VOLUME 5, NUMBER 12
MAY 11, 1993
Supreme Court holds that commentary is binding. Defendant was
sentenced as a career offender, partly because his instant offense --
possession of a firearm by a convicted felon -- was held to be a "crime
of violence" under Section 4B1.2. The appellate court affirmed, holding
that such possession "by its nature" is a crime of violence for career
offender purposes. U.S. v. Stinson, 943 F.2d 1268, 1271-72 (11th Cir.
1991) (4 GSU #10). Shortly after that decision, the commentary to
Section 4B1.2 was amended to expressly exclude the felon-in-possession
offense from the definition of crime of violence. Defendant requested a
rehearing, arguing that the amendment should be given retroactive
effect. The appellate court denied the request and reaffirmed, holding
that the amended commentary is not binding. U.S. v. Stinson, 957 F.2d
813, 815 (11th Cir. 1992) (per curiam) (4 GSU #19).
In a unanimous decision, the Supreme Court vacated and remanded,
holding "that commentary in the Guidelines Manual that interprets or
explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a plainly
erroneous reading of, that guideline." The Court cited its decision in
Williams v. U.S., 112 S.Ct. 1112, 1119 (1992): "Where . . . a policy
statement prohibits a district court from taking a specified action, the
statement is an authoritative guide to the meaning of the applicable
guideline," and failure to follow such a policy statement is "an
incorrect application of the sentencing guidelines" under 18 U.S.C.
Section 3742(f)(1). Here the Court held that "(o)ur holding in Williams
dealing with policy statements applies with equal force to the
commentary before us." See also Section 1B1.7 (failure to follow
commentary that interprets or explains a guideline "could constitute an
incorrect application of the guidelines" subject to reversal).
The Court added that "(i)t does not follow that commentary is binding
in all instances . . . . (T)he guidelines are the equivalent of
legislative rules adopted by federal agencies. The functional purpose
of commentary (of the kind at issue here) is to assist in the
interpretation and application of those rules, which are within the
Commission's particular area of concern and expertise and which the
Commission itself has the first responsibility to formulate and
announce. In these respects this type of commentary is akin to an
agency's interpretation of its own legislative rules. As we have often
stated, provided an agency's interpretation of its own regulations does
not violate the Constitution or a federal statute, it must be given
'controlling weight unless it is plainly erroneous or inconsistent with
the regulation.'"
Following these principles, the Court concluded that the amendment
must be followed: "We recognize that the exclusion of the
felon-in-possession offense from the definition of 'crime of violence'
may not be compelled by the guideline text. Nonetheless, Amendment 433
does not run afoul of the Constitution or a federal statute, and it is
not 'plainly erroneous or inconsistent' with Section 4B1.2. . . . As a
result, the commentary is a binding interpretation of the phrase 'crime
of violence.' Federal courts may not use the felon-in-possession offense
as the predicate crime of violence for purposes of imposing the career
offender provision of USSG Section 4B1.1 as to those defendants to whom
Amendment 433 applies."
The Court did not address whether the amendment should be applied
retroactively, finding that the issue was not properly before the Court
and should be decided first by the appellate court on remand.
Stinson v. U.S., No. 91-8685 (U.S. May 3, 1993) (Kennedy, J.).
See Outline at I.E and F, and I.B.1.b.
D.C. Circuit holds that the career offender provision does not apply
when the instant offense is a conspiracy to commit a controlled
substance crime. Defendant pled guilty to a conspiracy charge under 18
U.S.C. Section 371, the object of which was possession with intent to
distribute PCP. He was sentenced as a career offender under Section
4B1.1 and appealed, arguing that the definition of controlled substance
offenses in Section 4B1.2, comment. (n.1), exceeded the statutory
mandate in 28 U.S.C. Section 994(h) by including conspiracies to commit
such offenses.
The appellate court agreed and remanded. The Sentencing Commission
explicitly based the career offender provision on Section 994(h), which
in relevant part states that a sentence "at or near the maximum term
authorized" shall be imposed on a defendant who is convicted of one of
several specifically listed drug felonies -- each of which is a
substantive offense -- as well as two prior such drug felonies or
violent felonies. The court reasoned that "conspiracy to commit a crime
involves quite different elements from whatever substantive crime the
defendants conspire to commit. . . . Thus, conspiracy to violate the
sections specified in Section 994(h) cannot be said to be one of the
offenses 'described in' those sections."
The court concluded that "the Commission has acted explicitly upon
grounds that do not sustain its action. Because we find its stated
basis -- Section 994(h) -- inadequate for Application Note 1's inclusion
of conspiracies, Note 1 cannot support Price's sentence as a career
offender." Although in this case only the instant offense and Section
994(h)(1)(B) were at issue, the court noted that Section 994(h)(2)(B),
which applies to prior qualifying felonies, "poses the same problem."
The court left open whether the Commission could reach the same result
under different authority, such as its broader mandate in Section
994(a).
U.S. v. Price, No. 91-3335 (D.C. Cir. Apr. 23, 1993) (Williams, J.).
See Outline at IV.B.2.
Ninth Circuit affirms departure for "coercive" government conduct
during investigation and for one defendant's medical condition. In the
course of investigating illegal weapons sales at "swap meets" in
Arizona, an undercover agent made contact with defendants. Defendants
initially demurred when the agent tried to get them to sell automatic
weapons and silencers, but over the next three months the agent
persisted and persuaded them to do so and also to sell several handguns
to a convicted felon. After defendants refused a plea agreement and
unsuccessfully filed motions to dismiss the indictment for outrageous
governmental conduct during the investigation, the government filed a
superseding indictment with additional charges against one defendant.
Defendant's motion to dismiss that indictment for prosecutorial
vindictiveness was denied. At trial, defendants unsuccessfully moved
for acquittals based on entrapment, were found guilty on several counts,
and filed motions for judgment notwithstanding the verdict.
The district court denied the JNOV motions, but departed from the
defendants' 15-21-month ranges to six months of house arrest, sixty
months' probation, and 100 hours of community service. The court found
departure appropriate because "the conduct of this investigation,
although not amounting to entrapment, was sufficiently coercive in
nature as to warrant a downward departure under Guideline 5K2.12," p.s.
The court also departed, pursuant to Sections 5H1.3, p.s. and 5K2.0,
p.s., for one defendant who "suffers from a medical condition, panic
disorder with agoraphobia, which is a mitigating factor of a kind not
adequately taken into consideration by the Sentencing Commission."
The appellate court affirmed: "We are satisfied that the sentencing
court was sufficiently troubled by the defendants' arguments on
entrapment, prosecutorial misconduct and vindictive prosecution to the
extent that although not satisfied that the indictments should have been
dismissed and a judgment NOV entered, it had the authority to reflect
its concern in pronouncing sentence. The court stated in advance what
it intended to do, and operating precisely within the Sentencing
Guidelines, it relied on section 5K2.12, p.s. to support its action . .
. . Agent Murillo did not threaten the defendants, but it was he who
initially proposed the illegal activity and persistently contacted Joe
Juarez by telephone and in person over several months until the scheme
was completed. This sort of aggressive encouragement of wrongdoing,
although not amounting to a complete defense, may be used as a basis for
departure under section 5K2.12." The court noted that, contrary to the
government's argument, "threats of violence are not a prerequisite to
application of the guidelines in cases of 'imperfect entrapment.'"
For the one defendant's mental condition, the court concluded "that
the district court had authority to grant a downward departure based on
sections 5H1.3 and 5K2.0. The language in section 5H1.3, 'Mental and
emotional conditions are not ordinarily relevant' (emphasis supplied),
indicates that the commission intended these factors to play a part in
some cases, albeit a limited number." The court noted that this
departure was not based on Section 5K2.13, p.s., "which concerns
diminished capacity."
U.S. v. Garza-Juarez, No. 92-10187 (9th Cir. Apr. 23, 1993)
(Aldisert, Sr. J.).
See Outline at VI.C.1.b and g.
U.S. v. Gaskill, No. 92-5588 (3d Cir. Apr. 16, 1993) (Weis, J.)
(Remanded: District court incorrectly held it lacked discretion to
depart downward for fraud defendant who was sole caretaker of his
seriously mentally ill wife. Section 5H1.6, p.s. precludes departure
for family ties and responsibilities under ordinary circumstances, but
"(t)he record demonstrates circumstances quite out of the ordinary. The
degree of care required for the defendant's wife, the lack of close
supervision by any family member other than the defendant, the risk to
the wife's well-being, the relatively brief . . . imprisonment sentence
called for by the guidelines computation, the lack of any end to be
served by imprisonment other than punishment, the lack of any threat to
the community -- indeed, the benefit to it by allowing the defendant to
care for his ailing wife -- are all factors that warrant departure." The
court emphasized that "departures are an important part of the
sentencing process because they offer the opportunity to ameliorate, at
least in some respects, the rigidity of the guidelines themselves.
District judges, therefore, need not shrink from utilizing departures
when the opportunity presents itself and when circumstances require such
action to bring about a fair and reasonable sentence.").
See Outline at VI.C.1.a.
U.S. v. Miller, No. 92-30083 (9th Cir. Apr. 15, 1993) (Kozinski, J.)
(Remanded: The district court departed downward to a sentence of six
months' home detention, which defendant completed before this appeal.
In remanding for reconsideration of whether any departure was proper,
the appellate court held that if the appropriate sentence must include
prison time, the district court "may depart downward by up to six months
to take into account (defendant's) home detention" because the
Sentencing Commission "seems not to have considered the issue of
compensating for time erroneously served.").
See Outline generally at VI.C.4.
U.S. v. Lewinson, 988 F.2d 1005 (9th Cir. 1993) (Affirmed: Appellate
court rejected the government's argument that defendant's reduction in
mental capacity was not "sufficiently 'significant' or 'serious' to meet
the requirement of Section 5K2.13(, p.s. . . . T)he government asks us
to read into this section a requirement that the 'qualifying mental
disease be severe, (and) that it affect the defendant's ability to
perceive reality.' However, the plain language of this section
authorizes departure on a showing of 'significantly reduced mental
capacity' without qualification as to the nature or cause of the reduced
capacity (except with respect to voluntary drug use),").
See Outline at VI.C.1.b.
VOLUME 5, NUMBER 11
APRIL 22, 1993
Fifth Circuit sets method to calculate offense level when drug and
precursor chemical are present in single offense. Defendant pled guilty
to possession of amphetamine with intent to distribute. A quantity of
phenylacetic acid, a precursor chemical, was included as relevant
conduct in the offense level. The PSR converted the amphetamine and
phenylacetic acid to marijuana equivalents, using the Drug Equivalency
Table in Section 2D1.1, and added the results for an offense level of
34. Defendant argued that, because his offense occurred after the
effective date of Section 2D1.11, it was plain error to not use that
section for the phenylacetic acid.
The appellate court remanded, agreeing that Section 2D1.11 should
have been considered. However, the Guidelines "do not provide an
express method for combining section 2D1.11 precursor chemicals with
section 2D1.1 controlled substances or immediate precursors where, as
here, the presence of the precursor chemical is merely conduct relevant
to possession of a controlled substance." The equivalency tables in
Sections 2D1.1 and 2D1.11 convert to different substances and there is
"no cross-equivalency table, nor is there any indication elsewhere in
the Guidelines as to how quantities of controlled substances and
precursor chemical are to be aggregated when relevant conduct is
involved."
The court looked to the multiple counts guideline for an appropriate
way to combine the amounts. It determined that they should be treated
as separate offenses groupable under Section 3D1.2(d), which "mentions
sections 2D1.1 and 2D1.11 explicitly and allows grouping on the basis of
the quantity of the substance or substances involved." That still left
the problem of aggregating the different amounts noted above. "The
solution that seems most reasonable to us . . . is to convert the
phenylacetic acid to marijuana by equating the amounts of each that
would give rise to the same offense level" in their respective quantity
tables in Sections 2D1.1 and 2D1.11. Using this method, the
phenylacetic acid here would have the same offense level as 400-700
kilograms of marijuana under Section 2D1.1. The amphetamine converted
to 90.72 kilograms of marijuana, using the Drug Equivalency Table in
Section 2D1.1(c), comment. (n.10). "Giving the defendant the benefit of
lenity," the court used 400 kilograms for the phenylacetic acid, for an
offense level of 28 for the combined 490.72 kilogram equivalent.
U.S. v. Hoster, No. 92-8223 (5th Cir. April 7, 1993) (Garwood, J.).
See Outline generally at II.B.4.b.
Eighth Circuit holds that departure may be permitted for "sentencing
entrapment," but was improper in this case. Defendant made seven sales
of crack cocaine to an undercover officer. He was convicted on six
counts of distribution and one count of possession with intent to
distribute. The district court departed pursuant to 18 U.S.C. Section
3553(b), finding that the continuation of sales after the fourth
transaction constituted "sentencing entrapment" that was not adequately
considered by the Sentencing Commission.
The appellate court upheld the principle, but reversed on the facts:
"(W)e hold that sentencing entrapment may be legally relied upon to
depart under the Sentencing Guidelines, but factually was not present in
this case . . . . While we are concerned with the government conduct in
this case, Barth has failed to demonstrate that the government's conduct
was outrageous or that the undercover officer's conduct overcame his
predisposition to sell small quantities of crack cocaine." The court
added that it would "not attempt to determine in the abstract what is
permissible and impermissible conduct on the part of government agents.
We share the confidence of the First Circuit that when a sufficiently
egregious case arises, the sentencing court may deal with the situation
by excluding the tainted transaction or departing from the Sentencing
Guidelines." (Reference is to U.S. v. Connell, 960 F.2d 191, 196 (1st
Cir. 1992).) Contra U.S. v. Williams, 954 F.2d 668, 673 (11th Cir. 1992)
(rejected sentencing entrapment theory "as a matter of law").
U.S. v. Barth, No. 92-2152 (8th Cir. Apr. 6, 1993) (McMillian, J.).
See Outline generally at VI.C.4.a.
D.C. Circuit holds that definition of "non-violent offense" in
Section 5K2.13, p.s. is not controlled by Section 4B1.2 definition of
"crime of violence." Defendant robbed a bank by using a threatening
note. He was unarmed, did not harm anyone, and shortly thereafter
surrendered to police without struggle. His request for downward
departure for "significantly reduced mental capacity," Section 5K2.13,
p.s., was denied by the district court, which ruled "as a matter of law"
that use of the threatening note was an act of violence that precluded a
Section 5K2.13 departure in a "non-violent offense."
The appellate court remanded, holding that the district court should
examine the circumstances of the offense to determine whether it was, in
fact, non-violent. The court noted that "'non-violent offense' . . . is
not defined in section 5K2.13 or anywhere else in the guidelines, nor
does section 5K2.13 provide examples of 'non-violent offense(s).' To
give content to that term, a number of courts have looked to the
definition of 'crime of violence' found in section 4B1.2" for career
offenders. See, e.g., U.S. v. Poff, 926 F.2d 588, 591-92 (7th Cir.
1991) (en banc); U.S. v. Rosen, 896 F.2d 789, 791 (3d Cir. 1990); U.S.
v. Borrayo, 898 F.2d 91, 94 (9th Cir. 1989); U.S. v. Maddalena, 893
F.2d 815, 819 (6th Cir. 1989). Other courts have considered Section
5K2.13 without reference to Section 4B1.2. See U.S. v. Philibert, 947
F.2d 1467, 1471 (11th Cir. 1991); U.S. v. Spedalieri, 910 F.2d 707, 711
(10th Cir. 1990).
The court here declined to use the Section 4B1.2 definition. First,
"(n)othing in the Guidelines themselves or in the Application Notes
suggests that section 4B1.2 is meant to control the interpretation and
application of section 5K2.13." While "some courts have taken this
silence as supporting the decision to rely on section 4B1.2," the court
found such reasoning unpersuasive.
Second, "significant policy concerns support the view that section
5K2.13 and section 4B1.2 should be interpreted independently, for the
sections address entirely different issues." Section 4B1.2 is designed
to identify and maximize sentences for career offenders, and in its
purpose and structure "can be read as depriving career offenders of the
benefit of the doubt, and assuming the worst." However, "the point of
section 5K2.13 is to treat with lenity those individuals whose 'reduced
mental capacity' contributed to commission of a crime."
Noting that departure under Section 5K2.13 is not allowed if
defendant's criminal history indicates "a need for incarceration to
protect the public," the court concluded that "the term 'non-violent
offense' in section 5K2.13 refers to those offenses that, in the act,
reveal that a defendant is not dangerous, and therefore need not be
incapacitated for the period of time the Guidelines would otherwise
recommend. . . . A determination regarding the dangerousness of a
defendant, as manifested in the particular details of a single crime . .
., is best reached through a fact-specific investigation. We therefore
believe that a District Court, when deciding whether a particular crime
qualifies as a 'non-violent offense,' should consider all the facts and
circumstances surrounding the commission of the crime," and the
sentencing court "is not in any way bound by the definition of 'crime of
violence' under section 4B1.2."
U.S. v. Chatman, No. 91-3294 (D.C. Cir. Mar. 16, 1993) (Edwards, J.)
(Ginsburg, J., concurring in judgment).
See Outline at VI.C.1.b.
U.S. v. Miele, No. 91-3855 (3d Cir. Mar. 22, 1993) (Becker, J.)
(Remanded: District court based drug quantity on testimony of
addict-informant without adequately determining whether that testimony
had the "sufficient indicia of reliability" required by Section 6A1.3,
p.s.: "Because of the questionable reliability of an addict-informant,
we think it is crucial that a district court receive with caution and
scrutinize with care drug quantity or other precise information provided
by such a witness before basing a sentencing determination on that
information."). See also U.S. v. Simmons, 964 F.2d 763, 776 (8th Cir.
1992) (remanded quantity determination -- testimony by addict-informant
that was "marred by memory impairment" resulting from history of
addiction lacked "sufficient indicia of reliability"); U.S. v. Robison,
904 F.2d 365, 371-72 (6th Cir. 1990) (remanded quantity determination
based on estimates by addict-witness with admittedly "hazy" memory).
See Outline at II.A.3 and IX.A.3.
U.S. v. Wise, No. 91-3275 (10th Cir. June 11, 1992) (Barrett, Sr. J.)
(Remanded: District court erred in refusing to allow defendant to
question probation officer about factual basis for conclusions in PSR.
Defendant "was entitled, upon request, to be informed by the probation
officer preparing his presentence report, of the factual basis or source
of any information contained in the report which may have had an adverse
effect on him during the sentencing process. Upon receipt of the
factual basis or source of such information, Wise is entitled to a
reasonable period of time within which to comment upon the reliability
of such information in accordance with Rule 32 as construed in Burns (v.
U.S., 111 S.Ct. 2182, 2185-86 (1991))."). (Note: Opinion originally
unpublished, released for publication March 1993.)
See Outline at IX.A.3.
U.S. v. Maxey, No. 92-10336 (9th Cir. Mar. 23, 1993) (Hall, J.)
(Affirmed: In sentencing defendant as an armed career criminal,
district court properly refused to use Section 4A1.2 to determine
whether two prior convictions were "related" and should be counted as
one: "We conclude that section 4B1.4 does not incorporate section
4A1.2's definition of 'related' offenses in determining whether a
defendant is subject to sentence enhancement under its provisions, and
that the Guidelines do not displace section 924(e) and case law
interpreting it."). Accord U.S. v. Medina-Gutierrez, 980 F.2d 980,
982-83 (5th Cir. 1992) (5 GSU #7).
See Outline at IV.D.
U.S. v. Diaz, No. 92-2158 (10th Cir. Mar. 22, 1993) (Seymour, J.)
(Reversed: When probation is revoked under 18 U.S.C. Section 3565(a)
for drug possession and defendant must be sentenced "to not less than
one-third of the original sentence," the term "'original sentence' . . .
refers to the term of incarceration available at the time of
sentencing," not the length of probation. Therefore, the revocation
sentence must be based on 0-6 month guideline range, not three-year
probation term.). Accord U.S. v. Clay, 982 F.2d 959, 962-63 (6th Cir.
1993) (5 GSU #8); U.S. v. Granderson, 969 F.2d 980, 983-84 (11th Cir.
1992); U.S. v. Gordon, 961 F.2d 426, 430-33 (3d Cir. 1992) (4 GSU #21).
Contra U.S. v. Byrkett, 961 F.2d 1399, 1400-01 (8th Cir. 1992) (per
curiam) (4 GSU #23); U.S. v. Corpuz, 953 F.2d 526, 528-30 (9th Cir.
1992) (4 GSU #15).
See Outline at VII.A.2.
U.S. v. Tatum, No. 92-2232 (11th Cir. Apr. 7, 1993) (per curiam)
(Remanded: "We join the majority of circuits that have addressed this
issue and hold that upon revocation of a term of supervised release, a
district court is without statutory authority to impose both
imprisonment and another term of supervised release.").
See Outline at VII.B.1.
U.S. v. Lallemand, No. 92-2178 (7th Cir. Mar. 29, 1993) (Posner, J.)
(Affirmed: Vulnerable victim adjustment, Section 3A1.1, was properly
applied to extortion defendant who specifically targeted married
homosexual who engaged in homosexual sex. While susceptibility to the
offense is a "typical feature" of extortion, "(b)lackmail victims are
not all susceptible to the same degree" and married homosexuals may be
considered "a particularly susceptible subgroup of blackmail victims.").
See Outline at III.A.1.a and d.
VOLUME 5, NUMBER 10
APRIL 9, 1993
Second Circuit holds that whether mandatory minimum sentence under 21
U.S.C. Section 841(b) applies to conspiracy defendant is determined by
"reasonable foreseeability" standard used to determine drug quantity
under Guidelines. Defendant was convicted of conspiracy on an
indictment that stated the object of the conspiracy was to sell more
than five kilograms of cocaine. Evidence indicated that defendant
participated in only one transaction of one kilogram right before the
conspiracy ended. The district court applied the 10-year mandatory
minimum sentence applicable to a conspiracy "involving" five or more
kilograms of cocaine, 21 U.S.C. Section 841(b)(A). Defendant appealed.
The appellate court remanded, holding that the reasonable
foreseeability standard for drug quantity under the Guidelines also
applies to conspiracy convictions under 21 U.S.C. Section 846 sentenced
under Section 841(b). The government had argued that because
foreseeability is not required for substantive offense mandatory
minimums under Section 841(b), it should not be required for Section 846
conspiracies, especially in light of the 1988 revision of Section 846
which directed that conspiracy defendants be sentenced as if they had
committed the underlying substantive offense. The appellate court
disagreed: "the purpose of Section 846 as amended was to synchronize
the penalties for conspiracies and their underlying offenses. . . .
(T)here is nothing in the legislative history to indicate that Congress
intended the revision to expand the accountability of defendants beyond
their substantive offenses. . . . If the government's argument were to
prevail, Section 846 would effectively eviscerate the Guidelines'
approach to fixing accountability in drug conspiracies."
"We find that Congress did not intend to overrule the Guidelines in
its revision of Section 846 and require strict liability in any case
where an individual small-time dealer becomes associated with a
large-scale conspiracy. The Guidelines . . . require reasonable
foreseeability in order to hold a conspirator accountable for the acts
of a coconspirator. This is not inconsistent with Section 846, which
only requires that a conspirator be sentenced to the same penalty
applicable to the underlying conduct." Accord U.S. v. Jones, 965 F.2d
1507 (8th Cir. 1992).
U.S. v. Martinez, No. 92-1461 (2d Cir. Mar. 8, 1993) (Altimari, J.).
See Outline at II.A.2 and 3.
Third Circuit holds that criminal history departure under Section
4A1.3, p.s. is not subject to the "not adequately taken into
consideration" requirement of Section 5K2.0, p.s. and 18 U.S.C. Section
3553(b). At the initial sentencing, the district court departed
downward for several reasons, including the belief that career offender
status overstated defendant's criminal history, but it did so under
Section 5K2.0. The appellate court reversed, holding that the cited
factors were adequately considered by the Commission and could not
support a Section 5K2.0 departure. See U.S. v. Shoupe, 929 F.2d 116 (3d
Cir. 1991). On remand, defendant specified that he sought departure
under Section 4A1.3 because his career offender status significantly
overrepresented the seriousness of his criminal history. The district
court denied the motion, concluding that the appellate court opinion
precluded departure.
The appellate court again remanded, holding that departure under
Section 4A1.3 could be considered. "(I)n Guidelines Section 4A1.3, the
Commission specifically provided district courts with flexibility to
adjust the criminal history category calculated through the rigid
formulae of Section 4A1.1 or Section 4B1.1 . . . . Section 4A1.3 is
both structurally and in its purpose unlike Section 5K2.0 and 18 U.S.C.
Section 3553(b), which allow district courts to depart from the
sentencing range calculated under the Guidelines for mitigating
circumstances not adequately considered by the Commission in formulating
the Guidelines. . . . We therefore conclude that the statutory
authority for the promulgation of Section 4A1.3 lies not in 18 U.S.C.
Section 3553(b), as the government urges, but in the basic provision of
the Sentencing Reform Act that gives the Sentencing Commission the
authority to promulgate the Guidelines and to take into account, where
relevant, the defendant's criminal background. See 28 U.S.C. Sections
994(a) & 994(d)(10). . . . We hold that as the plain language of
Section 4A1.3 provides, a district court considering a Section 4A1.3
departure may weigh 'reliable information (that) indicates that the
criminal history category does not adequately reflect the seriousness of
the defendant's past criminal conduct' . . ., including factors that the
Commission may have otherwise considered in promulgating other
provisions of the Guidelines."
U.S. v. Shoupe, No. 92-7204 (3d Cir. Mar. 12, 1993) (Becker, J.).
See Outline at VI.A.1 and 2.
Second Circuit holds that upward departure may not be based on fact
that defendant is awaiting sentencing under the Guidelines on another
federal offense. Defendant was convicted on drug charges. The district
court departed upward by two criminal history categories (CHC) on the
grounds that defendant committed the crime after being released to allow
cooperation with the government in another offense and because defendant
had not yet been sentenced for a prior federal offense. Although the
first departure ground was proper, the appellate court remanded for
clarification of the extent of departure and because the second
departure ground was improper.
The court distinguished prior cases that "upheld CHC departures for
defendants awaiting sentencing on various other crimes. Those cases . .
. involved defendants who were to be sentenced in state court for state
offenses. Since state-court sentencing is not governed by the federal
Guidelines, we viewed the district court as having discretion to depart
on that basis because if the federal court does not depart to take
account of the unsentenced state crimes, there is no assurance that the
entire range of defendant's pertinent history will be considered in
either proceeding." Here, however, defendant would be sentenced for the
other federal offense under the Guidelines, and the instant offense
would be accounted for there. Thus, "since . . . the overall Guidelines
scheme provides for effect to be given to both offenses in specified
ways, . . . a departure on this basis for a defendant awaiting
sentencing on a federal offense would result in a double counting that
was not intended by the policy statement in Guidelines Section 4A1.3,
and . . . a departure on this basis is impermissible."
U.S. v. Stevens, 985 F.2d 1175 (2d Cir. 1993).
See Outline at VI.A.1.f and B.1.
Eighth Circuit holds that pregnancy resulting from rape may be proper
ground for departure. Defendant was convicted of raping a 15-year-old.
She became pregnant with twins -- one died in utero and, after
complications, hospitalization, and a cesarean, the other was born with
a fatal disease and died three weeks later. The government moved for an
offense level increase under Section 2A3.1(b)(4), arguing that the
pregnancy and its consequences constituted a "serious bodily injury."
Alternatively, the government argued that upward departure was warranted
under these circumstances. Both motions were denied.
The appellate court affirmed the denial of an increase under Section
2A3.1(b)(4): "As defined in the guidelines, serious bodily injury
easily includes any immediate serious physical trauma resulting from a
rape. In contrast, interpreting the language of the guideline
definition to include the life altering consequences of a rape-induced
pregnancy stretches that language too far."
However, the court determined that pregnancy resulting from rape may
be an unusual circumstance that warrants departure and remanded: "We
are not aware of any facts that indicate a pregnancy 'commonly' results
from a single instance of rape. Nor are we aware of any guideline
provision or records that indicate the Commission considered
rape-induced pregnancy as a basis for an adjustment or departure.
Rather, we are loathe to conclude that when formulating U.S.S.G. Section
2A3.1(b)(4), the Commission considered both the trauma of an unwanted
rape-induced pregnancy and of an immediate obvious physical injury, but
chose to increase punishment only for the physical injury."
U.S. v. Yankton, No. 92-1404 (8th Cir. Mar. 1, 1993) (Hansen, J.).
See Outline generally at VI.B.1.
U.S. v. Merritt, No. 91-1637 (2d Cir. Feb. 9, 1993) (Leval, Dist. J.)
(Affirmed upward departure based on danger to public health, disruption
of a governmental function, and defendant's attempts to keep the
proceeds of his crime (nearly $1 million) through continued fraudulent
conduct. The district court also factored into the departure
defendant's "continuing dishonesty and greed, and his cynical
determination to profit from his crime after service of his jail time."
The appellate court concluded that the Sentencing Reform Act allows, and
the Guidelines do not prohibit, consideration of personal
characteristics in unusual cases and that it was appropriate here:
"(T)he departure was attributable to conduct and characteristics that
went well beyond simple 'failure to pay voluntary restitution' and
'concealment of assets.' It is clear that Merritt's profound corruption
and dishonesty, and his elaborate fraudulent manipulation -- even after
his guilty plea -- designed to preserve the huge benefits of his crime
after service of jail time, are not" adequately considered under the
Guidelines.). Cf. U.S. v. Bryser, 954 F.2d 79, 89-90 (2d Cir. 1992)
(departure for failure to return stolen money); U.S. v. Valle, 929 F.2d
629, 631-32 (11th Cir. 1991) (same) (4#3).
See Outline at VI.B.1.
U.S. v. Love, 985 F.2d 732 (3d Cir. 1993) (Affirmed: District court
properly held that the Section 5K1.1, p.s. requirement for a government
motion applies to assistance to state authorities, not just federal:
"There is no indication in the language of Section 5K1.1 or in the
accompanying commentary that the Commission meant to limit 'assistance
to authorities' to assistance to federal authorities. The provision is
entitled 'Substantial Assistance to Authorities,' and describes the
assistance as 'substantial assistance in the investigation or
prosecution of another person who has committed an offense.'").
See Outline generally at VI.F.1.
U.S. v. Lambert, 984 F.2d 658 (5th Cir. 1993) (en banc) (Affirmed:
Resolving inconsistent opinions within the circuit, the en banc court
held that to depart under Section 4A1.3, p.s., district courts must
follow the procedure in that section and "evaluate each successive
criminal history category above or below the guideline range for a
defendant as it determines the proper extent of departure.").
See Outline at VI.D.
U.S. v. Vea-Gonzales, 986 F.2d 321 (9th Cir. 1993) (Remanded:
District court erred in not allowing defendant to challenge validity of
prior conviction at sentencing hearing. "(T)he Constitution requires
that defendants be given the opportunity to collaterally attack prior
convictions which will be used against them at sentencing." Even though
a 1990 amendment to Section 4A1.2, comment. (n.6) indicates
consideration of such claims is discretionary, and some circuits have so
held, "we have previously held that a defendant is constitutionally
entitled to collaterally attack allegedly unconstitutional prior
convictions. The Guidelines cannot have changed that.").
See Outline at IV.A.3.
U.S. v. Kirkland, 985 F.2d 535 (11th Cir. 1993) (Remanded: Bank's
investigation, conducted by bank employees prior to any law enforcement
activity, was not an "official investigation" under Section 3C1.1,
comment. (n.3(d)). Therefore, district court erred in applying
obstruction of justice enhancement to defendant who caused someone else
to lie to bank investigators in an attempt to hide embezzlement.).
See Outline generally at III.C.4.
VOLUME 5, NUMBER 9
MARCH 1, 1993
Supreme Court reverses Dunnigan, upholds application of Section 3C1.1
to perjury by defendant. At defendant's trial for conspiracy to
distribute cocaine, several witnesses testified about her drug
activities. Defendant testified and denied everything, claiming that
she had never possessed or distributed cocaine, but the jury found her
guilty. The sentencing court concluded that defendant's denials were
untruthful and warranted the Section 3C1.1 enhancement for obstruction
of justice. The Fourth Circuit reversed, holding that applying Section
3C1.1 "for a disbelieved denial of guilt under oath (is) an intolerable
burden on the defendant's right to testify in his own behalf." U.S. v.
Dunnigan, 944 F.2d 178, 183-85 (4th Cir. 1991) (4 GSU #10).
The Supreme Court reversed the court of appeals, holding that
enhancement for perjury is not unconstitutional. The Court first
addressed the findings required before enhancement: "(N)ot every
accused who testifies at trial and is convicted will incur an enhanced
sentence under Section 3C1.1 for committing perjury . . . . (A)n
accused may give inaccurate testimony due to confusion, mistake or
faulty memory. In other instances, an accused may testify to matters
such as lack of capacity, insanity, duress or self-defense. Her
testimony may be truthful, but the jury may nonetheless find the
testimony insufficient to excuse criminal liability or prove lack of
intent. For these reasons, if a defendant objects to a sentence
enhancement resulting from her trial testimony, a district court must
review the evidence and make independent findings necessary to establish
a willful impediment to or obstruction of justice, or an attempt to do
the same . . . . When doing so, it is preferable for a district court
to address each element of the alleged perjury in a separate and clear
finding. The district court's determination that enhancement is
required is sufficient, hoever, if, as was the case here, the court
makes a finding of an obstruction or impediment of justice that
encompasses all of the factual predicates for a finding of perjury."
The Court then held that the Guidelines' requirement of a Section
3C1.1 enhancement for perjury "is consistent with our precedents and is
not in contravention of the privilege of an accused to testify in her
own behalf." A defendant's right to testify "does not include a right to
commit perjury," and the "concern that courts will enhance sentences as
a matter of course whenever the accused takes the stand and is found
guilty is dispelled by our earlier explanation that . . . the trial
court must make findings to support all the elements of a perjury
violation in the specific case."
U.S. v. Dunnigan, No. 91-1300 (U.S. Feb. 23, 1993) (Kennedy, J.).
See Outline at III.C.5.
U.S. v. Morrill, No. 91-8386 (11th Cir. Feb. 16, 1993) (en banc) (per
curiam) (Remanded: "We now hold that bank tellers, as a class, are not
vulnerable victims within the meaning of section 3A1.1. To the extent
that (U.S. v. Jones, 899 F.2d 1097 (11th Cir. 1990) (3 GSU #8)) holds to
the contrary, that case is overuled. . . . This is not to say that bank
tellers in individual cases never may be particularly susceptible or
otherwise vulnerable victims of a bank robbery. Enhancement is
appropriate under section 3A1.1 when a particular teller-victim
possesses unique characteristics which make him or her more vulnerable
or susceptible to robbery than ordinary bank robbery victims . . . .").
U.S. v. Taylor, No. 91-30418 (9th Cir. Jan. 21, 1994) (Poole, J.)
(Remanded: "We join the Tenth Circuit in holding that grouping under
section 3D1.2(d) is not appropriate when the guidelines measure harm
differently." Thus, for defendant convicted of one count of engaging in
an illegal monetary transaction covered by Section 2S1.2, which measures
harm by "the value of the funds" attributable to the scheme, it was
improper to include as relevant conduct amounts from a dismissed wire
fraud count, which measures harm under Section 2F1.1 as "the loss"
attributable to the scheme.). Accord U.S. v. Johnson, 971 F.2d 562,
576-76 (10th Cir. 1992) (remanded: improper to add funds obtained from
wire fraud scheme as relevant conduct to funds in money-laundering
conviction).
See Outline at III.D.1.
First Circuit holds that five bank robberies could be considered
related as "part of common scheme or plan." Defendant was sentenced as a
career offender on the basis of five prior convictions for five bank
robberies committed during a brief period in 1968. Defendant argued
that the robberies should be treated as a single felony under the
definition of related cases in Section 4A1.2(a)(2), comment. (n.3)
("prior sentences are considered related if they resulted from offenses
that . . . were part of a single common scheme or plan"), because all
five were part of a common plan to rob banks. The district court
rejected defendant's argument and his request for an evidentiary
hearing.
The appellate court remanded, finding that under the language of the
guideline defendant may be correct. "At first blush, it might seem
unlikely that the Sentencing Commission intended a defendant to escape
career offender status, in the teeth of two prior convictions for
different bank robberies at different times and places, simply because
those prior robberies were assertedly linked by a further felony,
namely, an overarching conspiracy to rob banks that could literally be
called a 'common scheme or plan.'" The court stated that if the
Commission did not intend this result, "we might disregard the literal
language of the commentary and treat as a single conviction only those
convictions so closely related in time and function that separate
treatment would disserve the purpose of the career offender provision.
Yet a broader perspective suggests that the Commission, in defining
related convictions, did mean to adopt binding 'rules of thumb,' such as
this one, as well as the even more mechanical rule that convictions for
entirely separate crimes should be treated as one if they happen to be
consolidated for trial or sentence."
"Once we decide that the 'common scheme or plan' definition is both
intentional and valid, (the) language should be given its ordinary
meaning. This same language is used in Fed. R. Crim. P. 8 (to determine
joinder) and there is no doubt that in that context a conspiracy to rob
banks would constitute a common scheme or plan . . . . We do not,
however, think that the district court is required to hold an
evidentiary hearing if the court concludes that it would impose the same
sentence even without the 'career offender' label. The guideline
commentary itself asserts that the rule of thumb here . . . is
over-inclusive and invites judges to depart upward where the rule of
thumb operates to understate criminal history. Accordingly, the
requirements for departure are satisfied if the judge supportably
concludes that . . . five prior bank robberies, united by a conspiracy
to rob banks, makes (defendant) deserving of a sentence similar to that
he would receive if he were classified as a career offender."
The court noted that the net effect of having a strict rule of thumb
with the ability to depart "is to increase the range of discretion of
the district judge in these situations, which may be just what the
Commission intended. As we have noted, an evidentiary hearing is not
automatically required in cases like this one -- not because the judge
can 'find' no common scheme or plan in the face of a proffer like this
one and without a hearing, but rather because the judge may depart
rather readily even if such a scheme or plan is assumed."
U.S. v. Elwell, No. 91-1621 (1st Cir. Jan. 20, 1993) (Boudin, J.).
See Outline at IV.A.1.b.
U.S. v. Gilliam, No. 90-5548 (Feb. 12, 1993) (Wilkins, J.) (Widener,
J., dissenting) (Remanded: District court erred in automatically
attributing to conspiracy defendant the 30 kilograms of cocaine
described in the indictment to which he pled guilty. A guilty plea
alone is not an admission of responsibility for drug amounts that are
attributed generally to a conspiracy. And, "while a plea of guilty to
an indictment containing an allegation of the amount of drugs for which
a defendant is responsible may, in the absence of a reservation by the
defendant of his right to dispute the amount at sentencing, constitute
an admission of that quantity for sentencing purposes, Gilliam's
indictment did not make any such attribution." Here, defendant admitted
only to distributing a much smaller amount and no other evidence was
presented to allow the court to make an independent determination of the
amounts he should be held responsible for.).
See Outline at II.A.3.
U.S. v. Bartsh, No. 92-1470 (8th Cir. Jan. 13, 1993) (Gibson, Sr. J.)
(Affirmed: Agreed with U.S. v. Curran, 967 F.2d 5, 6 (1st Cir. 1992),
that amount of loss under Section 2B1.1 in embezzlement offense includes
lost interest.). Note that Section 2B1.1 and its Commentary do not
mention interest, but Note 7 of Section 2F1.1, which refers back to
Section 2B1.1 to calculate loss, was amended Nov. 1, 1992, to state that
loss does not include interest that could have been earned on stolen
funds.
See Outline at II.D.1.
U.S. v. Brown, No. 92-50247 (9th Cir. Feb. 10, 1993) (Canby, J.)
(Remanded: Departure for career offender may be considered if nature of
prior offenses and youth at time of one prior conviction "render his
criminal past significantly less serious than that of a typical career
offender." Although Section 5H1.1, p.s. states that age is not
ordinarily relevant to departure, age "becomes relevant when it causes a
defendant's criminal history score significantly to overstate the
seriousness of his criminal record. . . . (Therefore), nothing in the
guidelines would preclude the district court from departing if it found
that, in view of the nature of Brown's prior convictions or Brown's age
when he committed one of the predicate offenses, placement in the career
offender category significantly exaggerated the seriousness of (his)
criminal history.").
See Outline at VI.A.2.
U.S. v. Brown, No. 92-50247 (9th Cir. Feb. 10, 1993) (Canby, J.)
(Remanded: District court incorrectly concluded that it did not have
authority to consider downward departure for defendant who alleged
"extraordinary abuse" during his childhood and "extraordinary acceptance
of responsibility."). See Outline at VI.C.1.b, h, and 4.c.
U.S. v. Bartsh, No. 92-1470 (8th Cir. Jan. 13, 1993) (Gibson, Sr. J.)
(Affirmed: Although defendant received Section 3B1.3 abuse of trust
enhancement, court could depart upward because "there is nothing in the
Guidelines to indicate that the Sentencing Commission considered an
abuse of trust by a United States bankruptcy trustee embezzling funds.
This defendant's embezzlement of nearly $1.5 million from an account
that he as a federal officer was charged with faithfully managing
represents an inordinate abuse of trust that is of a different kind and
substantially in excess of the degree which is ordinarily involved in
the usual abuse of trust offense."). See Outline at III.B.8.a and
VI.B.1.
U.S. v. Gray, 982 F.2d 1020 (6th Cir. 1993) (Remanded: For defendant
convicted of selling drug paraphernalia who had also sold large amounts
of a cutting agent to a cocaine ring, "the district judge erred when and
to the extent that he considered greed and the danger of narcotics to
our society as factors justifying (upward) departure. . . . Greed is
obviously the chief motivation for drug-related crimes. For the
drafters of the Sentencing Guidelines to have overlooked this is simply
not credible. The fact that distribution of narcotics is a danger to
our society is precisely why promoting it is a crime.").
See Outline at VI.B.2.
VOLUME 5, NUMBER 8
FEBRUARY 4, 1993
Tenth Circuit changes circuit rule, holds that supervised release
term may not be reimposed after revocation and incarceration.
Defendant's supervised release was revoked for drug possession under 18
U.S.C. Section 3583(g), based on a positive urinalysis. The district
court sentenced him to 12 months' incarceration to be followed by almost
26 months of additional supervised release. Defendant argued on appeal
that a positive test indicates only drug use, not "possession" under
Section 3583(g), and that a new term of supervised release could not be
imposed after revocation of the original term.
The appellate court upheld the revocation based on the positive
urinalysis and defendant's admission that he had used marijuana: "There
can be no more intimate form of possession than use. We hold that a
controlled substance in a person's body is in the possession of that
person for purposes of 18 U.S.C. Section 3583(g), assuming the required
mens rea."
The court reversed the reimposition of supervised release, however.
U.S. v. Boling, 947 F.2d 1461, 1463 (10th Cir. 1991) (4 GSU #23), ruled
that release could be reimposed after revocation. But developments
since then, the current panel noted, "warrant this court's serious
reconsideration of Boling. . . . We have sua sponte presented this
issue to all the active judges of the court, . . . and we have now been
authorized by those judges to announce that this circuit's prior
decision in (Boling) is hereby overruled. We have also been authorized
to hold, as the law of this circuit governing pending and future cases,
that upon breach of a condition of supervised release, the district
court may revoke supervised release and order the defendant to serve a
term in prison pursuant to 18 U.S.C. Section 3583(e)(3), or may extend
the defendant's term of supervised release pursuant to 3583(e)(2), but
not both. . . . Our holding on this issue compels the conclusion that
Rockwell cannot be ordered to serve an additional term of supervised
release. Since 3583(g) requires incarceration, the options presented in
3583(e)(2) and (e)(4) are not available to the court, and 3583(e)(3) is
available only to the extent of fixing the maximum term of incarceration
which may be imposed."
U.S. v. Rockwell, No. 92-6121 (10th Cir. Jan. 29, 1993) (Anderson,
J.).
See Outline at VII.B.1 and 2.
U.S. v. Glasener, No. 92-1976 (8th Cir. Dec. 3, 1992) (Gibson, J.)
(Affirmed: Defendant on supervised release committed and pled guilty to
a new offense that violated the terms of his release. The court revoked
his release and imposed a 24-month term of imprisonment. The next day,
he received an 88-month sentence for the new offense, which was ordered
to run consecutively to the revocation term. The appellate court held
that consecutive sentences were proper, and that it did not matter which
sentence was imposed first. Application Note 5 of Section 7B1.3, p.s.
recommends that any sentence imposed after revocation be run
consecutively to any revocation sentence. Also, had the order of
sentencing hearings been reversed, Section 7B1.3(f) would have required
consecutive sentences.).
See Outline at VII.B.1.
U.S. v. Clay, No. 92-5562 (6th Cir. Jan. 6, 1993) (Jones, J.)
(Remanded: Under 18 U.S.C. Section 3565(a), defendant must be sentenced
"to not less than one-third of the original sentence" when probation is
revoked for drug possession. "Original sentence" means the maximum term
of imprisonment under the Guidelines for the original offense, and a
sentence after probation revocation is limited to the original guideline
range. Thus, it was error to impose revocation sentence of fifteen
months when the guideline maximum was seven months.). Accord U.S. v.
Granderson, 969 F.2d 980, 983-84 (11th Cir. 1992); U.S. v. Gordon, 961
F.2d 426, 430-33 (3d Cir. 1992) (4 GSU #21). Contra U.S. v. Byrkett,
961 F.2d 1399, 1400-01 (8th Cir. 1992) (per curiam) ("original sentence"
includes probation, affirmed eight-month prison term where original
guideline maximum was six months and sentence was two years' probation)
(4 GSU #23); U.S. v. Corpuz, 953 F.2d 526, 528-30 (9th Cir. 1992)
(same, affirmed one-year sentence where original guideline maximum was
seven months and sentence was three year's probation) (4 GSU #15).
See Outline at VII.A.2.
U.S. v. Warren, No. 91-30464 (9th Cir. Dec. 8, 1992) (Tang, J.)
(Affirmed: Defendant, sentenced after the 1991 amendments to the
Guidelines, had to be sentenced under the 1989 version of Section 2K2.1
because of ex post facto concerns. He argued that the court should use
the 1991 version of Section 5G1.3, which could produce a shorter total
sentence. The district court, however, used the 1989 version of Section
5G1.3, reasoning that the 1989 Guidelines should be applied in their
entirety. The appellate court agreed: "(W)e think it more appropriate
that sentences be determined under one set of Guidelines rather than
applying the Guidelines piecemeal. . . . Our decision is also
consistent with the approach recently promulgated by the Sentencing
Commission for sentences imposed on or after Nov. 1, 1992. See U.S.S.G.
Section 1B1.11(b), p.s. & comment. (n.1) (Nov. 1, 1992) (earlier
editions of Guidelines Manual, when applicable, are to be used in their
entirety).").
See Outline at I.E.
U.S. v. Seligsohn, No. 91-2083 (3d Cir. Dec. 9, 1992) (Weis, J.)
(Remanded: For defendants convicted of multiple counts, it was error to
apply post-Nov. 1989 version of Guidelines to all counts when ex post
facto considerations required that earlier version of Guidelines be used
for some counts. The appellate court concluded the government's
"so-called 'one-book rule'" would lead to ex post facto problems here,
and stated that district courts should determine "which version of the
Guidelines is applicable to specific counts.").
See Outline at I.E.
U.S. v. Gullickson, No. 92-2162 (8th Cir. Jan. 5, 1993) (Gibson, J.)
(Remanded: 18 U.S.C. Section 3624(e) (1988) prohibits imposition of
consecutive terms of supervised release, and "dictum" to the contrary in
U.S. v. Saunders, 957 F.2d 1488, 1494 (8th Cir. 1992) (4 GSU #20),
should not be followed: "we believe the statute unambiguously states
that terms of supervised release on multiple convictions are to run
concurrently."). Contra U.S. v. Maxwell, 966 F.2d 545, 550-51 (10th
Cir. 1992) (did not discuss 18 U.S.C. Section 3624(e)) (5 GSU #1).
See Outline at V.C.
U.S. v. White, No. 91-3346 (11th Cir. Jan. 8, 1993) (Kravitch, J.)
(Remanded: A defendant convicted of criminal contempt under 18 U.S.C.
Section 401(3) cannot be fined under Section 5E1.2(a) if a term of
imprisonment was imposed: "18 U.S.C. Section 401 employs the
disjunctive and authorizes the punishment of a 'fine or imprisonment'
(emphasis added). The mere existence of the Sentencing Guidelines does
not change that clear expression of Congressional intent.").
See Outline at V.E.1.
U.S. v. Morrison, No. 92-5033 (6th Cir. Jan. 12, 1993) (Jones, J.)
(Remanded: The Section 3E1.1 reduction for acceptance of responsibility
may not be denied for "criminal activity committed after
indictment/information but before sentencing, which is wholly distinct
from the crime(s) for which a defendant is being sentenced." The
appellate court distinguished cases that upheld denials based on
additional criminal conduct, noting that in those cases the criminal
activity was somehow related to or was the same type as the offense of
conviction, though it noted that two cases indicated denial may be based
on any criminal conduct. See U.S. v. O'Neil, 936 F.2d 599, 600-01 (1st
Cir. 1991); U.S. v. Watkins, 911 F.2d 983, 985 (5th Cir. 1990).
Referring to Note 1(a) to Section 3E1.1, the court concluded that "we
consider 'voluntary termination or withdrawal from criminal conduct' to
refer to conduct which is related to the underlying offense. Such
conduct may be of the same type as the underlying offense, . . . the
motivating force behind the underlying offense, . . . related to actions
toward government witnesses concerning the underlying offense, . . . or
may involve an otherwise strong link to the underlying offense. . . .
We are persuaded by the rationale that an individual may be truly
repentant for one crime yet commit other unrelated crimes.") (Kennedy,
J., dissenting).
See Outline at III.E.1.
U.S. v. Sneezer, No. 91-10457 (9th Cir. Dec. 30, 1992) (per curiam)
(Remanded: Two counts of aggravated sexual assault on the same victim
that occurred within a few minutes during the same course of conduct
should have been grouped. Generally, under Section 3D1.2(b), counts are
grouped if they involve the same victim, are connected by a common
criminal objective or plan, and involve substantially the same harm. In
some instances separate assaults of the same victim should not be
grouped, but the appellate court determined that, under the guideline
and application notes 3 and 4, "whether to group independent offenses .
. . turns on timing," and essentially contemporaneous assaults must be
grouped.) (O'Scannlain, J., concurring in judgment).
See Outline at III.D.
U.S. v. LeRoy, No. 92-5086 (10th Cir. Jan. 26, 1993) (Anderson, J.)
(Affirmed: District court properly refused to grant defendants' request
for discovery of data used by the Sentencing Commission in formulating
the Guidelines in order to determine whether defendants were outside the
"heartland" of the guidelines applicable to them: "Discovery of
Commission files or deliberations relating to promulgation of the
guidelines is prohibited. The controlling statute could not be more
clear on the point: 'In determining whether a circumstance was
adequately taken into consideration, the court shall consider only the
sentencing guidelines, policy statements, and official commentary of the
Sentencing Commission. 18 U.S.C. Section 3553(b)' . . . .
'Consideration' of the guidelines does not imply investigation into the
processes or data from which they emerged. The reasons are obvious.
Discovery into the guideline formulation process would be an intrusion
into a quasi-legislative rulemaking function delegated by Congress
solely to the Commission. 28 U.S.C. Sections 991, 994, 995. And, any
conclusion drawn from such discovery would be a usurpation of the
Commission's power. Beyond that, the practical problems are too
numerous and apparent to warrant discussion. Accordingly, no denial of
due process, violation of law, or misapplication of the guidelines
resulted from the district court's denial of the discovery.").
See Outline generally at IX.E.
U.S. v. Jones, 973 F.2d 928 (D.C. Cir. 1992) (district court may
impose higher sentence within guideline range because defendant chose to
go to trial instead of pleading guilty) (5 GSU #3), vacated in pertinent
part, Oct. 22, 1992. See Outline at I.C.
U.S. v. Roman, 960 F.2d 130 (11th Cir. 1992) (district courts have
discretion to allow constitutional challenge to prior conviction) (4 GSU
#22), vacated, 968 F.2d 11 (11th Cir. 1992). See Outline at IV.A.3.
VOLUME 5, NUMBER 7
JANUARY 11, 1993
Fourth Circuit holds that court may depart by analogy to career
offender guideline for defendant who would have been sentenced as career
offender but for invalid prior conviction. The presentence report put
defendant in criminal history category VI and concluded he had several
prior violent felonies that qualified him as a career offender.
