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Sentence Adjustments
(Chapter 3)
United States v. Sullivan 2014 WL 4235414 (7th Cir. 2014)
Enhancements for vulnerable victim and organizer/leader applied
Defendants, brothers Daniel and John, owned a group of companies that offered remodeling services to homeowners. While they provided honest work on construction jobs when their clients paid in cash, they operated differently when financing was involved. By promising homeowners that they could remodel their homes at a discount, the defendants duped numerous people into refinancing their homes and paying the loan proceeds directly to one of their companies. They left the job sites unfinished once they had the money. They targeted certain neighborhoods in Chicago by cold-calling homeowners, distributing flyers, and hiring company to mass mail flyers to residents of these target neighborhoods. They told their marketers to look for “elderly, ignorant homeowners.” Once they got a prospect, the defendants directed them to a specific loan company and title company. The defendants required the homeowners to sign letters of direction, so the title companies sent checks directly to the defendants’ companies. Then they would require the homeowners to sign over the checks before the remodeling work could begin. They hired subcontractors to do some of the work, but then abandoned the remodeling jobs before completion. From 2002 to 2006, they collected over $1.2 million from over forty homeowner/victims. A jury foundnthem both guilty on two counts of wire fraud. The district court applied two, “Chapter 3” enhancements: vulnerable victim, under §3A1.1(b)(1), and Organizer/Leader, under §3B1.1(a). The defendants challenged both on appeal. Regarding the vulnerable victim enhancement, the defendants claimed that none of their victims qualified as vulnerable, and even if they did, the government failed to prove that they knew or acted upon their victims’ vulnerability. The Seventh Circuit explained that the enhancement applied where “the defendant knew or should have known that a victim of the offense was a vulnerable victim” and that a “vulnerable victim” is a person “who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.” Further, a “victim may be vulnerable based on any applicable factor and only one victim needs to be vulnerable, not the entire targeted group.” In this case, there was sufficient testimony from some of the victims that they were vulnerable due to their “financial desperation.” In addition, evidence showed that the defendants targeted “elderly and unsophisticated people for their refinancing scheme. Additionally, the appellants did not take advantage of all theircustomers, only the ones willing to refinance their homes.” The district court did not err in its application of this enhancement. Concerning the Organizer/Leader enhancement, the defendants argued that the enhancement did not apply because the scheme involved less than five participants. The court disagreed, noting that trial evidence showed that the defendants used at least three company employees, two mortgage brokers, one subcontractor, one lawyer, several title companies, and a direct mail company to mail their advertisements. “The appellants’ fraud scheme easily qualifies as an extensive criminal activity.”
United States v. Napolitan
2014 WL 3843971 (3rd Cir. 2014)
Policy concern could not be used as basis to refuse to apply obstruction enhancement
After responding to a 911 call from the defendant’s home, four police officers met the
defendant’s girlfriend (Lisa) and she invited them inside, where they discovered, in plain sight, a loaded Browning .32 caliber handgun on the fireplace mantel, a box of sandwich baggies, a coffee grinder, a digital scale, and white powder residue. After getting a search warrant, the officers found a .22 caliber handgun sitting on top of a locked gun safe. They used a locksmith to open the gun safe and found several firearms, $9,235 in cash, the defendant’s checkbook, painkillers prescribed for the defendant, and nearly one kilogram of cocaine powder. The defendant was charged with possession with intent to distribute 500 grams or more of cocaine, and possession of a firearm in furtherance of a drug trafficking crime. At trial, although he claimed that the gun safe and most of the contents belonged to him, the defendant testified that the drugs belonged to Lisa. At the close of the government’s case, the trial court granted the defendant’s motion for acquittal on the gun charge, and the jury found him guilty on the drug charge. The PSR recommended an enhancement under §3C1.1, because the defendant obstructed justice by testifying falsely at trial. The district court refused to apply the obstruction enhancement due to concern that doing so would have “a chilling effect on a Defendant that provides a defense in the case, including taking the stand or putting witnesses on the stand.” The government appealed claiming that the district court should have applied the enhancement because the defendant committed perjury at trial. The appeals court explained that a defendant who testifies under oath at trial commits perjury within §3C1.1 if he “gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.” The government contended that the defendant committed perjury within this definition when he testified that he was unaware of both the cocaine stored in his safe and the drug paraphernalia scattered throughout his home, and that the denials were made with willful intent to mislead the jury regarding a material issue. The appeals court stated that “a district court cannot refuse to apply §3C1.1 based solely on a policy concern that the enhancement deters defendants from exercising their fundamental right to testify at trial.” Further, the district court failed to make findings to support all of the elements of a perjury violation, as required. On remand, the district court “must make a finding as to whether the Government has met its burden of proving by a preponderance of the evidence that the defendant perjured himself. The District Court must either make findings to support all the elements of a perjury violation, or clearly express which elements it believes have not been proven.”
