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S e n t e n c i n g P a r t n e r sMay 2014
Robers v. United States
134 S. Ct. 1854 (2014)
Restitution Decision
The defendant was convicted of conspiracy to commit wire fraud in connection with mortgage fraud scheme wherein he submitted fraudulent mortgage loan applications to two banks. He appealed the restitution order to the Seventh Circuit, which affirmed. His petition for certiorari was granted.
Before the Supreme Court, the defendant argued that his restitution amount should have been reduced by the value of the collateral that was returned to the lenders as of the date it was returned, as opposed to the value received by the lenders when the property was ultimately sold. The defendant relied on language in the Mandatory Victims Restitution Act of 1996, 18 U.S.C. §§ 3663A-3664, that required property crime offenders to pay “an amount equal to . . . the value of the property” less “the value (as of the date the property is returned) of any part of the property that is returned.” He argued that “the value of the property that is returned” meant the value when the lenders took control of the properties.
In a rare unanimous decision, the Court held that the phrase “‘any part of the property . . . returned’ refers to the property the banks lost, namely, the money they lent to [the `], and not to the collateral the banks received, namely, the houses.” The phrase “the property,” as it appears in § 3663A(b)(1), “refers to the property that was lost as a result of the crime, here, the money” and the phrase “the property . . . returned” also refers the property lost as a result of the crime.
Sentencing Commission Preliminary Quarterly Data Report 1st Quarter 2014 Preliminary Cumulative Data (October 1, 2013, through December 31, 2013)
The Sentencing Commission’s latest Quarterly Data Report is now available as: http://www.ussc.gov/sites/default/files/pdf/research-andpublications/ federal-sentencing-statistics/quarterly-sentencingupdates/USSC-2014-Quarter-Report-1st.pdf
Case Summaries
Offense Conduct
(Chapter 2)
United States v. Kamper
2014 WL 1378192 (6th Cir. 2014)
Harmless error where court concluded it did not have discretion to reject MDMA-to-marijuana ratio
The defendant and two others were indicted for conspiring to distribute MDMA and possessing
MDMA with intent to distribute. The defendant pled guilty. The PSR held him responsible for 1,218.75 grams of MDMA, which was the equivalent of 609.375 kilos of marijuana. The defendant objected to the the MDMA-to-marijuana equivalency ratio, asserting that the ratio was based on discredited science. At sentencing, the district court discussed the defendant’s equivalency ratio objection at length and ultimately declined to reject the ratio used in the guidelines. However, the court did find, under §3553, that the ratio resulted in a sentence that was greater than necessary. On appeal, the defendant argued that the district court erred by misunderstanding its authority to reject the MDMAto- marijuana ratio. Citing, Kimbrough v. United States, 552 U.S. 85 (2007), the Sixth Circuit noted that a district court has the authority to reject a guidelines equivalency ratio if it concludes that it ordinarily produces sentences greater than necessary to achieve the purposes of sentencing. Here, the court concluded that “the district court had the power to exercise his discretion to reject the MDMA-tomarijuana ratio embedded in the Guidelines based on a reasoned policy disagreement. The district court erred by concluding, to the contrary, that ‘[i]t is not clear to the Court this broad reject-and-replace power does (or should) exist outside the universe of crackto- powder ratio cases.’ The district court in the instant case misunderstood its authority to reject the Guidelines’ MDMA-to-marijuana equivalency ratio and replace it with a more appropriate ratio.” However, no remand was required because, “although the district court erred by failing properly to recognize its authority to reject and replace the Guidelines ratio, the error was harmless because the record makes clear that the district court would have imposed the same sentence even had it understood its authority.”