Defendant challenged the validity of the prior convictions, but the
district court ruled that at least two were valid and sentenced him as a
career offender under Section 4B1.1. As an alternative, the court held
that even if one of the required felony convictions were invalid, the
same sentence would be imposed because the underlying facts were not
disputed and could be used to depart under Section 4A1.3, p.s., with the
career offender provision as a guide.
The appellate court affirmed, holding that it did not have to decide
whether the disputed convictions were valid because the departure to the
career offender range was proper. "Once the district court determines
that a departure under U.S.S.G. Section 4A1.3, p.s. is warranted and
that the defendant's prior criminala onduct is of sufficient seriousness
to conclude that he should be treated as a career offender, the district
court may depart directly to the guideline range applicable to career
offenders similar to the defendant. . . . Thus, if a district court,
based on reliable information, determines that a defendant's underlying
past criminal conduct demonstrates that the defendant would be sentenced
as a career offender but for the fact that one or both of the prior
predicate convictions may not be counted (because they are
constitutionally invalid), the court may depart directly to the career
offender guideline range." Cf. U.S. v. Hines, 943 F.2d 348, 354-45 (4th
Cir.) (departure to career offender level proper where defendant missed
that status only because prior violent felonies were consolidated),
cert. denied, 112 S.Ct. 613 (1991); U.S. v. Dorsey, 888 F.2d 79, 80-81
(11th Cir. 1989) (same), cert. denied, 110 S.Ct. 756 (1990).
The court added, as a general matter, that "(a)dditional Criminal
History Categories above Category VI may be formulated in order to craft
a departure that corresponds to the existing structure of the
guidelines." Accord U.S. v. Streit, 962 F.2d 894, 905-06 (9th Cir. 1992)
(4 GSU #24); U.S. v. Glas, 957 F.2d 497, 498-99 (7th Cir. 1992) (4 GSU
#20); U.S. v. Jackson, 921 F.2d 985, 993 (10th Cir. 1991) (en banc). A
so-called "vertical departure" -- moving to higher offense levels within
category VI -- may also be used and is recommended in the November 1992
revision of Section 4A1.3, p.s.
U.S. v. Cash, No. 91-5869 (4th Cir. Dec. 14, 1992) (Wilkins, J.).
See Outline at VI.A.1.c, 3, and 4.
U.S. v. Aslakson, No. 92-1891 (8th Cir. Dec. 18, 1992) (per curiam)
(Affirmed: An offer, which was refused by the government, to testify
against a codefendant in exchange for a substantial assistance motion
under Section 5K1.1, p.s., cannot warrant departure under Section 5K2.0,
p.s. on the theory that such conduct is not adequately covered by the
acceptance of responsibility reduction in Section 3E1.1. Assistance in
the prosecution of others is covered under Section 5K1.1, not Section
3E1.1, and departure cannot be made without motion of the government
except in very limited circumstances not present here.).
See Outline at VI.C.4.c.
U.S. v. Frazier, No. 91-3585 (7th Cir. Nov. 16, 1992) (Coffey, J.)
(Remanded: General finding thata defendant suffers from a mental
disorder is not sufficient for downward departure under Section 5K2.13,
p.s. The district court must make specific findings that "defendant's
mental condition resulted in a significantly reduced mental capacity at
the time of the offense (and) contributed to the commission of her
offense. (S)uch a link cannot be assumed." District court also erred in
basing the departure on its opinion that there was "nothing to be
gained" by imprisoning defendant, in terms of either punishment or
general deterrence: "Departures must 'be based on policies found in the
Guidelines themselves rather than in the personal penal philosophy of
the sentencing judge.'").
See Outline at VI.C.1.b and 4.b.
U.S. v. Medina-Gutierrez, No. 92-2094 (5th Cir. Dec. 23, 1992) (Duhe,
J.) (Remanded: Plain error to use Section 5K2.6, p.s., as a basis for
departure in offense of transportation of firearms in interstate
commerce. That offense "is, technically, a crime in which weapons are
used, and therefore seems to warrant a Section 5K2.6 upward departure.
Practically speaking, however, this section must refer to crimes that
may be committed with or without the use of a weapon, otherwise, every
firearms sentence would require upward departure." It was not error,
however, to depart upward because of defendant's frequent purchases of
weapons: "a criminal defendant who has repeatedly engaged in a criminal
activity evidences a dangerousness not apparent in a defendant who has
acted illegally only once.").
See Outline at VI.B.1 and 2.
U.S. v. Easter, No. 91-6103 (10th Cir. Dec. 10, 1992) (Baldock, J.)
(Seymour, J., dissenting) (Affirmed: Defendant claimed for the first
time on appeal that the government refused to make a Section 5K1.1, p.s.
motion because he was the only conspirator to request a jury trial. The
appellate court rejected his request for a remand and hearing on the
government's motives: "Defendant's exercise of his constitutional right
to a jury trial would be an improper basis for the government to
withhold a motion. Nevertheless, defendant did not raise this argument
in the district court," so it could only be reviewed for plain error.
But the court, characterizing this as a factual dispute to which "plain
error review does not apply," dismissed the appeal: "Defendant's
suggestion regarding the government's motive for failing to bring a
motion raises the factual issue of, not only the government's motive,
but whether the Defendant in fact provided substantial assistance.").
See Outline at VI.F.1.b.iii.
U.S. v. Medina-Gutierrez, No. 92-2094 (5th Cir. Dec. 23, 1992) (Duhe,
J.) (Affirmed: Whether prior violent felony convictions were "related"
under Section 4A1.2 is irrelevant to sentencing as armed career criminal
under Section 4B1.4. Defendant argued that three burglary convictions
should be treated as one violent felony because they were committed
within weeks of one another as part of a common plan and were
consolidated for sentencing. However, Section 4B1.4 applies to
defendants subject to enhanced sentence under 18 U.S.C. Section 924(e),
and the appellate court stated that "what matters under Section 924(e)
is whether three violent felonies were committed on different occasions;
whether they are . . . 'related cases' under Section 4A1.2 is
irrelevant."). See also Section 4B1.4, comment. (n.1) ("the
definition() of 'violent felony' . . . in 18 U.S.C. Section 924(e) (is)
not identical to the definition() of 'crime of violence' . . . used in
Section 4B1.1").
(To be placed in new section IV.D in next edition of Outline.)
U.S. v. Tabaka, No. 91-3882 (3d Cir. Dec. 28, 1992) (Weis, J.)
(Remanded: If a prior sentence is suspended, only the portion that was
served should be considered in the criminal history calculation.
Defendant had received a sentence of a minimum of 48 hours and maximum
15 months that was suspended after two days. The appellate court held
it was error to consider the maximum sentence (for three criminal
history points) rather than the two days actually served (one point).
Normally the "sentence of imprisonment" used to calculate criminal
history points is the maximum sentence imposed, rather than time
actually served. See Section 4A1.2(b)(I) and comment. (n.2). However,
Section 4A1.2(b)(2) specifically states: "If part of a sentence of
imprisonment was suspended, 'sentence of imprisonment' refers only to
the portion that was not suspended.").
See Outline at IV.A.2.
U.S. v. Gullickson, No. 92-1398 (8th Cir. Dec. 8, 1992) (Magill, J.)
(Remanded: District courts retain discretion under 18 U.S.C. Section
3584(a) to impose concurrent or consecutive sentences, but they must
also follow Section 5G1.3 unless departure is warranted. Here, Section
5G1.3(c) (Nov. 1991) called for concurrent sentences, but the district
court improperly made the federal sentence consecutive to defendant's
unexpired state sentences without "follow(ing) the usual guidelines
procedures" to determine whether departure was warranted.).
U.S. v. Parkinson, No. 91-2233 (1st Cir. Dec. 4, 1992) (per curiam)
(Affirmed: In determining under Section 5G1.3(c) the extent to impose
sentence consecutively to prior unexpired state sentence, look at "the
actual total prison term likely to be served (on state sentence), not
the putative terms of imprisonment imposed." Defendant was serving a
10-20 year state term, and for the instant federal offense he received a
240-month sentence, to run consecutively. Defendant argued that this
was actually a departure because it would result in a total sentence of
30-40 years, which exceeded the maximum 327 months that "approximate(d)
the total punishment that would have been imposed . . . had all of the
offenses been federal offenses for which sentences were being imposed at
the same time," Section 5G1.3, comment. (n.3) (1991). However, the
appellate court held that good-conduct credit and parole "could
potentially result in defendant serving less than seven years of (the
state) sentence," for a total sentence of less than 327 months.).
Note that effective Nov. 1, 1992, Section 5G1.3(c) was designated a
policy statement, but the substance of the guideline is essentially the
same.
See Outline at V.A.3.
U.S. v. Fair, No. 92-2098 (5th Cir. Dec. 9, 1992) (Duhe, J.)
(Remanded: PSR indicated defendant could not pay fine, and court
improperly imposed fine without articulating reasons: "specific
findings are necessary if the court adopts a PSR's findings, but then
decides to depart from the PSR's recommendation on fines or cost of
incarceration." Defendant may rely on PSR's conclusion that he cannot
pay fine; burden then shifts to government to prove ability to pay.
District court also erred in imposing cost of incarceration fine under
Section 5E1.2(i) without first imposing punitive fine under Section
5E1.2(a).).
See Outline at V.E.1 and 2.
U.S. v. Davis, No. 92-3143 (6th Cir. Dec. 16, 1992) (Gilmore, Sr.
Dist. J.) (Affirmed: Where defendant was convicted of conspiracy to
distribute cocaine, but the unusual circumstances of the case prevented
the district court from reaching any reasonable estimate of the quantity
of cocaine attributable to defendant, it was proper for the court to use
the lowest offense level applicable to cocaine under the Drug Quantity
Table.).
See Outline at II.B.3.
U.S. v. Reyes, No. 91-6398 (10th Cir. Nov. 17, 1992) (Baldock, J.)
(Remanded: District court clearly erred in finding that defendant
negotiated to sell additional pound of cocaine, see Section 2D1.1,
comment. (n.12) ("the weight under negotiation in an uncompleted
distribution shall be used"). The undercover agent testified that he
believed that defendant agreed to sell him another pound, but "(n)othing
in the recorded conversation indicates an affirmative response by
Defendant to supply an additional pound of cocaine . . . and nothing in
the record, other than (the agent's) subjective belief, indicates that
Defendant agreed to it."
See Outline at II.B.3.
U.S. v. Katora, No. 91-3505 (3d Cir. Dec. 7, 1992) (Mansmann, J.)
(Becker, J., dissenting) (Remanded: Adjustment under Section 3B1.1(c)
could not be applied to equally culpable codefendants who organized only
non-culpable persons, not each other or other culpable participants.
The fact that defendants "shared responsibility for creating and
carrying out the fraud do(es) not indicate that either (defendant)
organized the other. Rather, . . . (defendants) were 'organizers' only
in the sense that they were 'planners' of the offense. Just as section
3B1.1 cannot enhance the sentence of a solo offender, . . . neither can
it enhance the sentences of a duo when they bear equal responsibility
for 'organizing' their own commission of a crime." Defendants did
organize innocent third parties, but under Section 3B1.1 "use of
non-culpable 'outsiders' (may only be used) to calculate
'extensiveness,' not 'role.' . . . (W)e conclude that the application
of sections 3B1.1 and 3B1.2 has two prerequisites: multiple
participants and some differentiation in their relative
culpabilities.").
See Outline at III.B.2, 6, and 7.
VOLUME 5, NUMBER 6
DECEMBER 17, 1992
D.C. Circuit holds that adjustment for mitigating role in relevant
conduct cannot be awarded when that conduct was not used to set the
offense level. Defendant pled guilty to one count of conspiracy to
distribute cocaine. Her offense level was based on only the one
kilogram of cocaine in her count of conviction, not the 25 kilograms
distributed by the overall conspiracy. Defendant requested a downward
adjustment under Section 3B1.2, claiming that in the context of the
overall conspiracy she was a minor or minimal participant. The district
court refused, finding that she was a major participant in the conduct
upon which the base offense level was calculated.
The appellant court affirmed. Relevant conduct should be used for
role in offense determinations, but only if it is also used to set the
base offense level: "Here the larger conspiracy was not taken into
account in establishing the base level. To take the larger conspiracy
into account only for purposes of making a downward adjustment in the
base level would produce the absurd result that a defendant involved
both as a minor participant in a larger distribution scheme for which
she was not convicted, and as a major participant in a smaller scheme
for which she was convicted, would receive a shorter sentence than a
defendant involved solely in the smaller scheme. . . . The Guidelines
do not require this absurd result. "The court stated that the new
Application Note 4 (Nov. 1992) to Section 3B1.2, and the Introductory
Commentary (Nov. 1990) to Section 3B1 that it replaced, both support
this result. See U.S.S.G. App. C (amendment 456).
U.S. v. Olibrices, No. 90-3087 (D.C. Cir. Dec. 1, 1992) (Sentelle,
J.).
See Outline at III.B.1 and 7.
U.S. v. Cotto, No. 92-1129 (2d Cir. Nov. 10, 1992) (Newman, J.)
(Remanded: Under SEction 3B1.1(b), district court does not have
discretion to increase offense level by two, rather than the three
specified by guideline, for "manager or supervisor" of criminal activity
involving five or more participants. "For some enhancements, the
Sentencing Commission has explicitly authorized sentencing judges to
select an intermediate degree of increase between specified levels if
the facts warrant such an outcome. . . . No such compromise outcome is
permitted for the aggravating role enhancement."). Cf. U.S. v.
Valencia, 957 F.2d 153, 156 (5th Cir. 1992) (may not give one-point
reduction for acceptance of responsibility -- must be two points or no
reduction) (4 GSU #21).
See Outline generally at III.B.6.
U.S. v. Lew, No. 92-1144 (2d Cir. Nov. 30, 1992) (Newman, J.)
(Remanded: Where the issue was "close," district court should have
followed Section 3C1.1, comment. (n.1), and considered defendant's
allegedly obstructive statements "in a light most favorable to
defendant." While awaiting presentment after arrest, defendant made a
statement to a potential codefendant that the government claimed was an
invitation to fabricate a defense, but defendant claimed was merely a
suggestion they say nothing to authorities until they could discuss the
charges against them. The appellate court held that "(a)pplication note
1 is a sensible response to the reality that defendants will often make
statements susceptible to various interpretations in the anxious moments
following apprehension. Before such a statement is used to add a
discrete increment of punishment for obstruction of justice, a
sentencing judge should be satisfied that the statement is really
misconduct deserving of punishment. . . . Viewed in the light most
favorable to the defendant, the statement does not support an
obstruction of justice enhancement."). But cf. U.S. v. Capps, 952 F.2d
1026, 1029 (8th Cir. 1991) (indicating Note 1 applies only to false
statements and does not apply to threats against witnesses or
conspirators).
See Outline generally at III.C.2 and 4.
U.S. v. Chinske, 978 F.2d 557 (9th Cir. 1992) (Affirmed: Rejected
defendant's argument that Sections 5D1.1 and 5D1.2, which require term
of supervised release, conflict with 18 U.S.C. Section 3583(a), which
permits optional term. "U.S.S.G. Sections 5D1.1 and 5D1.2 can be read
consistently with 18 U.S.C. Section 3583" -- those sections "allow for
departure if . . . the trial judge determines no post-release
supervision is necessary," and thus "do not take away the trial judge's
ultimate discretion in ordering supervised release" that is granted
under Section 3583(a).). See also U.S. v. West, 898 F.2d 1493, 1503
(11th Cir. 1990) (28 U.S.C. Section 994(a) provides authority for
Guidelines' mandatory provisions for supervisory release), cert. denied,
111 S.Ct. 685 (1991).
See Outline at V.C and XI.B.
Eighth Circuit affirms downward departure for "extraordinary physical
impairment that results in extreme vulnerability" in prison. Defendant,
convicted of money laundering offenses, was subject to a guideline range
of 46-57 months in prison. The district court departed downward under
Section 5H1.4, p.s., to impose probation, home confinement, and
community service, after concluding that defendant "suffers 'an
extraordinary physical impairment' . . . which leaves him exceedingly
vulnerable to possible victimization and resultant severe and possibly
fatal injuries were the Court to impose a sentence of incarceration."
The government appealed, disputing the court's factual finding that
defendant's condition left him exceptionally vulnerable to attack in
prison.
The appellate court affirmed, first agreeing with the principle "that
an extraordinary physical impairment that results in extreme
vulnerability is a legitimate basis for departure." The court held that
the government failed to present evidence to support its claim that the
Bureau of Prisons could adequately protect defendant in prison, and that
defendant met his burden of showing departure was justified by
introducing "the reports of four doctors and the testimony of one of
them; all of them stated that in prison he would be exceedingly
vulnerable to victimization and potentially fatal injuries. Although
these doctors may not have been familiar with the facilities available
to Long in prison, we do not believe the District Court committed clear
error by relying upon these statements in concluding that 'the
imposition of a term of imprisonment could be the equivalent of a death
sentence for Mr. Long.'" See also U.S. v. Lara, 905 F.2d 599, 605 (2d
Cir. 1990) (affirmed downward departure based on vulnerability to
victimization in prison).
U.S. v. Long, 977 F.2d 1264 (8th Cir. 1992).
See Outline at VI.C.1.d.
U.S. v. Williams, No. 91-50434 (9th Cir. Nov. 3, 1992) (per curiam)
(Affirmed: Agreed with First Circuit that government agent's perjury
before grand jury "is not a basis for downward departure because it does
not relate to the 'offense or the offender' and is based solely on a
'perceived need to reprimand the government.'"). See U.S. v.
Valencia-Lucena, 925 F.2d 506, 515 (1st Cir. 1991) (Remanded: "A
sentencing departure is not warranted in response to conduct of the
government or of an independent third party. Thus it was error for the
district court to base its downward departure upon a perceived need to
reprimand the government for its conduct in investigating and
prosecuting the case.").
See Outline generally at VI.C.4.b.
U.S. v. Mickens, 977 F.2d 69 (2d Cir. 1992) (Remanded: District
court may not base departure solely on jury recommendation, but: "Where
a jury's request for leniency appears to be a rational response to facts
and circumstances placed before it which would themselves lead a court
to consider a downward departure, and the district court so finds, the
jury's request also may be taken into account." However, the court must
find that the factors considered by the jury are appropriate bases for
departure.).
See Outline generally at VI.C.4.a.
U.S. v. Navarro, No. 91-30275 (9th Cir. Nov. 16, 1992) (Wright, J.)
(Remanded: Defendant was responsible only for the two grams of heroin
he sold, not amounts sold by others after he had ended his participation
in the conspiracy. District court must make specific factual findings
as to the amount of drugs attributable to defendant as relevant conduct;
it may not simply adopt conclusory statements from the presentence
report that are unsupported by the facts or the guidelines.).
See Outline at II.A.2.
U.S. v. Santiago, 977 F.2d 517 (10th Cir. 1992) (Remanded: Loss in
unsuccessful insurance fraud should have been calculated as the $4,800
insurance company would have paid, even though defendant filed claim for
$11,000. Since there was no actual loss, "probable or intended loss"
should be used under Section 2F1.1, comment. (n.7). Although defendant
may have believed car was worth $11,000, "whatever a defendant's
subjective belief, an intended loss under Guidelines Section 2F1.1
cannot exceed the loss a defendant in fact could have occasioned if his
or her fraud had been entirely successful. . . . Although the language
of that Guidelines section leaves room for a contrary interpretation, we
conclude that a valuation or estimate of loss that exceeds that limit
impermissibly ignores economic reality."). Cf. U.S. v. Khan, 969 F.2d
218, 220 (6th Cir. 1992) ("offense level may not be increased on the
basis of an estimated fraud loss when no actual loss is possible") (5
GSU #1).
See Outline at II.D.2.
U.S. v. Lewis, No. 92-10231 (9th Cir. Nov. 2, 1992) (Alarcon, J.)
(Affirmed: District court did not exceed its authority or violate
defendant's due process rights when, to determine whether defendant
qualified for career offender status, it ordered transcripts of three
prior convictions to determine whether defendant's guilty pleas in those
cases were constitutionally valid. As part of the current plea
agreement, the government recommended that defendant not be sentenced as
a career offender, but the PSR indicated he should be and it was
"entirely proper" for the court to determine for itself whether the
prior pleas were constitutional.).
See Outline at IX.A.4.
U.S. v. McGee, No. 92-1553 (7th Cir. Nov. 30, 1992) (Cummings, J.)
(Remanded: After revoking defendant's three-year term of supervised
release and ordering him to serve two years in prison, district court
did not have authority to impose additional five-year term of supervised
release; "Once a court revokes a defendant's supervised release and
imprisons him under (18 U.S.C. Section) 3583(e)(3), no residual term of
supervised release survives revocation. Consequently, there is no way
for a court to revisit Section 3583(e)(2) and create or 'extend' a
second term of supervised release."). Accord U.S. v. Koehler, 973 F.2d
132, 134-35 (2d Cir. 1992) (remanded).
Contra U.S. v. Schrader, 973 F.2d 623 (8th Cir. 1992) (Affirmed:
Court had authority to revoke three-year term of release and sentence
defendant to six-month prison term followed by continuation of
supervised release to end on the date originally scheduled: "(T)he
district court's action is consistent with 18 U.S.C. Section 3583(e)(3)
which . . . permits a sentencing judge to . . . require the offender to
serve in prison all or part of the term of supervised release without
credit for time previously served on post-release supervision. If a
district court has that power, it certainly has the power under that
subsection to impose a less drastic sanction, namely, to require an
offender to serve part of the remaining supervised release period in
prison and the other part under supervised release.").
See Outline at VII.B.1.
U.S. v. Stinson, 943 F.2d 1268 (11th Cir. 1991) (per curiam), on
rehearing, 957 F.2d 813 (11th Cir. 1992) (per curiam) (4 GSU #19), cert.
granted, 113 S.Ct. 459 (Nov. 9, 1992). Question: "Whether a court's
failure to follow Sentencing Guidelines commentary that gives specific
direction that the offense of unlawful possession of a firearm by a
felon is not a crime of violence under U.S.S.G. Section 4B1.1, see
U.S.S.G. Section 4B1.2 comment. (n.2), constitutes an 'incorrect
application of the sentencing guidelines' under 18 U.S.C. Section
3742(f)(1)."
VOLUME 5, NUMBER 5
NOVEMBER 19, 1992
Third Circuit holds that clarifying commentary that was added after
defendant's sentencing may be considered on appeal even if it conflicts
with circuit precedent, unless it is inconsistent with the guideline.
Defendant, convicted of armed bank robbery and possession of a firearm
by a convicted felon, received a longer sentence because the sentencing
court determined that the unlawful possession offense was a "crime of
violence" under Section 4B1.2(1)(ii). At the time, the Third Circuit
held that unlawful possession could be a crime of violence and courts
could look beyond the indictment to the underlying circumstances of the
offense to make that determination. See U.S. v. John, 936 F.2d 764,
767-68 (3d Cir. 1991); U.S. v. Williams, 892 F.2d 296, 304 (3d Cir.
1989), cert. denied, 110 S.Ct. 3221 (1990). Between defendant's
sentence and appeal, however, an amendment to Section 4B1.2, comment.
(n.2) "clarifie(d) that the application of Section 4B1.2 is determined
by the offense of conviction (i.e., the conduct charged in the count of
which the defendant was convicted); (and) that the offense of unlawful
possession of a weapon is not a crime of violence." See U.S.S.G. App. C,
Amendment 433 (1991). Defendant argued that because the amendment
merely clarified the guideline, he should be resentenced.
The appellate court remanded, holding that "we may consider a new
commentary regarding an ambiguous guideline in determining how that
guideline should be applied. We further hold that a panel may consider
new commentary text where another panel of this court has already
resolved the ambiguity and that a second panel is entitled to defer to
the new commentary even when it mandates a result different from that of
the prior panel." Finding Section 4B1.2(1)(ii) was ambiguous as to
whether underlying or only charged conduct could be considered, the
court concluded that "the reading of Section 4B1.2 reflected in the new
commentary is a permissible reading of that guideline and . . . a
sentencing court should look solely to the conduct alleged in the count
of the indictment charging the offense of conviction in order to
determine whether that offense is a crime of violence."
The court also held, however, that if "the Commission adopts an
interpretive commentary amendment that the text of the guideline cannot
reasonably support, . . . we should decline to follow its lead. . . .
Therefore, to the extent the amendment in question purports to make
possession of a firearm by a felon never a crime of violence, we
conclude that the text of the guideline will not support this
interpretation. Thus, we decline to give it any effect."
Other circuits have followed the amendment, but the Eleventh Circuit
concluded that the amendment did not nullify circuit precedent that held
unlawful possession by a felon is "by its nature" a crime of violence.
See U.S. v. Stinson, 957 F.2d 813, 814-15 (11th Cir. 1992) (per curiam).
Cf. U.S. v. Saucedo, 950 F.2d 1508, 1512-17 (10th Cir. 1991) (do not
retrospectively apply clarifying amendment to commentary that conflicts
with circuit precedent and would disadvantage defendant in violation of
ex post facto clause).
U.S. v. Joshua, No. 91-3286 (3d Cir. Oct. 5, 1992) (Stapleton, J.).
See Outline at I.E and IV.B.1.b.
U.S. v. Fant, 974 F.2d 559, 562-65 (4th Cir. 1992) (Remanded: It was
"plain error" to base obstruction of justice enhancement on statements
made to probation officers where plea agreement, pursuant to Section
1B1.8(a), stated self-incriminating information provided to government
would not be used to determine the guideline range. Application Note 5
(Nov. 1, 1991), added after defendant was sentenced but "intended merely
to clarify . . . the proper operation of Section 1B1.8," indicates that
the restriction in Section 1B1.8(a) "applies to statements made to
probation officers which are later incorporated into presentencing
reports."). Accord U.S. v. Marsh, 963 F.2d 72, 73-74 (5th Cir. 1992)
(per curiam) (4 GSU #24). But cf. U.S. v. Miller, 910 F.2d 1321,
1325-26 (6th Cir. 1990) (holding, prior to addition of Note 5, that
statements to probation officer are not covered by Section 1B1.8).
See Outline at I.D.
Sixth Circuit holds that illegally seized evidence may not be
considered in sentencing under the Guidelines unless it is unrelated to
the offense of conviction. Defendant pled guilty to a 1990 drug
conspiracy charge. In determining where to sentence within the
guideline range, the district court considered evidence that was
illegally seized during a 1988 arrest on state drug charges. Defendant
appealed.
Although the appellate court affirmed on the facts of the case, it
disagreed with four other circuits by holding that "the exclusionary
rule bars a sentencing court's reliance on evidence illegally seized
during the investigation or arrest of a defendant for the crime of
conviction in determining the defendant's sentence under the Sentencing
Guidelines."
"This conclusion follows in part from the momentous changes in
sentencing wrought by the federal Sentencing Guidelines . . . (which)
have dramatically changed the calculus of costs and benefits underlying
the exclusionary rule. . . . (S)entencing has to a significant extent
replaced trial as the principal forum for establishing the existence of
certain criminal conduct. It therefore follows that excluding illegally
seized evidence from trial but permitting its use at sentencing will
result in a corresponding decrease in the deterrent effect of the
exclusionary rule on unconstitutional law-enforcement practices."
However, because defendant's 1988 state drug charges "involved
conduct unrelated to that for which Nichols was convicted in this case .
. . excluding the evidence from sentencing on the subsequent conviction
would not sufficiently further the purposes of the exclusionary rule to
justify barring its use at sentencing." The court held that, "where
evidence is illegally seized in relation to conduct that does not fall
within the relevant conduct provisions of the Sentencing Guidelines, and
the district court does not otherwise rely on the evidence in
determining the defendant's sentence, the court may consider such
evidence in determining where to sentence the defendant within the
recommended guideline range."
One judge agreeed with the result but "prefer(red) not to join in
some of the dicta that accompany the court's announcement of this
conclusion. Our disposition of this appeal makes it unnecessary to say,
for example, whether we agree or disagree with the 'broad rule' that
other Courts of Appeals have adopted with respect to the use at
sentencing of evidence inadmissible at trial."
U.S. v. Nichols, No. 91-5581 (6th Cir. Nov. 6, 1992) (Jones, J.)
(Nelson, J., concurring in part).
See Outline at IX.D.4.
U.S. v. Colletti, No. 91-5405 (3d Cir. Oct. 7, 1992) (Fullam, Sr.
Dist. J.) (Remanded: Committing perjury at trial may warrant Section
3C1.1 enhancement, but "the perjury of the defendant must not only be
clearly established, and supported by evidence other than the jury's
having disbelieved him, but also must be sufficiently far-reaching as to
impose some incremental burdens upon the government, either in
investigation or proof, which would not have been necessary but for the
perjury."). See also U.S. v. Lawrence, 972 F.2d 1580, 1581-83 (11th
Cir. 1992) (per curiam) (court must make independent finding that
defendant willfully lied at trial).
See Outline at III.C.5.
U.S. v. Hicks, No. 91-3195 (D.C. Cir. Nov. 3, 1992) (Randolph, J.)
(Remanded: Defendant was convicted on one count; the jury could not
reach a verdict on a second. At trial, defendant admitted the first
offense but denied the second. The district court refused to grant a
Section 3E1.1 reduction, holding that defendant had to accept
responsibility for the second offense -- as relevant conduct -- as well
as the offense of conviction. The appellate court, noting the split in
the circuits on this issue, stated that the Nov.1, 1992 amendment to
Section 3E1.1 "seems to resolve the confusion" by indicating that "the
Guideline requires the showing of contrition only with respect to the
offense of conviction." Note, however, that Application Note 1(a) states
that "a defendant who falsely denies . . . relevant conduct that the
court determines to be true has acted in a manner inconsistent with
acceptance of responsibility."
The court also noted: "Under U.S.S.G. Section 1B1.11, also effective
November 1, 1992, the resentencing will occur under the new version of
the Guidelines unless such application would violate the Ex Post Facto
Clause." The court cautioned that "our disposition of this case does not
mean that a defendant is entitled to resentencing anytime a relevant
Guideline is amended during the pendency of an appeal. The result here
is dictated by unique circumstances -- an amendment that appears to
render a substantial constitutional issue without future importance and
a record that does not reveal the precise basis for the district court's
ruling. We doubt that many similar cases will arise in the future.").
See Outline at I.E and III.E.3.
U.S. v. Rodriguez, 975 F.2d 999, 1009 (3d Cir. 1992) (Remanded: In
denying acceptance of responsibility reduction, district court erred by
not considering reasons why defendants refused to plead guilty to entire
indictment and went to trial. The decision to go to trial does not
prohibit the reduction, Section 3E1.1(b) and comment. (n.2), and here
the defendants appear to have had specific, valid reasons for refusing
to plead -- one was acquitted on the count he refused to plead guilty
to, the other disagreed with the amount of drugs claimed by the
government and won a lower amount on appeal.).
See Outline at III.E.4.
U.S. v. Colletti, No. 91-5405 (3d Cir. Oct. 7, 1992) (Fullam, Sr.
Dist. J.) (Remanded: Robbery defendant was not leader of criminal
activity involving five or more persons, Section 3B1.1(a), because the
fifth person "was neither 'criminally responsible for the commission of
the offense' . . . nor was he used to facilitate the criminal offense --
which was already completed" when he became involved. The fifth person
was charged with receiving the stolen goods from the robbery, but was
not and could not properly have been charged with robbery. He did not
know the robbery was to occur, assisted only after the offense by
briefly hiding the stolen goods, and did not profit from the crime.).
See Outline at III.B.2.
U.S. v. Woods, No. 92-1016 (7th Cir. Oct. 6, 1992) (Cummings, J.)
(Affirmed: District court should have followed Application Note 3 of
Section 4A1.2 and treated prior sentences as "related" under Section
4A1.2(a)(2) solely because they were consolidated for sentencing.
Although U.S. v. Elmendorf, 945 F.2d 989, 997-98 (7th Cir. 1991), cert.
denied, 112 S.Ct. 990 (1992), held that this note need not be strictly
followed, and "we still believe that treating crimes as 'related' simply
because they were consolidated for trial or sentencing is misguided,"
the Nov. 1991 additions of Section 4A1.1(f) and Application Note 6 "show
that cases that are consolidated for sentencing are meant to be
considered related." Thus, "(l)anguage in Elmendorf to the contrary
should be limited to cases arising under prior versions of the
Sentencing Guidelines." Here, however, "this error was harmless" --
although points were subtracted by treating some prior sentences as
related, enough points were added under Section 4A1.1(f) to result in
the same criminal history category and sentencing range.).
See Outline at IV.A.1.c and X.D.
U.S. v. Bailey, 975 F.2d 1028, 1030-31 (4th Cir. 1992) (Remanded:
For loss computation in completed fraud, it was improper to include
projected profits defrauded investors would have earned on their
investments -- only the "out-of-pocket funds actually taken" by
defendant are included. Use of "probable or intended loss" under
Section 2F1.1, comment. (n.7), is limited to attempt crimes.).
See Outline at II.D.2.
Vacated Pending Rehearing En Banc:
U.S. v. Lambert, 963 F.2d 711 (5th Cir. 1992). Please delete the
reference to Lambert in the Outline at VI.A.3.
VOLUME 5, NUMBER 4
OCTOBER 21, 1992
NInth Circuit holds district court erred in finding defendant's
childhood abuse was not "extraordinary." Defendant pled guilty to bank
robbery. The district court determined that the Guidelines covered the
effects of childhood abuse in Section 5H1.3, p.s., and that defendant's
history of abuse, although "shocking," was not so extraordinary as to
warrant downward departure.
The appellate court agreed that Section 5H1.3 covers "the
psychological effects of childhood abuse" and thus departure was
warranted only in extraordinary circumstances. Accord U.S. v. Vela, 927
F.2d 197, 199 (5th Cir.), cert. denied, 112 S.Ct. 214 (1991). However,
the court reversed because it was clear error to hold that defendant's
circumstances were not extraordinary. The court found that defendant
was severely abused in childhood and after, over a period of fifteen
years. Several medical experts examined defendant and "(e)ach agreed
that her history of abuse was exceptional. . . . (One) reported that
West's abuse was so severe she had become 'virtually a mindless
puppet.'" The court remanded and also suggested that, because
defendant's history indicated the lack of any "meaningful guidance"
during her childhood, the district court consider whether departure was
warranted under U.S. v. Floyd, 942 F.2d 1096, 1099-1102 (9th Cir. 1991)
(affirmed departure based on defendant's "youthful lack of guidance") (4
GSU #10). Cf. U.S. v. Lopez, 938 F.2d 1293, 1298 (D.C. Cir. 1991)
(Section 5H1.10, p.s., does not preclude consideration of defendant's
tragic personal history) (4 GSU #5); U.S. v. Diegert, 916 F.2d 916,
918-19 (4th Cir. 1990) (district court has discretion to determine
whether defendant's "tragic personal background and family history" is
"extraordinary" and warrants departure). Note: A new policy statement
at Section 5H1.12, effective Nov. 1, 1992, states that "lack of guidance
as a youth and similar circumstances indicating a disadvantaged
upbringing are not relevant grounds" for departure.
U.S. v. West, No. 91-30085 (9th Cir. Sept. 18, 1992) (Thompson, J.).
See Outline at VI.C.1.b and h.
In two cases, Second Circuit holds that drug rehabilitation efforts
or "extraordinary acceptance of responsibility" may warrant downward
departure. In one case, defendant pled guilty to heroin distribution.
Sentencing was postponed over a year to allow her to pursue drug
rehabilitation. The guideline range was 51-63 months, but the district
court concluded that defendant's rehabilitation efforts, and her need
for further treatment, warranted departure to a four-year term of
probation that included mandatory drug treatment.
The appellate court affirmed. Noting that the circuits are split as
to whether drug rehabilitation efforts may warrant downward departure
(see Outline at VI.C.2.a and b), the court concluded "that the position
opposed to rehabilitation-based departures is not persuasive. In the
first place, this position rests in large part on the view . . . that
'rehabilitation is no longer a direct goal of sentencing.' . . . That
view is simply mistaken. . . . 28 U.S.C. 994(k) stands for the
significantly different proposition that rehabilitation is not an
appropriate ground for imprisonment. . . . Since rehabilitation may not
be a basis for incarceration but must be considered as a basis for a
sentence (under 18 U.S.C. Section 3553(a)(2)(D)), Congress must have
anticipated that sentencing judges would use their authority, in
appropriate cases, to place a defendant on probation in order to enable
him to obtain 'needed . . . medical care, or other correctional
treatment in the most effective manner.'"
The court disagreed that the Sentencing Commission "adequately
considered" drug rehabilitation. "The Commission concluded that drug
dependence is not a reason for a downward departure. U.S.S.G. 5H1.4.
Whether or not that flat assertion is 'adequate' consideration of the
factor it 'considers' -- drug dependence, it is surely not any
consideration . . . of . . . defendant's efforts to end her drug
dependence through rehabilitation." The court also rejected the argument
that Section 3E1.1 adequately covers drug rehabilitation. "(T)he
conduct that indicates acceptance of responsibility 'for (a defendant's)
criminal conduct' must relate directly to the offense. To permit
section 3E1.1 to serve as the Commission's adequate consideration of all
mitigating 'post-offense conduct,' . . . thereby precluding departures
regardless of anything constructive that the defendant might do after
his arrest that benefits himself, his family, or his community,
undermines the statutory standard for departure, 18 U.S.C. Section
3553(b), as well as the statutory requirement to consider the
'characteristics of the defendant,' id. Section 3553(a)(1)." Note: An
amendment to the commentary for Section 3E1.1, effective Nov. 1, 1992,
adds "post-rehabilitative efforts (e.g., counseling or drug treatment)"
as a factor demonstrating acceptance of responsibility.
The court cautioned that rehabilitation programs, "easily entered but
difficult to sustain, cannot be permitted to become an automatic ground
for obtaining a downward departure." In this case, however, the district
court "conscientiously examined all of the pertinent circumstances" and
appropriately concluded departure was warranted.
U.S. v. Maier, No. 92-1143 (2d Cir. Sept. 23, 1992) (Newman, J.).
In the other case, defendant robbed a bank while under the influence
of crack. The next day he voluntarily surrendered and confessed,
explaining that his previous attempts at drug rehabilitation had failed
and he hoped to get help in prison. The district court held it had no
authority to depart downward for these actions.
The appellate court remanded, holding "extraordinary acceptance of
responsibility" may be grounds for departure. "We find nothing in the
Guidelines which contemplates a defendant like Rogers, who, emerging
from a drug-induced state and realizing his wrongdoing, turns himself
over to the police and confesses. . . . (C)onduct such as this raises a
colorable basis for a downward departure." See Outline at VI.C.2.a and
4.
The appellate court also held that defendant's career offender status
did not bar departure. "(T)here is nothing unique to career offender
status which would strip a sentencing court of its 'sensible
flexibility' in considering departures. . . . If a career offender is
eligible for departure based on past conduct, which is the basis for his
status as a career offender, we can see no reason why he should not be
similarly eligible for a departure based on present conduct, which is
the basis for his conviction and sentence." Some circuits have held that
departure for career offenders is permissible when the criminal history
category overrepresents the seriousness of past conduct. See Outline at
VI.A.2.
U.S. v. Rogers, 972 F.2d 489 (2d Cir. 1992).
U.S. v. Slater, 971 F.2d 626, 634-35 (10th Cir. 1992) (per curiam)
(Remanded: District court erred in holding that departure under Section
5H1.4, p.s., is limited to physical impairments so severe as to warrant
a non-custodial sentence. An impairment may be "extraordinary" yet
warrant only a reduction in, not elimination of, the term of
imprisonment.). Accord U.S. v. Hilton, 946 F.2d 955, 958 (1st Cir.
1991); U.S. v. Ghannam, 899 F.2d 327, 329 (4th Cir. 1990).
See generally Outline at VI.C.1.
U.S. v. Wint, No. 91-3831 (8th Cir. Aug. 28, 1992) (Wollman, J.)
(Affirmed four-level upward departure for defendants -- convicted of
drug offenses and threatening a witness -- for making death threats
against a codefendant and his family to influence his testimony.
Although the obstruction enhancement in Section C1.1 covers threats
against witnesses, it does not adequately address "the nature of
(defendants') conduct. Here, the threats were of death, not simply
physical injury. The threats were ongoing and apparently sincere. . . .
The targets of the threats included not only (the codefendant), but
also innocent third parties. . . . Finally, the threats occurred while
(the codefendant) was incarcerated, unable to protect his family or even
free to flee himself."). See also U.S. v. Baez, 944 F.2d 88, 90 (2d
Cir. 1991) (affirmed departure for abducting and threatening to kill
informant); U.S. v. Wade, 931 F.2d 300, 306 (5th Cir.) (affirmed
departure made partly on basis that defendant had coconspirator threaten
and shoot at person), cert. denied, 112 S.Ct. 247 (1991); U.S. v. Drew,
894 F.2d 965, 974 (8th Cir.) (affirmed departure for attempt to murder
witness), cert. denied, 110 S.Ct. 1830 (1990) (3 GSU #2). See Outline
at VI.B.1.
En banc Sixth Circuit affirms that Confrontation Clause does not
apply at sentencing. In three cases consolidated for appeal,
defendants' sentences were increased for drug amounts in relevant
conduct that were proved by hearsay testimony. The en banc court
affirmed and rejected defendants' claims that the Confrontation Clause
precluded the use of hearsay testimony at sentencing: "(C)onfrontation
rights do not apply in sentencing hearings. . . . When defendants have
pleaded guilty . . . sentencing does not mandate confrontation and
cross-examination on information submitted to the court through the
presentence reports and law enforcement sources. Following the mandates
of Fed.R.Crim.P. 32 is constitutionally sufficient because they are
fundamentally fair and afford the defendant adequate due process
protections." Accord U.S. v. Wise, -- F.2d -- (8th Cir. Sept. 17, 1992)
(en banc) (5 GSU #3). See Outline at IX.D.1.
The court also noted that "(i)t is the law that even illegally
obtained or other inadmissible evidence may be considered by the
sentencing judge unlike at a trial involving guilt or innocence." Other
circuits agree. See Outline at IX.D.4.
U.S. v. Silverman, No. 90-3205 (6th Cir. Sept. 22, 1992) (en banc)
(Wellford, Sr. J.) (Merritt, C. J., Keith, Jones, and Martin, JJ.,
dissenting).
U.S. v. Rodriguez, No. 91-5455 (3d Cir. Sept. 18, 1992) (Roth, J.)
(Remanded: Court joined four other circuits in holding unusable
ingredients should not be included as part of drug "mixture" under Note
* in Section 2D1.1(c). Defendants conspired to sell three one-kilogram
packages of cocaine, which actually consisted of compressed boric acid
with a small amount of cocaine (65.1 grams total) carefully wrapped
around the boric acid to fool buyers. Distinguishing Chapman v. U.S.,
111 S.Ct. 1919 (1991) (4 GSU #4), the court held that defendants should
not have been sentenced on the total weight: "Chapman concerned a true
mixture," whereas "the cocaine here was not mixed in among the particles
of boric acid." Furthermore, "the compressed boric acid was not used
either as a cutting agent or routine transport medium for the cocaine
such that its proximity to the cocaine here would constitute a 'mixture'
as Chapman elucidates that term."
The court also rejected the government's argument that "the object of
the conspiracy was three kilograms of cocaine," finding "that the
government produced no evidence of availability to the defendants of
three kilograms of cocaine and that the district court made no finding
that a higher guideline range was justified by any ability of defendants
to deliver in fact three kilograms of cocaine to the proposed
purchasers" as is required under Section 2D1.4, comment. (n.1).).
See Outline at II.B.1 and 3.
U.S. v. Koehler, No. 91-1585 (2d Cir. Aug. 21, 1992) (Mahoney, J.)
(Remanded: Error to reimpose supervised release term after it was
revoked and a sentence of imprisonment was imposed. Once a term of
supervised release has been revoked under 18 U.S.C. Section 3583(e)(3),
"there is nothing left to extend, modify, reduce, or enlarge under
Section 3583(e)(2).").
U.S. v. Bermudez, No. 92-1236 (2d Cir. Sept. 1, 1992) (per curiam)
(Remanded: After revocation of supervised release for defendant who was
originally sentenced before the Guidelines became effective but after
supervised release went into effect, district court should still
consider Guidelines Chapter 7 when resentencing. "It seems clear that a
violation of supervised release is, for this purpose, a separate
'offense' from the crime that led to the initial imprisonment. . . .
Revocation or modification of supervised release is authorized by 18
U.S.C. Section 3583(e), which requires the court to consider certain
factors set forth in Section 3553(a), including '. . . the guidelines
that are in effect on the date the defendant is sentenced' and 'any
pertinent policy statement. . . .' Thus, on remand, the current
Guidelines should be consulted in resentencing Bermudez." The court
noted that, although courts should "take the (Chapter 7) policy
statements into account when sentencing for a violation of supervised
release," the statements "are advisory rather than mandatory.'"
See Outline at VII.B.1.
VOLUME 5, NUMBER 3
SEPTEMBER 29, 1992
En banc Eighth Circuit reissues Galloway, holds relevant conduct
provision is authorized by statute and is constitutional. Defendant
pled guilty to one count of theft from interstate shipment. The PSR
included seven similar but uncharged offenses as relevant conduct, which
roughly tripled the guideline range. The district court held that use
of the uncharged conduct would violate the Fifth and Sixth Amendments
and did not consider it in sentencing defendant. An appellate panel
affirmed, but did not address the constitutional issues. Instead, it
held that the sentencing statute did not authorize the Sentencing
Commission to promulgate the relevant conduct provisions of Section
1B1.3(a)(2) to encompass separate uncharged property crimes. U.S. v.
Galloway, 943 F.2d 897 (8th Cir. 1991) (4 GSU #8).
The en banc court reversed and remanded for resentencing. The court
first determined that statutory authority exists for adoption of a
relevant conduct guideline that includes uncharged conduct: "(T)he
reference to 'circumstances . . . which . . . aggravate the seriousness
of the offense,' 28 U.S.C. 994(c)(2), is direct language showing clear
intent . . . to support enactment of . . . Section 1B1.3(a)(2). Even if
it is not so clear, we have no doubt that, taken with the more general
language in section 994(c) and 18 U.S.C. Section 3553(a)(2) and Section
3661, there is sufficient and permissible statutory underpinning to
support section 1B1.3(a)(2) and its required consideration of all 'acts
and omissions that were part of the same course of conduct or common
scheme or plan as the offense of conviction.'" The court noted that
"(t)hree other circuits have concluded that statutory authority exists
for enacting a relevant conduct guideline." See U.S. v. Davern, 970 F.2d
1490 (6th Cir. 1992) (en banc); U.S. v. Thomas, 932 F.2d 1085, 1089
(5th Cir.), cert. denied, 112 S.Ct. 264 (1991); U.S. v. Ebbole, 917
F.2d 1495, 1501 (7th Cir. 1990).
As to the constitutional issues, the court held that "section 1B1.3,
as applied here, does not transgress the limits of due process. Because
a defendant's uncharged crimes are treated as sentencing factors, the
rights to indictment, jury trial, and proof beyond a reasonable doubt
simply do not come into play. McMillan (v. Pennsylvania, 477 U.S. 79
(1986)) explicitly rejected the argument that the sentencing phase
requires a more stringent standard of proof than a preponderance of
evidence . . . . Our conclusion . . . is further bolstered by the
opinions of the Third, Seventh, and Ninth Circuits in U.S. v. Mobley,
956 F.2d 450 (3d Cir. 1992), Ebbole and" U.S. v. Restrepo, 946 F.2d 654
(9th Cir. 1991) (en banc), cert. denied, 112 S.Ct. 1564 (1992). "All
three of these decisions rest on an interpretation of McMillan, and all
conclude that a sharp distinction exists between conviction and
sentencing." The court stated that "due process may be violated if the
punishment meted out following application of the sentencing factors
overwhelms or is extremely disproportionate to the punishment that would
otherwise be imposed," but held that the increase here was not "so
extreme or overwhelming as to raise due process concerns."
The court concluded by noting that while the Guidelines "certainly
channel the court's discretion in sentencing, . . . significant
responsibility . . . remains with the district judge. . . . When
uncharged conduct is alleged as relevant conduct to substantially
increase the sentencing range, district judges are authorized to require
the United States Attorney to undertake the burden of presenting
evidence to prove that conduct. In the final analysis, the
determination of what is relevant conduct is a factual question to be
decided by the district judge."
U.S. v. Galloway, No. 90-3034 (8th Cir. Sept. 17, 1992) (en banc)
(Gibson, J.) (Arnold, C.J., Beam and McMillian, JJ., Lay and Bright, Sr.
JJ., dissenting).
See Outline generally at I.A.
U.S. v. Jones, No. 91-3025 (D.C. Cir. Aug. 14, 1992) (Williams, J.)
(Mikva, C.J., dissenting) (Affirmed: District court may impose higher
sentence within guideline range because defendant elected to go to trial
instead of pleading guilty. The government refused to plea bargain,
defendant was convicted at trial and, after receiving a reduction for
acceptance of responsibility, had a guideline range of 121-151 months.
The court imposed a sentence of 127 months, stating that it would have
imposed the minimum had defendant pled guilty. The appellate court held
that sentencing courts have authority "to consider the institutional
value of guilty pleas as an explicit, independent basis of sentence
adjustment.").
See Outline at I.C.
Third Circuit holds that Section 5E1.2(i) cost of imprisonment fine
is not authorized by Sentencing Reform Act. Defendant pled guilty to
bribery offenses. At sentencing the district court imposed a fine for
the cost of defendant's imprisonment under Section 5E1.2(i) (". . . the
court shall impose an additional fine that is at least sufficient to pay
the costs to the government of any imprisonment . . . "). Defendant
claimed the fine was not authorized by statute and was unconstitutional.
The appellate court agreed that Section 5E1.2(i) is invalid because
it is not authorized by statute: "(T)he Act does not authorize the
assessment of a fine to pay for the costs of a defendant's imprisonment.
Certainly, there is no specific reference in the statute to recouping
the costs of imprisonment as an appropriate goal of sentencing. Nor do
we believe that assessing fines for that purpose is subsumed within the
more general provisions of the Act." The court rejected the government's
argument that the fines, which actually go to victim compensation via
the Crime Victims Fund, are justified as restitution: "On its very
face, the guideline states that the costs will be paid to the government
in an amount based on the costs of imprisonment. It stretches credulity
to assume that the 'purpose' of this fine is other than to compensate
the government . . . for the costs it incurs for incarcerating a
defendant." The court thus did not have to determine whether the fine
violates due process, but noted that "if the guideline is a method for
assessing restitution, it runs the risk of being irrational."
The Fifth and Tenth Circuits have upheld Section 5E1.2(i). See
Outline at V.E. 2 and generally at XI.B.
U.S. v. Spiropoulos, No. 91-6058 (3d Cir. Sept. 25, 1992) (Becker,
J.).
En banc Eighth Circuit holds that Confrontation Clause does not apply
to sentencing hearing. Defendant's offense level was increased for
being an organizer, Section 3B1.1(a), on the basis of hearsay testimony.
In U.S. v. Wise, 923 F.2d 86 (8th Cir. 1991), the original appellate
panel reversed the sentence because the district court had not
undertaken the Confrontation Clause analysis required by U.S. v.
Streeter, 907 F.2d 781, 792 (8th Cir. 1990). Because Streeter
"conflicts with previous decisions of this court," the en banc court
addressed "what we assumed in Streeter, that is, whether sentencing
under the Guidelines is so different from previous practice that the
Confrontation Clause should apply to evidence introduced at sentencing
proceedings."
The court concluded that, while the Guidelines have "wrought
substantial changes in federal sentencing procedures, . . . the sharp
distinction between conviction and sentencing that antedated the
Guidelines still exists." Alluding to Galloway, supra, the court stated
that "(j)ust as increasing a defendant's sentence on the basis of
relevant conduct does not constitute a conviction for a separate
offense, so also establishing a defendant's role in the offense on which
he has been convicted does not constitute a criminal prosecution within
the meaning of the Confrontation Clause. . . . The right to confront
witnesses, therefore, does not attach. . . . We therefore overrule our
holdings to the contrary in" Streeter and U.S. v. Fortier, 911 F.2d 100
(8th Cir. 1990) (3 GSU #12).
As in Galloway, the court recognized "that in certain instances a
sentence may so overwhelm or be so disproportionate to the punishment
that would otherwise be imposed absent the sentencing factors mandated
by the Guidelines that due process concerns must be addressed." In this
case, however, the increase based on the hearsay approximately doubled
the sentencing range (to 37-46 months), which was "less than that which
Galloway held did not trigger due process concerns."
The court also endorsed the Guideline's "standard for the
consideration of hearsay testimony at sentencing" as set forth in
Section 6A1.3, p.s. and the commentary. The parties must have the
opportunity to present information on any disputed factor and any
information used must have "sufficient indicia of reliability to support
its probable accuracy. . . . Unreliable allegations shall not be
considered."
