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United States v. Wilbourn
2015 WL 627377 (7th Cir. 2015)
Exaggerating mental deficits supported enhancement for obstruction of justice
The defendant was convicted of bank robbery by force or violence, and for brandishing a
firearm. At arraignment, his attorney requested a competency hearing. During an interview, the defendant told the psychologist who examined him that he could not read and didn’t know what a bank was, what a year was, when his birthday was, or the name of any member of his family. However, prison staff told the psychologist that they had observed the defendant reading and that he followed instructions without difficulty. The psychologist concluded that the defendant was exaggerating his mental deficits and was competent to stand trial. During testimony at the hearing, the defendant’s wife testified that he was sometimes aggressive and was difficult to communicate with, but that he could read, drive, and use a cell phone. The district judge determined that the defendant had, by exaggerating his mental condition, delayed the criminal proceeding and obstructed justice. This resulted in an enhancement under §3C1.1. On appeal, the defendant argued “if exaggerating one’s mental deficits at a competence hearing is deemed obstruction of justice (provided it causes, or is found to have been an attempt to cause, delay or other disruption of the criminal proceeding), defendants and their lawyers will be reluctant to request such a hearing even if they have solid grounds for the request.” While the Seventh Circuit agreed in principle, it affirmed the sentence noting that “when in doubt about the bona fides of the defendant’s behavior at the competence hearing the judge should not find an obstruction of justice. In this case there was no basis for serious doubt that the defendant was deliberately exaggerating his symptoms and by doing so trying to disrupt or at least delay the criminal proceeding, and that he succeeded in delaying his trial by months (though success is not a requirement for imposing an enhancement for obstruction of justice-an attempt will do as well).” Finally, three other circuit courts have reached the same conclusion. See United States v. Aldawsari, 740 F.3d 1015 (5th Cir. 2014); United States v. Batista, 483 F.3d 193 (3rd Cir. 2007); United States v. Patti, 337 F.3d 1317 (11th Cir. 2003).
United States v. Castillo
2015 WL 818566 (5th Cir. 2015)
Remand to determine if, for §3E1.1, challenging amount of stolen funds was in good faith
The defendant embezzled cash from a federal credit union where she was employed. She pled guilty to misapplication of bank funds by a bank employee. The PSR alleged she had stolen $690,000, awarded the two-point acceptance of responsibility reduction, and stated that the government would move for the additional onepoint at sentencing. The defendant objected to the loss amount, arguing that the evidence established a loss amount between $70,000 and $120,000. The district court concluded that the evidence supported the amount of $690,000. Based on that finding, the government declined to move for the additional one point for acceptance. The defendant argued that she took responsibility for what she actually stole, such that the point should be awarded. The district court declined to apply the additional point. During the pendency of the defendant’s appeal, Amendment 775 became effective, which provided that the government should not withhold the additional point based on “interests not identified in §3E1.1. . . .” The defendant argued on appeal that since the additional point was from subsection (b) of §3E1.1, the government could only rely upon interests identified in that subsection. The government, in turn, argued that under the new guideline commentary, it could rely on interests identified in §3E1.1(a) or (b) in withholding the additional point. The Fifth Circuit agreed with the government and found that the commentary did not limit the government to the interests identified in subsection (b) alone when withholding the additional point. The issue then became whether the defendant’s objection to the amount of loss implicated an interest identified in §3E1.1. The government argued that the denial of the one point was justified because “her objection to the amount of loss ‘required the government to prove the full scope of her offense in a day-long hearing and evidence a lack of complete acceptance of responsibility for her offense.’” The Fifth Circuit found that, based on language in the guideline, those interests are implicated for trial purposes only. “The commentary makes no reference to the government preparing for a
sentencing hearing. Therefore, we disagree that the government may withhold a §3E1.1(b) motion simply because it has had to use its resources to litigate a sentencing issue.” As long as it was a “good faith dispute as to the accuracy of the factual findings in the PSR,” the government may not refuse to move for the additional point just because a hearing was held to litigate the dispute. The court remanded to consider whether the defendant’s dispute was in good faith. Justice Graves dissented” “In my view, a post-plea, sentencing objection is simply not a valid basis upon which the government may withhold a §3E1.1(b) motion.”
Determining the Sentence
United States v. Morrison
2015 WL 526031 (2nd Cir. 2015)
Judge could consider positive results on pretrial services drug test
The defendant pled guilty, pursuant to a cooperation agreement, to one count of
conspiracy to distribute 500 grams or more of cocaine. Under the guidelines, his sentencing range was calculated to be 37 to 46 months. The district court granted the government’s §5K1.1 motion and initially imposed a sentence of 15 months. However, before the proceeding was concluded, the defendant asked that sentencing be adjourned for approximately three months; the court granted that motion and sua sponte withdrew the sentence. The defendant was not in custody and pretrial services continued to test him for drug use. He subsequently failed two drug tests and pretrial services informed the district court of the results. At the resumed sentencing hearing, the defendant argued that 18 U.S.C. §3153(c) precluded the government from using, and the court from considering, the positive drug tests as a basis to enhance his sentence. The district court rejected the argument and indicated that it would impose “additional punishment” because of the failed tests, ultimately imposing a sentence of 18 months. On appeal, the defendant raised the same issue, arguing that consideration of the failed drug tests was foreclosed by the confidentiality requirements imposed by 18 U.S.C. §3153(c). Acknowledging that it was “a question of first impression in this Circuit,” the court concluded that confidentiality under
§3153(c)(1) “is imposed . . . to safeguard the full exchange of relevant information among a defendant, court-related personnel, and the judge. In short, §3153(c) ensures the
maint[enance of] strong confidentiality with respect to third party requests for a defendant’s pretrial services materials. It does not contemplate the withholding of information from the district judge.” Further, §3153(c)(2)(C) gives probation officers access to confidential information for the purpose of compiling presentence reports. “But probation officers do not compile presentence reports for their own benefit. Rather, they do so under a statutory mandate intended to ensure that district judges have all information necessary to make an appropriate sentencing determination. Thus, implicit . . . is the expectation that district judges will receive and use that information in determining a defendant’s sentence.” “Thus, we conclude that a district judge’s use of otherwise confidential pretrial services information in determining a sentence is not barred by §3153(c)(1) because the judge’s receipt and use of such information for sentencing purposes is contemplated by the §3153(c)(2)(C) exception.