United States v. Kamper
2014 WL 1378192 (6th Cir. 2014)
Enhancement for obstruction of justice was warranted
The defendant and two others (Head and St. Onge) manufactured and distributed MDMA in
Chattanooga, Tennessee. All three were indicted for conspiring to distribute MDMA and possessing MDMA with intent to distribute. The defendant pled guilty. While awaiting sentencing, he was housed in the same unit as St. Onge, who was cooperating with the government. The defendant wrote a letter to Head stating how he had informed all of the other inmates that St. Onge was cooperating. At sentencing, St. Onge testified that he became afraid that the other inmates might “take physical action” against him. The defendant was sentenced to 144 months, which included a two-level enhancement for obstruction of justice, under §2D1.1(b)(14)(D). On appeal, the defendant contended that the enhancement did not apply. The Sixth Circuit disagreed, finding that the defendant’s admission that he told other inmates in his jail pod that St. Onge was a “rat” and a “snitch” were sufficient to support the enhancement. At the time the defendant identified him as a snitch, St. Onge was cooperating with the government and anticipated being called as a witness at Head’s trial. St. Onge testified that, after the defendant began spreading rumors about him, the other inmates became “rile[d] up” and St.
Onge became concerned about them “taking a physical action” against him or ostracizing him. The defendant’s letter to Head, written after he told other inmates that St. Onge was cooperating with the government, supported the district court’s finding and demonstrated the defendant’s knowledge that “no one likes a rat in jail.” “Therefore, [his] decision to inform other inmates that St. Onge was cooperating with the government can be reasonably construed as an indirect threat, and the district court did not err in applying the sentencing enhancement.”
United States v. Castro-Perez
2014 WL 1646944 (10th Cir. 2014)
Enhancement for possession of firearm not warranted
The defendant was part of a cocaine trafficking operation in Jackson, Wyoming. After he sold two ounces to an undercover agent, the agent asked the defendant if he had any guns to sell. Later that same day, after the drug transaction was completed, the defendant obtained and sold a pistol to the agent. The defendant pled guilty to one count of distribution of cocaine and one count of being an illegal alien in possession of a firearm. The PSR recommended a two-level enhancement under §2D1.1(b)(1) because the defendant sold a gun to the undercover agent on the same day he sold cocaine to the agent. The defendant objected, asserting that the agent initiated the gun sale and that it and the drug sale were separate and distinct. The government responded that the sale of the firearm was negotiated during the drug transaction, and that the gun was sold during the course of an ongoing drug conspiracy. The district court adopted the PSR and imposed the enhancement. On appeal, the only issue was “whether the undisputed facts of this case warrant a sentencing enhancement under §2D1.1(b)(1).” The Tenth Circuit explained that the “enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense” and “[t]he government bears the initial burden of proving the enhancement appropriate . . . by showing that a temporal and spatial relation existed between the weapon, the drug trafficking activity, and the defendant.” The court reversed the enhancement, holding that “there was no physical relation between the weapon and the drug trafficking activity.” Although the gun purchase was discussed during the drug transaction and the gun was delivered to a known “drug customer,” neither of those facts “established that the gun was physically located near drugs or a drug transaction.” Further, although the gun sale might have been considered relevant conduct to the drug sale, “[t]here is still no evidence of a spatial connection between the gun and drug trafficking activity.” Contrary to the government’s arguments, “physical proximity is a touchstone of the §2D1.1(b)(1) firearm enhancement, even if established through relevant conduct or that of a coconspirator. When a firearm is not physically near drugs or trafficking activities, the ‘increased danger’ of mixing drugs and guns contemplated by the Guidelines is not present. Because the government failed to establish that [the defendant] possessed a firearm in the vicinity of drug trafficking activity, the two-level enhancement under §2D1.1(b)(1) was inappropriate.”
United States v. Kilgore
2014 WL 1424474 (6th Cir. 2014)
Theft of firearms did not support enhancement for possessing firearm in connection with another felony offense
The defendant was performing community service at a police station in Tennessee when he stole two unloaded firearms from an evidence room and took them home. He was sentenced to 70 months for being a felon in possession of a firearm. His sentence included a two-level enhancement under §2K2.1(b)(4), for stealing the two pistols that created his status as a felon in possession of firearms. The district court also included a four-level enhancement under §2K2.1(b)(6)(B), for possessing a firearm “in connection with another felony offense.” On appeal, the defendant argued that the four-level enhancement was incorrectly applied because the “another felony offense” language from the guideline meant that the offense triggering application of the enhancement must be separate and distinct conduct from the underlying offense. The Sixth Circuit agreed. The theft of the firearms made the defendant a felon-inpossession with a two-level enhancement for theft. “There is no ‘another felony offense’ on which to base another enhancement on top of the two-level enhancement. Raising the punishment substantially with an additional four-level enhancement violates the language of the guideline itself, engages in double counting and appears to subject [the defendant] twice to punishment for the same offense.” Further, the theft here from the evidence room was not “another felony offense” but instead “converted” the defendant to the status of being a “felon in possession of a firearm.” See United States v. Sanders, 162 F.3d 396 (6th Cir. 1998). The sentence was reversed and remanded.