U.S. v. Wise, No. 90-1070 (8th Cir. Sept. 17, 1992) (en banc)
(Wollman, J.) (Arnold, C.J., Lay, Sr. J., and McMillan, J., dissenting).
See Outline at IX.D.1.
Third Circuit outlines principles for "accomplice attribution" of
drug quantities. Defendants were convicted on one count of conspiracy
to distribute heroin and six telephone counts. The sentencing court
attributed to both defendants drug amounts distributed by the conspiracy
before they joined it and amounts supplied to the conspiracy by other
conspirators. It also attributed to one defendant amounts supplied by
the other. The appellate court remanded, holding that while the latter
attribution was supported by the evidence, it could not determine from
the record whether the other attributions were appropriate. The court
also set forth "general principles for determining relevant conduct" in
cases of "accomplice attribution" under Section 1B1.3(a)(1).
Noting that early cases had often "interpreted the relevant conduct
provision very broadly," the court determined that the 1989 amendment to
application note 1 of Section 1B1.3 "makes clear that the standard for
accomplice attribution is significantly more stringent. . . . (R)ather
than evaluating accomplice attribution in light of the scope of the
conspiracy as described in the count of conviction and the defendant's
awareness of the possibility that co-conspirators would distribute
amounts in addition to those amounts distributed by the defendant,
courts should look to the defendant's role in the conspiracy. . . .
(W)hile it is appropriate to hold a defendant who exhibits a substantial
degree of involvement in the conspiracy accountable for reasonably
foreseeable acts committed by a co-conspirator, the same cannot be said
for a defendant whose involvement was much more limited." The court
noted that illustration e in the commentary to Section 1B1.3 "confirms
our view that the crucial factor in accomplice attribution is the extent
of the defendant's involvement in the conspiracy." The court emphasized
that "in deciding whether accomplice attribution is appropriate, it is
not enough to merely determine that the defendant's criminal activity
was substantial. Rather, a searching and individualized inquiry into
the circumstances surrounding each defendant's involvement in the
conspiracy is critical to ensure that the defendant's sentence
accurately reflects his or her role."
As to amounts distributed before the defendants entered the
conspiracy, "the relevant conduct provision is not coextensive with
conspiracy law. . . . In the absence of unusual circumstances, not
present here, conduct that occurred before the defendant entered into an
agreement cannot be said to be in furtherance of or within the scope of"
the activity that the defendant agreed to undertake.
U.S. v. Collado, No. 91-1492 (3d Cir. Sept. 16, 1992) (Becker, J.).
See Outline at II.A.2.
U.S. v. Spiropoulos, No. 91-6058 (3d Cir. Sept. 25, 1992) (Becker,
J.) (Affirmed: District court could limit extent of Section 5K1.1, p.s.
departure on the ground that defendant's cooperation, through no fault
of his own (target of investigation died), was not valuable. Section
5K1.1 "makes crystal clear that . . . a court should examine the
'usefulness' of the defendant's cooperation. . . . (I)t was consistent
with the (Sentencing Reform) Act and the Guidelines for the district
court to temper the extent of its downward departure because the
defendant's cooperation proved unhelpful to the government." The court
emphasized, however, "that cooperation need not result in a prosecution
or conviction to justify a large downward departure. In some cases,
assistance to an investigation may be sufficient in and of itself. The
critical point is that the Guidelines preserve the discretion of the
district court with respect to the extent of section 5K1.1 departures."
The court also noted, that, once a Section 5K1.1 motion is filed, "the
government cannot dictate the extent to which the court will depart.").
See Outline at VI.F.2 and 3.
Volume 5, Number 2
September 17, 1992
Note to readers: The revised Guideline Sentencing: An Outline of
Appellate Case Law on Selected Issues has been mailed to all GSU
recipients. You should receive a copy this week or next. Beginning
with this issue of the Update, we will refer to relevant Outline
sections in the case summaries.
En banc Ninth Circuit joins other circuits in holding that counts
dismissed as part of plea bargain should be considered for relevant
conduct in setting offense level. Defendant was indicted on fourteen
counts relating to mail fraud. He pled guilty to two counts and the
others were dismissed as part of the plea agreement. The district court
included the loss from some dismissed counts in setting the offense
level. In U.S. v. Fine, 946 F.2d 650 (9th Cir. 1991), the original
appellate panel reversed, basing its holding on U.S. v.
Castro-Cervantes, 927 F.2d 107 (9th Cir. 1990) (counts dismissed as part
of plea bargain may not be used for departure).
The en banc court withdrew that part of the panel's opinion and
affirmed the use of the dismissed counts. "The guidelines, interpreted
in light of the application notes, are unambiguous. The fraud section
of the guidelines says . . . that '(t)he cumulative loss produced by a
common scheme or course of conduct should be used in determining the
offense level, regardless of the number of counts of conviction.'
U.S.S.G. Section 2F1.1, comment. (n.6). . . . The relevant conduct
guideline . . . controls whether the dismissed counts should be used to
measure the amount of loss. . . . The application note explicitly
provides that 'multiple convictions are not required' for acts to be
counted. . . .' U.S.S.G. Section 1B1.3, comment. (n.2) . . . The
relevant conduct provisions . . ., taken together with the fraud and
grouping provisions, mean that conduct which was part of the scheme is
counted, even though the defendant was not convicted of crimes based
upon the related conduct."
The court stated this holding did not conflict with Castro-Cervantes
or U.S. v. Faulkner, 952 F.2d 1066 (9th Cir. 1991). "Both cases involve
departures and non-groupable offenses, so they are distinguishable from
cases involving groupable offenses and no departure. . . . In
Castro-Cervantes, we recognized an implicit assurance that if the court
accepted a plea bargain, then it would not depart upward from the
sentence provided for by the Guidelines. The reasonable expectation
upheld by Castro-Cervantes, of a sentence in accord with the Guidelines,
was honored by the sentence imposed on Fine."
U.S. v. Fine, No. 90-50280 (9th Cir. Sept. 14, 1992) (Kleinfeld, J.)
(en banc).
See Outline at II.D.4 and IX.A.1.
Ninth Circuit holds district court has authority to review sua sponte
government's decision not to file a substantial assistance motion and
may depart, but remands for more specific findings. Defendants pled
guilty to possession of heroin with intent to distribute, and each faced
a range of 97-121 months and a ten-year mandatory minimum. They made
several attempts to assist the government, but none of their information
was confirmable or useful. The plea agreement did not require the
government to move for departure under 18 U.S.C. Section 3553(e) or
Section 5K1.1, p.s., and it did not do so. At the sentencing hearing
the district court, on its own motion, continued sentencing, stated it
would not sentence defendants to ten years, and ordered the government
to "work something out." Later, though the government had not filed a
motion, the court imposed 72-month sentences, stating departure was
warranted because "factors that are being considered here are ones that
are violative of due process and equal protection," and found that the
government abused its discretion.
The appellate court remanded. It noted that in Wade v. U.S., 112
S.Ct. 1840 (1992) (4 GSU #22), the Court stated that "a prosecutor's
discretion (under Sections 3553(e) and 5K1.1) is subject to
constitutional limitations that district courts can enforce.'. . .
Thus, a district court can review a prosecutor's refusal to file a
substantial assistance motion and grant relief if the court finds that
the refusal was based upon an unconstitutional motive . . . or upon due
process grounds that the refusal was not rationally related to any
legitimate state objective."
"Generally, a defendant has no right to discovery, to an evidentiary
hearing, or to a remedy unless she makes a substantial threshold showing
with specific allegations of the improper reasons for the prosecutor's
failure to move for departure. No evidence that the Government refused
to move for departure because of suspect reasons, or reasons not
rationally related to any legitimate government end, was presented by
(defendants). However, the supervisory powers of the court provide the
authority to raise sua sponte matters that may affect the rights of
criminal defendants. . . . That Judge Hatter raised the issue of
whether departure would be appropriate was not error. Here, unlike the
record in Wade, there is some indication of an unconstitutional basis
for the Government's refusal to move for a downward departure as well as
evidence of the defendants' assistance. . . . However, the precise
nature of the constitutional violations noticed by the district court is
unclear." Thus, remand is required for the district court to "clarify
the legal basis of its sentencing decision (and) make such findings as .
. . Wade requires."
U.S. v. Delgado-Cardenas, No. 91-50253 (9th Cir. Sept. 3, 1992) (Hug,
J.).
See Outline at VI.F.1.b.iii.
U.S. v. Mittelstadt, 969 F.2d 335 (7th Cir. 1992) (Appeal dismissed:
Court recognized that it would have been improper to delay ruling on
Section 5K1.1, p.s. motion in order to later assess defendant's
cooperation at a Rule 35(b) proceeding, but held the transcript showed
that the district court had in fact ruled on the motion at sentencing
and refused to depart. "As is plain from the text of Rule 35(b) (which
allows a reduction of sentence only 'to reflect a defendant's
subsequent, substantial assistance'), and has been held by several
courts, the rule is designed to recognize assistance rendered after the
defendant is sentenced. . . . It is not a substitute for section
5K1.1.").
See Outline at VI.F.3.
U.S. v. Lockyer, 966 F.2d 1390, 1391-92 (11th Cir. 1992) (per curiam)
(Affirmed: Downward departure for "substantial assistance to the
judiciary" was not warranted for defendant who pled guilty at initial
appearance and waived pretrial motions. The court distinguished U.S. v.
Garcia, 926 F.2d 125, 127-28 (2d Cir. 1991) (affirmed downward departure
for assistance to judiciary that "broke the log jam in a multi-defendant
case") (3 GSU #20), holding that "to apply the Garcia reasoning to this
case, which involves a single defendant who has pleaded guilty to a
crime that he alone committed, would rob 'acceptance of responsibility'
of substance and render it meaningless.").
See Outline at VI.F.1.b.i.
U.S. v. Lghodaro, 967 F.2d 1028 (5th Cir. 1992) (per curiam)
(Affirmed: Where codefendant's conduct is "part of the joint scheme or
plan which (defendant) aided and abetted," amount of loss attributable
to codefendant is also attributable to defendant, Section 1B1.3(a)(1).
Also, it is proper to use intended loss rather than actual loss, even
though actual loss is easily calculated, Section 2F1.1, comment.
(n.7).).
See Outline at II.D.1 and 2.
U.S. v. Doherty, 969 F.2d 425 (7th Cir. 1992) (Remanded: District
court committed clear error in declining to consider whether "(d)rafting
40 overdue checks during a single month, few if any of which appear to
have been purely opportune," constituted "repeated acts over a period of
time," Section 1B1.1, comment. (n.1(f)), thereby warranting more than
minimal planning enhancement.). Cf. U.S. v. Williams, 966 F.2d 555,
558-59 (10th Cir. 1992) ("more than minimal planning is deemed present
in any case involving repeated acts over a period of time") (4 GSU #24).
See Outline at II.E.
U.S. v. Romano, No. 91-1999 (6th Cir. July 16, 1992) (Merritt, C.J.)
(Siler, J., dissenting) (Remanded: Error to apply enhancements both for
leadership role under Section 3B1.1(a) and for more than minimal
planning. "(I)f certain conduct is used to enhance a defendant's
sentence under one enhancement provison, the defendant should not be
penalized for that same conduct again under a separate provision whether
or not the Guidelines expressly prohibit taking the same conduct into
consideration under two separate provisions. . . . We are persuaded
that Section 3B1.1(a) already takes into account the conduct penalized
in Section 2F1.1(b)(2) because, by its very nature, being an organizer
or leader of more than five persons necessitates more than minimal
planning."). But cf. U.S. v. Curtis, 934 F.2d 553, 556 (4th Cir. 1991)
(not double-counting); U.S. v. Boula, 932 F.2d 651, 654-55 (7th Cir.
1991) (same).
See Outline at II.E and III.B.6.
U.S. v. Lanni, No. 91-1597 (2d Cir. July 24, 1992) (Meskill, J.)
(Remanded: "(B)ecause 'the scope of conduct for which a defendant can
be held accountable under the Sentencing Guidelines is significantly
narrower than the conduct embraced by the law of conspiracy,' . . . a
sentencing judge may not, without further findings, simply sentence a
defendant according to the amount of narcotics involved in the
conspiracy. It is essential that a sentencing judge in a narcotics
conspiracy make findings of fact regarding the amount of narcotics
reasonably foreseeable by each defendant.").
See Outline at II.A.2.
U.S. v. Belletiere, No. 91-5615 (3d Cir. July 22, 1992) (Hutchinson,
J.) (Remanded: Clear error to find defendant was organizer or leader,
Section 3B1.1(a), where he "made a series of unrelated drug sales" to
six people, none of whom were "'led' or 'organized' by, nor 'answerable'
to, the defendant. . . . Where an individual is convicted of a series
of solitary, non-related crimes, such as a series of drug sales by one
drug seller to various buyers, and there is no 'organization' or
'scheme' between the drug seller and buyers, or between the buyers
themselves, that the defendant could be said to have 'led' or
'organized,' section 3B1.1 cannot apply."). Accord U.S. v. Reid, 911
F.2d 1456, 1465 (10th Cir. 1990), cert. denied, 111 S.Ct. 990 (1991).
See Outline at III.B.2.
U.S. v. Belletiere, No. 91-5615 (3d Cir. July 22, 1992) (Hutchinson,
J.) (Remanded: Clear error to find drug defendant attempted to obstruct
justice by transferring his interest in marital property to estranged
wife as part of separation agreement. Section 3C1.1 requires
willfulness, and there was no indication defendant transferred property
to try to avoid forfeiture. Also, fact that defendant tested positive
for drugs after telling probation officer he did not use them was not
proper basis for Section 3C1.1 enhancement: "The commentary to section
3C1.1 makes it clear that the section's focus is on willful acts or
statements intended to obstruct or impede the government's investigation
of the offense at issue. . . . Belletiere's misstatement had nothing to
do with the offenses for which he was convicted. Furthermore, (it) was
not material to the probation officer's investigation in this particular
case."). See also U.S. v. Yates, No. 91-1778 (1st Cir. Aug. 13, 1992)
(Campbell, Sr. J.) (error to give Section 3C1.1 enhancement to defendant
who gave false name and thereby hindered investigation of charge that
was dropped but not offense of conviction).
See Outline at III.C.1 and 4.
U.S. v. Ashers, 968 F.2d 411 (4th Cir. 1992) (Affirmed: "(P)roviding
a falsified voice exemplar to an expert witness for the purpose of
inducing him to testify that it was unlikely that it was Ashers' voice
on an incriminating tape recording is encompassed within the obstruction
of justice guideline." The district court also cited an improper ground
for the enhancement, but the appellate court held remand was not
required because there was a valid ground. The court noted that
Williams v. U.S., 112 S.Ct. 1112, 1118-19 (1992) (4 GSU #17), which held
that remand is not required for a departure based on both valid and
invalid factors if the same sentence would have been properly imposed
absent the invalid factor, need not be applied because departures and
enhancements "are fundamentally different under Guidelines
jurisprudence," and thus Williams "is not applicable . . . when an
appellate court is called upon to review a . . . decision to apply an
enhancement to the offense level on alternative grounds.").
VOLUME 5, NUMBER 1
AUGUST 26, 1992
Sixth Circuit reissues Davern after rehearing en banc, finds that
"the Guidelines are a sentencing imperative." The original panel had
held that a district court should determine "at the outset of the
sentencing process" whether there were aggravating or mitigating
circumstances. If so, the court should then follow the statute, 18
U.S.C. Section 3553, not the Guidelines, in sentencing defendant. See 4
GSU #6.
The en banc court held that a district court "must first determine a
guideline sentence," which "is mandatory," and then may depart only if
"there exists an aggravating or mitigating circumstance of a kind, or to
a degree, not adequately taken into consideration by the Sentencing
Commission." 18 U.S.C. Section 3553(b). In addition, a court does not
have discretion to disregard the Guidelines if it considers the
guideline sentence "greater than necessary to comply" with the purposes
of sentencing in 18 U.S.C. Section 3553(a). The court also held that
the Guidelines accounted for a defendant who attempted to purchase 500
grams of cocaine but who received only 85 grams. The district court
properly sentenced defendant based on 500 grams.
U.S. v. Davern, No. 90-3681 (6th Cir. July 21, 1992) (en banc)
(Kennedy, J.) (Merritt, C.J., and Keith, Martin, Jones, JJ.,
dissenting), superseding 937 F.2d 1041 (6th Cir. 1991).
Third Circuit affirms departure for "unusual degree" of acceptance of
responsibility and for "inappropriate manipulation of the indictment."
Defendant pled guilty to one count each of bank embezzlement and
attempted income tax evasion. The sentencing court departed downward
for two reasons. First, it reduced the offense level by one because
defendant's acceptance of responsibility was unusual. The court stated
that defendant "affirmatively c(a)me forward, as soon as he was
confronted and started making restitution. Admitted the full amount
that he thought was owed, but indeed, has even agreed to a larger amount
that the bank has asserted, including interest. He has done everything
conceivable. Voluntary and truthful admission to the authorities. I
don't know anything more that he could do. . . ." Defendant also showed
bank officials how to detect improper transactions in the accounts he
had embezzled.
Second, the court departed downward two levels because it could not
group the embezzlement and tax evasion charges under Section 3D1.2. The
court explained that it had never seen a defendant charged both with
embezzlement and with tax evasion for the same embezzled sums, and noted
that "the result . . . is unusual and disparate and constitutes, albeit,
not in bad faith, an inappropriate manipulation of the indictment, which
the Sentencing Commission asserts that I can control through the use of
departure power."
The appellate court affirmed, first holding that "a sentencing court
may depart downward when the circumstances of a case demonstrate a
degree of acceptance of responsibility that is substantially in excess
of that ordinarily present. . . . (W)e believe that Lieberman's
post-offense ameliorative conduct adequately justified the district
court's decision." Cf. U.S. v. Garlich, 951 F.2d 161, 163 (8th Cir.
1991) (district court should have considered whether timing and extent
of restitution were sufficiently unusual to warrant departure: "the
guidelines provide the district court with authority to depart downward
based on extraordinary restitution"); U.S. v. Carey, 895 F.2d 318, 323
(7th Cir. 1990) (departure for acceptance of responsibility beyond
two-level decrease in Section 3E1.1 possible, but only in "unusual
circumstances").
The court also held that "a sentencing court possesses the authority
to depart downward based on the manipulation of the indictment" in a
situation such as this, to "correct unwarranted sentencing disparities
caused by charging decisions in those instances when grouping, which
could also have compensated for the multiple charges, is unavailable. .
. . (T)here is no indication either that the (Sentencing) Commission
rejected the manipulation of the indictment charges as a basis for
departure or that it intended to foreclose departures on this basis. On
the contrary, . . . (it) 'recognized that a charge offense system has
drawbacks' and that 'a sentencing court may control any inappropriate
manipulation of the indictment through use of its departure power.'
U.S.S.G. Ch. 1, Pt. A, (4)(a), Policy Statement. . . . The adjective
'inappropriate' does not necessarily suggest bad intent on the part of
the prosecutor, but can apply to prosecutorial zeal that results in
charging a particular defendant disproportionately to others similary
situated."
U.S. v. Lieberman, No. 91-5687 (3d Cir. July 24, 1992) (Sloviter,
(C.J.).
U.S. v. Urbani, 967 F.2d 106 (5th Cir. 1992) (Affirmed district
court's refusal to hold an evidentiary hearing to examine the extent of
assistance by defendant who claimed government arbitrarily refused to
make a Section 5K1.1 motion where government agreed to notify the court
of defendant's cooperation, but did not obligate itself to file motion.
The appellate court concluded that Wade v. U.S., 112 S.Ct. 1840 (1992)
(4 GSU #22), "made plain . . . that absent a substantial threshold
showing of () a constitutionally improper motive, district courts lack
authority to scrutinize the level of the defendant's cooperation and
interpose their own assessment of its value. Moreover, this limited
scope of review forecloses even the need for an evidentiary hearing
solely to document defendant's assistance. . . . (Defendant) has not at
any point alleged an illicit motivation underlying the government's
refusal to request a 5K1.1 departure. The entirety of his argument . .
. has been that given his level of cooperation with the government,
withholding a 5K1.1 motion was arbitrary and without justification.
Thus, it is exactly the type of claim . . . that Wade indicates is
unavailing and does not warrant an evidentiary hearing.").
Eighth Circuit holds that original weight of drugs in package is not
included as relevant conduct if defendant reasonably believed package
contained less. Postal inspectors intercepted a package containing 243
grams of cocaine base, replaced all but ten grams with a substitute, and
made a controlled delivery to defendant's sister. The same day,
defendant asked a cousin for one-half gram of crack. The cousin agreed,
informing defendant she had crack at his sister's house and would sell
him some if he went with her to get it. She drove defendant to the
house and parked a few blocks away. While his cousin waited, defendant
located the package and began walking down the street to meet her, all
as she directed. Before he reached her, he was arrested. He pled
guilty to conspiracy to distribute cocaine base, was given a mandatory
minimum ten-year sentence based on the 243 grams, and appealed.
The appellate court remanded, holding that defendant should be
sentenced for the amount he "reasonably believed that the package
contained." Defendant "was not found responsible for the conduct of
others. Rather, the court based its drug calculation on Hayes' own act
of picking up the package containing crack and walking down the street
to meet his cousin. . . . Hayes testified that he never opened the
package, and at no time prior to his arrest did he know that it
contained a large quantity of crack. Additionally, Hayes apparently did
not know that his act of bringing the package to his cousin was aiding
the further distribution of the package's contents. Rather, . . . it is
possible that Hayes reasonably believed the package contained a much
smaller quantity of cocaine, intended primarily for his cousin's
personal use. If this is the case, we do not believe that the entire
amount of crack originally contained in the package should be
attributable to Hayes. . . . The rationale for linking sentence length
to the amount of drugs is that the more dangerous the drug and the
larger its quantity, the more culpable the defendant. If Hayes at all
times reasonably believe that the package contained a small amount of
drugs, the 243 grams . . . does not reflect Hayes' culpability."
U.S. v. Hayes, No. 91-3843 (8th Cir. July 24, 1992) (Magill, J.).
U.S. v. Mitchell, 964 F.2d 454, 458-61 (5th Cir. 1992) (per curiam)
(Remanded: Drug conspiracy defendant was not accountable for full
twenty kilograms of cocaine in conspiracy. He had previously purchased
small amounts from some of the conspirators, and tried to purchase two
ounces from last shipment, but there was no evidence that he knew the
extent of the conspiracy. "It is well established that district courts
must consider the extent to which a larger drug enterprise is reasonably
foreseeable to defendants involved in smaller or isolated
transactions.").
Sixth Circuit holds that where completed fraud could not possibly
cause a loss, offense level cannot be increased by estimated loss.
Defendant was convicted of several counts in a scheme to defraud
insurance companies by getting false certification of his death and
having his wife file claims for benefits. In addition, his wife applied
for Social Security survivor's benefits using the false documents. The
Social Security Administration (SSA) did not discover the fraud, but
refused payment because defendant's wife was not eligible. As relevant
conduct, the estimated potential loss to the SSA of $69,000 was added to
the loss from the offenses of conviction.
The appellate court held that the $69,000 estimate should not have
been included and remanded for resentencing: "We have before us the
rare case where, in the face of complete success, the fraud generated no
loss. . . . In such a case as this, where no dollar loss is possible
for reasons entirely unrelated to the fraud or its discovery, the court
does not have available to it the increases in sentencing level based on
fraud loss. . . . The Government could, however, have sought an upward
departure if the sentence based on the insurance loss amount did not
reflect the seriousness of the harm caused by (defendant.)"
U.S. v. Khan, No. 91-1626 (6th Cir. July 14, 1992) (Merritt, C.J.).
U.S. v. Curran, 967 F.2d 5, 6 (1st Cir. 1992) (Affirmed: Amount of
interest that would have been earned on embezzled funds may be used in
calculating loss.).
U.S. v. Sostre, No. 91-1918 (1st Cir. June 29, 1992) (Fuste, Dist.
J.) (Remanded: Defendant who brought drug buyers to sellers, made some
arrangements and telephone calls, and possibly controlled a lookout, was
not a manager or supervisor under Section 3B1.1(b). He did not control
the drugs, was not the principal in the drug transaction, and had to
contact the sellers before making representations to buyers: "While
(he) certainly played an essential role in the overall criminal conduct,
we do not think that he acted in a managerial or supervisory
capacity.").
U.S. v. Bernaugh, No. 91-6127 (10th Cir. June 24, 1992) (Anderson,
J.) (Affirming adjustment where the district court found that defendant
perjured himself under oath at his guilty plea hearing regarding the
participation in a drug transaction of four codefendants who were
proceeding to trial. Section 3C1.1 applies to obstruction "in the
instant offense" and "'offense' may include the concerted criminal
activity of multiple defendants. See U.S.S.G. Ch. 3, Pt. B, Intro.
comment. Consequently, the section 3C1.1 enhancement applies . . . in a
case closely related to (defendant's) own, such as that of a
codefendant.").
U.S. v. Pico, 966 F.2d 91, 92 (2d Cir. 1992) (per curiam) (Courts
have authority to depart for supervised release. Accord U.S. v. LeMay,
952 F.2d 995, 998 (8th Cir. 1991) (per curiam) (4 GSU #14). However,
because court did not follow proper departure procedures, life term of
supervised release must be remanded.).
U.S. v. Maxwell, 966 F.2d 545, 551 (10th Cir. 1992) (Affirmed:
district court may impose consecutive terms of supervised release for
multiple convictions.). Accord U.S. v. Saunders, 957 F.2d 1488, 1494
(8th Cir. 1992) (4 GSU #20).
Note: The Ninth Circuit opinion in U.S. v. Bachiero, 964 F.2d 896
(9th Cir. 1992) (per curiam), reported in 4 GSU #25, was withdrawn and a
substitute opinion was issued Aug. 4, 1992. The court remanded for
resentencing, holding that the prior sentences at issue should be
considered consolidated despite the lack of a formal order of
consolidation.
VOLUME 4, NUMBER 25
JULY 28, 1992
Second Circuit rejects bright line rules for deciding when prior
convictions are "related," holds relatedness is question of fact.
Defendant was convicted of robbing a store and using a firearm during
the robbery. The district court found he was a career offender, Section
4B1.1, based on two prior robberies of gasoline stations committed
within a fifteen-minute period, and imposed a 270-month sentence.
Defendant appealed, claiming that the two prior robberies were committed
pursuant to a common scheme or plan and thus should not have been
treated separately, see Section 4A1.2, comment. (n.3).
The Second Circuit determined that the district court erroneously
held that "as a matter of law, robberies committed over a span of
several days could not be part of a common scheme or plan, and that
hence it would not 'make much sense' to find that robberies committed in
a single day could be part of a common scheme or plan." The appellate
court held that "(w)hether the defendant had a scheme or plan, or
whether the defendant committed crimes that were otherwise related, are
questions of fact." The court remanded the case because "(h)aving
adopted the view . . . that temporally separated crimes are not part of
the same common scheme or plan as a matter of law, the district court
did not purport to explore whether (defendant's) robberies had been
committed pursuant to a single common scheme or plan, or were otherwise
'related,' as matters of fact. Cf. U.S. v. Chapnick, 963 F.2d 224, 226
(9th Cir. 1992) ("whether two prior offenses are related under Section
4A1.2 is a mixed question of law and fact subject to de novo review").
The court also noted that temporal proximity alone does not mean
offenses are related: "Though the closer two events are in time the
more credible the assertion may be that they occurred as part of the
same plan, we cannot conclude that two similar robberies were part of a
single common scheme or plan as a matter of law solely because they were
committed 15 minutes apart."
U.S. v. Butler, No. 91-1369 (2d Cir. June 23, 1992) (Kearse, J.).
U.S. v. Chartier, No. 91-1619 (2d Cir. June 23, 1992) (Kearse, J.)
(Affirmed career offender status based on four prior robbery convictions
that the district court determined were not "a single common scheme or
plan" under Section 4A1.2, comment. (n.3). Defendant employed the same
modus operandi in each robbery and commited them to support his heroin
addiction, but at least one robbery was a "spur-of-the-moment decision."
The appellate court explained that "the term 'single common scheme or
plan,' must have been intended to mean something more than simply a
repeated pattern of criminal conduct. . . . The mere fact . . . that,
in engaging in a pattern of criminal behavior, the defendant has as his
purpose the acquisition of money to lead a particular lifestyle does not
mean either that he had devised a single common scheme or plan or, if he
had, that his course of conduct was necessarily part of it. . . . While
the four robberies . . . fit a pattern, . . . they were not part of a
single common scheme or plan."). For other cases finding prior, similar
robberies were not part of a single plan or scheme, see U.S. v. Rivers,
929 F.2d 136, 139-40 (4th Cir.) (robberies of two gasoline stations in
different states, twelve days apart), cert. denied, 112 S.Ct. 431 (1991)
(4 GSU #6); U.S. v. Jones, 899 F.2d 1097, 1101 (11th Cir.) (robbery and
attempted robbery of two banks ninety minutes apart), cert. denied, 111
S.Ct. 275 (1990) (3 GSU #8); U.S. v. Kinney, 915 F.2d 1471, 1472 (10th
Cir. 1990) (robberies of three banks, two in one state, over three
months, to support drug addiction). But cf. U.S. v. Houser, 929 F.2d
1369, 1374 (9th Cir. 1990) (two prior drug sales were part of single
common scheme or plan -- convictions resulted from single investigation,
sales were to same undercover agent and were charged separately only
because they occurred in different counties) (4 GSU #6).
Ninth Circuit holds that there must be formal order or other
indication that prior convictions were "consolidated for sentencing."
The appellate court affirmed a criminal history calculation that treated
separately three state convictions for which defendant was sentenced in
the same proceeding. It held that the sentences were not "consolidated
for . . . sentencing" under Section 4A1.2, comment. (n.3), and explained
that "it's not enough that the defendant has been sentenced for two or
more cases in the same proceeding. . . . (W)e hold that there must be a
formal order of consolidation, or some other indication that the trial
court considered the prior convictions to be tantamount to a single
offense for purposes of sentencing." See also U.S. v. Lopez, 961 F.2d
384, 386-87 (2d Cir. 1992) ("the imposition of concurrent sentences at
the same time by the same judge does not establish that the cases were
'consolidated for sentencing' . . . unless there exists a close factal
relationship between the underlying convictions"); U.S. v. Paulk, 917
F.2d 879, 884 (5th Cir. 1990) (same); U.S. v. Villareal, 960 F.2d 117,
120-21 (10th Cir. 1992) (sentencing both offenses in one hearing by
itself not sufficient). But cf. U.S. v. Watson, 952 F.2d 982, 990 (8th
Cir. 1991) ("look to the court records of the defendant's prior offenses
to see whether a decision was made to consolidate those offenses for
trial or sentencing. . . . (T)he decision to consolidate sentencings is
expressed by the dedication of a single proceeding to imposing
punishment for verdicts reached in two or more trials"), cert. denied,
112 S.Ct. 1694 (1992).
As an example of an "other indication," the Ninth Circuit noted that
"if a court enters an order transferring a case for sentencing with
another case, and then the defendant receives identical concurrent
sentences, the cases are deemed consolidated for sentencing" (citing
U.S. v. Chapnick, 963 F.2d 224, 228-29 (9th Cir. 1992) (circumstances
indicate that state judge handling sentencing considered prior offenses
"related enough to justify treating them as one crime")). Cf. U.S. v.
Garcia, 962 F.2d 479, 482-83 (5th Cir. 1992) (cases not related even
though they had consecutive indictment numbers, were scheduled for same
day and time, and concurrent sentences were imposed -- state did not
move to consolidate cases, and separate judgments, sentences, and plea
agreements were entered).
U.S. v. Bachiero, 964 F.2d 896 (9th Cir. 1992) (per curiam).
Third Circuit sets standards for departures beyond criminal history
category VI and departures for uncounted juvenile convictions; holds
departure cannot be based on criminal conduct government agreed not to
charge. Defendant pled guilty to four counts of making false statements
in connection with acquisition of firearms in exchange for the
government's promise not to charge him with possession of a firearm by a
convicted felon, which carried a minimum fifteen-year sentence.
Defendant's criminal history category VI and offense level 10 resulted
in a range of 24-30 months. The district court imposed a 48-month
sentence, finding that category VI underrepresented defendant's criminal
history because of uncounted juvenile convictions for burglary,
likelihood of recidivism, and parole revocations. Defendant appealed
the departure, and the government claimed that, even if the above
grounds were invalid, departure was warranted because it could have
charged the more serious offense. The appellate court held that only
defendant's likelihood of recidivism could have justified a departure,
but because adequate findings were not made remand was necessary.
The court first stated that departure above category VI is warranted
only if defendant's criminal record is "'egregious,' 'serious' or
'extraordinary.'" See also U.S. v. Coe, 891 F.2d 405, 413 (2d Cir. 1989)
("'(o)nly the most compelling circumstances . . .' would justify a
(section) 4A departure above Category VI"). Here, defendant's fifteen
criminal history points "would fall within the two or three point range
of category VI were such a range to exist. Given the nature of Thomas'
criminal record, we cannot say that his criminal history is
'significantly more serious than that of most defendants in the same
criminal history category.' U.S.S.G. 4A1.3, p.s. . . . Therefore, an
upward departure beyond category VI is presumptively unjustified in this
case, unless there clearly exist circumstances" that were not adequately
considered by the Sentencing Commission. As explained below, the court
held there were no such circumstances.
As for defendant's uncounted juvenile convictions, the court held
that departure was improper because they were not similar to this
offense, adopting the rule in U.S. v. Samuels, 938 F.2d 210, 214-15
(D.C. Cir. 1991) (juvenile convictions not listed in Section 4A1.2(d)
can be basis for departure only if they involved conduct similar to
instant offense) (4 GSU #8). But cf. U.S. v. Gammon, 961 F.2d 103,
107-08 (7th Cir. 1992) (departure proper for dissimilar juvenile
convictions that "illustrate a significant history of criminality") (4
GSU #19); U.S. v. Nichols, 912 F.2d 598, 604 (2d Cir. 1990) (departure
proper for lenient punishment for prior, violent, dissimilar juvenile
offense).
Regarding defendant's parole revocations, the court stated that
although "a defendant with a long history of violating parole would be a
prime candidate for an enhanced sentence, particularly if his instant
offense is similar to the offenses for which he had been paroled in the
past," defendant's parole revocations were adequately taken into account
by the Guidelines and thus did not warrant departure.
Finally, the court held that departure could not be based on the
government's decision not to charge a more serious crime: "(T)his
upward departure involves the offense level, rather than the criminal
history. . . . (B)road discretion is not available in offense level
departures, since nowhere do the Guidelines permit consideration of
uncharged offenses." See also U.S. v. Faulkner, 952 F.2d 1066, 1069-71
(9th Cir. 1991) (upward departure based on eight dismissed or uncharged
bank robberies improper) (4 GSU #8). The court distinguished U.S. v.
Mobley, 956 F.2d 450 (3d Cir. 1992), where it upheld an enhancement for
stolen firearms under Section 2K2.1(b)(2) even though defendant was not
charged with the more serious crime of receiving or transporting stolen
firearms. "The government's 'end run' was tolerable in Mobley since
that case involved a mandatory enhancement clearly specified in the
Guidelines. The case currently before us involves a discretionary
departure in which the Guidelines are silent as to whether an upward
departure can be based on an uncharged crime. . . . (W)e will not allow
the government to take a 'convenient detour' by seeking additional
punishment for an uncharged crime. . . ."
U.S. v. Thomas, 961 F.2d 1110, 1115-22 (3d Cir. 1992).
U.S. v. Ponder, 963 F.2d 1506, 1509-10 (11th Cir. 1992) (Affirmed six
level upward departure under Section 5K2.0, p.s. based on seriousness of
crime -- possessing marijuana and methamphetamine with intent to
distribute while a prisoner in a county jail. Assessment of two
criminal history points for "committ(ing) the offense while under any
criminal justice sentence, including . . . imprisonment," Section
4A1.1(d), did not preclude a departure: "(C)ommentary to (Section
4A1.1) indicates that the purpose of this provision is merely to account
for the recency of the subsequent crime. . . . There is no indication
that the Sentencing Commission took into consideration the serious
nature of distributing drugs within a jail facility itself.").
U.S. v. Mitchell, 964 F.2d 454 (5th Cir. 1992) (per curiam)
(Remanded: Holding Section 5K1.1, p.s. motion open until after
sentencing was error -- district court must rule on it before imposing
sentence.). Accord U.S. v. Drown, 942 F.2d 55, 58 (1st Cir. 1991) (4
GSU #8); U.S. v. Howard, 902 F.2d 894, 896-97 (11th Cir. 1990) (3 GSU
#9).
U.S. v. Robins, No. 91-50286 (9th Cir. June 24, 1992) (Thompson, J.)
(Remanded: Defendant purchased two "bricks" of cornmeal weighing 2,779
grams. To trick customers into thinking they were cocaine, he carefully
wrapped them, made small incisions and poured a total of one-tenth of a
gram of cocaine inside. The appellate court held it was error to
include the weight of the cornmeal as part of a drug "mixture or
substance" under Section 2D1.1. Using Chapman v. U.S., 111 S.Ct. 1919
(1991), as a guide, the court reasoned that the cornmeal and cocaine
were easily distinguishable, cornmeal is not a "tool of the trade" or a
carrier medium or cutting agent for cocaine, and it "did not facilitate
the distribution of the cocaine." The court concluded the cornmeal "was
the functional equivalent of packaging material, which the Court in
Chapman recognized was not to be included in the weight caltulation.").
Accord U.s. v. Acosta, 963 F.2d 551, 553-56 (2d Cir. 1992) (creme
liqueur that was uningestible and unmarketable was "the functional
equivalent of packaging material" and should not be counted" (4 GSU
#23).
U.S. v. Bell, No. 91-1965 (1st Cir. June 10, 1992) (Selya, J.)
(Remanded: Following, inter alia, amended Note 2 of Section 4B1.2, the
court held that "where the offense of conviction is the offense of being
a convicted felon in knowing possession of a firearm, the conviction is
not for a 'crime of violence' and . . . the career offender provision .
. . does not apply."). For other cases, see 4 GSU #23.
VOLUME 4, NUMBER 24
JULY 13, 1992
Second Circuit remands case for further proceedings on whether
government acted in bad faith in refusing to move for substantial
assistance departure. Defendant entered into a plea agreement under
which the government would move for a departure under Section K1.1, p.s.
if, in its "sole and unfettered discretion," it was satisfied with his
cooperation. As requested, defendant testified at the trial of a
codefendant, but the codefendant was acquitted and the government
refused to make the Section 5K1.1 motion. At the sentencing hearing
defendant claimed the refusal was in bad faith, but the district court
accepted the government's reasons for refusing and ruled, without making
specific findings, that the government acted in good faith.
The appellate court remanded for further proceedings. The record
indicated that the only cooperation sought from defendant was his
truthful testimony, and there was no evidence or claim by the government
that he testified untruthfully. Of the six reasons offered by the
government for its refusal, only one -- that defendant's testimony was
"inconsistent" with that of another testifying codefendant -- might be
valid as a matter of law. However, remand was required because no
specific finding was made on that issue. The appellate court indicated
that the inquiry on remand would be affected by the particular
circumstances of this case: "The district court is of course obligated
in most cases to allow considerable deference to the government's
evaluation of a defendant's cooperation. But where the contemplated
cooperation involves solely in-court testimony, as it apparently did
here, the district court is well-situated to review the defendant's
performance of his obligations under the plea agreement."
U.S. v. Knights, No. 92-1016 (2d Cir. June 23, 1992) (Pratt, J.).
U.S. v. Vilchez, No. 91-50429 (9th Cir. June 23, 1992) (Tang, J.)
(Remanded: District court had no authority to depart downward to reduce
disparity between this defendant and another participant in the same
heroin distribution scheme who was arrested several months earlier, was
tried in state court, and received a shorter sentence. Government's
decision to leave one case in state court and try the other in federal
court was not an unusual circumstance and "the desire to equalize state
and federal sentences does not constitute a permissible basis for
departure."). See also U.S. v. Reyes, No. 91-50301 (9th Cir. June 8,
1992) (Pregerson, J.) (affirmed: district court properly held it did
not have authority to grant downward departure where defendant's
"co-accused" was tried in state court and received much lower sentence);
U.S. v. Mejia, 953 F.2d 461, 468 (9th Cir.) (may not depart downward to
avoid unequal treatment of codefendants), cert. denied, 112 S.Ct. 1983
(1992). Cf. U.S. v. Sitton, No. 91-50154 (9th Cir. July 2, 1992)
(O'Scannlain, J.) (affirmed: fact that defendants would have received
substantially shorter sentences had they been tried in state court is
not proper basis for departure); U.S. v. Dockery, (D.C. Cir. June 9,
1992) (R. Ginsburg, J.) (reversed: may not depart because U.S. Attorney
first brought charges in D.C. Superior Court, then dropped them and
recharged defendant in federal court to take advantage of harsher
penalties).
U.S. v. Higgins, No. 91-1877 (3d Cir. June 16, 1992) (Hutchinson, J.)
(Affirmed in part, remanded: "To the extent that the disparity of
sentences among the co-defendants is alleged to be a mitigating factor,
. . . this is not a proper basis for a downward departure." However, the
district court erred in holding it could not consider defendant's claim
that his youth, significant family ties and responsibilities, and stble
employment record warranted departure -- court has discretion to depart
if one of these factors "can be characterized as extraordinary," and
should consider whether defendant's circumstances "fall within the very
narrow category of extraordinary.").
U.S. v. Streit, No. 90-10509 (9th Cir. May 19, 1992) (as amended)
(Goodwin, J.) (Affirmed in part and remanded: Defendant inflicted
bodily injury on arresting officers that was not accounted for in his
offense guideline. The district court properly departed, under Section
5K2.2, p.s., by analogizing to Section 2A2.2(b)(3)(A) (aggravated
assault), but incorrectly gave two two-level increases -- one for each
officer injured -- because under the rules for grouping offenses only
one two-level increase would have resulted.).
U.S. v. Spears, No. 89-3154 (7th Cir. June 9, 1992) (Bauer, C.J.)
(Affirmed: Defendant, who was already in criminal history category VI,
would have been a career offender had two prior assaults not been
consolidated. It was "eminently reasonable" and "related to the
structure of the Guidelines" to depart upward and sentence defendant
within the range for the offense level midway between his offense level
and level he would have been assigned as a career offender.).
U.S. v. Streit, No. 90-10509 (9th Cir. May 19, 1992) (as amended)
(Goodwin, J.) (Affirmed in part and remanded: "We decline to mandate
that sentencing judges adhere to any one particular approach to
departures beyond (criminal history) category VI. We do require,
however, that the sentencing court follow some reasonable, articulated
methodology consistent with the purposes and structure of the
guidelines." For career offender, district court could calculate
departure by "horizontal analogy" to hypothetical categories above VI.
Accord U.S. v. Schmude, 901 F.2d 555, 560 (7th Cir. 1990) (3 GSU #6).
See also U.S. v. Molina, 952 F.2d 514, 522 (D.C. Cir. 1992) (approach in
Schmude "appears to make the most sense"); U.S. v. Jackson, 921 F.2d
985, 993 (10th Cir. 1990) (en banc) (Schmude method acceptable).
However, the sentence must be remanded because the court did not
adequately explain how it calculated the hypothetical categories or why
it found category IX appropriate rather than VII or VIII.
Also, the district court improperly increased the offense level, a
"vertical analogy," in setting the departure: "(F)actors to be
considered in departing from applicable criminal history categories are
distinct from those relevant to departing from inappropriate offense
levels," and thus prior criminal conduct reflecting an inadequate
criminal history score "'does not provide the basis for an offense level
departure.'"). Accord U.S. v. Jones, 948 F.2d 732, 739 (D.C. Cir.
1991); U.S. v. Thornton, 922 F.2d 1490, 1494 (10th Cir. 1990).
U.S. v. Spears, No. 89-3154 (7th Cir. June 9, 1992) (Bauer, C.J.)
(Affirmed upward departure: District court held that defendant's
criminal history category -- fifteen prior cnvictions and confinement
for 20 out of past 32 years -- did not adequately reflect the
seriousness of his past criminal conduct or the likelihood that he would
commit future crimes, Section 4A1.3, p.s. The court also held that
defendant "fit(s) the classic profile of a career recidivist" who is a
threat to the public welfare and safety under Section 5K2.14, p.s., and
the appellate court found "no error in the judge's factual findings.").
U.S. v. Frazier, No. 91-5865 (4th Cir. June 12, 1992) (Luttig, J.)
(Affirmed: "(C)onditioning the acceptance of responsibility reduction
on a defendant's waiver of his Fifth Amendment privilege against
self-incrimination does not penalize the defendant . . . in violation of
the Fifth Amendment." The Section 3E1.1 reduction was properly denied to
defendant who stole 1,200 money orders worth over five million dollars,
admitted stealing them and cooperated with the government in returning
most of the remaining uncashed money orders, but refused to further
assist the government in locating the rest of the orders on the ground
that doing so required providing information that might expose him to
further prosecution.). Accord U.S. v. Mourning, 914 F.2d 699, 706-07
(5th Cir. 1990). Contra U.S. v. Rodriguez, 959 F.2d 193, 195-98 (11th
Cir. 1992) (per curiam) ("section 3E1.1 does not allow the judge to
weigh against the defendant the defendant's exercise of constitutional
or statutory rights") (4 GSU #23); U.S. v. Frierson, 945 F.2d 650,
658-60 (3d Cir. 1991) (denial of reduction for refusal to admit conduct
beyond offense of conviction violates Fifth Amendment) (4 GSU #11);
U.S. v. Watt, 910 F.2d 587, 592 (9th Cir. 1990) ("court cannot consider
against a defendant any constitutionally protected conduct") (3 GSU
#10); U.S. v. Oliveras, 905 F.2d 623, 626-28 (2d Cir. 1990) (per
curiam) (denying reduction for refusal to admit to crimes outside
offense pled to violates Fifth Amendment); U.S. v. Perez-Franco, 873
F.2d 455, 463-64 (1st Cir. 1989) (2 GSU #6).
U.S. v. Shipley, 963 F.2d 56 (5th Cir. 1992) (per curiam) (Affirmed:
Proper to deny Section 3E1.1 reduction to defendant who "clearly
admitted and accepted full responsibility" for the offense but denied he
was a leader under Section 3B1.1. "Even though leadership role in the
offense of conviction is covered in a different section of the
guidelines than is acceptance of responsibility for committing that
crime, such a role is conduct related to the offense and thus proper
grist for the 'acceptance of responsibility' mill.").
U.S. v. Williams, No. 91-1371 (10th Cir. June 1, 1992) (Moore, J.)
(Affirmed Section 3B1.3 enhancement for a military pay account
technician and auditor who embezzled funds. Court noted: "In
determining whether a defendant was in a 'position of trust' courts have
considered a number of factors. These include: the extent to which the
position provides the freedom to commit a difficult-to-detect wrong, and
whether an abuse could be simply or readily noticed; defendant's duties
as compared to those of other employees; defendant's level of
specialized knowledge; defendant's level of authority in the position;
and the level of public trust." (Citations omitted.)).
U.S. v. Marsh, 963 F.2d 72 (5th Cir. 1992) (per curiam) (Remanded:
When defendant, pursuant to Section 1B1.8(a), enters into cooperation
agreement with government that states he would "not be prosecuted
further for activities that occurred or arose out of (his) participation
in the crime charged," self-incriminating information provided to
probation officer may not be used against him in sentencing.). See also
U.S.S.G. Section 1B1.8, comment. (n.5) (Nov. 1991) (Section 1B1.8(a)
limits use of self-incriminating information in determining guideline
range, "e.g., where the defendant, subsequent to having entered into a
cooperation agreement, repeats such information to the probation officer
preparing the presentence report").
U.S. v. Maciaga, No. 91-3075 (7th Cir. June 8, 1992) (Kanne, J.)
(Reversed: Part-time bank security guard who stole night deposit bag
did not engage in "more than minimal planning," Sections 2B1.1(b)(5) and
1B1.1, comment. (n.1(f)). Defendant's offense was "much less
complicated and show(ed) much less premeditation" than other cases where
the enhancement has been applied, involved little activity outside of
his normal duties, and did not involve "repeated acts over a period of
time." Furthermore, defendant's steps to conceal his crime were not out
of the ordinary and there was "no evidence of any advance planning in
Maciaga's efforts at concealment.").
U.S. v. Williams, No. 91-1371 (10th Cir. June 1, 1992) (Moore, J.)
(Affirmed: Noting that "more than minimal planning is deemed present in
any case involving repeated acts over a period of time," see Section
1B1.1, comment. (n.1(f)), court held that embezzler engaged in more than
minimal planning under Section 2B1.1(b)(5) where embezzlements occurred
over period of six months and involved numerous computer entries.
Defendant also took "significant steps" to conceal the crimes.).
U.S. v. Jessup, No. 91-6296 (10th Cir. June 11, 1992) (Belot, Dist.
J.) (Affirmed: In denying Section 3E1.1 reduction for failure to accept
responsibility, the district court could consider evidence obtained in
violation of state law that indicated defendant had continued to engage
in similar criminal activity after his arrest and indictment.).
VOLUME 4, NUMBER 23
JUNE 10, 1992
DRUG QUANTITY
Second Circuit holds that uningestible, unmarketable portions of drug
mixtures should not be counted, but Fifth Circuit reaffirms earlier
holding that they should. The defendant in the Second Circuit had
attempted to import cocaine dissolved in bottles of creme liqueur. The
cocaine was distillable from the liqueur and weighed less than half of
the total mixture, but the district court concluded that Chapman v.
U.S., 111 S. Ct. 1919 (1991) (4 GSU #4), mandated use of the entire drug
mixture in setting the offense level.
The appellate court reversed and remanded, holding that Chapman was
distinguishable and that the weight of unusable portions of a drug
mixture should not be used under U.S.S.G. Section 2D1.1: "In stark
contrast to the LSD in Chapman, the 'mixture' here was useless because
it was not ready for distribution. . . . It could not be ingested or
mixed with cutting agents unless and until the cocaine was distilled
from the creme liqueur. After distillation, it could be sold . . . (and
o)nly at that point, could Congress' rationale for penalizing a
defendant with the entire amount of a 'mixture' sensibly apply." The
court also stated that, "(b)ecause the creme liqueur must be separated
from the cocaine before the cocaine may be distributed, it is not
unreasonable to consider the liquid waste as the functional equivalent
of packaging material, . . . which quite clearly is not to be included
in the weight calculation. See Chapman, 111 S. Ct. at 1926." The court
did, however, "emphasize the limited nature of our holding. The . . .
creme liqueur is not a cutting agent or dilutant which, when mixed with
cocaine, is ingestible. Cutting agents, of course, must always be
factored into the weight calculation."
The Second Circuit is the third court of appeals to distinguish
Chapman and exclude unusable portions of drug mixtures. See also U.S.
v. Jennings, 945 F.2d 129, 136-37 (6th Cir. 1991) (methamphetamine
mixture) (4 GSU #9); U.S. v. Rolande-Gabriel, 938 F.2d 1231, 1237 (11th
Cir. 1991) (cocaine mixture) (4 GSU #8). But see cases below.
U.S. v. Acosta, No. 91-1527 (2d Cir. May 13, 1992) (McLaughlin, J.)
(Van Graafeiland, J., dissenting). See also U.S. v. Salgado-Molina, No.
91-1644 (2d Cir. May 29, 1992) (per curiam) (following Acosta).
In the Fifth Circuit, defendants were sentenced on the basis of the
entire weight of a methamphetamine mixture comprised of 95% waste
product and 5% methamphetamine. The appellate court upheld the
sentences, concluding that it was bound by its earlier decisions
requiring use of the total weight of a drug mixture. See, e.g., U.S. v.
Baker, 883 F.2d 13 (5th Cir. 1989) (use total weight of mixture
containing methamphetamine even though most of mixture was waste
material), cert. denied, 111 S. Ct. 82 (1990). Defendants claimed that
Chapman "effectively overruled Baker and its progeny," but the court
disagreed: "To the contrary, much of the language in Chapman supports
this court's decision in Baker." See also U.S. v. Restrepo-Contreras,
942 F.2d 96, 99 (1st Cir. 1991) (use total weight of cocaine mixed with
beeswax) (4 GSU #12); U.S. v. Mahecha-Onofre, 936 F.2d 623, 625-26 (1st
Cir. 1991) (use total weight of cocaine and acrylic material chemically
bonded together) (4 GSU #7).
U.S. v. Walker, 960 F.2d 409 (5th Cir. 1992).
