 63 months and
concluded that the Mandatory Victim Restitution Act (MVRA) required him to pay $37,196.27 in restitution to the IRS. At sentencing, the defendant argued that the $37,196.27 in restitution should be offset by the $29,514.91 subject to forfeiture. The district court seemed to initially deny the request, but at the end of the hearing, and over the government’s objections, the court stated that the restitution obligation would be offset by the funds already forfeited, leaving a restitution balance of $7,681.36. After the sentence hearing, the government submitted a Notice of Filing asserting that the district court had no authority to offset the restitution amount by the value of forfeited funds. The district court, without explicitly addressing the government’s objection or filing, entered its written judgment, ordering the defendant to pay $37,196.27 in restitution directing the forfeiture of the $29,514.91 with no mention of the restitution amount being offset. The defendant appealed arguing that the district court should be ordered to amend the written judgment to conform to its oral pronouncement and that the forfeited funds be applied toward his restitution obligation. The defendant relied upon the rule that when an oral pronouncement of a sentence unambiguously conflicts with a written judgment, the oral pronouncement controls. See United States v. Bonilla, 579 F.3d 1233 (11th Cir. 2009). The Eighth Circuit quickly noted that this rule has a “longstanding exception to it when an oral pronouncement is contrary to law.” See Walker v.United States Parole Commission, 592 F.2d 905 (5th Cir. 1979) (effect will not be given to a district court’s oral directive where the oral directive was inconsistent with the plain language a statute). “That exception applies in this case because under the plain language of the MVRA and the applicable forfeiture provisions, the district court had no authority to offset the amount of restitution owed to the IRS by the amount of the funds [the defendant] forfeited to the government.” “In light of the statutory framework governing restitution and forfeiture, we hold that a district court generally has no authority to offset a defendant’s restitution obligation by the value of forfeited property held by the government, which is consistent with the approach taken by the Fourth, Seventh, Eighth, Ninth, and Tenth Circuits.” See United States v. Martinez, 610 F.3d 1216 (10th Cir. 2010); United States v. McCracken, 487 F.3d 1125 (8th Cir. 2007); United States v. Bright, 353 F.3d 1114 (9th Cir. 2004); United States v. Alalade, 204 F.3d 536 (4th Cir. 2000); United States v. Emerson, 128 F.3d 557 (7th Cir. 1997). “Because the district court had no authority to offset [the defendant’s] restitution obligation by the amount of funds forfeited to the government, its oral pronouncement directing such an offset was contrary to law. . . . We therefore affirm the district court’s written judgment, which properly declined to offset the amount of restitution owed to the IRS by the funds [the defendant] forfeited to the government.”
Crime of Violence
United States v. Gonzalez-Monterroso
2014 WL 575952 (9th Cir. 2014)
Delaware attempted rape in fourth degree not a crime of violence
The defendant pled guilty to one count of illegal reentry. The PSR recommended a 16-level
enhancement under §2L1.2(b)(l)(A)(ii), based on a prior state court conviction for attempted rape in the fourth degree, under Del. Code Ann. tit. 11, §§531, 532, 770. The PSR applied the modified categorical approach and noted that the record established that the defendant was 28 and the victim was 14 at the time of the state offense, and concluded that the conviction qualified as sexual abuse of a minor, which is a crime of violence. The district court adopted the PSR and imposed the enhancement. On appeal, Gonzalez claimed that his state court
conviction did not constitute a crime of violence under either a categorical or modified categorical approach. The Ninth Circuit explained that when “dealing with attempt crimes, the district court can impose the 16-level enhancement only if both the state’s definition of attempt and the underlying state offense are categorical matches for the federal generic attempt definition and the underlying federal generic offense.” The court first found that “[b]ecause Delaware’s statutory definition of ‘substantial step’ is materially different from and encompasses more conduct than the federal generic definition, the Delaware attempt statute criminalizes more conduct than the federal generic attempt conviction for an attempt offense (attempted rape in the fourth degree) does not qualify as a federal generic attempt offense under the Taylor categorical approach. Next the court found, contrary to the government’s argument, that under Descamps v. United States, — U.S. —-, —- – —-, 133 S. Ct. 2276 (2013), “the modified categorical approach is not available in this context.” Here, Delaware’s Criminal Code offered two alternative ways a person could be guilty of attempting to commit a crime, the first (engaging in conduct that would be criminal if the circumstances were as the defendant believed them to be) was inapplicable, and the second “criminalizes more conduct than the federal attempt statute, and is not itself divisible.” Because the attempt crime did not qualify as a federal generic attempt crime for purposes of §2L1.1(b)(1)(A), “we conclude that the district court erred in adding a 16- level enhancement.”
United States v. Howard
2014 WL 630657 (11th Cir. 2014)
Alabama third-degree burglary not
predicate conviction under ACCA
On April 28, 2011, the police received a report from an anonymous caller that a gray Cadillac was parked at a vacant house and that the vehicle likely contained guns, drugs, and stolen property. Officers responded and spotted the gray Cadillac with three men sitting inside. When they approached the Cadillac, they smelled marijuana smoke and saw a bag of marijuana on the front-passenger floorboard. While performing an inventory search, they found a .40-caliber Glock model 23 pistol that had been reported stolen. A jury convicted the defendant on one count of being a felon in possession of a firearm. The PSR recommended a base offense level of 24, because the defendant had at least two felony convictions for a crime of violence or a controlled substance offense, under §2K2.1(a)(2), and a sentencing range of 168 to 210 months. However, the PSR concluded that the defendant’s eight Alabama convictions, seven for third-degree burglary and one for third-degree robbery, qualified him for an ACCA, which resulted in a sentencing range of 235 to 293 months, with a mandatory minimum of 180 months. The district court adopted the PSR and imposed a sentence of 235 months. On appeal, the defendant argued that Alabama’s third-degree burglary statute was a non-generic, indivisible statute, and could never be an ACCA predicate. The Eleventh Circuit stated, according to Descamps, that when determining whether a statute was divisible, the key was “whether the statute sets out one or more elements of the offense in the alternative for example, stating that burglary involves entry into a building or an automobile.” The court found that “[n]othing in the Alabama statute suggests its definition of building is drafted in the alternative. Instead, Alabama Code §13A-7-1(2) provides one definition of building and then includes a nonexhaustive list of things that fall under that definition.” The court held “In light of the Descamps decision, illustrative examples are not alternative elements. See United States v. Cabrera- Umanzor, 728 F.3d 347 (4th Cir. 2013). As a result, the statute is non-generic and indivisible, which means that a conviction under Alabama Code §13A- 7-7 cannot qualify as generic burglary under the ACCA.” The sentence was vacated and remanded for resentencing without the ACCA enhancement, with instructions that the government be prevented “from seeking an enhancement under the ACCA’s residual clause.” The Eleventh Circuit reached a similar result in United States v. Jones, 2014 WL 705419 (11th Cir. 2014), a case also involving the ACCA and prior Alabama convictions for third-degree burglary.
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