United States v. Dominguez-Maroyoqui
2014 WL 1344472 (9th Cir. 2014)
Prior conviction for assaulting federal officer not categorically “crime of violence”
The defendant pled guilty to illegal reentry. The PSR recommended an enhancement under
§2L1.2(b)(1)(A)(ii), based on a prior felony conviction for a crime of violence; that being a 1996 conviction for assaulting a federal officer in violation of 18 U.S.C. §111(a). The district court held that the prior conviction was a crime of violence, relying on the modified categorical approach, as applied prior to Descamps v. United States, — U.S. —-, 133 S. Ct. 2276 (2013). On appeal, the Ninth Circuit noted that it had previously held that the felony under §111(b) was a crime of violence, see United States v. Juvenile Female, 566 F.3d 943 (9th Cir. 2009), but that it remained an open question whether the §111(a) felony also qualified as a crime of violence. The court reversed, holding that §111(a) criminalizes a broader swath of conduct than the conduct covered by §2L1.2’s definition; therefore, the defendant’s 1996 conviction for assaulting a federal officer was not, categorically, a crime of violence, and therefore the modified categorical approach did not apply. “Even if §111(a) is viewed as a divisible statute, setting out elements of the offense in the alternative . . . , none of those alternatives requires proof of the type of violent physical force mandated under §2L1.2’s definition of a crime of violence. Without at least one such match, the modified categorical approach has no role to play here.” The defendant should not have been assessed a “crime of violence” enhancement under §2L1.2(b)(1)(A).
Sentence Adjustments
(Chapter 3)
United States v. Taylor
2014 WL 1509027 (9th Cir. 2014)
Obstruction enhancement warranted based on false testimony at bond revocation hearing
The defendant was arrested for submitting fraudulent travel vouchers to the Veteran’s
Administration (VA). He was released on a pretrial appearance bond, but was later charged with domestic violence for allegedly assaulting his exgirlfriend, Ness. The state prosecutor dismissed the charges without prejudice, but the defendant was arrested for violating a condition of his appearance bond, prompting a pretrial bond revocation hearing. At the hearing, the government presented evidence showing that the defendant physically assaulted Ness. The defendant and Ness both testified that there was no assault, but instead the defendant was attempting to stop Ness from driving her car, as she was heavily medicated for pain at the time of the incident. The magistrate judge found that the defendant had committed the assault, that his testimony was “contradicted on key points” by the government’s witnesses, and revoked his bond. The defendant ultimately pled guilty to defrauding the VA. At sentencing, relying on the magistrate judge’s findings and a recording of the defendant’s testimony at the bond hearing, the district court imposed a two level enhancement for obstruction of justice under §3C1.1. On appeal, the defendant argued that his testimony at the revocation hearing was not related to the “instant offense of conviction” and that it was not material, as required by §3C1.1. The Ninth Circuit disagreed, noting that “whether a defendant warrants pretrial detention is an integral part of any federal prosecution.” Further, “[t]here is no requirement under section 3C1.1 that the obstructive conduct relate substantively to the offense of which the defendant is convicted, so long as the conduct relates to the investigation, prosecution or sentencing of the underlying federal offense.” Here, the defendant’s false testimony during his bond revocation hearing was related to the prosecution of his offenses of conviction, supporting an obstruction enhancement. As to whether the false testimony was “material” the court held that the testimony was material because he provided “information that, if believed, would tend to influence or affect the issue under determination.” §3C1.1 cmt. n. 6. The “issue under determination” was not whether he committed the charged offenses, but whether his bond should have been revoked. Because his testimony, if believed, could have affected his custodial status pending trial, his statements were material under section 3C1.1.