Ninth Circuit holds that inclusion of drugs distributed by others
before defendant's involvement requires specific finding that defendant
could have reasonably foreseen earlier transactions. Defendant and five
others were initially charged under a multiple-count drug conspiracy
indictment, but defendant was later reindicted on, and pled guilty to,
only one count of aiding and abetting a single drug distribution of 252
grams of cocaine on June 28, 1990. No evidence connected defendant with
distribution of cocaine before that date, but the probation officer
recommended that cocaine sales by other defendants on June 11 and 20 be
included as relevant conduct under Section 1B1.3(a)(2). The district
court sentenced defendant on the basis of the 840 grams from all three
transactions.
The appellate court remanded "for express findings regarding whether
Chavez-Gutierrez was accountable for the June 11th and June 20th
transactions." The court held that "under Section 1B1.3(a)(2), a
district court must include the total amount of a controlled substance
alleged in multiple counts if the defendant could have reasonably
foreseen that other persons would commit the alleged crimes in
furtherance of a joint agreement. The district court could not include
the amount of cocaine distributed on June 11, 1990 and June 20, 1990, in
calculating Chavez-Gutierrez's base offense level, unless the
presentence report set forth facts showing that the defendant aided and
abetted these sales or was a member of a conspiracy to distribute
cocaine prior to June 28, 1990." See also U.S. v. Edward, 945 F.2d 1387,
1391-97 (7th Cir. 1991) (in conspiracy, must make specific findings as
to amount of drugs "reasonably foreseeable" to each conspirator) (4 GSU
#12); U.S. v. Miranda-Ortiz, 926 F.2d 172, 178 (2d Cir.) (late-entering
coconspirator responsible only for amounts reasonably foreseen), cert.
denied, 112 S. Ct. 347 (1991) (4 GSU #2).
U.S. v. Chavez-Gutierrez, No. 91-30025 (9th Cir. April 24, 1992)
(Alarcon, J.).
ACCEPTANCE OF RESPONSIBILITY
Eleventh Circuit holds that district court may not deny Section 3E1.1
reduction for defendnats' exercise of Fifth Amendment rights or the
right to appeal. Defendants were convicted of various drug offenses.
They argued on appeal that, although they had previously admitted their
involvement in drug trafficking and expressed remorse, "the district
court improperly conditioned the two level (Section 3E1.1) reduction on
their accepting responsibility for their wrongs in open court and on
their giving up their right to appeal."
The appellate court agreed and remanded for reconsideration: "The
court's comments during sentencing demonstrate that it balanced the
evidence of acceptance of responsibility against the Appellants'
exercise of their Fifth Amendment rights and their intent to exercise
their right to appeal; this was improper. . . . The sentencing court
is justified in considering the defendant's conduct prior to, during,
and after the trial to determine if the defendant has shown any remorse
through his actions or statements. . . . However, if a defendant has
shown some sign of remorse but has also exercised constitutional or
statutory rights, the sentencing judge may not balance the exercise of
those rights against the defendant's expression of remorse to determine
whether the 'acceptance' is adequate." (Emphasis in original.)
"Stated another way, the sentencing court may consider all of the
criteria set out in the commentary to section 3E1.1 as well as any other
indications of acceptance of responsibility and weigh these in the
defendant's favor. . . . The exercise of (constitutional or statutory)
rights may diminish the defendant's chances of being granted the two
level reduction, not because it is weighed against him but because it is
likely that there is less evidence of acceptance to weigh in his favor."
U.S. v. Rodriguez, 959 F.2d 193, 195-87 (11th Cir. 1992) (per
curiam).
MITIGATING CIRCUMSTANCES
Second Circuit upholds departure for extraordinary family
circumstances, calls policy statements "interpretive guides" that are
not the equivalent of Guidelines. In sentencing defendant for theft and
bribery convictions, the district court departed downward ten offense
levels because of defendant's family circumstances, which included sole
responsibility for raising four young children. Defendant was sentenced
to six months of home detention, plus supervised release and substantial
restitution. The government appealed, arguing that under Section 5H1.6,
p.s. -- "family ties and responsibilities . . . are nor ordinarily
relevant" for departures -- family circumstances alone can never justify
downward departure.
The appellate court upheld the departure and examined "the weight
courts should give to such policy statements." The court concluded that
"the policy statements cannot be viewed as equivalent to the Guidelines
themselves," and that "courts must carefully distinguish between the
Sentencing Guidelines and the policy statements that accompany them, and
employ policy statements as interpretive guides to, not substitutes for,
the Guidelines themselves." As to departures, "(t)he central question in
any departure decision must be the one imposed by the statute: Is there
an aggravating or mitigating circumstance not adequately taken into
consideration by the Sentencing Commission?" Policy statements are to be
considered, but "do not render the statutory standard superfluous."
Applying "that standard to the question of family circumstances," the
court concluded that the wording of Section 5H1.6 -- that family
circumstances are "not ordinarily relevant" -- indicates it is "a 'soft'
policy statement, rather than one with unequivocal language. If the
Commission had intended an absolute rule that family circumstances may
never be taken into account in any way, it would have said so. . . .
Section 5H1.6's phrasing confirms the Commission's understanding that
ordinary family circumstances do not justify departure but extraordinary
family circumstances may." Here, the circumstances amply supported the
district court's "finding that Johnson faced extraordinary parental
responsibilities."
U.S. v. Johnson, No. 91-1515 (2d Cir. May 14, 1992) (Oakes, C.J.).
CAREER OFFENDER PROVISION
U.S. v. Sahakian, No. 91-10199 (9th Cir. May 26, 1992) (Schroeder,
J.) (Remanded: "following the November 1, 1989 revision of the
definitional provision of U.S.S.G. Section 4B1.2, being a felon in
possession of a firearm is not a crime of violence for purposes of
applying the Career Offender guideline." See also U.S.S.G. App. C
(amendment 433) (Nov. 1991) ("'crime of violence' does not include the
offense of unlawful possession of a firearm by a felon"). The Ninth
Circuit previously held that under the pre-Nov. 1989 definition, felon
in possession of a firearm was "by its nature" a crime of violence.
U.S. v. O'Neal, 937 F.2d 1369, 1375 (9th Cir. 1990). However, the 1989
amendment "shifted the emphasis from an analysis of the 'nature' of the
crime charged to an analysis of the elements of the crime charged or
whether the actual charged 'conduct' of the defendant presented a
serious risk of physical injury to another." Here, defendant was only
charged with "possessing a firearm," which "does not have as an element
the actual, attempted or threatened use of violence nor does the actual
conduct it charges involve a serious potential risk of physical injury
to another."). Accord U.S. v. Fitzhugh, 954 F.2d 253, 254-55 (5th Cir.
1992); U.S. v. Johnson, 953 F.2d 110, 113 (4th Cir. 1991). Contra U.S.
v. Stinson, 957 F.2d 813, 814-15 (11th Cir. 1992) (reaffirming prior
holding that unlawful possession is crime of violence despite
amendments). Cf. U.S. v. Doe, 960 F.2d 221 (1st Cir. 1992) (citing
Section 4B1.2 and amendment 433 as support for holding that "the
felon-in-possession crime is not a 'violent felony'" for purposes of 18
U.S.C. Section 924(e)).
REVOCATION OF PROBATION
U.S. v. Byrkett, No. 91-3808 (8th Cir. Apr. 24, 1992) (per curiam)
(Affirming 8-month prison term after revocation of probation for
possession of drugs where guideline range for original forgery offense
was 0-6 months and defendant was sentenced to 2 years probation. "We
agree with the Ninth Circuit's analysis (in U.S. v. Corpuz, 953 F.2d
526, 528-30 (9th Cir. 1992) (see 4 GSU #15)) . . . that the last
sentence of (18 U.S.C.) section 3565(a) mandates a sentence of at least
one-third of the original sentence of probation when the probationer
violates the conditions of his probation by possessing controlled
substances."). Contra U.S. v. Gordon, No. 91-3605 (3d Cir. Apr. 13,
1992) (as amended Apr. 30, 1992) ("original sentence" in Section 3565(a)
refers to original guideline range, not to term of probation imposed) (4
GSU #21).
REVOCATION OF SUPERVISED RELEASE
U.S. v. Cooper, No. 91-5455 (4th Cir. Apr. 24, 1992) (Sprouse, J.)
(reversed: under 18 U.S.C. Section 3583(e), "district court is without
statutory authority to reimpose, after revoking, a term of supervised
release"). Accord U.S. v. Holmes, 954 F.2d 270, 272 (5th Cir. 1992);
U.S. v. Behnezhad, 907 F.2d 896, 898 (9th Cir. 1990). Contra U.S. v.
Boling, 947 F.2d 1461, 1463 (10th Cir. 1991).
U.S. v. Dunnigan, 944 F.2d 178 (4th Cir. 1991) (4 GSU #10), cert.
granted, 112 S. Ct. . . . (May 26, 1992) (No. 91-1300). Question
presented: Does the Constitution prohibit district court from enhancing
defendant's sentence under Sentencing Guidelines Section 3C1.1 if the
court finds that defendant committed perjury by denying guilt at trial?
VOLUME 4, NUMBER 22
MAY 28, 1992
Supreme Court holds that district courts have authority to review for
unconstitutional motives government's refusals to file substantial
assistance motions. Defendant faced a 10-year mandatory minimum
sentence on a drug charge. He provided information to the government
that led to the arrest of another drug dealer, but the government
refused to move for a substantial assistance departure under 18 U.S.C.
Section 3553(e) and U.S.S.G. Section 5K1.1, p.s. The Fourth Circuit
affirmed, holding that defendants "may not inquire into the government's
reasons and motives." U.S. v. Wade, 936 F.2d 169, 172 (4th Cir. 1991) (4
GSU #5).
The Supreme Court affirmed the decision because defendant had failed
to raise and support a claim of improper motive, but held that district
courts may review for constitutional violations the government's refusal
to move for a substantial assistance departure. While recognizing that
"in both Section 3553(e) and Section 5K1.1 the condition limiting the
court's authority gives the Government a power, not a duty, to file a
motion when a defendant has substantially assisted," the Court agreed
with defendant that "a prosecutor's discretion when exercising that
power is subject to constitutional limitations that district courts can
enforce. Because we see no reason why courts should treat a
prosecutor's refusal to file a substantial-assistance motion differently
from a prosecutor's other decisions, . . . we hold that federal district
courts have authority to review a prosecutor's refusal to file a
substantial-assistance motion and to grant a remedy if they find that
the refusal was based on an unconstitutional motive. Thus, a defendant
would be entitled to relief if a prosecutor refused to file a
substantial-assistance motion, say, because of the defendant's race or
religion." Accord U.S. v. Drown, 942 F.2d 55, 59-60 (1st Cir. 1991) (4
GSU #8); U.S. v. Doe, 934 F.2d 353, 358 (D.C. Cir. 1991) (4 GSU #4);
U.S. v. Bayles, 923 F.2d 70, 72 (7th Cir. 1991) (dicta). Cf. U.S. v.
Smitherman, 889 F.2d 189, 191 (8th Cir. 1989) (indicating question of
prosecutorial bad faith or arbitrariness may present due process issue),
cert. denied, 110 S. Ct. 1493 (1990).
Defendant sought a remand "to allow him to develop a claim that the
Government violated his constitutional rights by withholding a
substantial-assistance motion 'arbitrarily' or 'in bad faith.' . . . As
the Government concedes, . . . Wade would be entitled to relief if the
prosecutor's refusal to move was not rationally related to any
legitimate Government end." However, defendant failed to adequately
raise and support such a claim, and "a claim that a defendant merely
provided substantial assistance will not entitle a defendant to a remedy
or even to discovery or an evidentiary hearing. Nor would additional
but generalized allegations of improper motive. . . . (A) defendant has
no right to discovery or an evidentiary hearing unless he makes a
'substantial threshold showing.'"
Wade v. U.S., No. 91-5771 (U.S. May 18, 1992) (Souter, J.).
U.S. v. Andruska, No. 91-2748 (7th Cir. May 18, 1992) (Flaum, J.)
(holding that government must receive notice before district court may
depart downward on ground not raised by either party, following
reasoning of Burns v. U.S., 111 S. Ct. 2182 (1991), which held that
defendant must receive "reasonable notice" before district court may
depart upward on ground not previously identified). Accord U.S. v.
Jagmohan, 909 F.2d 61, 64 (2d Cir. 1990); U.S.S.G. Section 6A1.2, p.s.,
comment. (n.1) (Nov. 1991).
District court holds departure warranted because government agent
delayed arrest to trigger mandatory minimum and discover source of
drugs. Defendant was convicted on distribution of cocaine base charges.
The government argued that 50.4 grams were involved in the eight counts
of conviction, but the district court found there were 49.8 grams.
Fifty or more grams would have required a ten-year minimum term by
statute. The guideline range was 97-121 months, but the court departed
downward to 72 months.
The court reasoned departure was warranted because the Sentencing
Commission "has failed to adequately consider the terrifying capacity
for escalation of a defendant's sentence based on the investigating
officer's determination of when to make an arrest. The agent in this
case was undoubtedly aware that defendant's sentence would be increased
two-fold if he continued to transact business until over 50 grams of
cocaine base were sold. The court finds it not at all fortuitous that
the agent arrested the defendant only after he had arranged enough
successive buys to reach the magic number.
"For drug offenses, one factor dominates the . . . guideline sentence
-- 'the grade of the offense' as evidenced by the quantity of drugs
involved. . . . (However,) the circumstances under which the offense
was committed should be considered, especially where undercover agents
persevere in their transactions until a suspect provides the aggregate
amount of drugs to trigger a mandatory minimum sentence or where the
undercover agent's investigation shifts from the identified-seller to
the undiscovered 'source.' Both of these circumstances occurred in this
offense. The court noted Eighth Circuit dicta alluding to "'sentencing
entrapment' as a potential mitigating circumstance which could warrant
departure." See U.S. v. Lenfesty, 923 F.2d 1293, 1300 (8th Cir. 1991).
U.S. v. Barth, No. 4-91-103 (D.Minn. Apr. 9, 1992) (Rosenbaum, J.).
Fifth and Eleventh Circuits hold that district court has discretion
to allow defendant to challenge validity of prior conviction at the
sentencing hearing. In the Fifth Circuit, the district court had
included a 1982 Texas conviction in defendant's criminal history score,
and indicated that it did not have discretion to consider defendant's
claim that the conviction was constitutionally invalid. Between
defendant's instant offense and sentencing, Application Note 6 to
Section 4A1.2 was amended. The original note excluded from the criminal
history score convictions "which the defendant shows to have been
constitutionally invalid." The amendment excludes "convictions that a
defendant shows to have been previously ruled constitutionally invalid"
(Nov. 1990) (emphasis added). At the same time background commentary to
Section 4A1.2 was added, which stated in part: "The Commission leaves
for court determination the issue of whether a defendant may
collaterally attack at sentencing a prior conviction."
The Fifth Circuit held that the 1990 amendments applied and note 6
does not prohibit a challenge to a prior conviction. The court read
note 6 and the background commentary as complementary, rather than
conflicting, and concluded that "a court is only required to exclude a
prior conviction . . . if the defendant shows it to 'have been
previously ruled constitutionally invalid'; otherwise, the district
court has discretion as to whether or not to allow the defendant to
challenge the prior conviction at sentencing." Accord U.S. v. Jakobetz,
955 F.2d 786, 805 (2d Cir. 1992). Contra U.S. v. Hewitt, 942 F.2d 1270,
1276 (8th Cir. 1991) (holding, without discussing the background
commentary, that under amended note 6 defendants may no longer
collaterally attack prior convictions).
The appellate court remanded because it was unsure if the district
court simply refused to let defendant challenge the 1982 conviction or
allowed the challenge and ruled against it. The court set forth factors
the district court may consider "in deciding whether to entertain the
challenge to the prior conviction. These include 'the scope of the
inquiry that would be needed to determine the validity of the
conviction,' . . . comity, . . . (and) whether the defendant has a
remedy other than the sentencing proceeding through which to attack the
prior conviction." As to the last, the court stated that "a district
court should ordinarily entertain a challenge to a prior conviction in a
sentencing hearing if it does not appear that the defendant has an
alternative remedy through which to challenge the conviction." The court
added that "(i)f the challenged prior conviction is one which the
district court determines will not affect its sentencing decision in any
event, it may so state on the record and decline to hear the challenge
on that basis."
U.S. v. Canales, No. 91-5644 (5th Cir. May 7, 1992) (Garwood, J.)
In the Eleventh Circuit, defendant was convicted of conspiracy to
possess with intent to distribute cocaine. As in Canales above, he was
sentenced after the 1990 amendment to Section 4A1.2's notes. He
contended that a prior state burglary conviction, although facially
valid, was based on an unconstitutional guilty plea and should not be
factored into his criminal history score. The district court refused to
hold an evidentiary hearing on the matter and factored in the prior
conviction.
The Eleventh Circuit held that amended note 6 applied to defendant
and observed that the new language "seems clearly to indicate that the
Sentencing Commission did not intend to provide for collateral attack of
a prior conviction at sentencing." However, the court also recognized
that "this suggestion is clouded by the 'Background' section" added at
the same time, which leaves collateral attack to the discretion of the
district court. Relying on U.S. v. Cornog, 945 F.2d 1504, 1510-11 (11th
Cir. 1991), which held that under the amended notes a defendant could
attack the validity of a prior parole revocation, the court held that
"the rule in this circuit is that district courts have the discretion to
collaterally examine the constitutionality of facially valid prior
convictions when determining whether to consider them in computing a
defendant's criminal history score." The case was remanded because "the
district court abused its discretion in failing to properly determine
whether to consider Roman's challenge and hold an evidentiary hearing."
U.S. v. Roman, 960 F.2d 130 (11th Cir. 1992) (per curiam).
U.S. v. Canada, No. 91-1691 (1st Cir. Apr. 2, 1992) (Campbell, Sr.
J.) (Affirming Section 3B1.1(b) adjustment for role in offense even
though presentence report did not recommend it and government did not
request it. Burns v. U.S., 111 S. Ct. 2182 (1991), which required
notice to defendant prior to sua sponte departure by district court,
does not apply: "We do not read Burns to require special notice where,
as here, a court decides that an upward adjustment is warranted based on
offense or offender characteristics delineated within the Sentencing
Guidelines themselves, at least where the facts relevant to the
adjustment are already known to the defendant. . . . (T)he guidelines
themselves provide notice to the defendant of the issues about which he
may be called upon to comment."). See also U.S. v. McLean, 951 F.2d
1300, 1302 (D.C. Cir. 1991) (Burns does not require advance notice of
denial of Section 3E1.1 reduction that was recommended in PSR); U.S. v.
Palmer, 946 F.2d 97, 100 (9th Cir. 1991) (same but not citing Burns);
U.S. v. White, 875 F.2d 427, 431-32 (4th Cir. 1989) (defendant was on
notice that evidence surrounding obstruction of justice might be
introduced).
U.S. v. Thompson, No. 91-3091 (D.C. Cir. May 8, 1992) (D.H. Ginsburg,
J.) (Wald, J., dissenting) (Affirmed obstruction of justice enhancement
where jury did not believe defendant's testimony -- although it was "not
implausible" and was corroborated by witnesses -- and district court
specifically found defendant testified untruthfully at trial. The
appellate court stated: "On its face, Section 3C1.1 does not require
that a defendant's false testimony be implausible or particularly
flagrant. Rather, . . . the sentencing court must determine whether the
defendant testified (1) falsely, (2) as to a material fact, and (3)
willfully in order to obstruct justice, not merely inaccurately as the
result of confusion or a faulty memory." The court also noted that
"(t)he admonition in Application Note 1 (to Section 3C1.1) to evaluate
the defendant's testimony 'in a light most favorable to the defendant'
apparently raises the standard of proof -- above the 'preponderance of
the evidence' standard that applies to most other sentencing
determinations . . . -- but it does not require proof of something more
than ordinary perjury.").
U.S. v. Cohen, No. 91-1786 (6th Cir. May 22, 1992) (Siler, J.)
(Affirmed sentence of 2 years, rather than the 6-12 months called for by
Section 7B1.4, p.s., after revocation of probation: "we hold that
policy statements in Section 7B1.4 of the Guidelines are not binding
upon the district court, but must be considered by it in rendering a
sentence for a violation of supervised release. . . . Therefore, as the
district court in this case considered (and declined to follow) the
provisions of Section 7B1.4 . . . its judgment is affirmed.). Accord
U.S. v. Lee, 957 F.2d 770, 773 (10th Cir. 1992) (GSU #16); U.S. v.
Blackston, 940 F.2d 877, 893 (3d Cir.), cert. denied, 112 S. Ct. 611
(1991).
VOLUME 4, NUMBER 21
MAY 8, 1992
Third Circuit holds that when probation is revoked for drug
possession, "not less than one-third of the original sentence" in 18
U.S.C. Section 3565(a) refers to the original guideline range, not the
term of probation imposed. Defendant's guideline range for her original
offense was 0-4 months and she was sentenced to three years on
probation. Her probation was later revoked, partly because she failed
two drug tests. She was sentenced to prison for one year, in accordance
with the 1988 amendment to 18 U.S.C. 3565(a), which states:
"Notwithstanding any other provision of this section, if a defendant is
found by the court to be in possession of a controlled substance . . .
the court shall revoke the sentence of probation and sentence the
defendant to not less than one-third of the original sentence." The
district court interpreted the term "original sentence" to mean the
three year probation term rather than the 0-4 month range for the
original offense.
The appellate court disagreed and held that, consistent with circuit
court interpretation of "initial sentencing" in Section 3565(a)(2) (see
case summaries below), "original sentence" means the guideline range for
the original offense of conviction. The court explicitly disagreed with
U.S. v. Corpuz, 953 F.2d 526 (9th Cir. 1992), which held that "original
sentence" means the term of probation (see 4 GSU #15). "The Ninth
Circuit attempted to resolve the conflict between the 1988 drug
amendment and section 3565(a)(2) by noting that the two provisions are
alternative means of sentencing, since only the former applies when the
possession of a controlled substance is involved. . . . (W)e conclude
that a better reading of the 'notwithstanding' clause is that it
establishes a 'floor' below which the district court cannot resentence
despite section 3565(a)(2) otherwise allowing the imposition of any
sentence within the original sentencing range. In the case now before
us, that 'floor' would be one and one-third month imprisonment since the
original range was zero to four months."
In Corpuz the Ninth Circuit noted that "(p)enologically and
semantically, probation is a sentence under the Sentencing Reform Act
(of 1984). It is no longer an alternative to sentencing; it is a
sentence in and of itself." The Third Circuit disagreed, finding that
"(a)lthough the statutory provisions enacted as part of the 1984 act
refer to the 'sentence of probation,' . . . this is merely a change in
form, rather than substance. The fundamental nature of probation
remains unaltered." The court added that if it followed "the Ninth
Circuit's reasoning that probation is a type of sentence, we would be
forced to conclude that one-third of three years probation is one year
probation, not one year imprisonment."
The court remanded, stating that "the proper way to resentence
(after) a probation violation for possession of drugs is to revoke
probation and impose a sentence not less than one-third of the maximum
sentence for the original offense."
U.S. v. Gordon, No. 91-3605 (3d Cir. Apr. 13, 1992) (Cowen, J.)
(Greenberg, J., concurring in result only).
Third Circuit holds statute, rather than Chapter 7 policy statements,
controls revocation sentence, which is limited by guideline range for
original offense. Defendant was sentenced to probation and then had
probation revoked, both after the Nov. 1990 amendments to U.S.S.G.
Chapter 7 took effect. Defendant's original guideline range was 0-6
months, but in sentencing him after revocation the district court
followed the Revocation Table at Section 7B1.4, p.s., which called for
3-9 months. The court departed upward, however, and imposed a 12-month
term.
The appellate court held that the "plain wording" of 18 U.S.C.
Section 3565(a)(2) controls. The "sentence that was available . . . at
the time of the initial sentencing" refers to the guideline range
applicable to a defendant's original offense, and the revocation
sentence is limited to that range. Every other circuit to rule on this
issue has held the same, although those cases involved revocations that
occurred before Nov. 1990. See U.S. v. Alli, 929 F.2d 995, 998 (4th
Cir. 1991); U.S. v. White, 925 F.2d 284, 286-87 (9th Cir. 1991); U.S.
v. Von Washington, 915 F.2d 390, 391-92 (8th Cir. 1990) (per curiam);
U.S. v. Smith, 907 F.2d 133, 135 (11th Cir. 1990).
The court then held that, to the extent Section 7B1.4 conflicts with
the statute, "the two standards must be reconciled with the statute
always prevailing. . . . Therefore, the appropriate resentencing range
in this case following revocation of probation was three to six months,
representing a revocation table minimum of three months and a statutory
maximum of six months." The Ninth Circuit has held that "(t)o the extent
that the Guidelines conflict with (Section 3565(a)(2)), we find them
invalid." U.S. v. Dixon, 952 F.2d 260, 261 (9th Cir. 1991) (revocation
sentence within 12-18 month range called for by Section 7B1.4, p.s. must
be vacated and sentence reimposed within original guideline range of
4-10 months) (4 GSU #16).
Because the sentence was remanded the court did not rule whether
departure was appropriate, but stated that the notice requirements set
forth in Burns v. U.S., 111 S.Ct. 2182 (1991) "would apply in this case
had a departure been permissible."
U.S. v. Boyd, No. 91-3597 (3d Cir. Apr. 13, 1992) (Cowen, J.).
U.S. v. Maltais, No. 91-8060 (10th Cir. Apr. 15, 1992) (Brorby, J.)
(Defendant sentenced to probation before the Nov. 1990 amendments to
Section 7B1, p.s., but whose probation was revoked after that date,
should be sentenced within guideline range that applied to his original
offense, not under the "Revocation Table" at Section 7B1.4, p.s.
"Taking the law which recognizes probation as a sentence itself . . . a
sentencing court must impose a sentence as calculated at the time of the
initial sentencing to fix the applicable guideline range. Obviously, a
sentencing court could still depart up or down from the Guideline range
if the proper circumstances exist. Thus, as the policy statements
concerning probation revocation were not in effect at the time Mr.
Maltais was originally sentenced to a term of probation, they are
inapplicable."). Where the revocation sentence was imposed before
Section 7B1.4 became effective, other circuits have held the same. See
citations in Boyd, supra.
Second Circuit holds that whether to apply amendment to commentary
that could benefit defendant -- but was adopted after sentencing --
should be considered in district, not appellate court. Defendant pled
guilty to drug charges and was sentenced on the basis of the heroin
involved in the offenses of conviction as well as drug amounts from two
prior state convictions that involved related conduct. After he was
sentenced the commentary to Section 1B1.3 was amended (effective Nov. 1,
1991) by the addition of application note 7, which states that offense
conduct for which a sentence was imposed prior to the conduct in the
instant offense is not to be considered related conduct. The drug
amounts from the state offenses would likely have been excluded had the
amended commentary been in effect at sentencing.
The issue on appeal was "whether guideline amendments that are
adopted after imposition of a sentence and that might benefit defendants
are to be applied retroactively by a court of appeals to cases pending
on direct review." Generally an appellate court should "apply the law in
effect at the time it renders its decision . . . (but) there exists
sufficient statutory direction 'to the contrary' to preclude appellate
courts, in the first instance, from entertaining requests to apply
post-sentence guideline amendments retroactively to cases pending on
direct review. Our conclusion, however, would not preclude the
application to pending cases of amendments that merely clarify."
The court concluded that by imposing upon the Sentencing Commission,
in 18 U.S.C. Section 3582(c)(2), a "continuing duty to revise the
guidelines, and by authorizing, but not requiring, sentencing courts to
reduce sentences in light of guideline revisions, Congress appears to
have expressed a preference for discretionary district court action in
response to Commission changes, rather than mandatory appellate court
application of all post-sentence Commission changes to pending appeals.
We need not decide at this point whether section 3582(c)(2) applies
broadly . . . or whether it applies more narrowly only to those changes
that precisely reduce an actual sentencing range." The court noted that
the amendment here is not listed in Section 1B1.10(d), p.s., but left
"the effect of this policy statement, . . . its relationship to section
3582(c)(2)," and the extent and exercise of the district court's
discretion under either section, for the district court to determine on
application of the defendant or sua sponte.
U.S. v. Colon, No. 91-1360 (2d Cir. Apr. 6, 1992) (Newman, J.).
U.S. v. Benson, No. 91-2732 (8th Cir. Apr. 7, 1992) (Larson, Sr.
Dist. J.) (Remanded: Section 3C1.1 enhancement for obstruction of
justice "may not be based solely upon (defendant's) failure to convince
the jury of his innocence, (but) it may be 'based on the experienced
trial judge's express finding, based on the judge's personal
observations, that (defendant) lied to the jury.' . . . (T)he analysis
does not call for the specific fact finding and statements of
particularity urged by Benson, but does call for an independent
evaluation and determination by the court that Benson's testimony was
false." Here, the district court simply stated that the jury verdict
demonstrated that defendant gave perjured testimony.). But cf. U.S. v.
Dunnigan, 944 F.2d 178, 183-85 (4th Cir. 1991) (to apply enhancement
because defendant's testimony was disbelieved by jury unconstitutionally
places "an intolerable burden upon the defendant's right to testify in
his own behalf").
U.S. v. Gardiner, 955 F.2d 1492, 1499 (11th Cir. 1992) (Reversed: We
conclude as a matter of law that the defendant's assertions do not
justify (Section 3C1.1) enhancement because a pre-sentence assertion
cannot be material to sentencing if the assertion's truth requires the
jury's verdict to be in error. . . . Clearly, the probation officer
would have to disregard the jury's determination, that the defendant
agreed to and did possess cocaine with intent to distribute, in order to
believe the defendant's assertion to him that he knew nothing about the
cocaine." The appellate court considered notes 4(c) and 5 of the
commentary even though they were amended Nov. 1990, after defendant was
sentenced, because they "serve merely to clarify the meaning of the 1989
and current versions of section 3C1.1."). See also U.S. v. Tabares, 951
F.2d 405, 410 (1st Cir. 1991) (enhancement reversed because no evidence
giving false social security number to probation officer materially
impeded presentence investigation); U.S. v. DeFelippis, 950 F.2d 444,
447 (7th Cir. 1991) (enhancement reversed because misstatements to
probation officer about employment history were immaterial and could not
influence sentence). See 4 GSU #13.
U.S. v. Valencia, 957 F.2d 153, 156 (5th Cir. 1992) (Remanded:
District judge, who was "about halfway convinced" defendant had accepted
responsibility, could not reduce offense level by one for "partially
accepting" responsibility. "U.S.S.G. Section 3E1.1 does not contemplate
either a defendant's mere partial acceptance of responsibility or a
district court's being halfway convinced that a defendant accepted
responsibility. The plain language of Section 3E1.1 indicates that a
district court must reduce the offense level by two levels if it finds
that the defendant has clearly accepted responsibility for his criminal
conduct. . . . To allow . . . a one-level reduction permits the
district court to straddle the fence in close cases without explicitly
finding whether the defendant did or did not accept responsibility." The
appellate court noted that if the Section 3E1.1 reduction is denied,
"partial acceptance" may be considered in determining the sentence
within the guideline range.).
U.S. v. Garrett, No. 90-3210 (D.C. Cir. Mar. 17, 1992) (Henderson,
J.) (Affirmed: In the Section 4B1.1 offense level table, "Offense
Statutory Maximum" includes any applicable statutory sentencing
enhancements that increase the maximum sentence. Under 21 U.S.C.
Section 841(b)(1)(B)(iii), the maximum sentence is 40 years for first
offenders but life for those, like defendant, with certain prior drug
convictions. Thus, for this defendant the "Offense Statutory Maximum"
is life.). Accord U.S. v. Amis, 926 F.2d 328, 329-30 (3d Cir. 1991);
U.S. v. Sanchez-Lopez, 879 F.2d 541, 559-60 (9th Cir. 1989).
U.S. v. Valente, No. 91-10256 (9th Cir. Apr. 1, 1992) (Thompson, J.),
reported in 4 GSU #20 (April 21, 1992), was amended on April 29. Please
make the following changes to your copy of that GSU: (1) end the
quotation in the first paragraph on p.2 with "Valente's aberrant
behavior" by deleting the remaining language of that quote; (2) delete
the first sentence of the next paragraph (note: the rest of the
paragraph is correct but no longer relevant to Valente).
Volume 4, Number 20
April 21, 1992
Ninth Circuit holds that relevant conduct must meet test of
"similarity, regularity, and temporal proximity." Defendant was
convicted by a jury on two drug and two firearms counts, based on
possession of a firearm and less than one gram of methamphetamine in
March 1989. The presentence report relied on defendant's admission that
he sold an ounce of methamphetamine every three days between June and
September 1988, to calculate a total of forty ounces. He was sentenced
on that basis to 97 months on the drug charges, whereas the guideline
range would have been 10-16 months for the amount found at his arrest.
Defendant argued on appeal that the 1988 conduct should not have been
used in sentencing.
The appellate court remanded and set forth the analysis district
courts should use to decide whether conduct is "relevant" for sentencing
purposes. Citing U.S. v. Santiago, 906 F.2d 867, 872 (2d Cir. 1990),
the court determined that the "pertinent factors to be considered are .
. . 'the nature of the defendant's acs, his role, and the number and
frequency of repetitions of acts, in determining whether they indicate a
behavior pattern." . . . There must be "sufficient similarity and
temporal proximity to reasonably suggest that repeated instances of
criminal behavior constitute a pattern of criminal conduct."' Thus, the
essential components of the section 1B1.3(a)(2) analysis are similarity,
regularity, and temporal proximity." (Citations omitted.)
"When one component is absent, however, courts must look for a
stronger presence of at least one of the other components. In cases
such as the present one, where the conduct alleged to be relevant is
relatively remote to the offense of conviction, a stronger showing of
similarity or regularity is necessary to compensate for the absence of
the third component. Compare (U.S. v.) Phillippi, 911 F.2d (149, 151
(8th Cir. 1990)) (holding that the dates and nature of conduct occurring
'as remotely as two years before (the defendant's) arrest' must be
'clearly established' in order to be considered relevant) (, cert.
denied, 111 S.Ct. 702 (1991)) with U.S. v. Cosineau, 929 F.2d 64, 68 (2d
Cir. 1991) ('Because of the continuous nature of the conduct and the
circumstances of this case, we are not reluctant to consider relevant
the conduct that occurred during the course of a two year period.').
"When "the relevance of the extraneous conduct depends primarily on its
similarity to the conviction, it is not enough that the extraneous
conduct merely amounts to the same offense as the offense for which the
defendant was convicted. . . (A) district court must consider whether
specific similarities exist between the offense of conviction and the
temporally remote conduct alleged to be relevant under . . . section
1B1.3(a)(2)."
"When regularity is to provide most of the foundation for temporally
remote, relevant conduct, specific repeated events outside the offense
of conviction must be identified. Regularity is wanting in the case of
a solitary, temporally remote event, and therefore such an event cannot
constitute relevant conduct without a strong showing of substantial
similarity." Cf. U.S. v. Nunez, No. 91-2752 (7th Cir. Mar. 25, 1992)
(Bauer, C.J.) (affirmed: uncharged cocaine sales that occurred from
1986-88 and in 1990 for defendant arrested in Oct. 1990 "amounted to the
same course of conduct" -- all sales were made to same buyer and were
interrupted only by buyer's imprisonment); Santiago, supra, at 871-73
(drug sales 8-14 months before sale of conviction properly considered --
all sales were similar and to same individual). The court noted,
however, that "(i)n extreme cases, the span of time between the alleged
'relevant conduct' and the offense of conviction may be so great as to
foreclose as a matter of law consideration of extraneous events as
'relevant conduct.'" See, e.g., U.S. v. Kappes, 936 F.2d 227, 230-31
(6th Cir. 1991) (although the two were similar, "(i)t would take an
impermissible stretch of the imagination to conclude that the 1983
offense was part of the same 'course of conduct' as the 1989 offense").
In remanding for reconsideration of the 1988 conduct, the court
concluded that the government must show "similarity, regularity, and
temporal proximity in sufficient proportions so that a sentence may
fairly take into account conduct extraneous to the events immediately
underlying the conviction. This test is especially important in cases
where the extraneous conduct exists in 'discrete, identifiable units'
apart from the conduct for which the defendant is convicted."
U.S. v. Hahn, No. 89-10592 (9th Cir. April 7, 1992) (Tang, J.).
Substantial Assistance
Ninth Circuit holds that when departure below statutory minimum is
made under 18 U.S.C. Section 3553(e), further departure for other
mitigating circumstances is not authorized. Defendant pled guilty to a
drug charge that carried a ten-year mandatory minimum sentence, which
was greater than his guideline range (range not specified in opinion).
The government made a motion under Section 3553(e) and Section 5K1.1,
p.s. for downward departure based on defendant's substantial assistance
and recommended a three-year sentence. The district court departed
downward to impose a 39-month sentence. Defendant argued on appeal that
the court should have departed further based on his claim of aberrant
behavior.
The appellate court affirmed the sentence and held that the district
court had no authority to depart for any reason other than defendant's
substantial assistance. The court reasoned that generally "district
courts do not have discretion to depart downward from mandatory minimum
sentences imposed by statute." Section 5K1.1 "is the only section (of
the Guidelines) that allows (such) a downward departure . . . All other
sections in part K address departures from the 'guidelines.' U.S.S.G.
Sections 5K2.0-5K2.15."
"Here, the district court departed downward from the mandatory
minimum sentence in response to a motion by the government based on
Valente's substantial assistance . . . There is no question this
downward departure was proper. But the court had no authority to depart
downward below the statutory minimum on the basis of Valente's aberrant
behavior, nor for that reason to depart below the government's
recommended downward departure once the minimum sentence level had been
breached."
This is the first appellate court to apparently suggest that a
Section 3553(e) departure is limited by the government's recommended
sentence. The Seventh Circuit has stated that the government's
recommendation "should be the starting point" for the extent of
departure. U.S. v. Thomas, 930 F.2d 526, 530-31 (7th Cir. 1991). But
cf. U.S. v. Pippin, 903 F.2d 1478, 1485 (11th Cir. 1990) (once
government makes Section 5K1.1 motion it "has no control over whether
and to what extent the district court departs from the Guidelines,"
except that it may argue on appeal that the sentence was
"unreasonable"); U.S. v. Wilson, 896 F.2d 856, 859-60 (4th Cir. 1990)
(under Section 3553(e) "the limit of the district court's discretion is
the question of whether or not the sentence imposed was reasonable," and
court may depart down to probation).
One other court has specifically held that "only factors relating to
a defendant's cooperation" may be considered in determining the extent
of a departure under Section 3553(e). Thomas, supra, at 529-30
(improper to factor in family responsibilities, Section 5H1.6, p.s.,
when choosing extent of departure).
Note that in the instant case the guideline range was below the
mandatory minimum. The holding here may not apply when the guideline
range is above the mandatory minimum. That is, a court could depart for
mitigating circumstances down to the minimum, then below it for
substantial assistance.
U.S. v. Valente, No. 91-10256 (9th Cir. April 1, 1992) (Thompson,
J.).
Criminal History
U.S. v. Glas, No. 90-3522 (7th Cir. Mar. 16, 1992) (Kanne, J.)
(affirmed upward departure from 24-30 months to 48 months for defendant
with 39 criminal history points: it was reasonable to "create" new
criminal history categories above VI by adding one for every three
points above 13 and increasing the minimum sentence by three months --
the pattern for a defendant at offense level 10 -- thus resulting in new
category XIV and 48-54 month range).
Possession of Weapon During Drug Offense
U.S. v. Sivils, No. 90-6366 (6th Cir. Mar. 31, 1992) (Jones, J.) (it
was not clearly erroneous to give Section 2D1.1(b)(1) enhancement to
defendant who was a county sheriff and carried a gun as part of his job
-- carrying the firearm "as part of his status as a sheriff . . . does
not mean . . . that weapon could not be connected with the offense").
Accord U.S. v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).
U.S. v. Soto, No. 91-1653 (2d Cir. Mar. 24, 1992) (Altimari, J.)
(rejecting claim that Section 2D1.1(b)(1) enhancement could not be
applied unless defendant had personal knowledge of existence of weapons
in apartment where he and codefendants were arrested, joining other
circuits in holding that this "enhancement may be applied to a
defendant's sentence based on possession of a weapon so long as the
possession of the firearm was reasonably foreseeable to the defendant").
Accord U.S. v. McFarlane, 933 F.2d 898, 899 (10th Cir. 1991); U.S. v.
Blanco, 922 F.2d 910, 912 (1st Cir. 1991); U.S. v. Barragan, 915 F.2d
1174, 1177-79 (8th Cir. 1990); U.S. v. Garcia, 909 F.2d 1346, 1349-50
(9th Cir. 1990); U.S. v. Aguilera-Zapata, 901 F.2d 1209, 1212-15 (5th
Cir. 1990); U.S. v. White, 875 F.2d 427, 433 (4th Cir. 1989).
Plea Bargains
Second Circuit sets forth options on remand when sentence exceeds
plea agreement that only specified amount of fines. Defendants and the
government entered plea bargains that specified the amounts of the fines
to be imposed but contained no other language limiting the sentence.
The sentencing judge imposed fines several times higher than the
agreement specified, stating that he did so because he imposed probation
rather than prison terms. Defendants and the government agreed on
appeal that both sentences should be remanded, but disagreed as to
whether the district court should simply lower the fine amounts or also
could replace the sentences of probation with terms of imprisonment.
The appellate court held that the defendants must be given the
opportunity to withdraw their guilty pleas or the sentencing court "must
conform the sentence to th(e) bargain by reducing the fine to the
bargained amount." However, because the fine was the only component of
the sentence that was stipulated, the district judge may, "if he elects
to enforce the sentence bargains and reduce the fines, . . . exercise
his discretion to impose terms of imprisonment with respect to the same
counts for which the fine component of the sentence will be reduced.
The extent of such terms, however, must not be so severe as to create an
undue risk of deterring others from subsequent challenges to sentence
components that might be unlawful." The court noted that defendants'
"appellate 'victory' risks consequences that they might well regard as
adverse," and therefore gave them the option to withdraw this appeal
should they prefer "to accept their current sentences instead of facing
the risk of imprisonment."
U.S. v. Bohn, No. 91-1433 (2d Cir. Mar. 19, 1992) (Newman, J.).
U.S. v. Saunders, No. 91-1501 (8th Cir. Mar. 2, 1992) (McMillian, J.)
(remanded: court may depart to impose longer term of supervised
release, but departure from 2-3-year term to 5-year term was improper
here because statutory maximum term was three years; however, defendant
was convicted of multiple counts and court may impose consecutive terms
of supervised release to reach same result).
Consecutive or Concurrent Sentences
U.S. v. Perez, 956 F.2d 1098 (11th Cir. 1992) (affirmed: even when
concurrent sentences are called for under Section 5G1.2, "the district
court has the authority to impose consecutive rather than concurrent
sentences if it follows the procedures for departing from the
Guidelines"). Accord U.S. v. Pedrioli, 931 F.2d 31, 32 (9th Cir. 1991).
Volume 4, Number 19
April 9, 1992
Substantial Assistance
Eighth Circuit holds that Section 5K1.1, p.s. motion does not permit
departure below statutory minimum under 18 U.S.C. Section 3553(e).
Defendant was subject to a ten-year mandatory minimum sentence after
pleading guilty to possession with intent to distribute 50 or more grams
of cocaine base. The government filed a motion under Section 5K1.1,
p.s. for departure below the guideline range of 235-295 months, and
specifically noted that its motion was pursuant to Section 5K1.1 only
and was not meant to affect the mandatory minimum. The district court
departed below both the range and the minimum to impose a sentence of 36
months.
On the government's appeal, the issue was "whether a sentencing judge
can depart below the statutory mandatory minimum sentence when the
government has moved for a downward departure for substantial assistance
pursuant to . . . section 5K1.1, and not pursuant to 18 U.S.C. Section
3553(e). The underlying question is whether sections 5K1.1 and 3553(e)
provide for two different types of departure . . . or whether they are
intended to perform the same function."
The appellate court reversed, concluding that the two sections are
distinct. The sentencing statutes "plainly empower the Sentencing
Commission to provide for departures below the statutory minimum.
However, section 5K1.1 does not state that a 5K1.1 motion applies to
mandatory minimum sentences, or is the equivalent of a section 3553(e)
motion. Thus, the only authority for the district court to depart below
the statutorily mandated minimum sentence exists in the plainly stated
limitation in section 3553(e). The government made it clear that it was
not filing a motion pursuant to that statute. Because a section 3553(e)
motion is the key to unlocking the door to consideration of this issue
by the sentencing judge, we can only conclude that the district court
erred in departing below the mandatory minimum absent such a motion . .
. (T)he sentencing judge may not depart below the statutory minimum
pursuant to a motion under section 5K1.1 alone."
The Second and Ninth Circuits held the opposite -- courts may depart
below both the guideline range and statutory minimum once a Section
5K1.1 motion is made. U.S. v. Ah-Kai, 951 F.2d 490, 493-94 (2d Cir.
1991); U.S. v. Keene, 933 F.2d 711, 715 (9th Cir. 1991). See also U.S.
v. Wade, 936 F.2d 169, 171 (4th Cir.) (agreeing with Keene in dicta),
cert. granted, 112 S. Ct. 635 (1991) (arguments heard March 23, 1992).
U.S. v. Rodriquez-Morales, No. 91-2355 (8th Cir. Mar. 11, 1992)
(Gibson, J.) (Heaney, Sr. J., dissenting).
Criminal History
U.S. v. Gammon, No. 91-1832 (7th Cir. Mar. 9, 1992) (Flaum, J.)
(Affirming upward departure partly based on inadequate reflection in the
criminal history score of "the seriousness of (defendant's) record as
evidenced by the sheer number of juvenile offenses." The court held that
although the juvenile convictions were to "old" to be counted under
Section 4A1.2(d)(2) and were not similar to the offense of conviction,
Section 4A1.2, comment. (n.8), they were a proper ground for departure
under Section 4A1.3, p.s. because they showed "his serious history of
criminality and the likelihood that he would commit crimes in the
future."). Contra U.S. v. Samuels, 938 F.2d 210, 215-16 (D.C. Cir.
1991) (uncounted juvenile sentences may be used for departure only if
evidence of similar misconduct or criminal livelihood) (4,#8). Cf. U.S.
v. Nichols, 912 F.2d 598, 604 (2d Cir. 1990) (departure under Section
4A1.3, p.s. proper for violent juvenile offense for which defendant
received lenient treatment).
Abuse of Position of Trust
Ninth Circuit distinguishes "breach" from "abuse" of trust. Although
the Section 3B1.3 enhancement for abuse of position of trust may not be
applied when elements of the offense include abuse of trust, there is "a
qualitative difference between a breach of trust and abuse of trust,"
and thus Section 3B1.3 may be "applied to embezzlers when the breach of
trust was particularly egregious." Accord U.S. v. Georgiadis, 933 F.2d
1219, 1225 (3d Cir. 1991). "In determining whether particular conduct
constitutes a breach or an abuse of trust, courts must look to the role
the position of trust played in facilitating the offense. The
Commentary states that the enhancement may be applied only when the
position of trust contributed in some 'substantial' way to facilitating
the crime. 'Substantial' in this context has been interpreted to mean
that, in addition to the elements of the crime, the defendant exploited
the trust relationship to facilitate the offense." Because defendant's
position "not only allowed her access to large amounts of cash, but also
made it possible for her to conceal the theft for an extended period of
time . . . her position of trust facilitated her embezzlement in a
manner not accounted for in the underlying offense" and the enhancement
was properly given.
The court also held that an enhancement for "more than minimal
planning," Section 2B1.1(b)(5), could be imposed in addition to Section
3B1.3 because the extensive planning required for repeated thefts over a
two and a half year period involved concerns other than abuse of trust.
Accord U.S. v. Marsh, 955 F.2d 170 (2d Cir. 1992); Georgiadis, supra,
at 1225-27.
U.S. v. Christiansen, No. 91-30155 (9th Cir. Mar. 3, 1992) (Wright,
J.).
Use of Special Skill
U.S. v. Connell, No. 91-1700 (1st Cir. Feb. 26, 1992) (Selya, J.)
(affirmed: "the specialized knowledge required of a stockbroker, when
combined with the ability to access financial market directly, can
qualify as a special skill" under Section 3B1.3 where, as here, it was
not an element of the offense).
Victim-Related Adjustments
U.S. v. Caterino, No. 90-50049 (9th Cir. Feb. 21, 1992) (Hall, J.)
(remanded: error to apply two "vulnerable victim" enhancements under
Section 3A1.1, for total increase of four offense levels, for vulnerable
victims in two separate fraud counts arising from same fraud scheme --
under the multiple counts guidelines in Chapter Three "the offense
characteristics for a fraud conviction are applied to the overall scheme
rather than by reference to individual counts or victims," and thus the
Section 3A1.1 adjustment is "counted once for convictions arising out of
a single fraudulent scheme"). See also U.S.S.G. Section 3D1.3, comment.
(n.3) ("When counts are grouped pursuant to Section 3D1.2(d), the
offense guideline applicable to the aggregate behavior is used . . .
Determine whether the specific offense characteristics or adjustments
from Chapter Three, Parts A, B, and C apply based upon the combined
offense behavior taken as a whole.").
Obstruction of Justice
U.S. v. Brooks, No. 90-5240 (4th Cir. Feb. 28, 1992) (Luttig, J.)
(Remanding imposition of Section 3C1.1 enhancement for threatening
comment made to third party but not heard by the target of the threat.
"At a minimum, section 3C1.1 requires that the defendant either threaten
the codefendant, witness, or juror in his or her presence or issue the
threat in circumstances in which there is some likelihood that the
codefendant, witness, or juror will learn of the threat. Not only is
there no evidence in this record that Patterson ever learned of Brooks'
threat, there is no basis for concluding from the circumstances in which
the threat was made that Patterson might learn of the threat. It is not
even clear that Brooks actually intended that Patterson learn of the
threat."). But cf. U.S. v. Capps, 952 F.2d 1026, 1028-29 (8th Cir.
1991) (affirming enhancement based on threat made to third party:
"since the adjustment applies to attempts to obstruct justice, it is not
essential that the threat was communicated to (the target) if it
reflected an attempt by Capps to threaten or intimidate her
conspirators") (4, #18).
Career Offender
Eleventh Circuit reaffirms that unlawful possession of firearm by
convicted felon is "crime of violence" and holds that change in
commentary cannot overrule circuit precedent. Defendant's sentence as a
career offender was affirmed in U.S. v. Stinson, 943 F.2d 1268 (11th
Cir. 1991), which held that possession of a firearm by a convicted felon
categorically constitutes a "crime of violence" for career offender
purposes. Later, the Commentary to Section 4B1.2 was changed to state
that such offense was not a crime of violence. Defendant petitioned for
rehearing, arguing that the amendment should be given retroactive
effect.
The appellate court denied the petition, reaffirmed its earlier
holding, and examined "the appropriate weight to be afforded to the
commentary . . . This new commentary coming after we had construed the
guidelines, raises the question of what effect should be given a post
hoc change in the commentary -- or newly created 'legislative history'
-- by the Sentencing Commission." Noting that, unlike guidelines, the
commentary "is never officially passed upon by Congress," the court
determined that "we must be mindful of the limited authority of the
commentary. We doubt the Commission's amendment to section 4B1.2's
commentary can nullify the precedent of the circuit courts. As far as
we can tell, at no point has this change been called to Congress's
attention, much less been authorized by Congress. Although commentary
should generally be regarded as persuasive, it is not binding. . . We
decline to be bound by the change in section 4B1.2's commentary until
Congress amends section 4B1.2's language to exclude specifically the
possession of a firearm by a felon as 'a crime of violence.'"
U.S. v. Stinson, No. 90-3711 (11th Cir. Mar. 20, 1992) (per curiam).
Amendments
U.S. v. Connell, No. 91-1700 (1st Cir. Feb. 26, 1992) (Selya, J.)
(Remanded because offense guideline level was lowered after sentencing:
"The guidelines provide that '(w)here a defendant is serving a term of
imprisonment, and the guideline range applicable to that defendant has
subsequently been lowered as a result of an amendment (listed in Section
1B1.10(d)) . . ., a reduction in the defendant's term of imprisonment
may be considered.' U.S.S.G. Section 1B1.10(a), p.s. (1991) . . .
Hence, while Connell is not necessarily entitled to a reduction in the
offense level -- section 1B1.10(a) does not mandate the use of the
lesser enhancement, but merely affords the sentencing court discretion
to utilize it -- he is entitled to have his sentence reviewed in light
of the amendment."). Cf. U.S. v. Park, 951 F.2d 634, 635-36 (5th Cir.
1992) (under facts of this case amendment listed in Section 1B1.10(d)
"should be applied retroactively").