Criminal History
(Chapter 4)
United States v. Campbell
2014 WL 4116491 (8th Cir. 2014)
Stipulation in plea agreement resulted higher criminal history category
The defendant and his co-defendant, Bailey, pled guilty to one count of conspiracy to possess anabolic steroids with intent to distribute, and one count of conspiracy to commit money laundering. The parties agreed that the amount of steroids attributable to the defendants could not be calculated precisely, but it was somewhere between 1 and 2.5 kilograms. The
parties also agreed that the amount of money involved was no less than $400,455. Further, they agreed that both defendants entered into the conspiracy beginning in 2007, that §2S1.1(a)(2) should apply when calculating the offense levels, and that a base offense level of 22 applied. The PSR calculated Bailey’s criminal history category at VI, assigning him 14 criminal history points. The score included one point for each of two misdemeanors that he committed in 1998 and two points for engaging in the conspiracy while on supervised release. The district court adopted the PSR’ srecommendations and sentenced Bailey to 120 months. On appeal, Bailey claimed that he did not meet his co-defendant until 2009, meaning that he
committed the two misdemeanors more than ten years before engaging in this conspiracy. He also contended that he should not have received two criminal history points for engaging in the conspiracy while on supervised release because his supervised release had expired in 2009, before the time he had met his co-defendant. The Eighth Circuit explained that under §4A1.1(c), one point is added to a criminal history score for prior sentences where the defendant was imprisoned for less than 60 days and, under §4A1.1(d), an additional two criminal history points if the defendant committed the offense while on supervised release. Further, “[a] sentence imposed more than ten years prior to the defendant’s commencement of the instant offense is not counted.” However, in this case, Bailey stipulated in his plea agreement that the conspiracy to distribute steroids occurred “at various times during the time period of June 2007 and June 2012.” Bailey never objected to this fact before the district court, so the district court adopted that fact as true. Thus, the district court properly concluded that he participated in the conspiracy beginning in 2007. Consequently, the criminal history points for the 1998 misdemeanor convictions and for commencing the current offense while on supervised release were proper.
United States v. McLaurin
2014 WL 4116496 (4th Cir. 2017)
Criminal history miscalculation was plain error
The defendant agreed to participate in robbing a drug “stash house.” As it turned out, the stash house never existed, and the drug couriers were undercover officers. The defendant was ultimately convicted of various conspiracy and firearms charges. The PSR, citing §4A1.2(d)(2)(B), assessed a total of three criminal history points for two 2003 common law robbery convictions the defendant committed at age sixteen. The defendant did not object. On appeal,
the defendant argued that the three points did not apply because, under §4A1.2(d)(2)(B), points are assigned only if the prior sentence was “imposed within five years of the defendant’s commencement of the instant offense.” Under plain error review, the Fourth Circuit reversed. The error was plain and it increased the sentencing range from 121 to 151 months to 151 to 188 months. Further, comments made by the district court at sentencing indicated the judge would have imposed a lower sentence had it known that the correct sentencing range was 121 to 151 months. “These concerns, when considered along with the district court’s decision to sentence [the defendant] at the low end of the Guideline range it believed to be applicable, provide a nonspeculative basis for concluding that the district court would have imposed a sentence of less than 151 months had the Guidelines range been properly calculated. And because we believe that allowing this error to stand would seriously affect the fairness, integrity or public reputation of judicial proceedings, we exercise our discretion to correct the plain error in calculating [the defendant’s] Guidelines’ range by vacating his sentence and remanding for resentencing.”
Plea Agreements (§ 6B)
United States v. Adame-Hernandez
2014 WL 4057045 (7th Cir. 2014)
District court could not withdraw defendant’s guilty plea; defendant did not breach plea agreement
The defendant, along with numerous other defendants, was charged with a criminal drug conspiracy as well as cocaine distribution. After a superceding indictment, he plead guilty under Rule 11(c)(1)(C), and agreed to an offense level of 38, resulting in a sentencing range of 188 to 235 months. The parties also agreed that a sentence of 204 months was appropriate. The PSR recommended that the defendant be found responsible for more than 150 kilos of cocaine, resulting in a base offense level of 38. The defendant objected to the allegation in the PSR that he personally delivered over 150 kilograms of cocaine. At sentencing, the government argued, without prior notice, that the defendant’s objection was a breach of the plea agreement. After much argument by both sides, the district court determined that the 204-month sentence was “not consistent with the other sentences that have been meted out given the relative culpability of the defendants,” and also determined that the defendant had breached the plea agreement. The court rejected the plea agreement and set the case for trial. A second superceding indictment was issued and the defendant pled guilty to two counts. The PSR calculated a sentencing range of 262 to 327 months and the district court imposed a sentence of 300 months. On appeal, the defendant sought specific performance of the first plea agreement. The Seventh Circuit explained that once a district court accepts a guilty plea, Rule 11 governed the withdrawal of that plea. “Nothing in Rule 11 authorizes a district court to withdraw a defendant’s guilty plea for him. Thus, where the district court has accepted a guilty plea but rejects the plea agreement, the only course available for the district court . . . is to advise the defendant of his rights, including the right to withdraw the guilty plea. It becomes the defendant’s choice whether to stand by his plea or withdraw it. Nowhere does Rule 11 provide that the district court may dictate this choice.” Here, the district court did not give the defendant the choice to stand by his plea or withdraw it. “The district court had no authority under Rule 11 to withdraw [the defendant’s] plea for him. It therefore abused its discretion in doing so.” The court further found that the defendant’s objections to the original PSR did not amount to a breach of the plea agreement. The defendant’s “objection to the assertion that he personally distributed over 150 kilograms of cocaine did not jeopardize the calculation of the drug quantity for which he could be held accountable. Nor was his objection inconsistent with his agreement that his base offense level was 38. . . . Furthermore, [his] position that he did not personally distribute 150 kilograms of cocaine did not violate any stipulation in the written plea agreement. That the government had a witness who would testify at trial that he personally received more than 150 kilograms of cocaine from [the defendant] is beside the point.” The case was remanded for the imposition of a sentence of 204 months, as agreed in the first plea agreement.