United States v. Maguire
2014 WL 1356031 (1st Cir. 2014)
Obstruction enhancement warranted;no acceptance of responsibility decrease
After being arrested and administered his Miranda rights, the defendant admitted that he had
sold 20 pounds of marijuana and likewise admitted that he recently had acquired around 600 pounds of marijuana and sold 400 to 450 pounds of it to a customer. He also acknowledged that he had 80 to 100 pounds of marijuana in a stash house and he offered to lead the officers to it. At the house, officers found 42.2 pounds of marijuana. After being indicted, the defendant moved to suppress his postarrest statements. He testified at a hearing on the
motion that he had twice requested an attorney, only to be ignored. He further testified that he had cooperated in part because an officer had threatened to arrest everyone he knew if he did not. Four law enforcement officers testified to the contrary. The magistrate judge denied the motion to suppress, finding that the defendant had neither asked for an attorney nor been subjected to threats. The defendant ultimately pled guilty, but at the change-of-plea hearing, the district court “found the appellant’s demeanor disrespectful and admonished him twice before eventually accepting the change of plea.” At sentencing, the district court enhanced the defendant’s sentence by two levels, pursuant to §3C1.1, for obstruction of justice, based on the false testimony at the suppression hearing. The district court also denied a reduction for acceptance or responsibility, noting both the defendant’s “perjurious testimony and his flippancy during the change-of-plea colloquy.” The court imposed the maximum sentence of 60 months. On appeal, the defendant argued that the magistrate never found that he willfully lied; thus, the obstruction enhancement was erroneous. “The record belies this suggestion. The court carefully considered the appellant’s tale of ominous threats and ignored entreaties for counsel. The court rejected this tale as apocryphal. In doing so, the court remarked the contradictory and implausible nature of the appellant’s testimony and found that he had deliberately perjured himself.” The defendant also argued that his case was extraordinary; therefore, he qualified for an acceptance reduction because he immediately admitted to selling drugs, told officers about the stash house, gave consent to search the house, and pled guilty. “We doubt that these factors, taken in cumulation, are sufficient to make the appellant’s case extraordinary and, thus, to overcome the secondary effect of the warrantable finding that he had obstructed justice. But we need not go so far. We are not a [trial court], and the enumerated factors surely do not pack a sufficient punch to render the sentencing court’s adverse assessment of them clearly erroneous.” See United States v. Royer, 895 F.2d 28 (1st Cir. 1990) (“Whether a defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility is a factdominated issue, and . . . will not be overturned unless clearly erroneous.”). The sentence was affirmed.
United States v. Almeida
2014 WL 1328299 (1st Cir. 2014)
Obstruction of justice increase was warranted
The defendant had a history of drug possession and trafficking. After his vehicle was stopped for was traveling with a headlight out, the defendant gave the officer the name of his twin brother. After the false identification was discovered, the defendant was arrested for providing a false identification. A later search of the vehicle revealed a small amount of marijuana and a large roll of cash, some of which turned out to be counterfeit. While being held in jail, the defendant placed two phone calls to his wife, instructing her to “throw away” all of his “s**t” including his suitcase. Later, an individual called the police and told them that he had found $5,950 in loose currency beside a road. It was determined that the money was counterfeit and the defendant’s fingerprints were found on two of the bills. A subsequent inventory search of the defendant’s truck uncovered a Canon printer cartridge that “was
consistent with” the type of ink used to print the counterfeit bills. The defendant was found guilty of possessing counterfeit obligations of the United States. The district court enhanced the sentence under §3C1.1 for obstruction of justice, based on the defendant’s phone calls to his wife. The First Circuit affirmed the enhancement, finding that “the district court’s understanding of [the defendant’s] statement is more plausible than the interpretation [he] offers on appeal that he was referring to a suitcase full of clothes that he brought with him on vacation.” The defendant also argued that he could not have been obstructing the investigation of the counterfeiting charge, because at the time of the calls he was only facing the false identification charge. However, based on statements made by the defendant’s wife during the phone calls regarding the Secret Service being involved, “[t]he district court could infer from that statement that [the defendant] was aware of the counterfeiting investigation at that time. In sum, the district court did not err in applying a two-level enhancement for obstruction of justice under §3C1.1.”
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