Juvenile Sentencing
Supreme Court holds juvenile sentences are limited by maximum
Guidelines sentence that similarly situated adult could receive. "We
hold . . . that application of the language in (18 U.S.C.) Section
5037(c)(1)(B) permitting detention for a period not to exceed 'the
maximum term of imprisonment that would be authorized if the juvenile
had been tried and convicted as an adult' refers to the maximum length
of sentence to which a similarly situated adult would be subject if
convicted of the adult counterpart of the offense and sentenced under
the statute requiring application of the Guidelines, 18 U.S.C. Section
3553(b). Although determining the maximum permissible sentence under
Section 5037(c)(1)(B) will therefore require sentencing and reviewing
courts to determine an appropriate guideline range in
juvenile-delinquency proceedings, we emphasize that it does not require
plenary application of the Guidelines to juvenile delinquents. Where
that statutory provision applies, a sentencing court's concern with the
Guidelines goes solely to the upper limit of the proper guideline range
as setting the maximum term for which a juvenile may be committed to
official detention, absent circumstances that would warrant departure
under Section 3553(b)."
The Court's holding resolves the conflict between U.S. v. R.L.C., 915
F.2d 320, 325 (8th Cir. 1991) (maximum sentence limited by guideline
range), and U.S. v. Marco L., 868 F.2d 1121, 1124 (9th Cir.) (maximum
term limited only by "the statute defining the offense"), cert. denied,
110 S.Ct. 369 (1989).
U.S. v. R.L.C., No. 90-1577 (U.S. Mar. 24, 1992) (Souter, J.)
(concurring ops. by Scalia and Thomas, JJ.; dissenting op. O'Connor,
J.).
Volume 4, Number 18
March 27, 1992
Mitigating Circumstances
Ninth Circuit upholds downward departures for drug-smuggling "mules"
for whom Section 3B1.2 mitigating role adjustment was unavailable. In
two separate cases consolidated for appeal, a Mexican citizen with no
prior criminal record received money ($1,000 and $2,000) to drive a
carload of marijuana (190 pounds and 50-100 kilograms) into the U.S.
from Mexico. Both pled guilty to possession with intent to distribute.
Neither was eligible for a mitigating role adjustment, Section 3B1.2,
because each was the only participant in the offense. See U.S. v.
Zweber, 913 F.2d 705, 708-09 (9th Cir. 1990) (may not receive Section
3B1.2 reduction for role in uncharged or unconvicted conspiracy). They
were separately sentenced by the same judge, who departed from their
41-51-month ranges to impose 15- and 8-month terms. The judge departed
because the guideline ranges overstated the seriousness of the
defendants' conduct as mere "mules" in the drug trade along the
Arizona-Mexico border, particularly in light of guideline sentences,
including probation, the court was imposing in more serious drug
smuggling cases.
The appellate court affirmed, relying on U.S. v. Bierley, 922 F.2d
1061, 1065-66 (3d Cir. 1990), which held that departure may be
considered for a defendant who could not qualify for an adjustment under
Section 3B1.2 because he was the only "criminally responsible
'participant'" in the offense of conviction. "Applying Bierley . . . we
find that the marginal roles played by (defendants) in the drug trade,
coupled with the unavailability of the section 3B1.2 downward
adjustment, could well represent a permissible basis for a downward
departure."
The court also held that the district court could consider "the
socioeconomics and the internal politics of the drug trade along the
Mexican border and the sentencing patterns in other drug cases arising
from trafficking across that border . . . '(M)ules' along the Mexican
border are uniquely situated in terms of their role in the drug trade,
being even less involved in the overall drug business and with less to
gain from the success of the drug enterprise than ordinary underlings in
conspiracy cases. This is a peculiar condition that the Sentencing
Commission did not address." Cf. U.S. v. Alba, 933 F.2d 1117, 1121-22
(2d Cir. 1991) (even with Section 3B1.2 reduction, departure for "less
than minimal" role may be warranted for "extremely limited nature of
(defendant's) involvement" in offense).
Note: Bierley held that such a departure "would be limited to the 2
to 4 level adjustment" allowed under Section 3B1.2. Here, the court did
not rule on the issue because the government did not appeal the extent
of the departures.
U.S. v. Valdez-Gonzalez, No. 89-1027 (9th Cir. Feb. 19, 1992) (Tang,
J.) (Fernandez, J., dissenting).
U.S. v. Boshell, 952 F.2d 1101, 1106-09 (9th Cir. 1991) (Affirming
downward departure for defendant who faced much longer sentence under
Guidelines than comparable and more culpable co-conspirators who, unlike
defendant, were allowed to plead to pre-Guidelines offenses: "(T)he
need to avoid unwarranted sentencing disparities among co-defendants
involved in the same criminal activity has long been considered a
legitimate sentencing concern . . . (W)here unusual circumstances are
present, departure for equalization of co-defendants' sentences may be
warranted." Cf. U.S. v. Ray, 930 F.2d 1368, 1372-73 (9th Cir. 1990)
(departure warranted where co-defendants received much lower sentences
in period Ninth Circuit held Guidelines unconstitutional).
The sentencing court also departed based on defendant's personal
characteristics, background, and job history. The appellate court
remanded for articulation of the specific reasons for departure and the
underlying factual basis: "Only in extraordinary circumstances may a
court rely on one of the six factors listed in (U.S.S.G. Sections
5H1.1-1.6, p.s.) to depart from the guidelines range.").
Evidentiary Issues
Second Circuit holds courts must consider illegally seized evidence
at sentencing. "We conclude that the benefits of providing sentencing
judges with reliable information about the defendant outweigh the
likelihood that allowing consideration of illegally seized evidence will
encourage unlawful police conduct. Absent a showing that officers
obtained evidence expressly to enhance a sentence, a district judge may
not refuse to consider relevant evidence at sentencing, even if that
evidence has been seized in violation of the Fourth Amendment." See also
U.S. v. Lynch, 934 F.2d 1226, 1234-37 (11th Cir. 1991) (illegally seized
evidence may be considered), cert. denied, 112S. Ct. 885 (1992); U.S.
v. Torres, 926 F.2d. 321, 325 (3d Cir. 1991) (same); U.S. v. McCrory,
930 F.2d 63, 68 (D.C. Cir. 1991) (same, adding that evidence unlawfully
seized for the purpose of increasing sentence may require suppression),
cert. denied, 112 S. Ct. 885 (1992).
U.S. v. Tejada, No. 91-1071 (2d Cir. Feb. 21, 1992) (Meskill, J.).
Plea Agreements
Fourth Circuit holds that Chapter 6 of the Sentencing Guidelines did
not change the standard for withdrawal of guilty pleas. Defendant pled
guilty to one count pursuant to a plea agreement where the government
agreed to dismiss a second count and recommend sentencing at the low end
of the guideline range. At the plea hearing the court accepted
defendant's guilty plea but deferred acceptance of the plea agreement
pending the PSR. Before the court accepted the agreement, defendant
moved to withdraw his guilty plea. The district court denied the
motion, holding that defendant had not established a "fair and just
reason" for withdrawal under Fed. R. Crim. P. 32(d), and later imposed
sentence in accordance with the agreement. On appeal defendant claimed
that sections of Chapter 6 "require a new, less rigorous standard to
govern motions for withdrawal made before the district court accepts a
plea agreement."
The appellate court rejected that contention: "Ewing essentially
argues that since sections 6B1.1-.3 (,p.s.) prevent the sentencing court
from accepting a plea agreement until the court has reviewed the
presentence report, the rule should be the same for a guilty plea.
Until then, he argues, the court has not accepted the plea, and thus he
should be able to withdraw his plea upon some showing of cause less
demanding than the current fair and just reason standard . . . The flaw
in Ewing's position is its failure to acknowledge the distinction
between a plea of guilty and a plea agreement." The plea agreement here
was made under Rule 11(e)(1)(A) and (B), and "the rule in no way
suggests that the plea of guilty may be withdrawn as a matter of right .
. . at any time after its acceptance except when a type (e)(1)(A) or (C)
plea agreement is rejected by the court. Thus, once a plea of guilty is
accepted by the court, the defendant is bound by his choice and may
withdraw his plea in only two ways relevant here, either by showing a
fair and just reason under Rule 32(d), or by withdrawing under Rule
11(e)(4) after a rejected plea agreement."
The Sentencing Guidelines did not change this. Section 6B1.1(c),
p.s. "requires the sentencing court to defer its decision whether to
accept a plea agreement until there has been an opportunity to examine
the presentence report; Rule 11 standing alone gives the court the
discretion as to whether to defer . . . We have no occasion here to
resolve the patent conflict between the Rule and the Guideline, for the
district court did not abuse its discretion in accepting the guilty plea
and later approving the plea agreement as it was permitted to do under
the Rule and required to do under the Guidelines."
U.S. v. Ewing, No. 91-5250 (4th Cir. Feb. 20, 1992) (Widener, J.).
Eighth Circuit analyzes interplay of relevant conduct and plea
bargains in fraud loss case. Defendant pled guilty to three counts of
mail fraud for selling three cars with altered odometers. In exchange,
the government dismissed other counts, including a conspiracy count
involving over 300 cars with altered odometers sold at auction for other
car dealers. Defendant was sentenced on the basis of the loss in the
three counts of conviction, but the government argued on appeal that the
amount of loss should have included the amount from the dismissed
conspiracy count as relevant conduct.
The appellate court remanded: "To determine the amount of loss in
this case, the district court considers all harm resulting from 'all . .
. acts and omissions that were part of the same course of conduct or
common scheme or plan as the offense of conviction.' U.S.S.G. Section
1B1.3(a)(2) . . . The mail fraud counts to which Morton pleaded guilty
included a preamble incorporating by reference assertions contained in
the conspiracy count." The court held this was not sufficient proof for
relevant conduct: "(T)he 'offense of conviction' is the substantive
offense to which the defendant pleads guilty. . . . There is no written
plea agreement in this case. Instead, Morton pleaded guilty to three
counts of mail fraud in open court and specifically denied knowledge
that the cars involved in the conspiracy count had rolled-back
odometers. The transcript of the plea hearing does not show anyone
informed Morton he was conceding facts underlying the conspiracy. Under
the circumstances, '(t)o permit a greater offense to be incorporated by
reference into each count of the indictment destroys the plea bargain
process.' U.S. v. Sharp, 941 F.2d 811, 815 (9th Cir. 1991). By
incorporating the entire scheme into each count, the Government concedes
little when it agrees to dismiss many counts in exchange for a plea
including the entire scheme. Id."
The Court concluded: "(W)e agree with the district court that
Morton's guilty plea is not a basis for including the conspiracy's cars
in the loss calculation. (However), the loss resulting from the
conspiracy's cars may still be included under U.S.S.G. Section 1B1.3 if
the conspiracy is 'part of the same course of conduct or common scheme
or plan' as the mail fraud. '(T)his is a fact intensive inquiry in
which the district court is given broad discretion to assess the
relevant facts.' . . . The relevancy of conduct and the amount of loss
under the fraud guidelines are factual findings reversible only for
clear error."
U.S. v. Morton, No. 91-2618 (8th Cir. Feb. 24, 1992) (Fagg, C.J.).
Victim-Related Adjustments
U.S. v. Sutherland, No. 91-1961 (7th Cir. Jan. 28, 1992) (Eschbach,
Sr. J.) (Reversed -- there was insufficient evidence to find that World
War I and II veterans and families were, as a group, "unusually
vulnerable" under Section 3A1.1 to fraud scheme based on collecting and
converting their personal war memorabilia, or that defendant
specifically targeted the elderly. "In a fraud case where the defendant
issues an appeal to a broad group, the court should focus on whom the
defendant targets, not on whom his solicitation happens to defraud . . .
Section 3A1.1 is designed to punish criminals who choose vulnerable
victims, not criminals who target a broad group which may include some
vulnerable persons." There must be specific evidence showing
vulnerability of the victim -- the enhancement may not be based on a
"broad and unsupported generalization.") See also U.S. v. Cree, 915 F.2d
352, 353-54 (8th Cir. 1990) (enhancement improper where defendant did
not know extent of or intend to exploit victim's vulnerability); U.S.
v. Wilson, 913 F.2d 136, 138 (4th Cir. 1990) (random targets of
solicitation not vulnerable); U.S. v. Creech, 913 F.2d 780, 781 (10th
Cir. 1990) (no evidence that recently-married husbands are unusually
vulnerable to threats to family). But cf. U.S. v. Boise, 916 F.2d 497,
506 (9th Cir. 1990) (defendant need not intentionally select victim
because of vulnerability).
Obstruction of Justice
U.S. v. Capps, 952 F.2d 1026, 1028-29 (8th Cir. 1991) (Affirming
Section 3C1.1 enhancement for obstruction of justice based on
defendant's statement to third party in a bar that a co-conspirator --
who had become a confidential government informant -- "was snitching on
her and that she was bringing in some bikers to kick his ass and deal
with the snitch." Defendant argued that because the threat was never
communicated to the informant the enhancement was improper. The
appellate court disagreed and held that "since the adjustment applies to
attempts to obstruct justice, it is not essential that the threat was
communicated to (the informant) if it reflected an attempt by Capps to
threaten or intimidate her conspirators into obstructing the
government's investigation." The threat was "more than idle bar talk,"
and there was also evidence defendant had threatened others in the
conspiracy.).
U.S. v. Amos, 952 F.2d 992 (8th Cir. 1991) (Reversed -- defendant who
withdrew guilty plea and then denied guilt at trial should not have
received a two-level adjustment for acceptance of responsibility under
U.S.S.G. Section 3E1.1: "The fact that Amos admitted to the crime and
accepted responsibility when he entered his guilty plea became
irrelevant once he proceeded to trial and denied the offense.").
Volume 4, Number 17
March 17, 1992
Supreme Court holds that remand is not required for departure based
on both valid and invalid factors when same sentence would have been
imposed absent invalid factors. In so holding the Court resolved a
split among the circuits. Several circuits had held that a departure
based in part on invalid factors may be affirmed on a case-by-case basis
if there are valid factors that warrant departure and it appears the
same sentence would have been imposed absent the invalid factors. See
U.S. v. Jones, 948 F.2d 732, 741 (D.C. Cir. 1991); U.S. v. Glick, 946
F.2d 335, 339-40 (4th Cir. 1991); U.S. v. Alba, 933 F.2d 1117, 1122 (2d
Cir. 1991); U.S. v. Diaz-Bastardo, 929 F.2d 798, 800 (1st Cir. 1991);
U.S. v. Jagmohan, 909 F.2d 61, 65 (2d Cir. 1990); U.S. v. Franklin, 902
F.2d 501, 508 (7th Cir.), cert. denied, 111 S. Ct. 274 (1990); U.S. v.
Rodriguez, 882 F.2d 1059, 1068 (6th Cir. 1989). Two circuits had held
that remand was automatically required in such a situation. See U.S. v.
Zamarripa, 905 F.2d 337, 342 (10th Cir. 1990); U.S. v.
Hernandez-Vasquez, 884 F.2d 1314, 1315-16 (9th Cir. 1989) (per curiam).
In the case before the Court, defendant received an upward departure
in his criminal history category based upon several prior arrests that
were not reflected in his criminal history score and two prior
convictions that were too old to be counted. Although the first ground
was an improper basis for departure, see U.S.S.G. Section 4A1.3, p.s.,
the appellate court affirmed the sentence because it held the latter
factor was valid and justified the increase. U.S. v. Williams, 910 F.2d
1574, 1580 (7th Cir. 1990).
The Supreme Court remanded because it was unable to determine whether
the appellate court had concluded that the same sentence would have been
imposed absent the invalid factor. However, the Court held that remand
is not automatically required in such circumstances. In reaching its
conclusion, the Court determined that "the reviewing court is obliged to
conduct two separate inquiries. First, was the sentence imposed either
in violation of law or as a result of an incorrect application of the
Guidelines? If so, a remand is required under Section 3742(f)(1) . . .
(A) reviewing court may not affirm a sentence based solely on its
independent assessment that the departure is reasonable under Section
3742(f)(2)." However, a remand under (f)(1) is not required "every time
a sentencing court might misapply a provision of the Guidelines . . .
When a district court has intended to depart from the guideline range, a
sentence is imposed 'as a result of' a misapplication of the Guidelines
if the sentence would have been different but for the district court's
error. Accordingly, in determining whether a remand is required under
Section 3742(f)(1), a court of appeals must decide whether the district
court would have imposed the same sentence had it not relied upon the
invalid factor or factors."
"If the court concludes that the departure is not the result of an
error in interpreting the Guidelines, it should proceed to the second
step: is the resulting sentence an unreasonably high or low departure
from the relevant guideline range? If so, a remand is required under
Section 3742(f)(2)." Whether a departure sentence is reasonable is
determined by "the amount and extent of the departure in light of the
grounds for departing . . . A sentence . . . can be 'reasonable' even
if some of the reasons given by the district court . . . are invalid,
provided that the remaining reasons are sufficient to justify the
magnitude of the departure."
Note that "the party challenging the sentence on appeal, although it
bears the initial burden of showing that the district court relied upon
an invalid factor at sentencing, does not have the additional burden of
proving that the invalid factor was determinative in the sentencing
decision. Rather . . . a remand is appropriate unless the reviewing
court concludes, on the record as a whole, that the error was harmless,
i.e., that the error did not affect the district court's selection of
the sentence imposed. See Fed. Rule. Crim. Proc. 52(a)."
The Court added instruction on "the degree of an appellate court's
authority to affirm a sentence when the district court, once made aware
of the errors in its interpretation of the Guidelines, may have chosen a
different sentence. Although the (Sentencing Reform) Act established a
limited appellate review of sentencing decisions, it did not alter a
court of appeals' traditional deference to a district court's exercise
of its sentencing discretion. The selection of the appropriate sentence
from within the guideline range, as well as the decision to depart from
the range in certain circumstances, are decisions that are left solely
to the sentencing court. U.S.S.G. Section 5K2.0, p.s. The development
of the guideline sentencing regime has not changed our view that, except
to the extent specifically directed by statute, 'it is not the role of
an appellate court to substitute its judgment for that of the sentencing
court as to the appropriateness of a particular sentence.'"
Because the issue was not properly presented for argument, the Court
declined to review whether outdated convictions that are not similar to
the instant offense may be considered for departure. Compare U.S. v.
Aymelek, 926 F.2d 64, 73 (1st Cir. 1991) (may be appropriate in some
cases); U.S. v. Williams, 910 F.2d 1574, 1578-79 (7th Cir. 1990)
(same); U.S. v. Russell, 905 F.2d 1439, 1443-44 (10th Cir. 1990)
(same); U.S. v. Carey, 898 F.2d 642, 646 (8th Cir. 1990) (same) with
U.S. v. Leake, 908 F.2d 550, 554 (9th Cir. 1990) (only if similar). See
also U.S.S.G. Section 4A1.2, comment. (n.8) ("evidence of similar
misconduct" in outdated convictions may be considered for departure).
Williams v. U.S., No. 90-6297 (U.S. Mar. 9, 1991) (O'Connor, J.)
(White, Kennedy, JJ., dissenting).
Ninth Circuit holds relevant conduct is not limited to conduct that
would constitute federal offense. Defendant, an employee of a
government contractor, pled guilty to submitting two false petty cash
vouchers, totaling less than $200, which were later charged to the
United States. He also admitted to submitting false vouchers worth
$214,705.39 over the years to his employer. There was no proof that the
United States was charged for these expenses and thus no indication that
these submissions violated federal law. The district court included all
the vouchers in calculating defendant's base offense level under
U.S.S.G. Section 1B1.3(a)(2). Defendant appealed, claiming that because
the federal government had no jurisdiction over the $214,000 worth of
false vouchers they should not have been used to compute his sentence.
The appellate court affirmed, holding that actions amounting to state
offenses but not federal offenses may be considered under the relevant
conduct provisions: "We find no intention by the Sentencing Commission
to narrow Sections 1B1.3(a)(2) and (a)(3) to federal conduct only.
Those subsections specifically direct the consideration of all acts that
were part of the same course of conduct or common scheme or plan, as
well as all harm that resulted from those acts . . . (A)ll of Newbert's
actions took place in the same general course of conduct. There was no
difference in the way he committed the state offenses compared to the
federal offenses . . . There is no indication the Sentencing Commission
intended to distinguish among the jurisdictional components of a clearly
common pattern of criminal conduct. Rather, the Sentencing Guidelines
evidence a clear intent that persons who commit a scheme of fraud be
punished in accordance with the total harm caused by the fraud." See
Section 1B1.3(a)(2), comment. (backg'd).
U.S. v. Newbert, 952 F.2d 281, 284 (9th Cir. 1991).
Career Offender Provision
Fourth Circuit holds that, in determining whether offense is a "crime
of violence," courts should look only to conduct charged in the
indictment, not underlying conduct. Defendant pled guilty to being a
convicted felon in possession of firearms after police discovered
firearms buried in his backyard. He had two prior convictions for
violent offenses and was sentenced as a career offender under U.S.S.G.
Section 4B1.1. He appealed that designation, claiming the instant
offense was not "a crime of violence" as defined by Section 4B1.2. The
appellate court agreed and remanded. It first held that, in determining
whether an offense is "violent," "the sentencing court is limited to an
evaluation of the conduct explicitly charged in the indictment" and may
not look to other facts surrounding the offense, even for offenses not
specifically listed in Section 4B1.2. See U.S.S.G. Section 4B1.2,
comment. (n.2) (Nov. 1991) (court may look to "conduct set forth (i.e.,
expressly charged) in the count of which the defendant was convicted").
The court also held that "the offense, felon in possession of a
firearm, in the absence of any aggravating circumstances charged in the
indictment, does not constitute a per se 'crime of violence.'" Accord
U.S. v. Chapple, 942 F.2d 439, 441-42 (7th Cir. 1991) (4, #8). Contra
U.S. v. Stinson, 943 F.2d 1268, 1271-72 (11th Cir. 1991) (4, #10); U.S.
v. O'Neal, 937 F.2d 1369, 1375 (9th Cir. 1990) (amending and superseding
910 F.2d 663 (3, #13))). Other circuits have held that possession plus
other threatening or violent behavior constitutes a crime of violence.
See cases listed in 4 GSU #8 summary of Chapple.
Note: Effective Nov. 1, 1991, U.S.S.G. Section 4B1.2, comment.
(n.2) states, "The term 'crime of violence' does not include the offense
of unlawful possession of a firearm by a felon."
U.S. v. Johnson, 953 F.2d 110, 113-15 (4th Cir. 1991).
Third Circuit holds that in determining whether an offense involved
"serious potential risk of physical injury to another," inquiry into
underlying conduct is not required if the statute of conviction
indicates such a risk. Defendant was sentenced as a career offender,
partly on the basis of a prior state felony conviction for first degree
reckless endangering that resulted from pushing and slapping a store
clerk during a shoplifting attempt. Defendant offered to testify at the
sentencing hearing that he did not commit those acts and that there was
little likelihood of serious injury to the clerk. The district court
refused to hear the testimony and ruled that the conviction was a "crime
of violence" under Section 4B1.1. Despite "grave doubts about the . . .
extremely broad definition of 'crime of violence'" that may cover "a
crime whose mens rea is no worse than recklessness," the appellate court
affirmed.
In the prior state conviction defendant pled guilty to "recklessly
engag(ing) in conduct which creates a substantial risk of death to
another person." The court held that constituted a crime of violence
under the language of Section 4B1.2(1)(ii) that encompasses an offense
that "otherwise involves conduct that presents a serious potential risk
of physical injury to another." Further, the district court did not err
when it refused to "hold a mini-trial on what actually happened." The
appellate court held, "where the language of the criminal statute so
closely tracks the language of the Guideline that the defendant's
conviction necessarily meets the Guideline standard, the district court
need look no further than the statute and need not inquire into the
underlying conduct charged . . . (A)lthough a per se approach based on
the statute alone is not required in every case, see U.S. v. John, 936
F.2d 764 (3d Cir. 1991), such an approach is generally preferable to
inquiry into the facts of each case."
Note: This case involved the pre-1991 amendment version of Section
4B1.2(1)(ii), comment. (n.2), used in Johnson, supra.
U.S. v. Parson, No. 91-3059 (3d Cir. Jan. 31, 1992) (Becker,J.).
Calculating Weight of Drugs -- Marijuana
U.S. v. Hash, No. 91-5340 (4th Cir. Feb. 3, 1992) (Phillips, J.)
(vacating sentence imposed on defendant, convicted of manufacturing and
cultivating six marijuana plants, that was based on assigning each plant
a weight of 100 grams pursuant to Section 2D1.1(c)n.* (at p. 82): "For
offenders possessing fewer than 50 plants, we believe Congress intended
to remain true to the general rule of (21 U.S.C.) Section 841, which
makes actual weight determinative for purposes of sentencing. Under
this interpretation, U.S.S.G. Section 2D1.1(c) n.* is invalid insofar as
it equates one plant with 100 grams of marijuana in offenses involving
fewer than 50 plants . . . (A)ctual weight, not presumed weight, (must)
be the sentencing measure"). Accord U.S. v. Streeter, 907 F.2d 781, 790
(8th Cir. 1990).
Volume 4, Number 16
February 28, 1992
Mitigating Circumstances
Ninth Circuit holds "incomplete duress" may be considered for
downward departure under Section 5K2.12, p.s.; also, jury's rejection of
duress defense on count of conviction does not preclude that defense for
relevant conduct. The cases here arose from the prosecution of a large
drug ring, some of whose members were coerced to work for the ring by
means of brutal violence and intimidation. At trial several defendants
claimed the defense of duress, but the jury returned guilty verdicts.
The district court held that, because the jury rejected the duress
defense, it could not consider duress for sentencing purposes. The
appellate court affirmed the convictions, but remanded for resentencing
and explained how duress should be considered.
Like the Eighth Circuit in Whitetail below, the court followed the
reasoning of U.S. v. Cheape, 889 F.2d 477, 480(3d Cir. 1989)(2 GSU #16),
where the Third Circuit held that a jury's rejection of a defense of
coercion and duress did not preclude departure under Section 5K2.12,
p.s. The Ninth Circuit determined that the defense of duress at trial
requires an objective analysis, whereas for sentencing purposes
subjective elements should be considered: "Evidently the Commission had
in mind the showing of duress less than what constitutes a defense to a
crime; for if the defense were 'complete,' there would have been no
crime requiring a sentence . . . Moreover, the Commission emphasizes
not only 'the reasonableness of the defendant's actions,' but 'the
circumstances as the defendant believed them to be.' U.S.S.G. Section
5K2.12."
The court also held that duress should be considered for relevant
conduct and could preclude use of that conduct for sentencing; or,
departure may be warranted if "incomplete duress" is proved. A
defendant convicted of a single distribution count was sentenced on the
basis of all drugs she distributed over a two-and-a-half-month period.
She admitted the distributions, but claimed they were made under duress.
The appellate court held that this defense should be considered: "The
jury verdict as to her act on September 14, 1989 does not speak to her
state prior to this date. If her contention is correct, she committed
no crime prior to this date. The sentencing court cannot hold her
responsible without first deciding whether she was in fact under duress.
If the court should conclude that (she) has not carried her burden of
proving duress because her evidence of duress is not credible, it is
still open to the court to consider whether there was duress that did
not amount 'to a complete defense.' U.S.S.G. Section 5K2.12." The court
added that expert testimony regarding battered-woman syndrome was
relevant to this defense. Also, evidence of incomplete duress may be
presented at sentencing even if a defendant failed to make out a prima
facie case of duress during trial.
U.S. v. Johnson, No. 90-30344 (9th Cir. Feb. 11, 1992) (Noonan, J.).
Eighth Circuit holds that evidence of "battered-woman syndrome" may
be considered for downward departure under Section 5K2.10, p.s., even if
jury rejects self-defense claim. Defendant was found guilty of second
degree murder of her long-time, live-in boyfriend. She admitted killing
him, but contended that at the time of the killing she suffered from
battered-woman syndrome, that he was beating her or was about to begin
beating her, and that she stabbed him in self-defense. The jury,
however, found her guilty and she was sentenced to 108 months.
Defendant claimed on appeal that the sentencing court improperly
concluded that it could not consider battered-woman syndrome in
sentencing once the jury had rejected her claim of self-defense.
The appellate court agreed and remanded for resentencing. The court
followed Cheape, supra, which reasoned that proof of coercion as a
complete defense at trial involves substantially different elements than
proof of coercion as a mitigating circumstance in sentencing --
otherwise the issue would never arise in sentencing because a defendant
who proved the defense would be acquitted.
The Eighth Circuit held that "(t)he same reasoning applies here.
Whitetail submitted evidence of battered-woman syndrome, not as a
defense in itself, but as the primary component of her claim of
self-defense . . . If her claim of self-defense had been accepted by
the jury, this defense would have resulted in her acquittal. Thus, to
the extent that the guidelines permit consideration of the
battered-woman syndrome as a mitigating factor at sentencing, we must
read them as 'providing a broader standard' for proof of the syndrome
than that which is 'required to prove a complete defense at trial.'"
The court stated that Section 5K2.10, p.s. "permits the district
court to 'reduce the (defendant's) sentence below the guideline range'
if it finds that 'the victim's wrongful conduct contributed
significantly to provoking the offense behavior.' . . . Thus, to the
extent that U.S.S.G. Section 5K2.10, p.s., permits considertion of
battered-woman syndrome as a basis for departure from the guidelines, it
does not require proof of the same elements necessary to establish a
claim of self-defense at trial." The jury's rejection of that defense
does not preclude consideration of battered-woman syndrome for departure
under Section 5K2.10, p.s. See also Johnson, supra.
U.S. v. Whitetail, No. 91-1400 (8th Cir. Feb. 12, 1992) (Bowman, J.).
Substantial Assistance
En banc Eighth Circuit rejects claim that because Section 5K1.1 is a
policy statement it is not binding. The Eighth Circuit affirmed a
district court's holding that it did not have power to depart downward
for the defendants' substantial assistance to the government in the
absence of either a government motion or a claim that the government's
refusal to make such a motion was arbitrary, in bad faith, or in breach
of a plea agreement. Defendants' sole argument was that Section 5K1.1,
as a policy statement rather than a guideline, is not binding on
district courts and can therefore be repudiated on policy grounds.
The circuit court held that Section 5K1.1, p.s. is binding. The
court found that Congress intended that "policy statements be considered
and that the courts' actions be consistent with policy statements."
Further, although amendments to policy statements need not be submitted
for congressional approval, Section 5K1.1, p.s. was submitted to
Congress before its enactment. The court also concluded that "(n)othing
could be more contrary to Congress' intent in providing for the
Sentencing Guidelines that to permit the courts to second-guess the
Commission" and reject Section 5K1.1, p.s. because its approach is
"simply not the best way to handle the problem at hand." The court also
noted that holding policy statements to be nonbinding could have a
"spill over" effect into the weight of commentary, thus "introduc(ing)
the most far-ranging element of uncertainty into the application of the
Guidelines."
U.S. v. Kelley, No. 90-1081 (8th Cir. Feb. 5, 1992) (en banc)
(Gibson, J.) (Beam, J. concurring in part, dissenting in part, joined by
McMillian, J. in dissent) (Lay, CJ., dissenting, joined by McMillian,
J.) (Heaney, Sr. J., dissenting, joined by Lay, C.J., McMillian, J.,
Arnold, J.)
Tenth Circuit holds that policy statements in Chapter Seven regarding
probation and supervised release are not mandatory, but still must be
considered by courts. Defendant violated the terms of his two-year
period of supervised release and after revocation was sentenced to two
years in prison. On appeal he claimed that he was subject to a 3-9
month term under the Revocation Table in Section 7B1.4, p.s., and that
the district court erred in sentencing above that range. The government
countered that the court was not bound by the policy statements and that
the sentence was reasonable.
The appellate court affirmed, and held that "under 18 U.S.C. 3583 and
U.S.S.G. Ch. 7 Pt. A1 & A5, the policy statements regarding revocation
of supervised release contained in Chapter 7 . . . are advisory rather
than mandatory in nature. This holding is specifically limited to
U.S.S.G. Ch. 7. Other policy statements in the . . . Guidelines must
be examined separately in the context of their statutory basis and their
accompanying commentary. We see no conflict between our holding today
and our cases applying and interpreting U.S.S.G. 5K1.1, which is also a
policy statement . . . The cases noting the mandatory nature of . . .
5K1.1 recognize that the motion requirement is suggested, if not
compelled, by the underlying statute; they do not hold that policy
statements are binding as a general rule. A provision set out in a
policy statement may be binding because required by the underlying
statutes."
"Although we conclude that policy statements generally are not
mandatory, they must be considered by the trial court in its
deliberations concerning punishment for violation of conditions of
supervised release."
In this case, although the sentencing court did not specifically
reference Section 7B1.4 in its order, its "explanation of the sentence
it imposed was sufficiently reasoned to satisfy the requirements of 18
U.S.C. 3553," and "even failure to consider Chapter 7 policy statements
. . . is harmless error when the sentence is clearly reasonable and
justified." Accord U.S. v. Fallin, 946 F.2d 57, 58 (8th Cir. 1991) (4,
#10).
U.S. v. Lee, No. 91-6079 (10th Cir. Feb. 19, 1992) (Logan, J.).
Revocation of Probation
U.S. v. Dixon, 952 F.2d 260 (9th Cir. 1991) (Any sentence imposed
after revocation of probation is limited to the sentence available at
the time defendant was first sentenced to probation. See 18 U.S.C.
Section 3565(a)(2). The revised policy statements at U.S.S.G. Chapter 7
direct courts to consider the probation-violating conduct to calculate a
sentencing range after revocation. That conduct may only be considered
in selecting the appropriate sentence within the range available
pursuant to Section 3565(a)(2), and "(t)o the extent that the Guidelines
conflict with the statute, we find them invalid." Here, defendant's
15-month sentence, calculated under Chapter 7 and partly based on the
bank robbery that led to revocation, must be vacated and remanded for
resentencing within the 4-10 month range that was available at his
initial sentencing.).
Acceptance of Responsibility
U.S. v. Johnson, No. 90-30344 (9th Cir. Feb. 11, 1992) (Noonan, J.)
(The acceptance of responsibility reduction may not be denied on the
basis of lack of timeliness for defendants who went to trial and used
duress as a defense, which in effect denied their responsibility for the
offenses. "The Guidelines make clear that the reduction for acceptance
of responsibility is available 'without regard to whether (a) conviction
is based upon a guilty plea or a finding of guilt by the court or jury .
. .' U.S.S.G. Section 3E1.1." To the extent that the commentary's
statements that the reductions should be given after trial only in "rare
situations" or that after trial acceptance is not "timely" may conflict
with the guideline, "the text of the guideline must prevail." The court
also pointed out that defendants here had little choice but to go to
trial: "The government refused to consider plea offers from any single
defendant unless all of the defendants pleaded guilty . . . (Under)
these circumstances it is inappropriate to deny (the reduction) based
solely on the timing of the acceptance."
After conviction "the defendants continued to maintain that at least
they had been subjected to incomplete duress. But unlike a claim of
complete duress, a claim of incomplete duress does not deny criminal
guilt -- it merely asks for leniency because of the coercion to which
the defendant had been subjected. There is consequently no barrier to
getting one reduction for incomplete duress (by departure) and another
reduction for acceptance of responsibility."). Cf. U.S. v. Fleener, 900
F.2d 914, 918 (6th Cir. 1990) (Section 3E1.1 reduction not automatically
precluded for defendant claiming entrapment defense).
Co-Conspirator Drug Quantities
U.S. v. Johnson, No. 90-30344 (9th Cir. Feb. 11, 1992) (Noonan, J.)
("As a general rule, the fact that a conspirator is taken into custody
does not automatically indicate disavowal of the conspiracy.
(Defendant), however, has been found by the court to be a 'minor'
participant in the conspiracy . . . Once in custody, she was in no
position to continue her role as a drug distributor. It stretches a
legal fiction to the breaking point to hold her accountable for the
drugs (other conspirators) distributed after (she was jailed).
Consequently, she can be sentenced only on the basis of drugs
distributed by the conspiracy before this date.").
February 7, 1992, Memo from DAG re "Indictment and Plea Procedures
Under Guideline Sentencing" with attachments
To: Holders of United States Attorneys' Manual Title 9
From: Office of the Deputy Attorney General
George J. Terwilliger, III, Acting Deputy Attorney General
Re: Indictment and Plea Procedures Under Guideline Sentencing
Affects: 9-27.451
Purpose: This bluesheet sets out procedures to be followed in making
charging decisions, drafting indictments, and negotiating plea
agreements in cases which come under the Sentencing Guidelines.
The following is a new section:
On March 13, 1989, United States Attorney General Dick Thornburgh
issued a Memorandum to all Federal prosecutors, entitled "Plea
Bargaining Under The Sentencing Reform Act." On June 16, 1989, he issued
a second Memorandum entitled "Plea Bargaining in Cases Involving
Firearms." This bluesheet is a clarification of the procedures outlined
in those memoranda, which remain in full force. Copies of these two
memoranda, known as Thornburgh I and Thornburgh II, are attached.
1. General Plea Procedures
The following procedures shall be adopted as to all pleas of guilty:
A. All negotiated plea agreements to felonies or misdemeanors
negotiated from felonies shall be in writing and filed with the
court. Thus any time a defendant enters into a negotiated plea,
that fact and the conditions thereof will be memorialized and a
copy of the plea agreement maintained in the office case file or
elsewhere.
B. There shall be within each office a formal system for
approval of negotiated pleas. The approval authority shall be
vested in at least a supervisory criminal Assistant United States
Attorney, or a supervisory attorney of a litigating division in
the Department of Justice, who will have the responsibility of
assessing the appropriateness of the plea agreement under the
policies of the Department of Justice pertaining to pleas,
including those set forth in the Thornburgh Memos. Where certain
predictable fact situations arise with great frequency and are
given identical treatment, the approval requirement may be met by
a written instruction from the appropriate supervisor which
describes with particularity the standard plea procedure to be
followed, so long as that procedure is otherwise within
Departmental guidelines. An example would be a border district
which routinely deals with a high volume of illegal alien cases
daily.
C. The plea approval process will be part of the office
evaluation procedure.
D. The United States Attorney in each district, or a
supervisory representative, should, if feasible, meet regularly
with a representative of the district's Probation Office for the
purpose of discussing guideline cases.
2. Substantial Assistance Pleadings
A. Authority to File. Section 5K1.1 of the Sentencing Guidelines
allows the United States to file a pleading with the sentencing court
which permits the court to depart below the indicated guideline, on the
basis that the defendant provided substantial assistance in the
investigation or prosecution of another. Authority to approve such
pleadings is limited to the United States Attorney, the Chief Assistant
United States Attorney, and supervisory criminal Assistant United States
Attorneys, or a committee including at least one of these individuals.
Similarly, for Department of Justice attorneys, approval authority
should be vested in a Section Chief or Office Director, or such
official's deputy, or in a committee which includes at least one of
these individuals.
B. Recordkeeping. Every United States Attorney or Department of
Justice Section Chief or Office Director shall maintain documentation of
the facts behind and justification for each substantial assistance
pleading. The repository or repositories of this documentation need not
be the case file itself. Freedom Of Information Act considerations may
suggest that a separate form showing the final decision be maintained.
C. Rule 35(b) Motions. The procedures described above shall also
apply to Motions filed pursuant to Rule 35(b), Federal Rules of Criminal
Procedure, where the sentence of a cooperating defendant is reduced
after sentencing on Motion of the United States. Such a filing is
deemed for sentencing purposes to be the equivalent of a substantial
assistance pleading.
3. Enhancements of Drug Penalties Based on Prior Convictions
Current drug laws provide for increased maximum, and in some cases
minimum, penalties for many offenses on the basis of a defendant's prior
criminal convictions. See, e.g., 21 U.S.C. Sections 841(b)(1)(A), (B),
and (C), 848(a), 960(b)(1), (2), and (3), and 962. However, a court may
not impose such an increased penalty unless the United States Attorney
has filed an information with the court, before trial or before entry of
a plea of guilty, setting forth the previous convictions to be relied
upon. 21 U.S.C. Section 851.
For the purposes of applying the rules of the Thornburgh memoranda,
every prosecutor should regard the filing of an information under 21
U.S.C. Section 851 concerning prior convictions as equivalent to the
filing of charges. Just as a prosecutor must file a readily provable
charge, he or she must file an information under 21 U.S.C. Section 851
regarding prior convictions that are readily provable and that are known
to the prosecutor prior to the beginning of trial or entry of plea. The
only exceptions to this requirement are those found in Thornburgh I.
Such exceptions to the requirements that enhancement pleadings be filed
are where: (1) the failure to file or the dismissal of such pleadings
would not affect the applicable guideline range from which a sentence
may be imposed; or (2) in the context of a negotiated plea, the United
States Attorney, the Chief Assistant United States Attorney, the senior
supervisory Criminal Assistant United States Attorney, or, within the
Department of Justice, a Section Chief or Office Director has approved
the negotiated agreement. The reasons for such an agreement must be set
forth in writing as required by paragraph 2B, above. Consistent with
Thornburgh I, such a reason might include, for example, that the United
States Attorney's office is particularly overburdened, the case would be
time-consuming to try, and proceeding to trial would significantly
reduce the total number of cases disposed of by the office. The
permissible agreements within this context include: (1) not filing an
enhancement, (2) filing an enhancement which does not allege all
relevant prior convictions, thereby only partially enhancing a
defendant's potential sentence, and (3) dismissing a previously filed
enhancement.
A negotiated plea which uses any of the options described in this
section must be made known to the sentencing court. In addition, the
sentence which can be imposed through the negotiated plea must
adequately reflect the seriousness of the offense.
4. Firearm charges pursuant to Title 18 United States Code Section
924(c).
Prosecutors are reminded that when a defendant commits an armed bank
robbery or other crime of violence or drug trafficking crime,
appropriate charges include Title 18, United States Code Section 924(c).
March 13, 1989
MEMORANDUM
TO: Federal Prosecutors
FROM: Dick Thornburgh, Attorney General
SUBJECT: Plea Bargaining Under The Sentencing Reform Act
In January, the Supreme Court decided Mistretta v. United States and
upheld the sentencing guidelines promulgated by the Sentencing
Commission pursuant to the Sentencing Reform Act of 1984. The Act was
strongly supported by the Department of Justice, and the Department has
defended the guidelines since they took effect on November 1, 1987.
Under these guidelines, it is now possible for federal prosecutors to
respond to three problems that plagued sentencing prior to their
adoption: 1) sentencing disparity; 2) misleading sentences which were
shorter than they appeared as a result of parole and unduly generous
"good time" allowances; and 3) inadequate sentences in critical areas,
such as crimes of violence, white collar crime, drug trafficking and
environmental offenses. It is vitally important that federal
prosecutors understand these guidelines and make them work. Prosecutors
who do not understand the guidelines or who seek to circumvent them will
undermine their deterrent and punitive force and will recreate the very
problems that the guidelines are expected to solve.
This memorandum cannot convey all that federal prosecutors need or
should want to know about how to use the guidelines, and it is not
intended to invalidate more specific policies which are consistent with
this statement of principles and may have been adopted by some
litigating divisions to govern particular offenses. This memorandum
does, however, set forth basic departmental policies to which all of you
will be expected to adhere. The Department consistently articulated
these policies during the drafting of the guidelines and the period in
which their constitutionality was tested. Compliance with these
policies is essential if federal criminal law is to be an effective
deterrent and those who violate the law are to be justly punished.
Charge Bargaining
Charge bargaining takes place in two settings, before and after
indictment. Consistent with the Principles of Federal Prosecution in
Chapter 27 of Title 9 of the United States Attorneys' Manual, a federal
prosecutor should initially charge the most serious, readily provable
offense or offenses consistent with the defendant's conduct. Charges
should not be filed simply to exert leverage to induce a plea, nor
should charges be abandoned in an effort to arrive at a bargain that
fails to reflect the seriousness of the defendant's conduct.
Whether bargaining takes place before or after indictment, the
Department policy is the same: any departure from the guidelines should
be openly identified rather than hidden between the lines of a plea
agreement. It is inevitable that in some cases it will be difficult for
anyone other than the prosecutor and the defendant to know whether,
prior to indictment, the prosecutor bargained in conformity with the
Department's policy. The Department will monitor, together with the
Sentencing Commission, plea bargaining, and the Department will expect
plea bargains to support, not undermine, the guidelines.
Once prosecutors have indicted, they should find themselves
bargaining about charges which they have determined are readily provable
and reflect the seriousness of the defendant's conduct. Should a
prosecutor determine in good faith after indictment that, as a result of
a change in the evidence or for another reason (e.g., a need has arisen
to protect the identity of a particular witness until he testifies
against a more significant defendant), a charge is not readily provable
or that an indictment exaggerates the seriousness of an offense or
offenses, a plea bargain may reflect the prosecutor's reassessment.
There should be a record, however, in a case in which charges originally
brought are dropped.
Sentence Bargaining
There are only two types of sentence bargains. Both are permissible,
but one is more complicated than the other. First, prosecutors may
bargain for a sentence that is within the specified guideline range.
This means that when a guideline range is 18-24 months, you have
discretion to agree to recommend a sentence of 18 or 20 months rather
than to argue for a sentence at the top of the range. Similarly, you
may agree to recommend a downward adjustment of two levels for
acceptance of responsibility if you conclude in good faith that the
defendant is entitled to the adjustment.
Second, you may seek to depart from the guidelines. This type of
sentence bargain always involves a departure and is more complicated
than a bargain involving a sentence within a guideline range.
Departures are discussed more generally below.
Department policy requires honesty in sentencing; federal
prosecutors are expected to identify for U.S. District Courts departures
when they agree to support them. For example, it would be improper for
a prosecutor to agree that a departure is in order, but to conceal the
agreement in a charge bargain that is presented to a court as a fait
accompli so that there is neither a record of nor judicial review of the
departure.
In sum, plea bargaining, both charge bargaining and sentence
bargaining, is legitimate. But, such bargaining must honestly reflect
the totality and seriousness of the defendant's conduct and any
departure to which the prosecutor is agreeing, and must be accomplished
through appropriate guideline provisions.
Readily Provable Charges
The basic policy is that charges are not to be bargained away or
dropped, unless the prosecutor has a good faith doubt as to the
government's ability readily to prove a charge for legal or evidentiary
reasons. It would serve no purpose here to seek to further define
"readily provable." The policy is to bring cases that the government
should win if there were a trial. There are, however, two exceptions.
First, if the applicable guideline range from which a sentence may be
imposed would be unaffected, readily provable charges may be dismissed
or dropped as part of a plea bargain. It is important for you to know
whether dropping a charge may affect a sentence. For example, the
multiple offense rules in Part D of Chapter 3 of the guidelines and
recent changes to the relevant conduct standard set forth in 1B1.3(a)(2)
will mean that certain dropped charges will be counted for purposes of
determining the sentence, subject to the statutory maximum for the
offense or offenses of conviction. It is vital that federal prosecutors
understand when conduct that is not charged in an indictment or conduct
that is alleged in counts that are to be dismissed pursuant to a bargain
may be counted for sentencing purposes and when it may not be. For
example, in the case of a defendant who could be charged with five bank
robberies, a decision to charge only one or to dismiss four counts
pursuant to a bargain precludes any consideration of the four uncharged
or dismissed robberies in determining a guideline range, unless the plea
agreement included a stipulation as to the other robberies. In
contrast, in the case of a defendant who could be charged with five
counts of fraud, the total amount of money involved in a fraudulent
scheme will be considered in determining a guideline range even if the
defendant pleads guilty to a single count and there is no stipulation as
to the other counts.
Second, federal prosecutors may drop readily provable charges with
the specific approval of the United States Attorney or designated
supervisory level official for reasons set forth in the file of the
case. This exception recognizes that the aims of the Sentencing Reform
Act must be sought without ignoring other, critical aspects of the
federal criminal justice system. For example, approval to drop charges
in a particular case might be given because the United States Attorney's
office is particularly overburdened, the case would be time-consuming to
try, and proceeding to trial would significantly reduce the total number
of cases disposed of by the office.
To make guidelines work, it is likely that the Department and the
Sentencing Commission will monitor cases in which charges are dropped.
It is important, therefore, that federal prosecutors keep records
justifying their decisions not to go forward with readily provable
offenses.
Departures Generally
In Chapter 5, Part K of the guidelines, the Commission has listed
departures that may be considered by a court in imposing a sentence.
Some depart upwards and others downwards. Moreover, 5K2.0 recognizes
that a sentencing court may consider a departure that has not been
adequately considered by the Commission. A departure requires approval
by the court. It violates the spirit of the guidelines and Department
policy for prosecutors to enter into a plea bargain which is based upon
the prosecutor's and the defendant's agreement that a departure is
warranted, but that does not reveal to the court the departure and
afford an opportunity for the court to reject it.
The Commission has recognized those bases for departure that are
commonly justified. Accordingly, before the government may seek a
departure based on a factor other than one set forth in Chapter 5, Part
K, approval of United States Attorneys or designated supervisory
officials is required, after consultation with the concerned litigating
Division. This approval is required whether or not a case is resolved
through a negotiated plea.
Substantial Assistance
The most important departure is for substantial assistance by a
defendant in the investigation or prosecution of another person.
Section 5K1.1 provides that, upon motion by the government, a court may
depart from the guidelines and may impose a non-guideline sentence.
This departure provides federal prosecutors with an enormous range of
options in the course of plea negotiations. Although this departure,
like all others, requires court approval, prosecutors who bargain in
good faith and who state reasons for recommending a departure should
find that judges are receptive to their recommendations.
Stipulations of Fact
The Department's policy is only to stipulate to facts that accurately
represent the defendant's conduct. If a prosecutor wishes to support a
departure from the guidelines, he or she should candidly do so and not
stipulate to facts that are untrue. Stipulations to untrue facts are
unethical. If a prosecutor has insufficient facts to contest a
defendant's effort to seek a downward departure or to claim an
adjustment, the prosecutor can say so. If the presentence report states
facts that are inconsistent with a stipulation in which a prosecutor has
joined, it is desirable for the prosecutor to object to the report or to
add a statement explaining the prosecutor's understanding of the facts
or the reason for the stipulation.
Recounting the true nature of the defendant's involvement in a case
will not always lead to a higher sentence. Where a defendant agrees to
cooperate with the government by providing information concerning
unlawful activities of others and the government agrees that
self-incriminating information so provided will not be used against the
defendant, section 1B1.8 provides that the information shall not be used
in determining the applicable guideline range, except to the extent
provided in the agreement. The existence of an agreement not to use
information should be clearly reflected in the case file, the
applicability of section 1B1.8 should be documented, and the
incriminating information must be disclosed to the court or the
probation officer, even though it may not be used in determining a
guideline sentence.
Written Plea Agreements
In most felony cases, plea agreements should be in writing. If they
are not in writing, they always should be formally stated on the record.
Written agreements will facilitate efforts by the Department and the
Sentencing Commission to monitor compliance by federal prosecutors with
Department policies and the guidelines. Such agreements also avoid
misunderstandings as to the terms that the parties have accepted in
particular cases.
Understanding the Options
A commitment to guideline sentencing in the context of plea
bargaining may have the temporary effect of increasing the proportion of
cases that go to trial, until defense counsel and defendants understand
that the Department is committed to the statutory sentencing goals and
procedures. Prosecutors should understand, and defense counsel will
soon learn, that there is sufficient flexibility in the guidelines to
permit effective plea bargaining which does not undermine the statutory
scheme.
For example, when a prosecutor recommends a two level downward
adjustment for acceptance of responsibility (e.g., from level 20 to
level 18), judicial acceptance of this adjustment will reduce a sentence
by approximately 25%. If a comparison is made between the top of one
level (e.g., level 20) and the bottom of the relevant level following
the reduction (e.g., level 18), it would show a difference of
approximately 35%. At low levels, the reduction is greater. In short,
a two level reduction does not mean two months. Moreover, the
adjustment for acceptance of responsibility is substantial, and should
be attractive to defendants against whom the government has strong
cases. The prosecutor may also cooperate with the defendant by
recommending a sentence at the low end of a guideline range, which will
further reduce the sentence.
It is important for prosecutors to recognize while bargaining that
they must be careful to make all appropriate Chapter Three adjustments
-- e.g., victim related adjustments and adjustments for role in the
offense.
With all available options in mind, and with full knowledge of the
availability of a substantial assistance departure, federal prosecutors
have the tools necessary to handle their caseloads and to arrive at
appropriate dispositions in the process. Honest application of the
guidelines will make sentences under the Sentencing Reform Act fair,
honest, and appropriate.
June 16, 1989
MEMORANDUM
TO: Federal Prosecutors
FROM: Dick Thornburgh, Attorney General
SUBJECT: Plea Bargaining in Cases Involving Firearms
On May 15, 1989, the President outlined a comprehensive program to
combat violent crime. In it he noted that to ensure the objective that
those who commit violent crimes are held fully accountable, plea
bargaining procedures must be uniformly and strictly applied.
Accordingly, he has directed me to issue and fully implement guidelines
for federal prosecutors under the Sentencing Reform Act to ensure that
federal charges always reflect both the seriousness of the defendant's
conduct and the Department's commitment to statutory sentencing goals
and procedures. This means that, in all but exceptional cases such as
those in which the defendant has provided substantial assistance to the
government in the investigation or prosecution of crimes by others,
federal prosecutors will seek conviction for any offense involving the
unlawful use of a firearm which is readily provable. This will
implement the congressional mandate that mandatory minimum penalties be
imposed by the courts upon violent and dangerous felons.
As you recall, in my March 13, 1989 memorandum to all federal
prosecutors on the subject of plea bargaining, I stated (at pp. 2-3):
* * * The Department will monitor, together with the Sentencing
Commission, plea bargaining, and the Department will expect plea
bargains to support, not undermine, the guidelines.
Once prosecutors have indicted, they should find themselves
bargaining about charges which they have determined are readily
provable and reflect the seriousness of the defendant's conduct.
Should a prosecutor determine in good faith after indictment that,
as a result of a change in the evidence or for another reason
(e.g., a need has arisen to protect the identity of a particular
witness until he testifies against a more significant defendant),
a charge is not readily provable or that an indictment exaggerates
the seriousness of an offense or offenses, a plea bargain may
reflect the prosecutor's reassessment. There should be a record,
however, in a case in which charges originally brought are
dropped.
Department policy requires honesty in sentencing; federal
prosecutors are expected to identify for U.S. District Courts
departures when they agree to support them. For example, it would
be improper for a prosecutor to agree that a departure is in
order, but to conceal the agreement in a charge bargain that is
presented to a court as a fait accompli so that there is neither a
record of nor judicial review of the departure.
In sum, plea bargaining, both charge bargaining and sentence
bargaining, is legitimate. But, such bargaining must honestly
reflect the totality and seriousness of the defendant's conduct
and any departure to which the prosecutor is agreeing, and must be
accomplished through appropriate guideline provisions. (Emphasis
added.)
On the subject of minimum mandatory penalties for violent firearms
offenses, the Department's November 1, 1987 Prosecutors Handbook on
Sentencing Guidelines provides (at p. 50):
. . . in no event is a . . . 18 U.S.C. 924(c) (minimum mandatory
firearms) charge not to be pursued unless it cannot be readily
proven or unless absolutely necessary to enable imposition of an
appropriate sentence on someone who has rendered substantial
assistance to the government, and then only with the consent of .
. . the United States Attorney as to 18 U.S.C. 924(c) charges.
The specific affirmation of these policies by the President requires
that you be especially vigilant about their full implementation in your
district. Any questions about these matters will continue to be handled
by the appropriate Assistant Attorney General.
VOLUME 4, NUMBER 15
FEBRUARY 14, 1992
Ninth Circuit holds that when probation must be revoked for drug
possession and defendant sentenced to "not less than one-third of the
original sentence," the "original sentence" means the term of probation,
not guideline range. Defendant pled guilty to counterfeiting in 1989.
His guideline range was 1-7 months and he was sentenced to three years'
probation. The next year he was arrested on a drug charge and a
urinalysis showed traces of methamphetamine. The court determined
defendant had violated probation by possessing drugs and revoked
probation. The Anti-Drug Abuse Act of 1988 had amended 18 U.S.C.
Section 3565(a) by adding the following: "Notwithstanding any other
provision of this section, if a defendant is found by the court to be in
possession of a controlled substance, thereby violating the condition
imposed by section 3563(a)(3), the court shall revoke the sentence of
probation and sentence the defendant to not less than one-third of the
original sentence." The district court read this section to require a
term of imprisonment not less than one-third of the original sentence of
probation, and sentenced defendant to one year in prison. Defendant
appealed, but the appellate court affirmed.
The circuit court analyzed the statutory language and legislative
history and determined that a sentence of probation is a "sentence" for
purposes of the reference in Section 3565(a) to "one-third of the
original sentence": "Penologically and semantically, probation is a
sentence under the Sentencing Reform Act (of 1984). It is no longer an
alternative to sentencing; it is a sentence in and of itself." The
court noted that "this schema is also used in language Congress added to
18 U.S.C. Section 3583(g) as part of the same Anti-Drug Abuse Act of
1988," which states that if supervised release is revoked for drug
possession "the court shall . . . require the defendant to serve in
prison not less than one-third of the term of supervised release."
The court distinguished cases interpreting the general revocation
provision in Section 3565(a)(2). Four circuits, including the Ninth,
have held that the language "any other sentence that was available . . .
at the time of the initial sentencing" means the guideline sentence that
applied to the original offense of conviction, and a sentence imposed
upon revocation of probation is limited thereby. See U.S. v. Alli, 929
F.2d 995, 998 (4th Cir. 1991); U.S. v. White, 925 F.2d 284, 286-87 (9th
Cir. 1991); U.S. v. Von Washington, 915 F.2d 390, 391-92 (8th Cir.
1990) (per curiam); U.S. v. Smith, 907 F.2d 133, 135 (11th Cir. 1990).
The 1988 amendment begins with "Notwithstanding any other provision of
this section . . .," which the court concluded "indicates that the added
provision was intended to take precedence over the general language of
subsection (a)(2) in cases where the probationer violates probation by
possessing a controlled substance."
The court also held that "the validity of the 12-month sentence
imposed here" was supported by the district court's use of the
Guidelines' policy statements on revocation of probation, Sections
7B1.1, 7B1.3, and 7B1.4 (Revocation Table). Under those sections, a
sentencing range of 12-18 months applied.
U.S. v. Corpuz, No. 91-10132 (9th Cir. Jan. 8, 1992) (Aldisert, Sr.
J.).
Eighth Circuit holds that extraordinary restitution may warrant
downward departure, and that criminal conduct spanning one year and
several transactions was not "single act of aberrant behavior."
Defendant, a car dealer, pledged the same vehicles as collateral for
separate loans from two banks over a one-year period. Charged with 44
counts of bank fraud, he pled guilty to one count and was sentenced to
twelve months and one day. He asserted on appeal that several factors
warranted downward departure, including the fact that he had liquidated
all his assets to ensure full restitution to the banks more than a year
before indictment (he entered into settlement agreements with both banks
and turned over his assets of $1.4 million) and, because he had a good
reputation in the community, was consistently employed, and continued to
lead a respectable life, his criminal conduct was "aberrant behavior,"
U.S.S.G. Ch. 1, Pt. A, 4(d), p.s.
The appellate court remanded for reconsideration of the first ground,
holding that "the guidelines provide the district judge with authority
to depart downward based on extraordinary restitution." The court
acknowledged that voluntary payment of restitution before adjudication
of guilt is a factor considered for acceptance of responsibility,
Section 3E1.1, comment (n.1(b)), but held that the district court
"should consider whether the extent and timing of Garlich's restitution
are sufficiently unusual to warrant a downward departure. . . . If . .
. the two-level reduction for acceptance of responsibility inadequately
addresses Garlich's restitution, the district court may impose a
reasonable sentence outside the guidelines range." See also U.S. v.
Brewer, 899 F.2d 503, 509 (6th Cir.) ("unusual" restitution could
warrant departure), cert. denied, 111 S.Ct. 127 (1990); U.S. v. Carey,
895 F.2d 318, 322-23 (7th Cir. 1990) (same).
The court affirmed the denial of departure for "single act of
aberrant behavior," concluding that defendant's "actions in planning and
executing the financing scheme over a one-year period were not
'spontaneous and seemingly thoughtless,'" quoting U.S. v. Glick, 946
F.2d 335, 338 (4th Cir. 1991) (conduct over ten-week period involving
numerous actions and extensive planning is not single act of aberrant
behavior). See also Carey, supra, 895 F.2d at 325 (check-kiting scheme
over 15-month period not single act of aberrant behavior). But cf. U.S.
v. Takai, 930 F.2d 1427, 1433-34 (9th Cir. 1991) (conduct over eight-day
period in bribery offense properly construed as "single act of aberrant
behavior").
U.S. v. Garlich, 951 F.2d 161 (8th Cir. 1991).
Eastern District of New York holds that Section 5K1.1, p.s. does not
apply to downward departure based on Congress' request for clemency for
defendant who assisted Congressional investigation. Defendant pled
guilty to violating munitions export laws and was subject to a guideline
range of 8-14 months. The Chief Counsel of the Committee on Foreign
Affairs of the House of Representatives sent a letter to the sentencing
court requesting it to consider defendant's cooperation with the
Committee in an ongoing investigation. The letter noted that
defendant's cooperation had been helpful, even though it might not lead
to any criminal prosecutions.
The court held that a Section 5K1.1, p.s. departure was not proper
because there was no government motion and the defendant did not aid the
prosecution of another. The court reasoned, however, that in the Second
Circuit Section 5K1.1 does not prohibit departure under Section 5K2.0,
p.s. when a defendant provides substantial assistance outside the
confines of Section 5K1.1. It noted that the Second Circuit allowed a
downward departure for a defendant whose cooperation helped the district
courts' seriously overcrowded docket. See U.S. v. Garcia, 926 F.2d 125,
128 (2d Cir. 1991) (Section 5K1.1 covers cooperation with prosecution
and does not prohibit departure for assistance to courts). See also
U.S. v. Agu, 949 F.2d 63, 67 (2d Cir. 1991) (summarizing Second Circuit
law: "cooperation with the Government in respects other than the
prosecution of others or cooperation with the judicial system can, in
appropriate circumstances, warrant a departure notwithstanding the
absence of a Government motion"); U.S. v. Khan, 920 F.2d 1100, 1106-07
(2d Cir. 1991) (in dicta, assistance to government other than
information relevant to prosecution of others may provide basis for
Section 5K2.0 departure). The district court concluded that "courts
have sentencing authority to reward cooperation of a defendant with an
agency other than the prosecution when the United States Attorney has
not requested a downward departure."
U.S. v. Stoffberg, No. CR91-524 (E.D.N.Y. Jan. 21, 1992) (Weinstein,
J.).
U.S. v. Williams, No. 90-6600 (6th Cir. Dec. 17, 1991) (Milburn, J.)
(reversed: district court's factual finding that defendant's false
statements, made while not under oath to law enforcement officers during
investigation of offense, significantly impeded the investigation was
clearly erroneous, and pursuant to Section 3C1.1, comment (nn.3(g) and
4(b)), an obstruction of justice enhancement was improper -- "The focus
of the guideline is on whether defendant, by actively making material
false statements (and not by a passive refusal to cooperate), succeeded
in significantly impeding the investigation. Failed attempts to shift
the investigative searchlight elsewhere are not covered by the
guidelines. . . . It is true that defendant Williams lied to
investigating agents . . ., but Application Note 4(b) specifically
permits lies to investigating agents provided they do not significantly
obstruct or impede the investigation") (Joiner, Sr. Dist. J., dissented
from holding that district court's factual finding was clearly
erroneous). Accord U.S. v. Moreno, 947 F.2d 7, 9-10 (1st Cir. 1991)
(obstruction enhancement improper for defendant who, while not under
oath, gave alias to law enforcement officers during investigation,
because there was no showing that it actually impeded investigation,
Section 3C1.1, comment (nn.3(g) and 4(b)).
U.S. v. Bell, No. 91-1479 (1st Cir. Jan. 2, 1992) (Campbell, J.)
(reversed: failure to appear defendant should not receive obstruction
enhancement for using false name to obtain post office box during time
he was avoiding capture (citing Moreno, supra, and n.3(g)); also, fact
that defendant carried gun and ammunition at time of recapture, and
briefly paused before obeying police officers' command to "get down,
freeze," did not, without more, warrant enhancement under Section 3C1.2
for "recklessly creat(ing) a substantial risk of death or serious bodily
injury . . . in the course of" resisting arrest).
Fifth Circuit holds that cost-of-imprisonment fine under Section
5E1.2(i) is constitutional and does not violate Sentencing Reform Act.
Defendant was convicted on several drug charges and given a lengthy
prison term. He was also fined $280,823.80, of which $180,823.80 was
imposed pursuant to the requirement in U.S.S.G. Section 5E1.2(i) that a
sentencing court "impose an additional fine amount that is at least
sufficient to pay the costs to the government of any imprisonment,
probation, or supervised release," subject to Section 5E1.2(f) (ability
to pay/burden on dependents).
The appellate court rejected defendant's claim that the imposition of
"an additional fine amount" under Section 5E1.2(i), beyond the amounts
set forth in the fine table at Section 5E1.2(c), violates 18 U.S.C.
Section 3553(a)(2) of the Sentencing Reform Act by imposing punishment
"greater than necessary." The court reasoned that "the Commission
developed a two-level system: the court must first look to the fine
table to determine the initial range and then complete its calculation
by looking to the cost of imprisonment. . . . Together, these
calculations comprise the Commission's effort to realize section
3553(a)(2)'s goals."
The court also rejected defendant's argument that the
cost-of-imprisonment fine is irrational -- because the fines collected
are actually used for a crime victim fund rather than to defray costs of
imprisonment -- and therefore amounts to a deprivation of property
without due process in violation of the Fifth Amendment: "(W)e find . .
. that the uniform practice of fining criminals on the basis of their
individualistic terms of imprisonment -- an indicator of the actual harm
each has inflicted on society -- is a rational means to assist the
victims of crime collectively." Cf. U.S. v. Doyan, 909 F.2d 412, 414-16
(10th Cir. 1990) ("Sections 5E1.2(e) and 5E1.2(i) . . . mandate a
punitive fine that is at least sufficient to cover the costs of the
defendant's incarceration and supervision," and Section 5E1.2(i) does
not violate the equal protection component of the Due Process Clause of
the Fifth Amendment).
U.S. v. Hagmann, 950 F.2d 175 (5th Cir. 1991).
January 31, 1992, Letter from AG to U.S. Sentencing Commission
January 31, 1992
Hon. William W. Wilkins, Jr.
Chairman
United States Sentencing Commission
1331 Pennsylvania Ave., N.W., Suite 1400
Washington, D.C. 20004
Dear Judge Wilkins:
Violent crime, particularly firearms violence, has become one of the
most serious domestic problems facing this nation. To assist the states
in their efforts against this violence, we have increased prosecutorial
efforts against those armed career offenders who violate federal
firearms offenses.
As the Sentencing Commission has long recognized, any concerted
effort to combat violent crime must include tough sentences for firearms
offenses and gang-related crime as a key component. The amendments
effective November 1, 1991 to the firearms guideline, 2K2.1, are a
significant step toward appropriate sentencing for firearms offenses.
Nonetheless, the penalties remain too low for those who traffick in,
illegally obtain or illegally possess firearms. Until the Commission is
able to act to increase the penalties for offenses involving
semiautomatic weapons and gang member involvement, we have concluded
that upward departures on these grounds should be sought. This,
however, is only a stop-gap measure.
Tough sentences for firearms offenses and gang-related crime are
essential to serve the deterrence, punishment, and incapacitation
purposes of sentencing outlined in the Sentencing Reform Act of 1984.
Incapacitating firearms offenders is crucial because it prevents the
commission of violent crime. Moreover, stiff sentences for firearms
offenses will have a profound deterrent effect by sending a message that
society will not tolerate this lawlessness.
I have enclosed our recommendations for increasing the sentencing
guidelines for firearms offenses, gang involvement, and career
criminals. These amendments would greatly improve the operation of the
guidelines in firearms cases and contribute to public safety.
I also am urging that the Commission act on our previous comments,
transmitted October 3, 1991, which relate to career offenders, such as a
new criminal history category VII for offenders with very high criminal
history scores and the elimination of time limitations applicable to the
career offender guideline.
We would be pleased to work with the Commission and its staff in
preparing our proposals for public comment.
Sincerely,
/s/ WP BARR
William P. Barr
Attorney General
The following sets forth our recommendations for increased guideline
sentences for firearms crimes, gang-related offenses, and career
offenders. These recommendations are in addition to those the
Department has submitted previously in the current consideration period;
we also discuss several previous recommendations to underscore the
urgency of the changes needed. These recommendations set forth below
are made under the current statutory framework. The Department will
continue to seek legislative action from Congress in areas related to
the recommendations below, including increased mandatory minimum
sentences.
1. Enhanced Sentences for Illegal Possession or Use of Semiautomatic
Weapons
Semiautomatic weapons have become the firearms of choice for many
violent criminals and drug dealers. However, the guidelines fail to
differentiate semiautomatic weapons from more conventional, limited
revolvers.
Weapons such as 9-millimeter semiautomatic pistols, AK-47 assault
rifles, and MAC 10s are high capacity weapons that allow the user to
fire many shots in a short period of time and make it common for the
users not only to kill the target of the crime but innocent bystanders
as well. These weapons in the hands of felons and fugitives from
justice also pose an extraordinary risk to law enforcement personnel.
Semiautomatic weapons are increasingly available and increasingly
used to commit crimes. According to figures released by the Bureau of
Alcohol, Tobacco and Firearms (ATF), during the early 1980's, six-shot
revolvers accounted for about 70 percent of the handguns produced in the
United States. By the end of the decade, this ratio had almost
reversed, with semiautomatic pistols accounting for nearly 1.4 million
of the two million handguns produced by U.S. manufacturers. During 1990
and 1991, ATF's National Tracing Center traced 55,845 crime-related
handguns for law enforcement agencies. Of these, 60.6 percent of the
weapons were identified as pistols, most of which were semiautomatic
weapons. In fact, handgun traces over the past five years have shown an
increased use of nine millimeter, .25 caliber and .380 caliber guns to
commit crimes. These are all primarily semiautomatic weapons and,
because they are mostly small, flat, and readily concealable, they are
therefore used to commit a variety of violent crimes.
Gangs have also turned to semiautomatic weapons to further violent
crime and drug trafficking. Gang members favor semiautomatic weapons
because of the ease of conversion to fully-automatic firing mode.
The guidelines do not address semiautomatic weapons. Accordingly,
several courts of appeals have expressed the view that the dangerousness
of the weapon is an appropriate basis for upward departure from the
firearms guideline. United States v. Sweeting, 933 F.2d 962 (11th Cir.
1991); United States v. Robinson, 898 F.2d 1111, 1118 (6th Cir. 1990);
and United States v. Thomas, 914 F.2d 139 (8th Cir. 1990).
In order to achieve consistency in sentencing, we urge the Commission
to increase the penalties for illegal possession of semiautomatic
weapons by treating their possession so that the increased base offense
levels provided for machineguns and short-barreled rifles and shotguns
also apply to semiautomatic weapons. In addition, we believe that the
sentencing for fugitive and felon possession of machine guns, sawed off
shotguns, and semiautomatic weapons should also be increased, as we
discuss below. See Section 3 below.
2. Enhancement for Offenses in Furtherance of Gang Activity
As the Commission knows, criminal street gangs pose a major threat to
society. Crimes committed in association with or to promote the
activities of a street gang are by their nature more dangerous than
comparable crimes committed without a gang connection. Gangs intimidate
law-abiding citizens, foil crime prevention efforts, and thereby succeed
in their unlawful activities much more effectively than lone criminals.
The Justice Department estimates that there are between 300,000 and
350,000 gang members in this country. Although much gang activity is
drug-related, police nationwide are seeing an alarming trend toward
violence by gangs for many reasons (e.g., turf wars, murder for hire).
Los Angeles has been particularly hard hit. In recent years the number
of victims of gang killings in Los Angeles -- excluding Los Angeles
County -- more than doubled from 317 in 1987 to 679 in 1990. In Los
Angeles County, gang-related homicides rose at about the same pace to
690 in 1990, representing 40 percent of the county's killings.
The death toll in Los Angeles in 1991 is even more chilling. In the
first nine months of 1991, there were 561 gang-related homicides in Los
Angeles city and county, most committed with guns. The Los Angeles
County Sheriff's Department reported 325 gang-related homicides in its
jurisdiction, with 292 committed by firearms. That figure is more than
ten times the number of U.S. combat fatalities during Operation Desert
Storm. In addition, there were 1,000 drive-by shootings in Los Angeles
in the first eight months of 1991, with 1401 victims -- an increase of
20% over 1990.
To reflect the increased seriousness of gang-related crime, the
Commission should include a new provision in Chapter Three that would
provide an enhancement of at least four levels for any felony committed
in association with a criminal street gang or by a member of a criminal
street gang.
3. Increased Base Offense Levels For Firearms Violations by Felons,
Fugitives and Gun Traffickers (Guideline Section 2K2.1)
Section 2K2.1, providing the sentencing for the possession of
firearms by felons, fugitives and other prohibited persons, should be
increased four levels for each of the firearms guidelines' base offense
levels (a)(1)-(6). These changes would result in significantly longer
prison sentences for felons and fugitives who possess weapons.
Aggravating Factor: Use in Connection with Another Felony Offense
The 2K2.1(b)(5) offense guideline should also be increased from 18 to
22 to reflect the serious nature of the "use() or possess(ion) another
felony offense." The cumulative offense level restriction of 29 should
be eliminated. See 2K2.1(b)(4).
Gun Sales to Felons, Fugitives, and Other Prohibited Persons
Under the current firearms guideline, the offense of transferring a
gun with knowledge or reasonable cause to believe that the purchaser is
a convicted felon or other prohibited person is subject to a base
offense level of just 12 (10-16 months of imprisonment for a first
offender). If the defendant accepted responsibility for the offense, he
could receive a probationary sentence with conditions of confinement.
Such sentences are extremely low for this violation, knowingly arming a
convicted felon. This violation of law is subject to a maximum of 10
years, like the offense of possession of a firearm by a convicted felon.
18 U.S.C. Sections 922(d), (g), and 924(a)(2).
Obviously, the knowing sale of firearms to convicted felons is a
serious offense that has led to the proliferation of gun possession by
criminals. At the increased base level of 16, the level the Department
proposes, a first time offender would be sentenced to 21 to 27 months, a
level which better reflects the serious nature of the offense.
The Department recognizes that the Commission's current 2K2.1
guideline was amended only last year, and that the amendment was helpful
in incapacitating violent felons who possess firearms. However, despite
last year's increase, the starting point and the enhanced sentences
based on the nature of the prior convictions, fugitive status, or the
type of firearm are still too low to protect society.
Example. Under the current guidelines, a defendant with one prior
conviction, other than one for a crime of violence or drug
offense, would be subject to offense level 14 under guideline
Section 2K2.1(A)(6). A level 14 offender with one prior
conviction would be subject to a likely range of just 18-24 months
(or less if his prior conviction resulted in a sentence of less
than 60 days). Level 14 also applies to fugitives and other
persons in prohibited categories who may have no prior criminal
history and would be subject to a sentencing range of just 15-21
months.
The current guideline level of 14 for a previously convicted
felon in possession of a firearm (at criminal history category II,
18-24 months or less; at category V, 33-41 months) is far removed
from the ten-year statutory maximum. The current level is below
the maximum even for a defendant who possesses numerous weapons.
An across-the-board increase of four levels will convey to the
many convicted felons, fugitives from justice, and other violators
are not deterred from possessing firearms that violation of
federal firearms law carries serious consequences.
4. Crime of Violence Definition
a. Modify Commentary to Make Clear that a Felon's Possession of a
Firearm is a Crime of Violence
Just prior to the publication of the current guidelines manual, the
Commission amended the commentary to the career offender definitional
guideline. The amendment excluded from the definition of "crime of
violence" the offense of possession of a firearm by a convicted felon.
Guideline Section 4B1.2, Application Note 2. This substantive amendment
was made without the benefit of public comment or the 180-day review by
Congress accorded to guideline amendments. The particular commentary in
question operates as a guideline provision. That is, a court's failure
to follow the new commentary might well be considered an incorrect
application of the guidelines for purposes of appellate review, 18
U.S.C. Section 3742. On this basis the Department had urged the
Commission at its public meeting on the issue late last summer not to
adopt the change.
The Commission should immediately reconsider the amended commentary
and include the felon-in-possession offenses for purposes of the career
offender guideline. Dangerous offenders who commit violent crimes and
commit federal weapons offenses should be sentenced as career offenders
if they have the requisite prior convictions. Such offenders are a
danger to society, and their sentences should not be limited by the
firearms guideline, Section 2K2.1. Although the latter provides
increases based on the nature of the prior offenses and on the basis of
the offense in which the firearm is used, it does not provide sentences
of the same magnitude as the career offender guideline. The career
offender guideline assures a sentence at or near the statutory maximum
by virtue of the offense levels established and utilization of criminal
history category VI.
b. Modify Restrictive Definition of Crime of Violence to Include All
Burglaries
While the most recent version of the guidelines improved the
sentences for those previously convicted of crimes of violence, the
effect of the sentence is hindered by the definition of "crime of
violence" in guideline Section 4B1.2, which includes burglary as a crime
of violence only when it involves a dwelling. The limitation is
contrary to the violent crime definition found in the armed career
criminal statute, 18 U.S.C. Section 924(e)(2)(B). In fact, this
difference is acknowledged by the guidelines at Section 4B1.4,
Application Note 1.
Burglary is, of course, not always called burglary. States routinely
identify burglary with different labels, which are not limited to
dwellings. Burglary should, therefore, be defined generically, not
limited to dwellings, and thereby be deemed a violent crime for purposes
of guideline Section 2K2.1. The Supreme Court in Taylor v. United
States, 110 S.Ct. 2143 (1990), recognized the problem in limiting the
burglary definition:
(I)f Congress had meant to include only an especially dangerous
subclass of burglaries as predicate offenses, it is unlikely that
it would have used . . . unqualified language . . . . 110 S.Ct. at
2157.
There is no persuasive reason why conviction of a burglary offense that
the Supreme Court defines as a violent crime for purposes of the armed
career criminal statute and that results in a 15-year mandatory minimum
sentence should not also count as a crime of violence under Section
2K2.1. We, therefore, request that the term crime of violence for
purposes of the firearms guidelines be amended to reflect the Taylor
interpretation.
5. Appropriate Sentencing of Career Criminals
In addition to the proposals which the Department is now seeking, we
wish to underscore the urgent need for the amendments we suggested
earlier in your comment period. Critically, the amendments earlier
suggested by the Department (1) for the creation of a new criminal
history category VII for offenders with high criminal history scores,
(2) for the preclusion of downward departures for career offenders based
on criminal histories, and (3) for the elimination of the time
limitations applicable to the career offender guideline are needed now.
Violent career criminals still commit a disproportionate number of
crimes and must be incapacitated.
The 15-year time limitation in the current guidelines often makes it
difficult to present the entire pattern of wrongdoing for repetitive,
violent criminals. The Department has unsuccessfully urged this change
for the past two years; respectfully, a change is needed now.
6. Increases for Offenses Involving Multiple Firearms
The 2K2.1 firearms guideline should also be amended to increase the
level of incarceration more rapidly on the basis of
Given the Sentencing Commission's criminal history category regime,
moving from a level of 20 to 26 or from level 24 to 30, as proposed, can
be quite significant for offenders with long criminal histories.
For example, an offender with 10-12 qualifying convictions (Category
V) would, moving from level 20 to 26, have his minimum sentence rise
from 63 months (about 5 years) to 110 months (almost 10 years).
Similarly, an offender with 10-12 qualifying convictions (Category V)
would, moving from level 24 to 30, have his minimum sentence rise from
92 months (7 1/2 years) to 151 months (12 years, 7 months) -- although
the statutory maximum of ten years might truncate the sentence.
Even at a lower criminal history category I, the effect is less
dramatic but still quite significant. Moving from 20 to 26 levels for a
one-time felon is a move from a minimum of 33 months to 63 months.
January 31, 1992, Memo from AG to Federal Prosecutors re "Enhanced
Sentencing Under Project Triggerlock for Semiautomatic Weapons and Gang
Involvement"
January 31, 1992
MEMORANDUM
To: Federal Prosecutors
From: William P. Barr, Attorney General
Re: Enhanced Sentencing Under Project Triggerlock for Semiautomatic
Weapons and Gang Involvement
Since Triggerlock was announced on April 10, 1991, prosecutions have
been initiated against 4,337 defendants. Your efforts have contributed
to the goal of prolonged incarceration of the most serious armed
offenders.
To ensure our efforts have maximum effect, I have requested from the
Sentencing Commission enhanced sentencing for felons and fugitives who
possess firearms, particularly those who possess semiautomatic weapons.
I am also seeking changes to the guidelines that would provide more
appropriate sentencing for gang members and career criminals.
Because the threat posed to public safety by violent offenders is too
critical to await action by the Sentencing Commission, I am asking each
of you to seek enhanced sentencing in appropriate cases under the
existing guidelines. In cases involving firearms violations covered by
Sentencing Guideline 2K2.1, I am directing you to seek a two-level
upward departure for the possession of a semiautomatic weapon by felons,
fugitives, and prohibited persons. The effect of this enhancement will
be to treat semiautomatic weapons more seriously than many other
firearms and the same as automatic weapons.
I am also directing that you seek an additional two-level departure
in 2K2.1 cases involving semiautomatic weapons and weapons prohibited by
26 U.S.C. Section 5845(a) (e.g., sawed off shotgun, machine gun) for
firearms offenses involving gang members. These departures, consistent
with the current guidelines and supported by case law, will provide a
uniform policy that reflects the priority we place on attacking violent
crime, particularly gang violence.
Recognizing that there may be unforeseen circumstances when the sound
exercise of prosecutorial discretion would cause you not to seek an
upward departure, a departure need not be sought when, based upon
written justification, the United States Attorney personally determines
it not to be appropriate. In order to track the progress of this
policy, I am further requesting that you report those cases where the
departure was sought, whether the departure was granted, and those cases
for which departure was not sought to the Assistant Attorney General,
Criminal Division on a monthly basis. This data will assist us in
formulating our sentencing policy, particularly with respect to
aggravating or mitigating circumstances.
The following examples illustrate how the policy is to be
implemented:
1. Felons and Fugitives in Possession of Semiautomatic Weapons
Federal prosecutors will request a two-level upward departure from
the guideline range in Section 2K2.1 for any convicted felon whose
offense involves a semiautomatic weapon, with an additional two-level
enhancement if an aggravating circumstance exists.
In addition, prosecutors will request a two-level upward departure
that will increase the base offense level for a prohibited person, such
as a fugitive, from 14 to 16 under Section 2K2.1(a)(6), with a potential
additional two-level enhancement if an aggravating circumstance exists.
2. Unlawful Gang Activities Involving Automatic or Semiautomatic
Weapons
If a person involved in an unlawful gang-related activity is in
possession of a fully automatic or semiautomatic weapon, in addition to
the departure for semiautomatic weapons, federal prosecutors will
request an additional two-level increase based on the involvement in
gang crimes. Another two-level increase should be sought if aggravating
circumstances exist.
The guidance for departures set forth in this memorandum is not meant
to be exclusive; more egregious factual circumstances will warrant
greater departures.
The rationale behind this enhanced sentencing is the mounting
evidence that, in many American communities, semiautomatic and automatic
weapons are the weapons of choice for gangs, drug dealers, and other
violent offenders. During 1990 and 1991, ATF's National Tracing Center
traced 55,845 crime-related handguns for law enforcement agencies. Of
these, 60.6% of the weapons were identified as pistols, most of which
are semiautomatic weapons. In fact, handgun traces over the past five
years have shown an increased use of 9 millimeter, .25 caliber and .380
caliber guns to commit crimes. These are all primarily semiautomatic
weapons and, because they are mostly flat, small, and readily
concealable, they are used to commit a variety of crimes.
Gang violence is at a very high level. For example, in the first
nine months of 1991, there were 561 gang-related homicides in Los
Angeles city and county, most committed with guns. In addition, there
were 1,000 drive-by shootings in Los Angeles in the first eight months
of 1991, with 1401 victims -- a 20% increase over 1990. The violence
experienced in that city is being felt nationwide, in part because gangs
have expanded their sphere of operations.
You should continue to stress in your Project Triggerlock
prosecutions the quality of prosecutions brought in your districts.
This initiative is aimed at the most violent offenders. Tough federal
sentences for armed career criminals, drug traffickers, and fugitives
can have a substantial impact. The intensive prosecution of drug
trafficking organizations in Philadelphia helped reduce drug-related
homicides by 38% last year from 1990's record. The FBI's project to
apprehend violent fugitives in Newark is believed by local police to
have been responsible for a 13% reduction in violent crime in that city
in 1991. These examples underscore our ability to have an impact on
violent crime.
VOLUME 4, NUMBER 14
JANUARY 17, 1991
Sixth Circuit holds there is no Sixth Amendment right to counsel at
presentence interview, but advises probation officers to honor such
requests. Defendant met with the probation officer on three occasions,
twice without counsel. Although nothing in the record indicated that he
requested counsel or that his counsel advised the probation officer that
no interviews should be conducted in the absence of counsel, defendant
claimed on appeal that he was deprived of his Sixth Amendment right to
counsel.
The appellate court affirmed, joining the Fourth, Fifth, and Seventh
Circuits in holding that in a non-capital case the presentence interview
is not a "critical stage of the prosecution" where the right to counsel
attaches. See U.S. v. Hicks, 948 F.2d 877, 885-86 (4th Cir. 1991);
U.S. v. Woods, 907 F.2d 1540, 1543 (5th Cir. 1990), cert. denied, 111
S.Ct. 792 (1991); U.S. v. Jackson, 886 F.2d 838, 845 (7th Cir. 1989)
(per curiam).
However, the court agreed with the reasoning of U.S. v.
Herrera-Figueroa, 918 F.2d 1430, 1437 (9th Cir. 1990) (as amended Feb.
5, 1991), in which the Ninth Circuit exercised its supervisory powers to
require probation officers to honor requests for attorneys at
presentence interviews. Because defendant had not made such a request
here, the court did not specifically establish a similar rule, although
it stated that it "would be prepared, in the exercise of our supervisory
powers," to do so. The court did recommend that, "(i)fa defendant
requests the presence of counsel -- or if an attorney indicates that his
client is not to be interviewed without the attorney being there -- the
probation officer should honor the request."
U.S. v. Tisdale, No. 90-3302 (6th Cir. Jan. 2, 1992) (Nelson, J.).
Eighth Circuit urges district courts to give "tailored explanations"
for sentence when guideline range exceeds 24 months in order to avoid
unnecessary appeals and remands. Defendant was sentenced at the top of
the applicable guideline range of 168-210 months. He appealed, arguing
that the district court had not adequately stated the "reason for
imposing a sentence at a particular point within the range" as is
required under 18 U.S.C. Section 3553(c)(1) for ranges exceeding 24
months.
The appellate court affirmed, holding that the district court
adequately explained the sentence in this case, but expressed concern
"about the rising number of appeals involving section 3553(c)(1). In
the interest of judicial economy, we urge sentencing courts to refer to
the facts of each case and explain why they choose a particular point in
the sentencing range. U.S. v. Veteto, 920 F.2d 823, 826 & n.4 (11th
Cir. 1991); see also U.S. v. Chartier, 933 F.2d 111, 117 (2d Cir. 1991)
(sentencing judge should demonstrate thoughtful discharge of obligation
imposed by section 3553(c)(1) with degree of care appropriate to
severity of punishment selected). In addition to informing the
defendant and public why the sentencing court selected a particular
sentence, the court's explanation 'provides information to criminal
justice researchers' and 'assists the Sentencing Commission in its
continuous reexamination of its guidelines and policy statements.' . . .
We believe tailored explanations by sentencing courts will preclude many
appeals and pointless remands. See U.S. v. Georgiadis, 933 F.2d 1219,
1223 (3d Cir. 1991)."
U.S. v. Dumorney, No. 91-1719 (8th Cir. Nov. 21, 1991) (Fagg, J.).
Seventh Circuit advises courts to refrain from imposing sentence on
any Guidelines counts until judgment is reached on all counts. A jury
found defendant not guilty on two counts, guilty on one count, and was
unable to reach a verdict on two other counts. The district court
granted a mistrial on the hung jury counts and sentenced defendant to 46
months on the count of conviction, but stayed execution of sentence
pending appeal. The defendant did appeal his conviction and sought
dismissal of the outstanding indictments on the hung jury counts. The
appellate court held it did not have jurisdiction because there is no
final, appealable judgment until the two outstanding counts are
resolved. In addition, the sentence on the count of conviction "cannot
be executed . . . until there is a final judgment on all counts of the
indictment."
The court went on to emphasize that the Guidelines "have introduced a
new problem into a situation like the one before us. When a defendant
has been convicted on more than one count, certain grouping rules apply
in determining the offense level. . . . Where conviction on one count
of an indictment has occurred at an earlier time than conviction on
other counts, we think that logic requires that Section 3D1.1 be applied
to all counts. . . . We suggest that in future cases like the present
one the district court should not pronounce any sentence until it has
disposed of all counts."
U.S. v. Kaufmann, No. 91-2294 (7th Cir. Jan. 7, 1992) (Fairchild, Sr.
J.).
Eighth Circuit holds that it was not "plain error" to impose 10-year
term of supervised release agreed to in plea bargain; affirms rejection
of plea agreement as to lenient compared to co-conspirators' sentences.
Defendant pled guilty to drug and tax evasion charges as part of a
non-binding plea bargain. The government agreed to move for a downward
departure under U.S.S.G. Section 5K1.1, p.s., from the agreed-upon
guideline range of 97-121 months to a sentence of 27-33 months and 10
years of supervised release. The court rejected the agreement,
explaining that the maximum sentence of 33 months was unfairly low
compared to sentences given to less culpable co-conspirators. A second
plea agreement was reached with the same terms, except that the
sentencing range was capped at 42 months. The district court accepted
this agreement and sentenced defendant to concurrent terms of 39 months
on the drug charge with 10 years of supervised release, 36 months on the
tax evasion with one year of supervised release.
Defendant appealed, claiming that the district court abused its
discretion by refusing the first plea agreement and that the 10-year
term of supervised release exceeded the guideline maximum of 5 years.
The appellate court affirmed, holding first that under Section 6B1.2(b),
p.s., the court properly used its discretion to reject the first
agreement: "Prior to the Guidelines, a district court had broad
discretion under Rule 11(e) to reject a negotiated plea agreement. . . .
Here, the district court's reason for rejecting LeMay's first plea
agreement was clearly an acceptable basis for exercising that
discretion. . . . The Guidelines were not intended 'to make major
changes in plea agreement practices.' U.S.S.G. Section 1A.4(c).
Although Chapter 6B imposes new substantive standards on the district
court's task of accepting or rejecting plea agreements, it remains a
discretionary task, reviewable on an abuse of discretion standard.
Moreover, the district court's reason for rejecting LeMay's first plea
agreement -- that it provided an excessive downward departure from the
Guidelines range -- is a non-reviewable Guidelines decision."
As to the term of supervised release on the drug conviction,
defendant "did not raise this issue in the district court, so it has
been waived unless the district court committed plain error, resulting
in a miscarriage of justice, by imposing a sentence in violation of
law." Defendant was sentenced under 21 U.S.C. Section 841(b)(1)(A),
which for this defendant required a supervised release term of "at
least" five years. Under the Guidelines, however, Section 5D1.2(a)
provides for a term of "at least three years but not more than five
years." The court held that Section 841(b)(1)(A) and Section 5D1.2(a)
"are easily reconciled if the term of supervised release authorized in
Section 5D1.2(a) is construed as a guideline range -- three to five
years -- that is subject to the same departures that are applicable to
the Chapter 5C imprisonment range." Also, the five-year limitation on
supervised release in 18 U.S.C. Section 3583(b) does not preclude a
longer term because that section's "(e)xcept as otherwise provided"
language allows for longer terms under Section 841(b)(1)(A). The court
concluded that the ten-year term "was consistent with the plea
agreement, was within the court's statutory authority under Section
841(b)(1)(A), and was part of a sentence that was accepted under Section
6B1.2(b)(2) of the Guidelines because it 'departs from the applicable
guideline range for justifiable reasons.' In these circumstances, even
if LeMay did not waive this issue . . ., we conclude that the resulting
sentence was not illegal." But cf. U.S. v. Esparsen, 930 F.2d 1461,
1476-77 (10th Cir. 1991) (accepting government concession that six-year
term of supervised release was improper for defendant sentenced under 21
U.S.C. Section 841(b)(1)(B), which requires "at least" four-year term,
because of 5-year limitation in 18 U.S.C. Section 3583(b)(1)).
U.S. v. LeMay, No. 91-1604 (8th Cir. Dec. 24, 1991) (per curiam).
U.S. v. Harpst, No. 91-3078 (6th Cir. Nov. 21, 1991) (Jones, J.)
(Reversed -- improper to depart downward because defendant's mental and
emotional condition raised concerns that incarceration "might well end
in his suicide." The court concluded that "the Bureau of Prisons is
legally charged with providing adequate facilities and programs for
suicidal inmates," and therefore "suicidal tendencies" are not a legally
proper ground for departure. See U.S. v. Studley, 907 F.2d 254, 259
(1st Cir. 1990) (departure for mental and emotional reasons proper only
where "defendant has an exceptional need for, or ability to respond to
treatment (and) the Bureau of Prisons does not have adequate treatment
services"). In addition, the fact that incarceration would make
restitution and future employment less likely is not a valid ground for
departure. See U.S. v. Rutana, 932 F.2d 1155, 1159 (6th Cir. 1991)
("economic considerations . . . do not provide a basis for downward
departure," reversing downward departure made because defendant's
incarceration might result in loss of his employees' jobs).).
U.S. v. Molina, No. 90-3261 (D.C. Cir. Jan. 7, 1992) (Edwards, J.)
(remanded -- joining First, Fifth, and Tenth Circuits in "declin(ing) to
adopt any specific procedure for use by sentencing courts in determining
the appropriate extent of departure above criminal history category VI,"
holding only that "trial courts must supply some reasoned basis for the
extent of post-category VI departures . . . . (and) follow somee
reasonable methodology, consistent with the purposes and structure of
the Guidelines"). See U.S. v. Ocasio, 914 F.2d 330, 336-37 (1st Cir.
1990); U.S. v. Russell, 905 F.2d 1450, 1455-56 (10th Cir.), cert.
denied, 111 S.Ct. 267 (1990); U.S. v. Roberson, 872 F.2d 597, 607 (5th
Cir.), cert. denied, 493 U.S. 861 (1989). Cf. U.S. v. Schmude, 901 F.2d
555, 560 (7th Cir. 1990) (instructing courts to use "percentage"
approach to guide departure above category VI); U.S. v. Jackson, 921
F.2d 985, 993 (10th Cir. 1990) (en banc) (approving Schmude approach).
U.S. v. Barton, No. 90-2670 (8th Cir. November 21, 1991) (Beam, J.)
(reversed -- quantity of marijuana that was basis of 1983 state drug
conviction (for which probation was imposed) could not be used as
relevant conduct under U.S.S.G. Section 1B1.3(a)(2) to determine base
offense level for 1989 marijuana conviction, even though district court
found that defendant had continued marijuana distribution activities
during entire period: "(W)e are confident that the words 'all such acts
and omissions' (in Section 1B1.3(a)(2)) were not intended . . . to
include Barton's previous conviction. . . . The commentary to section
1B1.3 alludes to the limited scope of subsection (a)(2): "'Such acts
and omissions" . . . refers to acts and omissions committd or aided and
abetted by the defendant, or for which the defendant would otherwise be
accountable.' . . . Under no circumstances could Barton now be
criminally liable or 'accountable' in 1989 for the conduct that resulted
in his conviction in 1983"; district court should have factored 1983
conviction into criminal history score instead).
VOLUME 4, NUMBER 13
DECEMBER 27, 1991
Eleventh Circuit holds downward departure for diminished capacity
properly precluded for violent offense. Defendant pled guilty to bank
robbery and a related weapon charge. He argued for a downward
departure, claiming that he committed the offense while suffering from
severe depression and dimished capacity as a result of serious financial
problems. The district court indicated that "diminished capacity . . .
would apply to this case," but ruled that it had no discretion to grant
a departure because Section 5K2.13, p.s., prohibits departure for
diminished capacity in violent offenses. The appellate court affirmed.
Defendant claimed on appeal that his mental state could be considered
under 18 U.S.C. Section 3661, which states that "(n)o limitation shall
be placed on the information concerning the background, character, and
conduct" of a defendant when imposing sentence. Under 28 U.S.C. Section
994(d), however, the Sentencing Commission was required to place limits
on the consideration at sentencing of certain information, including
"mental and emotional condition." Any conflict or inconsistency between
the two sections is resolved, the appellate court held, by 18 U.S.C.
Section 3553(b), which directs courts to impose sentence within the
guideline range barring circumstances not adequately considered by the
Commission: "By reading Section 3661 together with Section 3553(b) it
becomes clear that Section 3661 is designed to make sure that no
limitation is placed on information available to the district court, as
long as the information was not already considered by the Sentencing
Commission in formulating the guidelines. . . . Hence, Section 3661 is
a safety net. . . . (T)he Sentencing Commission determined that mental
and emotional conditions could not be considered as a mitigating factor
if the defendant committed a violent crime. Since Fairman committed
armed bank robbery, a crime of violence, his mental and emotional
condition could not be considered" for departure.
U.S. v. Fairman, 947 F.2d 1479 (11th Cir. 1991).
U.S. v. Rosado-Ubiera, 947 F.2d 644 (2d Cir. 1991) (per curiam)
(vacating sentence and remanding: even though sentencing court intended
to depart downward, it failed to determine whether defendant should
receive downward adjustment under Section 3B1.2(a) for minimal role in
offense -- applicable guideline range is starting point for departure,
and here the downward departure resulted in longer sentence than lower
end of guideline range that would have applied if role in offense
dispute was resolved in defendant's favor). See U.S. v. McCall, 915
F.2d 811, 813 (2d Cir. 1990) (guideline range is point of reference for
any departure and should be correctly calculated); U.S. v. Talbott, 902
F.2d 1129, 1134 (4th Cir. 1990) (same); U.S. v. Roberson, 872 F.2d 597,
608 (5th Cir.) (same), cert. denied, 110 S. Ct. 175 (1989).
U.S. v. Robinson, No. 89-3262 (11th Cir. Dec. 9, 1991) (per curiam)
(vacated and remanded because district court granted downward departure
without ruling on government's Section 5K1.1, p.s., motion or otherwise
articulating reasons for departure as required by 18 U.S.C. Section
3553(b): "(T)he sentencing judge, when faced with a section 5K1.1
motion, must rule on it before imposing sentence. . . . On remand,
therefore, the court shall, after finding the relevant sentencing facts
and the appropriate guideline range, rule on the Government's motion.
If the court denies the motion, it shall then give the defendant an
opportunity to articulate grounds, if any he has, for a downward
departure. . . .").
U.S. v. Tabares, No. 91-1273 (1st Cir. Nov. 14, 1991) (Breyer, C.J.)
(court properly included in base offense level quantities of drugs
evidenced by entries in notebook found in conspiracy defendant's
apartment at time of arrest, where evidence indicated those amounts were
part of conduct related to offense of conviction, see Section 2D1.4,
comment (n.2) ("judge may consider . . . financial or other records")).
Accord U.S. v. Cagle, 922 F.2d 404, 407 (7th Cir. 1991); U.S. v. Ross,
920 F.2d 1530, 1538 (10th Cir. 1990). See also U.S. v. Straughter, No.
91-3002 (6th Cir. Nov. 14, 1991) (Brown, Sr. J.) (records of drug
payments found in co-conspirator's purse provided support for finding of
larger amount of cocaine than that seized during arrests).
U.S. v. Hicks, No. 90-5627 (4th Cir. Oct. 23, 1991, amended Nov. 21,
1991) (Houck, Dist. J.) (sentencing court properly converted cash seized
from defendant, which had come from drug sales related to offense of
conviction, into estimated cocaine quantity to calculate base offense
level under Sections 2D1.1(a)(3), 2D1.4, comment (n.2)). Accord U.S. v.
Gerante, 891 F.2d 364, 368-69 (1st Cir. 1989). See also U.S. v. Duarte,
No. 91-1203 (7th Cir. Dec. 10, 1991) (Flaum, J.) (dividing cash amount
by price per kilogram to estimate quantity of cocaine "is perfectly
acceptable under the Guidelines").
U.S. v. Duarte, No. 91-1203 (7th Cir. Dec. 10, 1991) (Flaum, J.)
(vacating sentence and remanding: district court found defendant
accountable for 5 kilograms of cocaine, not just 1.177 kilograms
actually seized, but did not explicitly find additional cocaine was
"part of the same course of conduct or common scheme or plan" as
conspiracy and possession offenses of conviction, Section 1B1.3(a)(2) --
"court should explicitly state and support, either at the sentencing
hearing or (preferably) in a written statement of reasons, its finding
that the unconvicted activities bore the necessary relation to the
convicted offense").
U.S. v. Reed, No. 90-6502 (6th Cir. Dec. 4, 1991) (Milburn, J.)
(Section 3E1.1 reduction properly denied defendant who continued
criminal conduct is incompatible with the idea of acceptance of
responsibility"; willingness to acknowledge offense and accept
punishment insufficient absent contrition, which "has been recognized by
this court as a component of a defendant's acceptance of responsibility.
Contrition may be the best predictor of a successful rehabilitation,
and those who . . . continue their crimes in jail and do not voluntarily
withdraw from their criminal conduct demonstrate the opposite").
U.S. v. Rotolo, No. 91-1436 (1st Cir. Dec. 3, 1991) (Breyer, C. J.)
(Affirming enhancement for aggravating role under Section 3B1.1(c) and
holding that sentencing court may, but is not required to, compare
defendant's role to "average" participant in that type of offense.
Court distinguished U.S. v. Daughtrey, 874 F.2d 213, 216 (4th Cir.
1989), which concerned adjustment under Section 3B1.2 for mitigating
role and stated that "each participant's individual acts and relative
culpability (should be measured) against the elements of the offense of
conviction." The court here noted that language in the commentary to
Section 3B1.2, which indicates a defendant's mitigating role is to be
compared to "the average participant," is absent from the guideline and
commentary for aggravating roles in Section 3B1.1. The court concluded:
"We do not read the 'aggravating role' guideline as absolutely
forbidding a court from making comparisons to the 'average' participant.
. . . But, the Guideline does not legally require it to do so."). See
also U.S. v. Palinkas, 938 F.2d 456, 460 (4th Cir. 1991) (applying
Daughtrey, adding: "The critical inquiry is thus not just whether the
defendant has done fewer 'bad acts' than his codefendants, but whether
the defendant's conduct is material or essential to committing the
offense."); U.S. v. Caruth, 930 F.2d 811, 815 (10th Cir. 1991) (in
"minimal participant" case, holding "Guidelines permit courts . . . to
compare a defendant's conduct . . . with the conduct of an average
participant in that type of crime").
U.S. v. De Felippis, No. 90-3603 (7th Cir. Dec. 6, 1991) (Moran,
Chief Dist. J., by desig.) (reversed: false statements to probation
officer about employment history were not "material" because "the
factual inaccuracies in his representations could not have influenced
his sentence, even if believed," see Section 3C1.1, comment. (nn.3(h) &
4(c); note, however, that even if not "material," "false information
does . . . have a bearing on the trial court's rejection of a . . .
reduction for acceptance of responsibility"). See also U.S. v. Tabares,
No. 91-1273 (1st Cir. Nov. 14, 1991) (Breyer, C. J.) (reversed:
obstruction under Section 3C1.1 must be both willful and material --
here defendant had provided false social security number to probation
officer, but there was no evidence he did so "willfully" or materially
impeded presentence investigation).
U.S. v. Hicks, No. 90-5627 (4th Cir. Oct. 23, 1991, amended Nov. 21,
1991) (Houck, Dist. J.) (proper to apply Section 3C1.1 enhancement to
defendant who threw cocaine out of car during high-speed chase, even
though he later helped recover the drugs, and it was not inconsistent to
apply Section 3C1.1 and then grant Section 3E1.1 reduction for
cooperation, see Section 3E1.1, comment. (n.4); enhancement under
Section 3C1.1 also warranted for false financial information, which
would have affected imposition of fine, even though information was
later corrected).
U.S. v. Hicks, No. 90-5627 (4th Cir. Oct. 23, 1991, amended Nov. 21,
1991) (Houck, Dist. J.) ("Miranda warnings are not required prior to
routine presentence interviews." Accord U.S. v. Cortes, 922 F.2d 123,
126-27 (2d Cir. 1990); U.S. v. Rogers, 921 F.2d 975, 979-80 (10th
Cir.), cert. denied, 111 S. Ct. 113 (1990); U.S. v. Davis, 919 F.2d
1181, 1186-87 (6th Cir. 1990); U.S. v. Jackson, 886 F.2d 838, 841-42
n.4 (7th Cir. 1989) (per curiam). Similarly, "there is no (Sixth
Amendment) right at a routine presentence interview because (it) is not
a critical stage of the criminal proceedings." Accord U.S. v. Woods, 907
F.2d 1540, 1543 (5th Cir. 1990), cert. denied, 111 S.Ct. 792 (1991);
Jackson, 886 F.2d at 845. Contra U.S. v. Herrera-Figueroa, 918 F.2d
1430, 1433 (9th Cir. 1990) (must allow attorney if requested by
defendant). In any event, defendant had no right to make false
statement to probation officer: "At best, Hicks could have refused to
answer the question or requested the presence of his attorney. Under no
circumstances was he free to give a false answer.").
U.S. v. Wilson, No. 90-5203 (4th Cir. Dec. 3, 1991) (Wilkinson, J.)
(Guidelines mandate "categorical approach" to whether predicate offense
constitutes "crime of violence" under Section 4B1.1 "rather than a
particularized inquiry into the facts underlying the conviction," and
district court properly refused to look into actual circumstances of
defendant's 1976 robbery conviction because robbery is listed as violent
crime in Section 4B1.2, comment. (n.2) (1991): "Under the plain
language of the Guidelines, we conclude that Wilson's robbery offense
constitutes a 'crime of violence' and that we need not -- indeed, must
not -- look to the specific facts and circumstances underlying it.").
Accord U.S. v. McAllister, 927 F.2d 136, 138-39 (3d Cir. 1991); U.S. v.
Selfa, 918 F.2d 749, 751 (9th Cir.), cert. denied, 111 S.Ct. 521 (1990);
U.S. v. Gonzalez-Lopez, 911 F.2d 542, 547 (11th Cir. 1990), cert.
denied, 111 S.Ct. 2056 (1991); U.S. v. Carter, 910 F.2d 1524, 1532-33
(7th Cir. 1990), cert. denied, 111 S.Ct. 1628 (1991).
U.S. v. Davern, 937 F.2d 1041 (6th Cir. 1991) (sentencing steps
prescribed in Section 1B1.1 are inconsistent with 18 U.S.C. Section
3553, courts directed to follow statute rather than guideline for
departures) (vacated Sept. 26, 1991). See GSU #6.
U.S. v. Silverman, 945 F.2d 1337 (6th Cir. 1991) (courts should
conduct evidentiary hearing in accordance with Confrontation Clause when
disputed evidence could increase sentence) (vacated Dec. 4, 1991). See
4 GRU #9.
U.S. v. Wade, 936 F.2d 169 (4th Cir. 1991) (absent commitment in plea
agreement to move for substantial assistance departure, government need
not explain refusal to make motion) (cert. granted Dec. 9, 1991). See 4
GSU #5.
VOLUME 4, NUMBER 12
DECEMBER 5, 1991
Seventh Circuit emphasizes that quantity of drugs attributed to
co-conspirators must be calculated for each individual based on what was
"reasonably foreseeable" within the scope of that defendant's agreement.
Defendants were part of a large-scale heroin distribution scheme that
operated over a three-year period. Some were in the conspiracy from the
start while others joined at various stages. All appealed their
sentences, claiming that the district court improperly used the entire
amount of heroin distributed during the course of the conspiracy to
calculate their base offense levels under U.S.S.G. Section 1B1.3(a).
The appellate court affirmed some sentences, but remanded others for
individualized consideration of those defendants' scope of involvement
in the conspiracy and the amount of heroin for which they could be held
responsible.
Under the relevant conduct guideline, a co-conspirator is held
accountable for "conduct of others in furtherance of the (conspiracy)
that was reasonably foreseeable by the defendant." Section 1B1.3(a),
comment. (n.1). The commentary further states that "the scope of the
jointly-undertaken criminal activity, and hence relevant conduct, is not
necessarily the same for every participant. Where it is established
that the conduct was neither within the scope of the defendant's
agreement, nor was reasonably foreseeable in connection with the
criminal activity the defendant agreed to jointly undertake, such
conduct is not included in establishing the defendant's offense level
under this guideline."
Based on the Guidelines and parallel case law on conspiracy, the
appellate court concluded that "there are two limiting factors on the
use of conduct in calculating the sentence of a conspiracy defendant.
The conduct must be 1) in furtherance of the conspiracy and 2)
reasonably foreseeable to the defendant." In a drug conspiracy, a
defendant "will not be held accountable for prior or subsequent conduct
involved the distribution of the same controlled substance by other
defendants. . . . (T)he most relevant factor in determining the
reasonable foreseeability of conduct engaged in by co-conspirators in an
intricate and longstanding conspiracy is the scope of the defendant's
agreement with the other conspirators."
Accordingly, the court held that a defendant who was a member of the
conspiracy for less than two months but allegedly "knew of" the scope of
the conspiracy prior to joining (he had been a heroin user and lived
across the street from the leader of the conspiracy) should not have had
his offense level based on all of the drugs distributed: "Reasonable
foreseeability refers to the scope of the agreement that the defendant
entered into when he joined the conspiracy, not to the drugs defendant
may have known about as a function of his individual consumption. . . .
To sentence a defendant based on the entire amount of drugs distributed
requires that this amount be reasonably foreseeable with respect to the
agreement that the defendant entered into. He may not be held
responsible for the total quantity of drugs simply because he might have
been aware that (the leader of the conspiracy) operated a large-scale
drug organization."
Remanding, the court instructed the sentencing court "to scrutinize
the agreement that (each) individual defendant entered into to determine
whether he actually agreed to become involved in a conspiracy to
distribute a given quantity of drugs -- here more than 10 kilograms of
heroin. . . . In order to sentence a defendant based on the entire
quantity of drugs distributed in a conspiracy, when the defendant has
joined the conspiracy in its late stages, it must be shown that those
earlier transactions were reasonably foreseeable to him. The Government
must show that the defendant agreed to a conspiracy whose scope included
so large a distribution of heroin. The judge may sentence a late
entrant on the basis of all the drugs distributed only if the earlier
distributions occurred as part of the conspiracy to which the defendant
agreed. . . . Furthermore, he may not be sentenced according to all of
the heroin distributed after he agreed to join the conspiracy if in
agreeing to conspire, he reasonably foresaw a lesser amount."
The court added that the sentencing court must "set() forth the
reasons why (a) particular amount of drugs was reasonably foreseeable"
to each defendant for sentencing purposes.
U.S. v. Edwards, 945 F.2d 1387 (7th Cir. 1991).
U.S. v. Restrepo-Contreras, 942 F.2d 96, 99 (1st Cir. 1991)
(following Chapman v. U.S., 111 S.Ct. 1919 (1991) (weight of LSD
"mixture" includes carrier), and U.S. v. Maheche-Onofre, 936 F.2d 623,
626 (1st Cir. 1991) (suitcase made from cocaine chemically bonded with
acrylic was "mixture"), holding that total weight of statues made of
twenty-one kilograms of beeswax and five kilograms of cocaine should be
counted under Section 2D1.1 as "mixture or substance" containing
cocaine). But see U.S. v. Jennings, 945 F.2d 129, 136-37 (6th Cir.
1991) (unusable, poisonous by-products should not be included in weight
of methamphetamine mixture); U.S. v. Rolande-Gabriel, 938 F.2d 1231,
1238 (11th Cir. 1991) (weight of "unusable" part of cocaine mixture
should not be included).
Fourth Circuit holds that sentencing court may not use information
protected under U.S.S.G. Section 1B1.8(a) as basis for denying
substantial assistance departure. Defendant pled guilty to possession
of cocaine with intent to distribute. The plea agreement stated that
defendant would assist the government in the investigation of others,
and, pursuant to U.S.S.G. Section 1B1.8(a), any self-incriminating
evidence revealed as part of his cooperation would not be used against
him in any further criminal proceedings. In return the government would
recommend a departure for substantial assistance, a sentence at the low
end of the guideline range, and a reduction for acceptance of
responsibility. The defendant and government fulfilled their respective
parts of the bargain. However, during defendant's cooperation he
admitted to selling sizable quantities of marijuana over several years,
and the district court took this into account in denying the substantial
assistance motion and sentencing defendant at the top of the guideline
range. Defendant appealed, arguing that Section 1B1.8(a) precluded the
use of this information.
The appellate court agreed and reversed. Application Note 1 to
Section 1B1.8(a) states in part that "the policy of the Commission is
that where a defendant as a result of (such) a cooperation agreement . .
. reveals information that implicates him in unlawful conduct not
already known to the government, such defendant should not be subject to
an increased sentence by virtue of that cooperation where the government
agreed that the information revealed would not be used for such
purpose." The court found that "there is no question that, contrary to
the guidelines' expressed policy, Malvito has been 'subjected to an
increased sentence by virtue of (his) cooperation where the government
agreed that the information revealed would not be used for such
purpose.' Were we to allow Malvito's sentence to stand, not only would
this policy be frustrated, but an important and common investigative
tool would lose some potency."
The court concluded: "The district court is not bound by the
government's recommendation that it make a substantial assistance
departure. On the other hand, U.S.S.G. Section 1B1.8 requires it to
honor the government's promise that self-incriminating information
volunteered by the defendant under a cooperation agreement will not
subject the defendant to a harsher sentence. In short, the district
court could have denied Malvito the downward departure for almost any
reason, but not for the reason it gave." The court noted the general
rule that refusals to depart "are ordinarily not appealable," but held
that this sentence "was imposed as a result of an incorrect application"
of the guidelines, and as such was appealable under 18 U.S.C. Section
3742(a)(2). Because resentencing was required on this ground, the court
did not decide the issue of sentencing at the top of the guideline
range.
U.S. v. Malvito, 946 F.2d 1066 (4th Cir. 1991) (Wilkins, J.,
dissenting).
U.S. v. Harrington, No. 90-3176 (D.C. Cir. Oct. 25, 1991) (Ginsburg,
J.) (Silberman, J., dissenting; Edwards, J., concurring) (reversing 741
F.Supp. 968 (D.D.C. 1990) -- "post-offense (drug) rehabilitation is the
type of conduct properly considered in determining whether (defendant)
is eligible for a reduction in sentence under U.S.S.G. Section 3E1.1"
for acceptance of responsibility and therefore not a proper ground for
downward departure, accord U.S. v. Van Dyke, 895 F.2d 984, 986-87 (4th
Cir.), cert. denied, 111 S.Ct. 112 (1990); but agreeing with U.S. v.
Sklar, 920 F.2d 107, 115-17 (1st Cir. 1990), that an "extraordinary"
case of rehabilitation could warrant departure). See also U.S. v.
Martin, 938 F.2d 162, 163-64 (9th Cir. 1991) (departure for drug
rehabilitation precluded by Section 5H1.4, p.s.); U.S. v. Pharr, 916
F.2d 129, 133 (3d Cir. 1990) (same), cert. denied, 111 S.Ct. 2274
(1991). Contra U.S. v. Maddalena, 893 F.2d 815, 818 (6th Cir. 1989).
U.S. v. White, 945 F.2d 100, 102 (5th Cir. 1991) (reversing downward
departure based on defendant's youth: "The guidelines have adequately
taken into consideration the defendant's age in Section 5H1.1,
specifying extremely limited circumstances under which a sentencing
court may use age in departing from the applicable range. The
circumstance of being young is not a permissible consideration under the
guidelines."). Accord U.S. v. Diagi, 892 F.2d 31, 34 (4th Cir. 1990).
U.S. v. Klotz, 943 F.2d 707, 710 (7th Cir. 1991) (U.S.S.G. Section
5K1.2, p.s. -- "A defendant's refusal to assist authorities in the
investigation of other persons may not be considered as an aggravating
sentencing factor" -- precludes upward departure for failure to assist
authorities but "does not forbid a judge to consider the extent of
assistance when selecting a sentence within the guideline range").
U.S. v. Austin, No. 91-1245 (1st Cir. Oct 8, 1991) (Hill, J.)
(reversed -- district court improperly refused to impose enhancement
despite finding that defendant committed perjury during a hearing on his
motion to withdraw guilty plea: "(W)e hold that, upon finding Appellant
had perjured himself during the Fed. R. Crim. Pro. 32(d) hearing, the
district court was, without discretion, mandated to enhance the
Appellant's base offense level by two levels as prescribed by . . .
Section 3C1.1. The offense level enhancement applies to unsuccessful
and foolish attempts as well as the more savvy attempts at perjury. The
enhancement applies regardless of whether the perjury was attempted
before a judge or jury."). Accord U.S. v. Avila, 905 F.2d 295, 297 (9th
Cir. 1990) (enhancement mandatory once court finds facts sufficient to
constitute obstruction); U.S. v. Roberson, 872 F.2d 597, 602 (5th
Cir.), cert. denied, 110 S.Ct. 175 (1989).
U.S. v. Jones, No. 90-3266 (D.C. Cir. Oct. 25, 1991) (Wald, J.)
(adopting three-part test set forth in U.S. v. Diaz-Bastardo, 929 F.2d
798, 800 (1st Cir. 1991) (see 4 GSU #3), for reviewing departure based
on both proper and improper grounds). Accord U.S. v. Glick, 946 F.2d
335 (4th Cir. 1991). For other circuits' positions see 4 GSU #11.
Note: U.S. v. Galloway, 943 F.2d 897 (8th Cir. 1991), which narrowed
the scope of the relevant conduct provision, Section 1B1.3(a), was
vacated Nov. 20, 1991, and rehearing en banc granted with argument set
for Jan. 6, 1992.
Volume 4, Number 11
October 31, 1991
Third Circuit holds Fifth Amendment protection against
self-incrimination applies to reduction for acceptance of responsibility
with respect to related conduct. Defendant pled guilty to robbing a
bank by intimidation. As part of the plea agreement, a second count of
bank robbery with a dangerous weapon was dismissed. He denied using a
gun during the robbery and the count of conviction did not require use
of a weapon, but the court increased his offense level for possessing a
weapon during a robbery and denied a Section 3E1.1 decrease because
defendant did not accept responsibility for possession of the gun.
Defendant was sentenced accordingly and appealed, arguing that Section
3E1.1 requires acceptance of responsibility only for conduct in the
count of conviction and requiring a defendant to admit conduct beyond
the offense of conviction in order to receive the reduction would
violate the self-incrimination clause of the Fifth Amendment.
The appellate court rejected the first argument: "We agree with the
courts that interpret Section 3E1.1's reference to 'criminal conduct'
and the application note's reference to 'offense and related conduct' as
indicating that the sentencing court may consider whether the defendant
has admitted or denied conduct beyond the specific conduct of the
offense of conviction in the course of determining whether to grant a
two-level reduction for acceptance of responsibility. . . .
Accordingly, we here hold that the terms 'criminal conduct' and 'offense
and related conduct' in Chapter 3 refer to the same bundle of conduct:
all conduct that is 'relevant' under Section 1B1.3 of the Guidelines."
Accord U.S. v. Mourning, 914 F.2d 699, 705-06 (5th Cir. 1990); U.S. v.
Munio, 909 F.2d 436, 439-40 (11th Cir. 1990) (per curiam); U.S. v.
Gordon, 895 F.2d 932, 936-37 (4th Cir.), cert. denied, 111 S.Ct. 131
(1990). See also U.S. v. Herrera, 928 F.2d 769, 774-75 (6th Cir. 1991)
(affirming denial of reduction because defendant did not accept
responsibility for related conduct). Contra U.S. v. Piper, 918 F.2d
839, 840-41 (9th Cir. 1990) (per curiam); U.S. v. Oliveras, 905 F.2d
623, 626-27 (2d Cir. 1990) (per curiam); U.S. v. Perez-Franco, 873 F.2d
455, 463-64 (1st Cir. 1989).
On the Fifth Amendment issue, defendant had the right to refuse to
answer questions in the presentence interview about whether he possessed
a weapon during the robbery because he could have faced state weapons
charges. Whether a denial of the Section 3E1.1 reduction for exercising
this right violates the Fifth Amendment turns on whether that denial is
a "penalty" or a "denied benefit." The appellate court held it was a
penalty: "The characterization of a denied reduction in sentence as a
'denied benefit' as opposed to a 'penalty' cannot be squared with the
reality of the sentencing calculation and conflicts with decisions of
the Supreme Court and pre-Guidelines decisions of this court. . . .
(D)enial of leniency is a penalty which cannot be imposed for the
defendant's assertion of his or her Fifth Amendment privilege." Accord
U.S. v. Oliveras, supra, at 627-28; Perez-Franco, supra, at 463. See
also U.S. v. Watt, 910 F.2d 587, 590-93 (9th Cir. 1990) ("sentencing
court cannot consider against a defendant any constitutionally protected
conduct"). Several circuits have held that denial of the reduction is
not a penalty and thus Section 3E1.1 does not implicate the Fifth
Amendment. See Mourning, supra, at 706-07; U.S. v. Trujillo, 906 F.2d
1456, 1461 (10th Cir. 1990); Gordon, supra, at 936-37; U.S. v. Henry,
883 F.2d 1010, 1011-12 (11th Cir. 1989).
The Third Circuit noted, however, that "the Fifth Amendment privilege
against self-incrimination is not self-executing and thus must be
claimed when self-incrimination is threatened." There are "a few limited
exceptions to the rule," such as "when the government threatens to
penalize the assertion of the privilege, and thereby 'compels'
incriminating testimony," but the court concluded that "requiring a
defendant to accept responsibility in order to obtain a sentence
reduction is not a threat to impose punishment for an assertion of the
privilege. . . . (T)he person being questioned may fear that he or she
will be more likely to suffer a penalty if the questions go unanswered,
but the penalty will not be imposed for the claiming of the privilege. .
. . (I)f a defendant does not claim the privilege when asked during the
sentencing process about acts beyond the acts of the offense of
conviction, any subsequent statements are considered voluntary and may
be considered by the sentencing judge in determining whether to grant a
reduction for acceptance of responsibility." Here, the court ruled,
defendant did not claim the privilege and his statements to the
probation officer were not compelled. Thus, his denial that he
possessed a gun during the robbery could be considered by the district
court in determining he had not accepted responsibility. (Note: One
judge dissented on this point.)
The court "emphasize(d) the limited scope of our decision. This case
involves a defendant who voluntarily responded to questions and denied a
portion of the criminal conduct that the court found to have taken
place. This case does not involve a defendant who remained silent when
questioned about related conduct beyond the offense of conviction
without claiming the Fifth Amendment privilege. Nor does it involve a
defendant who consistently relied upon his privilege when questioned
about related conduct beyond the offense of conviction. We express no
opinion concerning such cases." The court did, however, "venture several
words of advice" concerning such cases: "(W)here the defendant has
consistently asserted the privilege as to acts beyond those of the
offense of conviction, a sentencing judge . . . obviously must not draw
any inference from the fact that the privilege has been claimed. . . .
(T)he judge cannot rely on the defendant's failure to admit to such acts
as a basis for denying the two-level reduction. But that in no way
implies an automatic two-level reduction for such a defendant. The
sentencing judge must address the acceptance of responsibility issue on
the basis of all of the record evidence relevant to that issue." See
U.S. v. Skillman, 922 F.2d 1370, 1378-79 (9th Cir. 1990) (assertion of
Fifth Amendment rights does not entitle defendant to reduction -- there
must be some affirmative acceptance of responsibility).
The court further observed: "It is at least questionable whether a
sentencing judge in a case where the defendant has acknowledged
responsibility for the offense of conviction but has claimed the
privilege with respect to aggravating related conduct can deny the two
point reduction based solely on the defendant's failure to carry his
burden of proof with respect to the acceptance of responsibility for his
criminal conduct."
U.S. v. Frierson, No. 90-3382 (3d Cir. Oct. 1, 1991) (Stapleton, J.)
(Garth, J., dissenting in part).
U.S. v. Kosth, 943 F.2d 798 (7th Cir. 1991) (reversing Section 3B1.3
enhancement for abuse of position of trust given to businessman who used
his merchant account with bank to commit credit card fraud: "There was
no special element of private trust involved. . . . As with all credit
transactions, there was an element of reliance present. However, the
relationship described by the facts in this case was a standard
commercial relationship. The fraud described here does not differ from
any other commercial credit transaction fraud. The defendant was not an
'insider' . . . (but rather) an ordinary merchant customer of the bank
who committed fraud by abusing his contractual and commercial
relationship with it.").
U.S. v. Bruder, No. 90-1931 (7th Cir. Sept. 27, 1991) (en banc)
(Ripple, J.) (five judges dissenting on this issue). Court reversed
failure to group offenses of convicted felon in possession of firearm
and possession of unregistered firearm that involved the same weapon.
Because these offenses were not specifically listed in Section 3D1.2(d),
the main inquiry was whether they "involved substantially the same
harm." Court held they did, reasoning that "society" was the victim of
both crimes, both statutes that were violated have the same goal, and a
convicted felon -- who cannot legally register a firearm -- will
"necessarily violate() the registration statute as well as the felon in
possession statute." The court also determined that this case fit "the
guidelines' directive that some counts 'are so closely intertwined with
other offenses that conviction for them ordinarily would not warrant
increasing the guideline range.' U.S.S.G. Ch. 3, Part D, Introductory
Commentary." See also U.S. v. Riviere, 924 F.2d 1289, 1306 (3d Cir.
1991) (unlawful delivery of firearms should be grouped with unlawful
possession of weapon by felon). The court distinguished U.S. v. Pope,
871 F.2d 506, 509-10 (5th Cir. 1989) (unlawful possession of weapon need
not be grouped with unlawful possession of silencer for different
weapon), and U.S. v. Bakhtiari, 913 F.2d 1053, 1062 (2d Cir. 1990)
(unlawful possession of weapon need not be grouped with possession of
silencer for same weapon).
U.S. v. Day, 943 F.2d 1306 (11th Cir. 1991) (defendant's written
stipulation in formal plea agreement to facts that described burning of
boat to fraudulently collect insurance proceeds as "the arson job" was
"a stipulation that specifically establishe(d the) more serious offense"
of arson, and the district court properly used Section 1B1.2(a) to
sentence defendant under arson rather than fraud guideline; appellate
court reasoned that, in light of Supreme Court's analysis of Section
1B1.2(a) in Braxton v. U.S., 111 S.Ct. 1854 (1991), a defendant need not
expressly agree that the stipulated facts establish the more serious
offense, and the relevant inquiry is "whether, as a matter of law, the
facts provided the essential elements of the more serious offense").
U.S. v. Glick, No. 91-5505 (4th Cir. Oct. 8, 1991) (Wilkins, J.)
(conduct over ten-week period involving number of actions and extensive
planning cannot be construed as "single act of aberrant behavior" that
warrants downward departure, U.S.S.G. Ch. 1, Pt. A, 4(d), p.s.,
disagreeing with U.S. v. Takai, 930 F.2d 1427, 1433-34 (9th Cir. 1991)
(conduct during bribery offense that occurred over eight-day period was
"single act of aberrant behavior"); also held that significantly
reduced mental capacity, Section 5K2.13, p.s., "need not be the sole
cause of the offense to justify departure, but should 'comprise() a
contributing factor in the commission of the offense.' U.S. v. Rucklick,
919 F.2d 95, 97-98 (8th Cir. 1990)," accord U.S. v. Lauzon, 938 F.2d
326, 331 (1st Cir. 1991)).
U.S. v. Bruder, No. 90-1931 (7th Cir. Sept. 27, 1991) (en banc)
(Ripple, J.) (defendant's "post-offense rehabilitation" was
"'equivalent' to acceptance of responsibility" and sentencing court
"properly refused to depart" downward). Accord U.S. v. Van Dyke, 895
F.2d 984, 987 (4th Cir.), cert. denied, 111 S.Ct. 112 (1990). See also
U.S. v. Williams, 891 F.2d 962, 966 (1st Cir. 1989) (desire to reform
not basis for departure).
U.S. v. Baez, 944 F.2d 88 (2d Cir. 1991) (affirming use of analogy to
multiple counts guideline, pursuant to U.S. v. Kim, 896 F.2d 678, 684-85
(2d Cir. 1990), to impose upward departure on counterfeiting defendant
who kidnapped and threatened potential witness -- sentencing court
concluded obstruction of justice enhancement was inadequate, analogized
conduct to offense of witness tampering, and sentenced defendant under
guideline range that would have applied under Section 3D1.2; appellate
court also explained that "the multi-count analysis is to provide only
guidance as to the extent of a departure, not a rigid formula. . . .
The point of Kim is to use the multi-count analysis and the sentencing
table as useful guidance . . ., not to precipitate a time-consuming
analysis of every possible calculation of arguably relevant
circumstances.").
U.S. v. Glick, No. 91-5505 (4th Cir. Oct. 8, 1991) (Wilkins, J.)
(departure based on proper and improper factors may be upheld if proper
factor justifies magnitude of departure, adopting approach set forth in
U.S. v. Diaz-Bastardo, 929 F.2d 798, 800 (1st Cir. 1991) (see 4 GSU
#3)). Accord U.S. v. Alba, 933 F.2d 1117 (2d Cir. 1991); U.S. v.
Franklin, 902 F.2d 501 (7th Cir.), cert. denied, 111 S.Ct. 274 (1990);
U.S. v. Rodriguez, 882 F.2d 1059 (6th Cir. 1989), cert. denied, 110
S.Ct. 1144 (1990). Contra U.S. v. Zamarippa, 905 F.2d 337 (10th Cir.
1990); U.S. v. Hernandez-Vasquez, 884 F.2d 1314 (9th Cir. 1989) (per
curiam).
Volume 4, Number 10
October 18, 1991
Ninth Circuit affirms downward departure based on "youthful lack of
guidance." Defendant was convicted of conspiracy to distribute cocaine
and rock cocaine. His guideline range of 360 months to life partly
resulted from inclusion in the criminal history score of a 1979
manslaughter conviction when he was 17 years old, but for which he was
sentenced as an adult. The district court, however, found mitigating
circumstances and departed to impose a 17-year sentence. As the
appellate court described it: "The mitigating circumstance in this case
may fairly be characterized as 'youthful lack of guidance.' Lack of
guidance and education, abandonment by parents and imprisonment at age
17 constitute the elements of this mitigating circumstance. . . . (T)he
district court departed downward because it believed that Floyd's
youthful lack of guidance had a significant effect both on his past
criminality and on his commission of the present offense. Thus, the
district court thought (i) that Floyd's criminal history category
significantly overrepresents the actual seriousness of his past
criminality; and (ii) Floyd's base offense level overrepresents the
actual seriousness of his criminality in the commission of the present
offense."
The appellate court held that "use of youthful lack of guidance as a
mitigating circumstance is not precluded by any provision of the
(Sentencing Reform) Act or the Guidelines." The government argued that
two sections in Chapter 5 of the Guidelines preclude the mitigating
circumstances used here. Section 5H1.6, p.s., for example, states that
"(f)amily ties and responsibilities and community ties are not
ordinarily relevant in determining whether" to depart. The court
concluded, however, that this section "recommend(s) against relying on
the present existence of family obligations as a basis for departure
because they reflect the Congressional concern that convicted criminals
with family ties not receive lighter sentences than convicted criminals
without such ties. . . . To construe a provision clearly intended to
prohibit heavier sentences for people lacking family ties as prohibiting
lighter sentences for such people is imputing to Congress an intent it
has not manifested."
"In any case, the district court did not depart downward because
Floyd presently lacks family ties, but departed, in part, because he was
abandoned by his parents as a youth. The provision recommending against
departure based on the present existence of family obligations does not
even speak to a departure based on the absence of family guidance at an
earlier age. . . . (T)he mitigating circumstance of youthful lack of
guidance refers to a past condition that may have led a convicted
defendant to criminality. That both mitigating circumstances involve
the presence or absence of familial relationships should not obscure
this basic difference between them -- a difference which is sufficient
to place youthful lack of guidance outside the purview of U.S.S.G.
Section 5H1.6 and to make it a mitigating factor that is not prohibited
under Chapter Five, Part H of the Guidelines."
The court also held that the district court's reference to
defendant's lack of education did not conflict with Section 5H1.2, p.s.,
which states that "(e)ducational and vocational skills are not
ordinarily relevant" to departure decisions: "(T)he district court
merely referred to lack of education in support of its finding that
Floyd lacked guidance as a youth. A provision recommending against
departure based on educational level does not speak to a departure based
on youthful lack of guidance. In any case, however, in passing 28
U.S.C. Section 994(e), Congress was preoccupied with ensuring that
people who lack educational skills do not receive heavier sentences than
people who do have such skills. . . . To use this provision to prohibit
a downward departure based on youthful lack of guidance would be, once
again, to impute to Congress an intent it never manifested."
The court concluded that because the Guidelines do not prohibit
departure based on youthful lack of guidance, it would use the "general
background rule," as summarized in Section 1B1.4, that "the court may
consider, without limitation, any information concerning the background,
character, and conduct of the defendant, unless otherwise prohibited by
law. . . . We thus decline the invitation to place additional
limitations on mitigating circumstances based on personal
characteristics of the defendant and hold that a district court may
consider youthful lack of guidance in determining the appropriate
sentence."
U.S. v. Floyd, No. 89-50295 (9th Cir. Sept. 25, 1991) (Norris, J.).
U.S. v. Gonzalez, No. 90-1704 (2d Cir. Sept. 23, 1991) (Oakes, C.J.)
(relying on U.S. v. Lara, 905 F.2d 599 (2d Cir. 1990), affirming
downward departure to 33 months from minimum guideline term of 96 months
on basis of extreme vulnerability to assault in prison for 19-year-old
defendant who was "extremely small and feminine looking, and . . . had
the appearance of a fourteen or fifteen year old boy"; rejecting
government arguments, court held that evidence of bisexuality (as was
the case in Lara) was not necessary, that defendant need not have been
previously victimized or threatened, and that prison conditions may
present permissible basis for departure) (Winter, J., dissenting).
U.S. v. Morrison, No. 89-2284 (7th Cir. Oct. 10, 1991) (Flaum, J.)
(reversing upward departure to category VI based on district court's
belief that, because one of defendant's prior convictions was for a
"brutal, execution-style murder," placement in category II "seriously
underestimated" the severity of that crime; appellate court held that
Sentencing Commission "consciously chose to award defendants three
criminal history points for every (felony conviction), regardless of the
nature of the underlying offense conduct. See Section 4A1.1. To
sanction the district court's upward departure would fly in the face of
that choice, and invite sentencing courts to create their own weighing
schemes for prior criminal convictions.").
U.S. v. Uccio, 940 F.2d 753 (2d Cir. 1991) (kidnapping and assault of
co-conspirator undertaken in furtherance of offense was proper ground
for upward departure pursuant to Section 5K2.4, p.s. -- that section is
not limited to actions against innocent bystanders or targets of the
crime).
Fourth Circuit holds obstruction of justice enhancement may not be
applied to testifying defendant's denial of guilt that is not believed
by jury. Defendant, charged with conspiracy to distribute cocaine,
"took the stand and denied everything." After the government's
"devastating rebuttal," the jury convicted the defendant. Her offense
level was increased for obstruction of justice because the trial court
found she testified untruthfully at the trial. As the appellate court
noted, "(c)ommitting or suborning perjury has always been identified as
'obstruction of justice' in the Guidelines Commentary. U.S.S.G. Section
3C1.1, comment. (n.1(c)) (Nov. 1989); Id., comment. (n.3(b)) (Nov.
1990)." Every other circuit to consider the issue has upheld the
constitutionality of applying Section 3C1.1 to untruthful testimony.
See U.S. v. Contreras, 937 F.2d 1191, 1194 (7th Cir. 1991); U.S. v.
Batista-Polanco, 927 F.2d 14, 22 (1st Cir. 1991); U.S. v. Matos, 907
F.2d 274, 276 (2d Cir. 1990); U.S. v. Barbarosa, 906 F.2d 1366, 1369-70
(9th Cir.), cert. denied, 111 S.Ct. 394 (1990); U.S. v. Wallace, 904
F.2d 603, 604-05 (11th Cir. 1990); U.S. v. Keys, 899 F.2d 983, 988-89
(10th Cir.), cert. denied, 111 S.Ct. 160 (1990); U.S. v. Wagner, 884
F.2d 1090, 1098 (8th Cir. 1989), cert. denied, 110 S.Ct. 1829 (1990);
U.S. v. Acosta-Cazares, 878 F.2d 945, 953 (6th Cir.), cert. denied, 110
S.Ct. 255 (1989).
The Fourth Circuit, however, held that applying the enhancement in
this situation unconstitutionally impinged on defendant's right to
testify: "(W)e fear that this enhancement will become the commonplace
punishment for a convicted defendand who has the audacity to deny the
charges against him. The government manintained at oral argument that
every defendant who takes the stand and is convicted should be given the
obstruction of justice enhancement. . . . It disturbs us that testimony
by an accused in his own defense, so basic to justice, is deemed to
'obstruct' justice unless the accused convinces the jury."
"We are not satisfied that there are enough safeguards in place to
prevent this enhancement from unfairly coercing defendants, guilty or
innocent, into remaining silent at trial. Other circuits have reviewed
the district court's finding of untruthfulness under a 'clearly
erroneous' standard. . . . Of course, in light of the jury's verdict of
guilt, the district court's finding will never be 'clearly erroneous'
where the verdict is sustainable; if the verdict cannot be supported,
the sentencing finding will of course be moot."
"The rigidity of the guidelines makes the Section 3C1.1 enhancement
for a disbelieved denial of guilt under oath an intolerable burden upon
the defendant's right to testify in his own behalf."
U.S. v. Dunnigan, No. 90-5668 (4th Cir. Aug. 30, 1991) (Hall, J.) (as
amended Sept. 12, 1991).
U.S. v. Thompson, No. 90-1305 (7th Cir. Sept. 18, 1991) (Flaum, J.)
(improper to given enhancement to defendants who, during presentence
investigations, falsely denied they had used drugs while on bail during
the course of trial -- revised Application Note 1 to Section 3C1.1,
effective Nov. 1, 1990, states that "defendant's denial of guilt (other
than a denial of guilt under oath that constitutes perjury), refusal to
admit guilt or provide information to a probation officer, or refusal to
enter a plea of guilty is not a basis for application of this
provision," and thus "makes clear" that previous holding to the contrary
in U.S. v. Jordan, 890 F.2d 968,973 (7th Cir. 1989), should not be
followed; however, enhancement for lying to probation officer about
violation of condition of release while awaiting sentencing was proper
-- information in respect to presentence or other investigation for
court "comprises a broader range of inquiries than those pertaining to
the defendant's guilt or innocence," and the court "unquestionably had a
legitimate interest in monitoring (defendant's) compliance with the
release conditions it had imposed").
U.S. v. Stinson, No. 90-3711 (11th Cir. Oct. 4, 1991) (Edmondson, J.)
(illegal weapons possession by a convicted felon "by its nature,
presented a serious potential risk of physical injury to another,"
U.S.S.G. Section 4B1.2, comment. (n.2(B)), and is therefore "crime of
violence" for career offender purposes). Accord U.S. v. O'Neal, 910
F.2d 663 (9th Cir. 1990).
U.S. v. Williams, No. 91-1219 (8th Cir. Sept. 6, 1991) (per curiam)
(because sentence following probation revocation must be one that was
available at time of original sentencing, court may not use new
guideline chapter seven, effective Nov. 1, 1990, for defendants
originally sentenced before that date).
U.S. v. Fallin, No. 91-1017 (8th Cir. Sept. 23, 1991) (per curiam)
(for defendant who violated supervised release after Nov. 1, 1990, court
"should have considered the policy statements in chapter seven of the
guidelines when sentencing Fallin after the revocation of his supervised
release"; court's error was harmless, however, because this was
defendant's second, identical violation, and "(g)iven Fallin's blatant
defiance of the court-ordered terms of his supervised release, we
believe the district court properly sentenced Fallin to an appropriate
term of imprisonment within the statutory maximum. . . . Thus, no
useful purpose would be served by remanding Fallin's case to the
district court for resentencing.").
Volume 4, Number 9
October 10, 1991
Tenth Circuit holds that the Double Jeopardy Clause may be violated
when a conviction is based on conduct that was used to increase a
Guidelines sentence in a prior case. Defendant was convicted in South
Dakota for distributing methamphetamine. The court included as relevant
conduct 963 grams found in a search of defendant's Utah residence, which
raised his offense level by two, and imposed a two-level enhancement for
possessing weapons during a drug offense for weapons found during the
same search. Defendant was sentenced to the statutory maximum of 240
months, within the guideline range but five months higher than the
guideline maximum if the 963 grams had been excluded.
The government then prosecuted defendant in Utah federal court for
possession with intent to distribute the same 963 grams of
methamphetamine and for being a felon in possession of firearms (the
same weapons used to enhance the South Dakota sentence). Defendant
appealed after the district court refused his motion to dismiss the
indictment, but the Tenth Circuit affirmed, holding that because
defendant had not been charged in South Dakota for these offenses the
Double Jeopardy Clause's ban on multiple prosecutions was not
implicated. Also, because defendant had not yet been convicted and
punished, his claim based on the Clause's ban against multiple
punishments was not ripe for review. U.S. v. Koonce, 885 F.2d 720, 722
(10th Cir. 1989). Defendant was found guilty on both charges, and
sentenced to 97 months on the drug charge and 12 months on the weapons
charge, to be served concurrently with the South Dakota sentence. He
also received a 6-year term of supervised release, to be concurrent with
the 5-year South Dakota term.
The appellate court held that the Utah sentence for possession
violated the "punishment component" of double jeopardy, basing its
conclusion on three factors. First: "In both the Utah proceeding and
the South Dakota proceeding, defendant was punished for the exact same
conduct, the possession of Utah methamphetamine with intent to
distribute. Absent evidence that Congress intended such double
punishment, this runs afoul of the Double Jeopardy Clause."
Second, the court determined that "there is no evidence that Congress
intended that an individual who distributes a controlled substance
should receive punishment both from an increase in the offense level
under the Guidelines in one proceeding and from a conviction and
sentence based on the same conduct in a separate proceeding." The court
found "strong support" for this conclusion in the Guidelines themselves.
Under the "grouping" procedure of the multiple counts guideline, "had
the government charged Koonce in the South Dakota district court with
two separate counts -- one based upon the methamphetamine mailed to
(South Dakota) and one based upon the methamphetamine found in (Utah) --
he would have received a sentence identical to the one that was imposed
in the South Dakota prosecution. . . . . It is difficult to believe
that Congress would have intended the punishment to be larger if the
government chose to proceed with two different proceedings. . . than if
it chose to consolidate all of the counts in one proceeding."
Lastly, the sentence for the Utah offense violates the punishment
component of the Double Jeopardy Clause "even though the sentence runs
concurrently with the South Dakota sentence." Following Ball v. U.S.,
470 U.S. 856, 864-65 (1985), the court reasoned that punishment includes
"all of the consequences that flow from a conviction without limiting
the concept of punishment to incarceration time, fines, and other
penalties and restraints explicitly ordered by the court," and thus "the
absence of an additional prison sentence does not render the second
conviction constitutional."
On the firearms charge, however, the Double Jeopardy Clause was not
triggered because, under the test in Blockburger v. U.S., 284 U.S. 299,
304 (1932), defendant was not punished in the different courts for the
same offense. Although the weapons enhancement and the felon in
possession offense "both require proof of possession of a firearm,
U.S.S.G. 2D1.1(b)(1) requires proof that the firearm was possessed. . .
. during the commission of the drug offense, while U.S.C. 922(g)
requires proof that the accused was a felon at the time he possessed the
firearm."
U.S. v. Koonce, No. 90-4081 (10th Cir. Sept. 23, 1991) (Ebel, J.)
Sixth Circuit holds that courts should conduct an evidentiary hearing
in accordance with the Confrontation Clause when disputed evidence could
increase the Guideline sentence. In each of three cases that were
consolidated for appeal, "the defendant pleaded guilty to a drug offense
and the District Court was required to increase his sentence
significantly under the Guidelines because the Court found on the basis
of disputed facts that he had committed other drug offenses for which he
had not been convicted. In each case the other offenses were proved by
the hearsay testimony -- often double or triple hearsay -- of
out-of-court declarants who remain unidentified. In each case the
sentences were increased under the 'relevant conduct' or other similar
provisions of the Guidelines, and in each case the defendant has
objected that the testimony causing his sentence to be increased is
unreliable." For two defendants, the disputed evidence was used to
significantly increase the amount of drugs and to impose role in the
offense enhancements; the other had his criminal history score
increased from category I to VI.
The appellate court noted a conflict between the two circuits that
have specifically addressed whether factfinding under the Guidelines is
subject to the Confrontation Clause. The Eighth Circuit held that "the
Confrontation Clause, which operates independently of the rules of
evidence, does apply." U.S. v. Fortier, 911 F.2d 100, 103 (8th Cir.
1990). The Third Circuit declined to apply the Clause to sentencing,
but did hold that a heightened standard of scrutiny is required for
factual findings and hearsay when a court "departs upwards dramatically"
from the guideline range. U.S. v. Kikumura, 918 F.2d 1084, 1102-03 (3d
Cir. 1990). The Sixth Circuit agreed with the Eighth, finding that
because of "the vast difference between the formal, fact-based system of
sentencing under the new code and the old informal system, . . . the
reliability of the district courts' findings of fact must be tested
under the principles established by the Confrontation Clause."
"This should not present a serious problem for district courts in
most cases. In cases that go to trial, disputed facts can usually be
resolved on the basis of the facts presented at trial, facts subject to
the test of the Confrontation Clause. In guilty plea situations, the
facts are usually undisputed and can often be stipulated before the
sentencing hearing under Section 6B1.4 of the Guidelines. In the cases
in which there is a disputed material fact, the government can decide
whether it will attempt to prove the fact under the Confrontation
Clause. In each such case the government can decide whether it will
seek to enhance the sentence otherwise prescribed by the new code by
proffering and attempting to prove such disputed facts. Upon receiving
the government's proffer, district courts may decide whether the
government's proffer of facts -- if proved -- would constitute grounds
requiring an increased sentence. If the district court rejects the
proffer as immaterial, it should sentence the defendant on the basis of
the undisputed facts of the charged offense, the defendant's criminal
history, and any other aggravating or mitigating factor provided for in
the code. If the district court decides that the proffered evidence in
dispute would constitute grounds for an increased sentence, it should
then conduct an evidentiary hearing in accordance with the Confrontation
Clause."
U.S. v. Silverman, No. 90-3205 (6th Cir. Sept. 17, 1991) (Merritt,
C.J.) (Wellford, Sr. J., dissenting).
U.S. v. Restrepo, No. 88-3207 (9th Cir. Oct. 4, 1991) (en banc)
(Wiggins, J.) (By 7-4 vote, court held that, "for factors enhancing a
sentence under Sentencing Guideline Section 1B1.3(a)(2)," including
uncharged conduct, "due process does not require a higher standard of
proof than preponderance of the evidence to protect a convicted
defendant's liberty interest in the accurate application of the
Guidelines. We emphasize that the preponderance of the evidence
standard is a meaningful one that requires the judge to be convinced 'by
a preponderance of the evidence that the fact in question exists.' . . .
It is a "'misinterpretation (of the preponderance test) that it calls
on the trier of fact merely to perform an abstract weighing of the
evidence in order to determine which side has produced the greater
quantum, without regard to its effect in convincing his mind of the
truth of the proposition asserted."'") (dissenting opinions by Judges
Pregerson and Norris, concurring opinion by Judge Tang).
Sixth Circuit holds that non-distributable, poisonous by-products
should not be included in weight of methamphetamine "mixture."
Defendants were convicted on several charges related to illegal
manufacture of methamphetamine. The district court based their
sentences on the entire weight of the unfinished "mixture" containing "a
detectable amount" of methamphetamine, see U.S.S.G. Section 2D1.1(c)
(note at end of Drug Quantity Table), that was found in a "Crockpot."
Defendants argued that using the entire amount of the mixture was
irrational because only a much smaller amount of methamphetamine could
have been produced and the mixture as found contained only a small
amount of methamphetamine along with unreacted chemicals and by-products
that are poisonous if ingested.
The appellate court agreed: "As Chapman (v. U.S., 111 S.Ct. 1919
(1991)) makes clear, 'Congress clearly intended the dilutant, cutting
agent, or carrier medium to be included in the weight of those drugs for
sentencing purposes. . . .' Id. at 1924. By diluting the drug with some
other substance, the distributor is increasing the amount of the drug he
has available to sell to consumers and therefore is appropriately
subject to punishment for the entire weight of the mixture. Such is
clearly not the case here. If the Crockpot contained only a small
amount of methamphetamine mixed together with poisonous unreacted
chemicals and by-products, there would have been no possibility that the
mixture could be distributed to consumers. At this stage of the
manufacturing process, the defendants were not attempting to increase
the amount of methamphetamine they had available to sell by adding a
dilutant, cutting agent, or carrier medium, but rather were attempting
to distill methamphetamine from the otherwise uningestable by-products
of its manufacture."
The court remanded "for the district court to conduct an evidentiary
hearing on this issue. If, as we suspect, the defendants are correct in
their assertions as to the chemical properties of the contents of the
Crockpot, it would be inappropriate for the district court to include
the entire weight of the mixture for sentencing purposes. Instead, the
district court would be limited to the amount of methamphetamine the
defendants were capable of producing. See Guidelines Manual, Section
2D1.1, comment. (n.12)." The Eleventh Circuit recently reached a similar
result when it held that the "unusable" portion of a mixture containing
cocaine should not be included in the offense level computation. U.S.
v. Rolande-Gabriel, 938 F.2d 1231 (11th Cir. 1991) (4 GSU #8).
U.S. v. Jennings, No. 90-3503 (6th Cir. Sept. 16, 1991) (Martin, J.).
VOLUME 4, NUMBER 8
SEPTEMBER 20, 1991
Eighth Circuit holds sentencing statute does not authorize use of
conduct relating to distinct, uncharged property crimes in setting
offense level; narrows scope of U.S.S.G. Section 1B1.3(a)(2).
Defendant, indicted on two counts, pled guilty to one count of theft
from an interstate shipment (tires valued at $37,000) and the second
count of transporting a stolen vehicle was dropped. The presentence
report alleged that defendant was part of an organization that stole
over $1 million from interstate commerce, and "listed seven separate
interstate property offenses for which the Government had neither
charged nor indicted Galloway and included these offenses in the
sentencing calculation." Inclusion of the uncharged thefts would have
nearly tripled the guideline range, from 21-27 months to 63-78 months.
The district court held that use of the uncharged conduct would violate
the Fifth and Sixth Amendments by allowing defendant to be punished for
conduct that he was neither indicted nor tried on.
The appellate court, following "the familiar rubric that courts do
not unnecessarily decide constitutional issues," affirmed on statutory
grounds and overturned "subsection (a)(2) of the relevant conduct
guideline only insofar as it applies to separate property crimes that,
like Galloway's, occurred on separate days, at separate places, targeted
separate victims and involved a variety of merchandise. We draw no
conclusions about the validity of section 1B1.3(a)(2) with respect to
other types of offenses presenting other factual circumstances . . . .
We also make clear that our holding in no way infringes on the
traditional authority of sentencing courts to consider unconvicted
criminal conduct for an applicable sentence within the guideline range."
The court based its holding on two grounds. First, citing 28 U.S.C.
Section 994(l)(1), which "authorizes incremental punishment 'in each
case where a defendant is convicted of' multiple criminal offenses," the
court concluded: "The clear implication is that Congress did not intend
the guidelines to punish separate instances of unconvicted conduct
incrementally . . . . Any other interpretation would render the words
chosen by Congress meaningless." The legislative history supported this
view, the court found, and implied "that Congress intended to afford
defendants the full panoply of constitutional, statutory and procedural
protections before subjecting them to incremental punishment for
multiple offenses."
Second, the court determined that Section 991(b)(1)(B), which cites
Section 994(f), "requires the Commission to establish policies and
practices that avoid 'unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar criminal
conduct.' . . . The plain language of this subsection indicates that
Congress sought, in large part, to equalize sentences based on convicted
criminal conduct . . . . The legislative history confirms this
interpretation."
In sum, then, the court held that Section 1B1.3(a)(2) is
"unenforceable insofar as it permits offenders to be systematically
penalized for factually and temporally distinct property crimes that
have neither been charged by indictment nor proven at trial."
U.S. v. Galloway, No. 90-3034 (8th Cir. Sept. 9, 1991) (Bright, Sr.
J.).
Seventh Circuit holds "simple possession of a weapon, without more,"
is not a "crime of violence" for career offender purposes. Defendant
was sentenced as a career offender under Section 4B1.1. One of the
prior convictions used to reach career offender status was a state
offense for possession of a firearm. Possession of a firearm is not
specifically listed as a crime of violence in Section 4B1.2, comment.
(n.2), nor is force an element of the offense, so the question, pursuant
to note 2(B), was whether the actual offense conduct "by its nature,
presented a serious potential risk of physical injury to another." See
U.S. v. Terry, 900 F.2d 1039, 1042-43 (7th Cir. 1990). Accord U.S. v.
John, 936 F.2d 764, 769-70 (3d Cir. 1991); U.S. v. Walker, 930 F.2d
789, 793-94 (10th Cir. 1991); U.S. v. Goodman, 914 F.2d 696, 698-99
(5th Cir. 1990); U.S. v. McVicar, 907 F.2d 1, 1-2 (1st Cir. 1990).
The appellate court reversed: "While we agree that the potential for
a dangerous, violent act is enhanced by the possession of any weapon . .
. unless the use of the weapon is overtly implied it is not a crime of
violence under the Sentencing Guidelines." Defendant was arrested while
"riding in a Chicago taxi in daylight hours with a handgun tucked in the
waistband of his pants. The gun was not displayed or brandished. There
is no evidence that even any touching, gesturing or reference to the gun
occurred . . . . (T)he threat posed by a simple possession of a weapon,
without more, does not rise to the level of an act that 'by its nature,
presented a serious potential risk of physical injury to another.'
(U.S.S.G. Section 4B1.2, comment. (n.2).) It is a very fine line,
however . . . . The facts here present a most passive case. A prior
conviction involving any overt action by a defendant pointing a weapon,
drawing a weapon, openly displaying a weapon, brandishing a weapon,
holding a weapon, gesturing towards a weapon, or any act other than mere
passive possession, would . . . present a sufficient potential for
physical injury to constitute a crime of violence."
One circuit has held that the "offense of being a felon in possession
of a firearm by its nature" is a crime of violence. U.S. v. O'Neal, 910
F.2d 663, 665-67 (9th Cir. 1990). Other courts have held that
possession is a crime of violence when other threatening or violent
behavior occurs. See Walker, supra, 930 F.2d at 794-95 (also fired
gun); U.S. v. Alvarez, 914 F.2d 915, 918-19 (7th Cir. 1990) (also
struggled with arresting officer); U.S. v. McNeal, 900 F.2d 119, 123
(7th Cir. 1990) (also fired gun); U.S. v. Williams, 892 F.2d 296, 304
(3d Cir. 1989) (same); U.S. v. Thompson, 891 F.2d 507, 509 (4th Cir.
1989) (also pointed firearm at person).
U.S. v. Chapple, No. 90-1544 (7th Cir. Aug. 20, 1991) (Kanne, J.)
(Posner, J., dissenting).
U.S. v. Samuels, 938 F.2d 210 (D.C. Cir. 1991) (with two exceptions,
juvenile sentences not counted in criminal history score under Section
4A1.2(d) may not be used as basis for departure under Section 4A1.3,
p.s. -- "Given the inconsistencies in record keeping noted by the
Commission (in Application Note 7 to Section 4A1.2), permitting courts
to base departures on the existence of 'reliable' juvenile records would
plainly exaggerate the sentencing disparities that section 4A1.2(d) is
meant to curb"; the only exceptions to this rule are found in
Application Note 8, for sentences that provide evidence of similar
misconduct or criminal livelihood; also, court may not consider under
Section 4A1.3, p.s., whether leniency of juvenile sentences that are not
included in criminal history merit upward departure, but may consider
leniency of prior adult sentences).
Eleventh Circuit distinguishes Chapman, holds that "mixture" in
U.S.S.G. Section 2D1.1 does not include "unusable mixtures." Defendant
pled guilty to importation of cocaine. She carried sixteen bags filled
with cocaine and a liquid. The bags weighed 241.6 grams, of which 7.2
grams was cocaine base and 65 grams a cutting agent, with "liquid waste"
the remainder. The district court sentenced defendant on the basis of
the total "mixture" pursuant to Section 2D1.1, comment. (n.1).
The appellate court reversed: "The inclusion of the weight of
unusable mixtures in the determination of sentences under section 2D1.1
leads to widely divergent sentences for conduct of relatively equal
severity . . . . (T)he appellant was sentenced based on a total weight
of 241.6 grams, despite the fact that only 72 grams of the mixture
constituted a usable or consumable drug mixture. This hypertechnical
and mechanical application of the statutory language defeats the very
purpose behind the Sentencing Guidelines and creates an absurdity in
their application: the disparate and irrational sentencing arising out
of a 'rational and uniform' scheme of sentencing."
The court distinguished Chapman v. U.S., 111 S. Ct. 1919 (1991): "In
Chapman, the LSD and other drugs in carrier mediums considered by the
Court were usable, consumable, and ready for wholesale or retail
distribution when placed on standard carrier mediums, such as blotter
paper, gel, and sugar cubes . . . . (T)he cocaine mixture in this case
was obviously unusable while mixed with the liquid waste material."
The court further held that "the rule of lenity should be applied to
the statute to avoid absurdity and irrationality in the application of
the Sentencing Guidelines. We therefore hold that the term 'mixture' in
U.S.S.G. Section 2D1.1 does not include unusable mixtures." But cf. U.S.
v. Mahecha-Onofre, 936 F.2d 623, 625-26 (1st Cir. 1991) (suitcase made
of cocaine and acrylic material chemically bonded together was "mixture
or substance" and total weight of suitcase used) (4 GSU #7).
U.S. v. Rolande-Gabriel, 938 F.2d 1231 (11th Cir. 1991).
U.S. v. Drown, No. 91-1118 (1st Cir. Aug. 14, 1991) (government could
not defer filing of Section 5K1.1 motion until after sentencing because
defendant's cooperation was not yet complete -- such strategy would
"impermissibly merge" the boundaries of Section 5K1.1, p.s., designed to
reward cooperation prior to sentencing, and Fed. R. Crim. P. 35(b),
which covers cooperation after sentencing; also reiterated that court
may not depart under Section 5K1.1 in absence of government motion
"despite meanspiritedness, or even arbitrariness, on the government's
part" (quoting U.S. v. Romolo, 937 F.2d 20, 24 (1st Cir. 1991)), but if
refusal to file motion "is based on unacceptable standards, such as the
infringement of protected statutory or constitutional rights, a federal
court is empowered to intervene"). Cf. U.S. v. Howard, 902 F.2d 894,
896-97 (11th Cir. 1990) (court must rule on Section 5K1.1 motion at
sentencing hearing, may not postpone).
U.S. v. Faulkner, 934 F.2d 190 (9th Cir. 1991) (may not depart
upward, for defendant who pled guilty to five bank robberies, on basis
of three robbery counts dismissed in plea bargain and five others
government agreed not to charge; following U.S. v. Castro-Cervantes,
927 F.2d 1079, 1082, (9th Cir. 1990), which held "sentencing court
should reject a plea bargain that does not reflect the seriousness of
the defendant's behavior and should not accept a plea bargain and then
later count dismissed charges in calculating the defendant's sentence").
U.S. v. Faulkner, 934 F.2d 190 (9th Cir. 1991) (courts may not
analogize to career offender guideline when departure is warranted
because defendant fails to qualify as career offender only by virtue of
technicality). Contra U.S. v. Williams, 922 F.2d 578, 583 (10th Cir.
1990); U.S. v. Jones, 908 F.2d 365, 367 (8th Cir. 1990). Cf. U.S. v.
Delvecchio, 920 F.2d 810, 814-15 (11th Cir. 1991) (should not
automatically depart to career offender levels without analysis of
actual criminal history and purpose of the guideline).
U.S. v. Madera-Gallegos, No. 90-50108 (9th Cir. Sept. 18, 1991)
(Pregerson, J.) (reversing enhancement given to defendants who fled to
Mexico to avoid arrest when they suspected something went wrong with
drug deal and were arrested after they returned nine months later --
fact that defendants avoided arrest for nine months does not counteract
general rule that flight from arrest, without more, does not warrant
obstruction of justice enhancement, see Section 3C1.1, comment.
(n.4(d)); U.S. v. Garcia, 909 F.2d 389, 392 (9th Cir. 1990); court
distinguished U.S. v. Mondello, 927 F.2d 1463, 1465-67 (9th Cir. 1991),
because there defendant had been arrested, knew he was expected to turn
himself in later, but hid out for two weeks and attempted to avoid
capture when authorities found him).
Note to readers: Beginning with this issue, GSU will list at the end
of case citations or parenthetical summaries the names of judges who
dissented, or dissented in part, from the holding or holdings
summarized.
VOLUME 4, NUMBER 7
SEPTEMBER 3, 1991
En banc panel of Ninth Circuit determines weight to give to
Commentary; holds that U.S.S.G. Section 3B1.1(c) adjustment may not be
given if defendant was the only criminally responsible participant.
Anderson robbed a bank, escaping in a getaway car driven by a
codefendant. Both were charged with bank robbery, but the driver pled
guilty to misprision of a felony (for failure to notify authorities
after the bank robbery), and he and Anderson both claimed that he did
not know Anderson was robbing the bank. Anderson pled guilty to the
robbery, and the district court enhanced his offense level by two under
Section 3B1.1(c) for his leadership role, finding the adjustment
appropriate regardless of whether Anderson was the only criminally
responsible participant in the robbery. A divided panel of the Ninth
Circuit affirmed. U.S. v. Anderson, 895 F.2d 641 (9th Cir. 1990) (3 GSU
#2).
The en banc court reversed. Section 3B1.1(c) "says nothing about any
required number of criminally responsible persons. The Introductory
Commentary, however, says that '(w)hen an offense is committed by more
than one participant, Section 3B1.1 or Section 3B1.2 (or neither) may
apply,' and Application Note 1 explains that '(a) "participant" is a
person who is criminally responsible for the commission of the
offense.'" The court "consider(ed) the guideline and the commentary
together, construing them so as to be consistent with each other and
with (Part B of Chapter 3) as a whole," and concluded that "Section
3B1.1 (including subsection (c)) appears to apply only when the offense
involves more than one person who is criminally responsible for the
commission of the offense." Accord U.S. v. Fells, 920 F.2d 1179, 1182
(4th Cir. 1990); U.S. v. Markovic, 911 F.2d 613, 616-17 (11th Cir.
1990); U.S. v. DeCicco, 899 F.2d 1531, 1535-36 (7th Cir. 1990); U.S.
v. Carroll, 893 F.2d 1502, 1507-09 (6th Cir. 1990).
To reach this result, the court first had to decide "the appropriate
weight to give to the commentary when interpreting the guidelines." This
case involved commentary that "may interpret the guideline or explain
how it is to be applied. Failure to follow such commentary could
constitute an incorrect application of the guidelines, subjecting the
sentence to possible reversal on appeal." U.S.S.G. Section 1B1.7. (The
court noted that other types of commentary not at issue here -- those
suggesting circumstances that may warrant departure and those providing
background information -- "are to be treated like policy statements,
which courts must consider in imposing a sentence, 18 U.S.C. Section
3553(a)(5).")
After examining the statements of the Sentencing Commission, which
suggested that courts look to commentary "for guidance" and treat it
"much like legislative history," and analogizing the commentary to "the
advisory committee notes that accompany the federal rules of practice
and procedure," the court concluded that "commentary cannot be treated
as equivalent to the guidelines themselves but also cannot be treated
merely as legislative history . . . . (I)t must be treated as something
in between." The court set forth three principles to "guide courts in
steering the middle course": "(1) consider the guideline and commentary
together, and (2) construe them so as to be consistent, if possible,
with each other and with the Part as a whole, but (3) if it is not
possible to construe them consistently, apply the text of the
guideline." The court noted that its holding "comports with the approach
taken by other circuits." See, e.g., U.S. v. Bierley, 922 F.2d 1061,
1066 (3d Cir. 1990); U.S. v. Smith, 900 F.2d 1442, 1446-47 (10th Cir.
1990); U.S. v. DeCicco, 899 F.2d 1531, 1535-37 (7th Cir. 1990); U.S.
v. Smeathers, 884 F.2d 363, 364 (8th Cir. 1989).
U.S. v. Anderson, No. 89-10059 (9th Cir. Aug. 6, 1991) (Rymer, J.)
(en banc).
U.S. v. Barry, No. 90-3251 (D.C. Cir. July 12, 1991) (Wald, J.)
(alleged false testimony to grand jury in January 1989 regarding
defendant's drug use cannot provide basis for Section 3C1.1 obstruction
of justice enhancement for later drug possession conviction, unless
court finds that false testimony was part of willful attempt to impede
or obstruct investigation or prosecution of "the instant offense" --
obstructive conduct need not actually occur during investigation or
prosecution of instant offense; agreeing with other circuits that "the
instant offense" in Section 3C1.1 means the offense of conviction, see
U.S. v. Perdomo, 927 F.2d 111, 118 (2d Cir. 1991); U.S. v. Dortch, 923
F.2d 629, 632 (8th Cir. 1991); U.S. v. Roberson, 872 F.2d 597, 609 (5th
Cir.), cert. denied, 110 S. Ct. 175 (1989)).
U.S. v. Lato, 934 F.2d 1080 (9th Cir. 1991) (obstruction of state
investigation into insurance fraud scheme was properly used for Section
3C1.1 enhancement in sentencing on later federal mail fraud conviction
based on same scheme -- "there is no state-federal distinction for
obstruction of justice" and enhancement is not limited to acts aimed at
federal authorities; court stated this was an issue of first
impression, but noted other cases, cited at 1082, that "have at least
implied that section 3C1.1 contains no such federal limitation").
U.S. v. John, 936 F.2d 764 (3d Cir. 1991) (pursuant to Section 4B1.2,
comment. (n.2), when prior offense is neither specifically listed as
crime of violence nor "has as an element the use, attempted use, or
threatened use of physical force," the sentencing court is required to
examine whether defendant's actual conduct during that offense "pos(ed)
a serious potential risk of physical injury to another" and was thus a
"crime of violence" for career offender purposes; federal, not state,
law governs this analysis, accord U.S. v. Brunson, 907 F.2d 117, 120-21
(10th Cir. 1990), see also U.S. v. Nimrod, No. 90-1389 (8th Cir. Aug. 8,
1991) (whether second degree burglary was "violent felony" under
Missouri law does not matter for career offender purposes: "burglary"
is defined "independent of the label employed by the various state
criminal codes")). Other circuits have also held that underlying
conduct in a prior offense may be considered in such circumstances. See
U.S. v. Goodman, 914 F.2d 696, 699 (5th Cir. 1990); U.S. v. McVicar,
907 F.2d 1, 1-2 (1st Cir. 1990); U.S. v. Terry, 900 F.2d 1039, 1041-43
(7th Cir. 1990); U.S. v. Baskin, 886 F.2d 383, 389 (D.C. Cir. 1989),
cert. denied, 110 S.Ct. 1831 (1990).
U.S. v. Bowser, No. 90-3234 (10th Cir. July 19, 1991) (per curiam)
(joining Eighth and Ninth Circuits in holding that departure for career
offenders is not prohibited by Guidelines, upholding downward departure
for career offender based on defendant's youth (age 20) at time of two
prior felonies, proximity in time of those offenses (within two months),
and fact that concurrent sentences were imposed; reasonable to sentence
defendant within guideline range that applied absent career offender
enhancement, accord U.S. v. Senior, 934 F.2d 149, 151 (8th Cir. 1991);
although no factor standing alone may have warranted departure, "this
unique combination of factors in defendant's criminal history was not
considered sufficiently by the Sentencing Commission to justify rigid
application of the career offender criminal history categorization . . .
. (W)e emphasize that it is all three factors in conjunction which
satisfy the trial court's judgment. We cannot parse the factors,
holding each one separately for consideration, without unfairly abusing
the trial court's judgment," see also U.S. v. Takai, 930 F.2d 1427,
1433-34 (9th Cir. 1991) ("unique combination of factors may constitute"
mitigating circumstance) (4 GSU #3); contra U.S. v. Goff, 907 F.2d
1441, 1445-47 (4th Cir. 1990); U.S. v. Pozzy, 902 F.2d 133, 138-40 (1st
Cir.), cert. denied, 111 S. Ct. 353 (1990)).
U.S. v. Adkins, 937 F.2d 947 (4th Cir. 1991) ("We join the Eighth and
Ninth Circuits and hold that a district court may, in an atypical case,
downwardly depart where career offender status overstate the seriousness
of the defendant's past conduct. We emphasize that such departures,
like all departures, are reserved for the truly unusual case.").
U.S. v. Lauzon, No. 90-1661 (1st Cir. July 16, 1991) (Bownes, Sr. J.)
(agreeing with U.S. v. Ruklick, 919 F.2d 95, 99 (8th Cir. 1990), that
under Section 5K2.13, p.s., a defendant's "significantly reduced mental
capacity" need not be the "but-for" or "sole" cause of the offense
before departure may be warranted; however, court also concluded that
in general "a person with borderline intelligence or mild retardation
who is easily persuaded to follow others" does not present a "mitigating
circumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission," Section 5K2.0).
U.S. v. Goroza, No. 90-10142 (9th Cir. Aug. 8, 1991) (per curiam)
(Reversed because district court improperly departed under Section
5K2.0, p.s., after government refused to move for substantial assistance
departure under Section 5K1.1, p.s. Defendant cooperated, but
government believed he also made false statements. The district court
departed because defendant was acquitted of perjury charge based on the
alleged false statements, concluding that the Sentencing Commission had
not considered this situation. The appellate court disagreed, holding
that "cooperation with the government, regardless of whether the
government in its discretion moves for a downward departure, is a
circumstance that has been adequately taken into account by the
Sentencing Commission," and that "so long as the government does not
exceed the bounds of its discretion, departure under 5K2.0 for
cooperation with the government is inappropriate.").
U.S. v. Little, No. 90-6244 (10th Cir. July 22, 1991) (Ebel, J.) (in
making upward departure under Section 4A1.3(d), p.s., because defendant
had committed the instant offense while awaiting trial for an earlier
crime, court reasonably added two points to criminal history score by
analogizing to Section 4A1.1(d), which adds two points for offense
committed while under any criminal justice sentence).
U.S. v. Mahecha-Onofre, 936 F.2d 623 (1st Cir. 1991) (district court
properly found weight of cocaine "mixture or substance" to be entire
weight of suitcase made of 2.5 kilograms of cocaine chemically bonded to
9.5 kilograms of acrylic material, less weight of metal fittings;
appellate court acknowledged that "the suitcase material obviously
cannot be consumed; and the cocaine must be separated from the suitcase
material before use . . . . Regardless, the suitcase/cocaine 'mixture'
or 'substance' fits the statutory and Guideline definitions as the
Supreme Court has recently interpreted them in Chapman (v. U.S., 111 S.
Ct. 1919 (1991)).").
U.S. v. Garner, No. 90-3361 (6th Cir. July 23 1991) (Martin, J.)
(reversing Section 2D1.1(b)(1) finding because "it was clearly
improbable that the gun was connected with (defendant's) drug offense":
gun was an antique style, single-shot Derringer, unloaded and with no
ammunition in defendant's house, it was locked in a safe twelve feet
away from the safe where drugs were found, and is "not the type normally
associated with drug activity"; court noted that "any one of these
factors, standing alone, would not be sufficient to compel this
conclusion," but the "cumulative effect of these factors" does).
U.S. v. R.L.C., 915 F.2d 320 (8th Cir. 1990) (3 GSU #14), cert.
granted, 111 S. Ct. 2850 (1991). Government appeals ruling that for
juvenile sentenced pursuant to 18 U.S.C. Section 5037(c)(1), which
provides that sentence imposed on juvenile may not extend beyond
"maximum term of imprisonment that would be authorized if the juvenile
had been tried and convicted as an adult," the sentence is limited by
the "maximum term of imprisonment" authorized under the Guidelines for a
similarly situated adult. See 49 Crim. Law. Rep. 3077 (June 26, 1991).
VOLUME 4, NUMBER 6
JULY 31, 1991
Sixth Circuit holds that sentencing steps prescribed in U.S.S.G.
Section 1B1.1 are inconsistent with 18 U.S.C. Section 3553; directs
courts to follow statute, not Guidelines, if there are aggravating or
mitigating circumstances not taken into account by Sentencing
Commission. An undercover agent agreed to sell defendant 500 grams of
cocaine, but instead gave defendant 85 grams in a plastic bag that was
inside another bag containing 985 grams of plaster of paris. Defendant
was charged with and pled guilty only to possession with intent to
distribute an unspecified quantity of cocaine. On appeal defendant
argued that he should have been sentenced only on the basis of the 85
grams he actually possessed, not the 500 grams he attempted to buy or
the total weight of the cocaine and plaster package (note: the
guideline range is the same for 500 or 1,070 grams of cocaine).
The majority of the court first held that the "sequence of nine
sentencing steps prescribed" in Section 1B1.1 is "inconsistent with the
enabling statute governing guideline sentencing," 18 U.S.C. Section
3553. The court determined that "the statute itself establishes the
sentencing sequence and the way a district court shall go about applying
the Sentencing Guidelines. The Commission does not follow the
congressional scheme." The court held that "instead of waiting until the
very end of the nine-step sentencing process to determine if a
'departure' is permissible, as the Sentencing Commission directs in
Section 1B1.1 . . . the (district) court should determine at the outset
of the sentencing process whether the case presents circumstances 'not
adequately taken into consideration' by the Commission in proposing its
offense level for the crime. . . . If the District Court determines at
the outset that the facts and circumstances of the case should render
the Guidelines inapplicable, the Court 'shall impose an appropriate
sentence having . . . due regard for the relationship of the sentence
imposed to sentences prescribed by guidelines applicable to similar
offenses.' (18 U.S.C. Section 3553(b).) The Court should compare the
Commission's proposed offense level for the crime to the first
principles outlined by Congress (in Section 3553(a)) and determine at
the outset whether the Commission's proposed level for the crime
adequately takes into account the circumstances of the case in light of
the need for a 'just punishment not greater than necessary.'"
"The legal effect of the more flexible approach to the guidelines
outlined here is to transform mandatory rules into the more 'modest name
"guidelines"' in those cases in which the Commission's proposed
guideline sentence is 'greater than necessary' or in which the parties
present a legitimate 'aggravating or mitigating circumstance of a kind,
or to a degree, not adequately taken into consideration.' When such a
circumstance is presented, the guidelines become inapplicable as
mandatory rules to be followed by the District Court without regard to
its own judgment. Instead, the guidelines become more general
principles of sentencing to be used in light of the principles of
sentencing outlined in Section 3553(a)."
Using this approach, the issue in the instant case is "whether the
guidelines specify an applicable offense guideline section or range that
takes into account either of the two aggravating circumstances which the
government asserts should raise the offense level," namely the weight of
the plaster or the negotiation for 500 grams. As to the first, "(t)here
is no evidence that the Commission considered a case in which the
cocaine is separately wrapped in a plastic bag inside a mixture of
plaster and not adulterated or alloyed with the plaster." It was error
to conclude "that the sentencing sequence under the statute and the
sentencing guidelines mechanically requires an offense level of 26 for
this reason."
With respect to the 500 grams, the issue was "whether the Commission
has stated with clarity how it proposes to deal with a defendant who is
charged with and convicted only of possession of a small quantity of
drugs but who also may have committed other conspiracy or attempt
crimes." The court concluded that "(i)t is not clear to us that the
Commission intended . . . to raise the punishment by including as a
mandatory aggravating circumstance uncharged conduct that amounts to a
conceptually different offense from the offense of conviction. Attempts
or conspiracies are inchoate crimes not of the same character as the
substantive offense of possession, and they are not covered by the same
guideline section. . . . It is true, as our dissenting colleague
maintains, that the relevant conduct provisions in Application Note 12
to Section 2D1.1 say that the 'quantities of drugs not specified in the
count of conviction may be considered in determining the base offense
level,' but it does not say that they 'may' be considered if the
additional amounts involve a conceptually distinct drug offense, let
alone that they 'must' be considered."
On remand, the district court should "follow the sentencing process
established by Congress in Section 3553(a) and (b), as outlined above.
This process provides for a mandatory guidelines sentence at a
particular level if, but only if, in specifying the offense level to be
applied the Commission took into account all of the aggravating and
mitigating circumstances in the case. If there is such a circumstance
not taken into account, . . . the District Court 'shall impose an
appropriate sentence having due regard' for the Guidelines. . . . The
District Court should resentence the defendant under the more flexible
procedure and the qualitative standards set out in the last two
sentences of 18 U.S.C. Section 3553(b)."
U.S. v. Davern, No. 90-3681 (6th Cir. June 20, 1991) (Merritt, C.
J.).
Ninth Circuit en banc holds that extent of departure for atypical
circumstances must be determined by reference to "the structure,
standards and policies" of the Sentencing Reform Act and Guidelines.
Defendant pled guilty to illegal transportation of aliens. His
guideline range was 0-6 months, but the district court departed to a
36-month sentence because defendant attempted to evade arrest in a
dangerous high-speed chase. The appellate court affirmed the departure
and set forth a five-step procedure for review of departures. See U.S.
v. Lira-Barraza, 897 F.2d 981 (9th Cir. 1990). The Ninth Circuit
granted rehearing en banc.
The en banc court first determined that the five-step review process
could be combined into three steps, essentially following the procedure
set forth in U.S. v. Villafane, 874 F.2d 43 (1st Cir.), cert. denied,
110 S. Ct. 177 (1989), and followed by several circuits. In this case
the first two steps were satisfied: the district court had "legal
authority to depart" because it identified an aggravating circumstance
not adequatly considered by the Sentencing Commission, and its factual
finding that the circumstance existed was not clearly erroneous.
The third step is "whether the extent of departure from the
applicable Guideline range was 'unreasonable' within the meaning of 18
U.S.C. Section 3742(e)(3) and (f)(2)." The court held that it could not
review the departure for reasonableness because the district court had
not explained the extent of the departure. The court determined that
the provisions of the Sentencing Reform Act and the Guidelines "support
the conclusion that departure sentences are limited by the sentencing
structure established by the Act." In particular, the directive in 18
U.S.C. Section 3553(a)(6), that courts shall consider "the need to avoid
unwarranted sentence disparities among defendants with similar records
who have been found guilty of similar conduct," applies to departures
"and requires, at a minimum, that departure sentences be consistent with
other sentences fixed by the Guidelines or suggested by Commission
standards and policies."
"The essential factor is that the extent of departure be based upon
objective criteria drawn from the Sentencing Reform Act and the
Guidelines. Possible criteria include comparison of the seriousness of
the atypical circumstances to offenses or enhancements in the
Guidelines, . . . treatment of the circumstances as a separate offense
covered by the Guidelines, . . . and consideration of the structure of
the sentencing table, in particular, the increments between guideline
ranges."
The court stated that "a reasonableness standard assumes a range of
permissible sentences. We give weight to the district court's choice
within a permissible range. Reversal is required only if the choice is
'unreasonable' in light of the standards and policies incorporated in
the Act and the Guidelines." To facilitate appellate review, sentencing
courts "should include a reasoned explanation of the extent of the
departure founded on the structure, standards and policies of the Act
and Guidelines." Cf. U.S. v. Roth, 934 F.2d 248 (10th Cir. 1991)
(indicating that departure by analogy to guidelines may be necessary to
enable review for reasonableness). The case was remanded for an
explanation of the district court's reasons for choosing 36 months.
Among the other circuits, only the Seventh Circuit appears to require
departure by analogy for atypical circumstances. See U.S. v. Ferra, 900
F.2d 1057, 1062-63 (7th Cir. 1990). The Second, Third, and Tenth
Circuits have strongly recommended use of analogies when appropriate,
but do not require it. See U.S. v. Jackson, 921 F.2d 985, 990-91 (10th
Cir. 1990) (en banc); U.S. v. Kikumura, 918 F.2d 1084, 1113 (3d Cir.
1990); U.S. v. Kim, 896 F.2d 678, 683-85 (2d Cir. 1990). Other
circuits have indicated approval of departure by analogy. See U.S. v.
Hummer, 916 F.2d 186, 194 n.7 (4th Cir. 1990); U.S. v. Landry, 903 F.2d
334, 340-41 (5th Cir. 1990); U.S. v. Shuman, 902 F.2d 873, 877 (11th
Cir. 1990).
U.S. v. Lira-Barraza, No. 88-5161 (9th Cir. July 22, 1991) (Browning,
J.) (en banc).
U.S. v. Wogan, No. 91-1214 (1st Cir. July 18, 1991) (Selya, J.)
(improper to depart downward to equalize sentence with that of
codefendant, who had received shorter sentence because government failed
to produce sufficient evidence of total amount of heroin involved in
offense, which evidence was produced at defendant's later sentencing and
resulted in longer term -- "a perceived need to equalize sentencing
outcomes for similarly situated codefendants, without more, will not
permit a departure from a properly calculated guideline sentencing
range"). Accord U.S. v. Joyner, 924 F.2d 454, 459-61 (2d Cir. 1991).
U.S. v. Rivers, 929 F.2d 136 (4th Cir. 1991) (Reversing 733 F. Supp.
1003 (D. Md. 1990) (3 GSU #7), which held that defendant was not a
career offender because two prior felonies that occurred within twelve
days and in adjacent jurisdictions were sentenced separately only
because of "accident of geography" or, alternatively, that they were
"committed pursuant to a single plan" (i.e., robbing gas stations to get
money for drugs), and for either reason should not be counted as
separate offenses. Appellate court held there was "no factual or legal
support for the district court's findings and conclusions." The prior
offenses were "unrelated" within the meaning of Section 4A1.2, and to
consider them "part of a single common scheme or plan" pursuant to
Section 4A1.2, comment. (n.3), "would have the effect of making related
offenses of almost all crimes committed by one individual. The fact
that both offenses were committed to support one drug habit does not
make the offenses related under Section 4A1.2." And the fact that the
second judge made the second sentence concurrent to first does not
matter.). But cf. U.S. v. Houser, 929 F.2d 1369, 1374 (9th Cir. 1990)
(reversing finding that two prior drug convictions were not related
under Section 4A1.2 and defendant was thus career offender --
convictions resulted from single investigation, both drug sales were to
same undercover agent, and defendant was charged with separate offenses
only because sales occurred in different counties: "(Defendant) was
charged and convicted of two offenses merely because of geography and
not because of the nature of the offenses. . . . There was significant
evidence . . . that these two drug sales were part of a 'single common
scheme or plan.' There was no evidence before the court to contradict
this finding.").
VOLUME 4, NUMBER 5
JULY 10, 1991
D.C. Circuit holds that "socio-economic status," U.S.S.G. Section
5H1.10, p.s., does not include defendant's personal history. Defendant
pled guilty to conspiring to distribute cocaine and requested downward
departures on three grounds: his criminal history was significantly
overstated; his youth -- he was 18 when arrested; and his personal
history, which included domestic violence and other traumatic
experiences. The district court reduced the criminal history category
pursuant to Section 4A1.3, p.s., but denied the other two requests,
concluding that defendant's youth was not sufficiently unusual to
warrant departure under Section 5H1.1, p.s., and that it had no
discretion under Section 5H1.10, p.s. to depart on the basis of
defendant's "socioeconomic standing or background."
The appellate court held that the district court properly exercised
its discretion not to depart on the basis of youth. The court further
held that the Guidelines do not violate due process by restricting
consideration of age and that defendant could not challenge, under 28
U.S.C. Section 994(x), the adequacy of the Sentencing Commission's
reasons for this restriction.
However, the court set aside the refusal to consider departure for
personal history, finding that the district court "mischaracterized
certain elements of that history as 'socio-economic.'" The court
reasoned that "the phrase 'socio-economic status' refers to an
individual's status in society as determined by objective criteria such
as education, income, and employment; it does not refer to the
particulars of an individual life." The district court had expressed
concern about the "tragic circumstances that make up what we call the
socioeconomic class, that is, the death of his mother by his stepfather
murdering her, (the stepfather's) threats, that he had to leave town to
avoid problems, his growing up in the slum areas of New York and of
Puerto Rico and not fitting in because of his . . . dual background,"
but concluded that "socioeconomic standing or background . . . can make
no difference to the Court."
The appellate court held that consideration of these factors is not
precluded by Section 5H1.10: "It is undoubtedly true that individuals
in certain social strata are apt to be exposed to far more violence and
human ugliness than those who enjoy more privileged lives, but the court
erred in concluding that all the experiences he described as 'tragic'
fell within the rubric of 'socio-economic status.' . . . The
characteristics listed in section 5H1.10 . . . are all objective; they
reflect the kind of data that might be found in a census taker's
checklist. They do not take cognizance of the traumatic experiences to
which offenders of whatever characteristics might have been exposed.
Violence among family members and its attendant dislocations do not
follow class lines, nor should class lines determine whether a
sentencing judge may consider them."
The court left to the district court to decide on remand whether
consideration of such factors might be limited by other sections of the
Guidelines, including Section 5H1.3 (Mental and Emotional Conditions),
or, conversely, whether the "not ordinarily relevant" language in
Section 5H1.3 might, "in extraordinary circumstances," provide
sentencing courts with "a general authority to depart." Cf. U.S. v.
Deigert, 916 F.2d 916, 918-19 (4th Cir. 1990) (district court has
discretion to determine whether defendant's "tragic personal background
and family history" is "extraordinary" and thus ground for downward
departure).
U.S. v. Lopez, No. 90-3020 (D.C. Cir. June 28, 1991) (Buckley, J.).
Second Circuit upholds downward departure for "less than minimal"
role in offense and extraordinary family circumstances. Defendant pled
guilty to drug conspiracy charges. He received a reduction for minimal
role in the offense, and his guideline range was 41-51 months. The
district court departed and imposed a sentence of six months in a
halfway house because (1) defendant did not realize he was involved in a
drug transaction until it was almost completed and his participation was
very limited; (2) his incarceration could result in the destruction of
his family; (3) he was not aware of the specific amount of drugs
involved; and (4) a discrepancy between his guideline sentence and that
of another defendant appeared unwarranted.
The appellate court upheld the first two grounds. "The sentencing
court did not abuse its discretion when it downwardly departed based in
part on the extremely limited nature of (defendant's) involvement in the
transaction. . . . (A) departure based on a factor envisioned by the
Commission is permissible if the degree to which it was contemplated was
inadequate. . . . (T)his record presents an instance in which . . . the
defendant's role in the offense was less than minimal and (the court
could) depart further downward from the guidelines."
The court also held that defendant's family circumstances were
extraordinary and that Section 5H1.6, p.s. did not preclude their
consideration for departure. Defendant's wife, two daughters, disabled
father, and grandmother depended upon him for support, and he worked two
jobs to provide for them. "Clearly his is a close-knit family whose
stability depends upon (defendant's) continued presence," and the
district court's conclusion that departure was warranted because his
incarceration "might well result in the destruction of an otherwise
strong family unit" was "not an abuse of discretion."
The court held that the other two bases for departure were not
proper. Defendant's lack of knowledge of the amount of drugs was part
of his minimal involvement and thus not a separate ground. As to the
sentencing disparity, the court noted it had "recently held that
disparity of sentences between co-defendants may not properly serve as a
reason for departure." See U.S. v. Joyner, 924 F.2d 454, 459-61 (2d Cir.
1991).
On the issue of whether remand is automatically required when
departure is based on both proper and improper grounds, the court
determined that "the adoption of a per se rule seems imprudent.
Instead, we hold the reviewing court should decide on a case-by-case
basis whether remand is required." Here, the court held that remand was
necessary because it could not conclude that the same sentence would
have been imposed absent the improper factors. There is a split in the
circuits as to whether remand is always required or a case-by-case
decision should be made. See cases cited in 4 GSU #3 summary of U.S. v.
Diaz-Bastardo, 929 F.2d 798 (1st Cir. 1991).
U.S. v. Alba, No. 90-1523 (2d Cir. May 23, 1991) (Cardamone, J.).
U.S. v. Prestemon, 929 F.2d 1275 (8th Cir. 1991) (District court
erred in departing, from 33-41-month range to 24 months, on basis of
21-year-old first-time offender's background -- he was bi-racial child
adopted at age three months by white couple who did not know he was
bi-racial. The appellate court acknowledged there is some evidence that
bi-racial adopted children "often experience severe identity crises" and
have more trouble with the law, but held that "race or racial background
cannot be a basis for departure," U.S.S.G. Section 5H1.10, p.s. Court
also held that "adoption, even cross-racial or cross-cultural adoption,
. . . is (not) so unusual or atypical that the Sentencing Commission did
not adequately take such circumstances into consideration," and thus it
is not a basis for departure for unusual family circumstances, Section
5H1.6, p.s.).
Fourth Circuit holds that, absent commitment to move for departure in
plea agreement, defendant has no ight to explanation of government's
refusal to move for substantial assistance departure. Defendant began
cooperating with the government shortly after arrest, without benefit of
a plea bargain, and provided valuable assistance in other prosecutions.
The government, however, did not move for downward departure under
U.S.S.G. Section 5K1.1, p.s., and defendant was sentenced to the
mandatory statutory minimum sentences for his two offenses. He argued
on appeal that the district court had authority to depart on the basis
of his substantial assistance notwithstanding the government's refusal
to move for departure, and that he should be allowed to inquire into the
government's reasons for its refusal in order to determine whether the
government acted arbitrarily or in bad faith.
The appellate court rejected both arguments: "Our reading of 18
U.S.C. Section 3553(e) and 28 U.S.C. Section 994(n) . . . leads us to
the conclusion that the government alone has the right to decide, in its
discretion, whether to file a motion for a downward departure based on
the substantial assistance of a defendant. . . . (Thus) Section 3553(e)
of logical necessity excludes any claim of right by a defendant to
demand that a motion for a departure be filed upon his unilaterally
initiated cooperation efforts. . . . (It also) follows that the
defendant may not inquire into the government's reasons and motives if
the government does not make the motion. To conclude otherwise would
result in undue intrusion by the courts into the prosecutorial
discretion granted by the statute to the government."
The court noted that defendants could "negotiate a plea agreement
with the government under which the defendant agrees to provide valuable
cooperation for the government's commitment to file a motion for a
downward departure. (By doing so), the defendant obtains rights to
require the government to fulfill its promise. To those circumstances
we apply the general law of contracts to determine whether the
government has breached the agreement. See U.S. v. Connor, 930 F.2d
1073, 1076 (4th Cir. 1991). If substantial assistance is provided and
the bargain reached in the plea agreement is frustrated, the district
court may then order specific performance or other equitable relief, or
it may permit the plea to be withdrawn." See also Connor, supra
(defendant has burden of proving, by preponderance of evidence, that
government breached agreement).
The court also noted its agreement with U.S. v. Keene, 933 F.2d 711
(9th Cir. 1991) (4 GSU #3), stating: "Section 5K1.1 governs all
departures from guideline sentencing for substantial assistance, and its
scope includes departures from mandatory minimum sentences permitted by
18 U.S.C. Section 3553(e)."
U.S. v. Wade, No. 90-5805 (4th Cir. June 12, 1991) (Niemeyer, J.).
Fifth Circuit holds that government commitment in plea agreement
cover letter to move for departure if defendant provided substantial
assistance is enforceable. The assistant U.S. Attorney sent defendant's
attorney a proposed plea agreement with a cover letter that stated: "In
addition, I will recommend departure to the court based upon your
client's full and complete debriefing and substantial assistance to the
government." The plea agreement itself, which was accepted, was silent
on the issue of departure. At sentencing the AUSA told the court
defendant had complied with the terms of the plea agreement, but did not
move for departure and none was granted by the court. Defendant
appealed, arguing that the government breached the agreement.
The appellate court remanded: "This matter turns on the legal
significance we give to the AUSA's transmittal letter. . . . Although
the letter is not part of the plea agreement proper it does contain an
offer by the government which (defendant) ostensibly accepted. . . .
'The two documents, when read together, demonstrate the agreement that
if Appellant gave a full debriefing and his full cooperation then the
government would recommend a downward departure.'" The court could not
determine from the record whether defendant did fully cooperate, but
held that if defendant, "in reliance on the letter, accepted the
government's offer and did his part, or stood ready to perform but was
unable to do so because the government had no further need or opted not
to use him, the government is obliged to move for a downward departure."
U.S. v. Melton, 930 F.2d 1096 (5th Cir. 1991).
U.S. v. Melton, 930 F.2d 1096 (5th Cir. 1991) (Remanded for specific
reasons for refusal to grant Section 3B1.2 reduction for minor
participant status. When defendant sought factual basis and reasoning
for court's refusal, court "merely reiterated the finding that Melton
was an average participant." Appellate court held: "The sentencing
court must state for the record the factual basis upon which it
concludes that a requested reduction for minor participation is, or is
not, appropriate.").
VOLUME 4, NUMBER 4
JUNE 18, 1991
Supreme Court declines to decide whether Section 1B1.2(a)
"stipulation" may be oral, finds that facts did not "specifically
establish" a more serious offense. When U.S. marshals went to arrest
defendant they had to kick the door open twice in an attempt to enter
his apartment. Both times defendant fired a gun in the direction of the
door, and both bullets lodged in the door. The marshals withdrew, and
eventually defendant surrendered. He was charged with attempting to
kill a deputy U.S. marshal, assault on a deputy marshal, and use of a
firearm during a crime of violence. At the plea hearing pursuant to
Fed. R. Crim. P. 11(f), defendant pled guilty to the latter two counts,
but not guilty to attempted murder. There was no plea agreement, but
during the hearing defendant generally agreed with the facts described
by the government.
At sentencing on the assault and firearm charges, the district court
held that defendant's oral agreement to the government's rendition of
the facts amounted to a "stipulation that specifically establishe(d) a
more serious offense than the offense of conviction," U.S.S.G. Section
1B1.2(a), and applied the guideline for an attempt to kill a U.S.
marshal. The appellate court affirmed, holding that a formal written
stipulation as part of a plea agreement is not required and it is "only
necessary that the facts presented to the court establish a more serious
crime and that the defendant agree to the statement of facts." U.S. v.
Braxton, 903 F.2d 292, 298 (4th Cir. 1990) (3 GSU #8). But cf. U.S. v.
McCall, 915 F.2d 811, 816 n.4 (2d Cir. 1990) ("Without expressing any
opinion as to whether a Section 1B1.2(a) stipulation must be in writing,
we note that our decision in (U.S. v.) Guerrero(, 863 F.2d 245 (2d Cir.
1988)) requires that any stipulation be a part of the plea agreement,
whether oral or written."); U.S. v. Warters, 885 F.2d 1266, 1273 n.5
(5th Cir. 1989) (indicating a "formal stipulation of (defendant's)
guilt" is required under Section 1B1.2(a)).
The Supreme Court did not resolve the question of how to interpret
"stipulation" in Section 1B1.2(a). Instead, the Court determined that
the facts simply did not support a finding that defendant had the
requisite intent for attempted murder: "(E)ven if one could properly
conclude that the stipulation 'specifically established' that Braxton
had shot 'at the marshals,' it would also have to have established that
he did so with the intent of killing them. Not only is there nothing in
the stipulation from which that could even be inferred, but the
statements of Braxton's attorney at the hearing flatly deny it."
The Court also determined that clarification of Section 1B1.2(a)
could be left to the Sentencing Commission. The enabling legislation
indicates that Congress intended the Commission to "periodically review
the work of the courts, and . . . make whatever clarifying revisions to
the Guidelines conflicting judicial decisions might suggest." The
statute also grants the Commission "the unusual explicit power to decide
whether and to what extent its amendments reducing sentences will be
given retroactive effect, 28 U.S.C. Section 994(u)." After certiorari
was granted in this case the Commission requested public comment on
whether Section 1B1.2(a) should be amended to resolve this issue. These
factors, plus the ability to decide the specific controversy here on
other grounds, led the Court to "choose not to resolve" the issue of
what is required by the phrase "containing a stipulation."
Braxton v. U.S., 111 S. Ct. 1854 (1990).
Supreme Court holds that weight of "mixture or substance" containing
LSD includes weight of carrier medium. Petitioners were convicted of
selling 1,000 doses of LSD on ten sheets of blotter paper. The drug
alone weighed 50 milligrams, but the paper and drug together weighed 5.7
grams. The district court used the total weight to determine the
sentences under the Guidelines and under the relevant statute, 21 U.S.C.
Section 841(b)(1)(B)(v), which mandates a minimum sentence of five years
for distribution of "1 gram or more of a mixture or substance containing
a detectable amount of" LSD. The Seventh Circuit affirmed, holding that
"mixture or substance" includes the carrier medium. U.S. v. Marshall,
908 F.2d 1312, 1317-18 (7th Cir. 1990) (en banc).
The Supreme Court also affirmed: "We hold that the statute requires
the weight of the carrier medium to be included when determining the
appropriate sentence for trafficking in LSD, and this construction is
neither a violation of due process, nor unconstitutionally vague." The
Court noted that every appellate court that had ruled on this issue held
that the carrier medium should be included.
Chapman v. U.S., 111 S. Ct. 1919 (1991).
U.S. v. Shabazz, No. 90-3244 (D.C. Cir. May 28, 1991) (Thomas, J.)
(offense level for distribution of dilaudid pills, whose active
ingredient is the schedule II substance hydromorphone, is based on gross
weight of pills, not net weight of hydromorphone). Accord U.S. v.
Lazarchick, 924 F.2d 211 (11th Cir. 1991); U.S. v. Meitinger, 901 F.2d
27 (4th Cir.), cert. denied, 111 S. Ct. 519 (1990). See also U.S. v.
Callihan, 915 F.2d 1462 (10th Cir. 1990) (amphetamine mixture); U.S. v.
McKeever, 906 F.2d 129 (5th Cir. 1990) (same), cert. denied, 111 S. Ct.
790 (1991); U.S. v. Murphy, 899 F.2d 714 (8th Cir. 1990)
(methamphetamine); U.S. v. Gurgiolo, 894 F.2d 56 (3d Cir. 1990)
(schedule II, III, and IV substances).
Supreme Court holds that Fed. R. Crim. P. 32 requires "reasonable
notice" of specific grounds before district court departs from
Guidelines. Defendant pled guilty to three charges relating to theft of
government funds. The plea agreement stated the expectation that
defendant would be sentenced within a certain guideline range.
Consistent with this expectation, the presentence report found the
applicable range to be 30-37 months and specifically stated that there
were no factors warranting departure. At the conclusion of the
sentencing hearing, however, the district court departed upward to
impose a 60-month sentence. The appellate court affirmed, reasoning
that neither the Guidelines nor Fed. R. Crim. P. 32 required advance
notice of the decision to depart, the facts providing the basis for
departure were contained in the presentence report (although not
identified as such), and the defendant had both the opportunity to
challenge the departure during allocution and the right to appeal his
sentence. U.S. v. Burns, 893 F.2d 1343, 1348 (D.C. Cir. 1990).
The Supreme Court reversed, holding that under Rule 32 some form of
prior notice is required. The Court noted that in "the ordinary case,
the presentence report or the Government's own recommendation will
notify the defendant that an upward departure will be at issue and of
the facts that allegedly support such a departure," and reasoned that
allowing district courts "to depart from the Guidelines sua sponte
without first affording notice to the parties" would be "contrary to the
text of Rule 32(a)(1) because it renders meaningless the parties'
express right 'to comment upon . . . matters relating to the appropriate
sentence.'"
The Court held that "before a district court can depart upward on a
ground not identified as a ground for upward departure either in the
presentence report or in a prehearing submission by the Govrnment, Rule
32 requires that the district court give the parties reasonable notice
that it is contemplating such a ruling. This notice must specifically
identify the ground on which the district court is contemplating an
upward departure." In a footnote the Court indicated that the same rule
should apply for the prosecution in downward departures because "it is
clear that the defendant and the Government enjoy equal procedural
entitlements" under Rule 32.
The Court did not, however, answer "the question of the timing of the
reasonable notice required by Rule 32 . . . . Rather, we leave it to
the lower courts, which, of course, remain free to adopt appropriate
procedures by local rule." Most appellate courts have held that the
requirements of Rule 32 are met in one of two ways: the factors
warranting departure are identified as such in the presentence report,
or the sentencing court advises defendant before or at the sentencing
hearing that it is considering departure and gives defendant opportunity
to comment before imposition of sentence. See, e.g., U.S. v.
Contractor, 926 F.2d 128 (2d Cir. 1991); U.S. v. Williams, 901 F.2d
1394 (7th Cir. 1990); U.S. v. Anders, 899 F.2d 570 (6th Cir.), cert.
denied, 111 S. Ct. 532 (1990); U.S. v. Hernandez, 896 F.2d 642 (1st
Cir. 1990); U.S. v. Nuno-Para, 877 F.2d 1409 (9th Cir. 1989).
Burns v. U.S., No. 89-7260 (U.S. June 13, 1991) (Marshall, J.).
U.S. v. Roth, No. 90-4028 (10th Cir. May 24, 1991) (Logan, J.)
(Upward departure was warranted for Air Force security policeman
convicted of theft of government property from military base, including
four F-16 jet engines: the amount of loss involved, $10 million, was
sufficiently "unusual" compared to maximum of $5 million considered by
guidelines; the deleterious effect of thefts on the "morale and pride
of the military" resulted in a "significant disruption of a governmental
function," U.S.S.G. Section 5K2.7, p.s.; and the sale of the jet engines
"could have endangered national security," Section 5K2.14, p.s. The
extent of the departure, however, to 120 months from the guideline
maximum of 37 months, was not sufficiently explained to allow the
appellate court to review for reasonableness: "(T)he sentencing court
should draw analogies to offense characteristic levels, criminal history
categories, and other principles in the guidelines to determine the
appropriate degree of departure.").
U.S. v. Doe, No. 90-3027 (D.C. Cir. May 24, 1991) (Mikva, C.J.)
(rejecting constitutional and statutory challenges to requirement for
government motion in U.S.S.G. Section 5K1.1, p.s., but noting that
"review by the district court remains available in cases where the
government's refusal to move for a departure violates the terms of a
cooperation agreement, is intended to punish the defendant for
exercising her constitutional rights, or is based on some unjustifiable
standard or classification such as race"; also noting that a "court may
always consider a defendant's assistance in selecting a sentence from
within the guideline range").
U.S. v. Andrus, 925 F.2d 335 (9th Cir. 1991) (original opinion (3 GSU
#20), which established two-part test for determining role in offense
using relative culpability of defendant compared to codefendants and
also to average participant in that type of crime, was amended March 25
prior to publication in bound volume -- court deleted that part of
opinion and held that it need not decide whether two-part test was
proper because district court's refusal to grant minor participant
status was proper under any test).
VOLUME 4, NUMBER 3
MAY 22, 1991
Ninth Circuit holds government may not limit substantial assistance
motion to Section 5K1.1 departure -- sentencing court may also depart
from statutory minimum pursuant to 18 U.S.C. Section 3553(e). Defendant
was subject to a ten-year mandatory minimum after pleading guilty to
conspiracy to possess and distribute 437 kilograms of cocaine. The
government moved for a substantial assistance departure, and at the
sentencing hearing attempted to clarify that it was moving pursuant to
Section 5K1.1 but not Section 3553(e). The court, however, departed
below both the guideline range of 188-235 months and the ten-year
minimum to impose a three-year term. The government appealed,
contending the court lacked discretion to depart below the statutory
minimum absent a motion specifying that the defendant had provided
substantial assistance under Section 3553(e) as well as Section 5K1.1.
The court concluded that Section 5K1.1 merely implements the
statutory directive of Section 3553(e) and 28 U.S.C. Section 994(n) and
does not create a separate method of departure: "(A)lthough 5K1.1
speaks initially in terms of 'departures' from the guidelines, section
994(n) and the Application Notes to 5K1.1 refer more generically to
'sentence reductions' and specifically refer to reductions below the
statutory minimum as provided by 3553(e). In light of the substantial
cross references between 5K1.1, 3553(e) and 994(n), we conclude that
994(n) and 5K1.1 do not create a separate ground for a motion for
reduction below the guidelines exclusive of 3553(e)'s provision for
reduction below the statutory minimum. Rather, 5K1.1 implements the
directive of 994(n) and 3553(e), and all three provisions must be read
together in order to determine the appropriateness of a sentence
reduction and the extent of any departure."
"If we were to accept the government's position . . . we would have
to find that Congress intended to vest with the prosecutor not only the
authority to make the motion, but also the authority to set the
parameters of the court's discretion. There is nothing in the
legislative history, nor in the language of section 3553 or section 994
that suggests such a result. Thus, we reject the government's argument
that this statutory scheme ultimately gives the prosecutor the power not
only to notify the court of a defendant's substantial assistance, but to
limit the judge's discretion to set the sentence by choosing to file its
motion under 5K1.1 rather than Section 3553(e)."
The court noted that this issue "appears to be one of first
impression."
U.S. v. Keene, No. 89-50617 (9th Cir. Apr. 29, 1991) (Marsh, D.J.).
Ninth Circuit affirms downward departure, partly on basis of
"aberrant behavior" and one defendant's "outstanding good deeds"; also
holds that "unique combination of factors" may constitute a mitigating
circumstance. Defendants pled guilty to conspiring to bribe and bribing
an official of the Immigration and Naturalization Service. The
guideline range for both defendants was 8-14 months, which required
imposition of at least four months' imprisonment. See U.S.S.G. Section
5C1.1(d)(2). The district court departed downward one offense level,
giving defendants 6-12 month ranges and allowing the court to impose
four months in home detention, see Section 5C1.1(c)(2), five years'
probation, and $15,000 fines (the amount of the bribe). The court held
that several factors warranted departure: defendants did not seek or
receive pecuniary gain, and there was no evidence of any other kind of
benefit; the INS official influenced defendants to continue the scheme;
one defendant attempted to back out after learning the scheme was
illegal, and in the past had "gone to great personal expense to assist
victims of crime or earthquake"; and defendants' conduct constituted
"single acts of aberrant behavior," U.S.S.G. Ch. 1, Pt. A at 1.7.
The appellate court affirmed, finding that these circumstances were
unusual and had not been adequately considered by the Sentencing
Commission. In analyzing whether defendants' acts could be
characterized as "single acts of aberrant behavior," the court reasoned
that "it is fair to read 'single act' to refer to the particular action
that is criminal, even though a whole series of acts lead up to the
commission of the crime. In this case there are two crimes -- the
forming of the conspiracy and the offer of the money. The conspiracy
and the offer are so closely related that for purposes of deciding
whether they were aberrant they constitute a single act." The court
"agree(d) with the government that absence of prior convictions is not
enough to show that the act in question was single and aberrant," but
held that the finding was warranted under the facts of this case.
As to the role of the government official in the offense, the court
distinguished this case from one of "imperfect entrapment," which "is
not a mitigating factor. U.S. v. Dickey, 924 F.2d 836 (9th Cir. 1991)."
Here, "the person who solicited the acts was a government official whom
the defendants had every reason to believe was aware of the law; he was
not an undercover agent or other informant whose government status was
not visible to the defendants. And the defendants themselves were
'innocents.' The conduct of the government official must be assessed not
abstractedly in the air but in conjunction with the persons on whom the
conduct has an impact."
The court also concluded that "the case of a defendant who had
performed outstanding acts of benevolence" was not considered by the
Commission and departure on that ground was not prohibited. The court
reasoned that such acts "are not a necessary consequence of
socio-economic status or community ties. The government conceded at
oral argument that if Mother Teresa were accused of illegally attempting
to buy a green card for one of her sisters, it would be proper for a
court to consider her saintly deeds in mitigation of her sentence. With
the principle established, it is only a matter of degree, and it seems
entirely appropriate for outstanding good deeds . . . to be considered
as a relevant factor in determining whether there are mitigating
circumstances."
Alternatively, the court held that "we may affirm on the basis of the
record on the distinct and alternative ground that it is the convergence
of all the factors that the court enumerated that constitutes the
circumstances that led to its decision."
"The statute speaks in the singular of 'mitigating circumstance,' 18
U.S.C. Section 3553(b). There is no reason to be so literal-minded as
to hold that a combination of factors cannot together constitute a
'mitigating circumstance.' Given the Sentencing Commission's
acknowledgement of 'the vast range of human conduct' not encompassed by
the Guidelines, a unique combination of factors may constitute the
'circumstance' that mitigates. This conclusion is, indeed, required by
the Guidelines themselves. The Commission says . . . that the departure
is to occur when 'a court finds an atypical case,' one 'where conduct
differs significantly from the norm.' U.S.S.G. Ch. 1, Pt. A, Section
4(b). What the Commission has focused on is 'the case' conduct.
Neither case nor conduct can be reduced to a single factor. Case and
conduct are a total pattern of behavior."
This appears to be the first appellate decision to endorse a
combination of factors approach. Two circuits specifically rejected a
"totality of the circumstances" method for downward departures when the
individual factors were not proper grounds for departure. See U.S. v.
Goff, 907 F.2d 1441 (4th Cir. 1990); U.S. v. Pozzy, 902 F.2d 133 (1st
Cir.), cert. denied, 111 S.Ct. 353 (1990). See also U.S. v. Rosen, 896
F.2d 789 (3d Cir. 1990) ("combination of typical factors does not
present an unusual case" warranting departure); U.S. v. Carey, 895 F.2d
318 (7th Cir. 1990) (vacating downward departure partly based on
"cumulative effect" of factors that alone did not justify departure).
U.S. v. Takai, No. 90-10157 (9th Cir. Apr. 19, 1991) (Noonan, J.).
U.S. v. Valle, 929 F.2d 629 (11th Cir. 1991) (per curiam) (affirming
716 F. Supp. 1452 (S.D. Fla. 1989) (2 GSU #11), wherein court departed
from ranges of 30-37 months and 37-46 months to impose 15-year terms on
defendants who robbed Wells Fargo truck of $17 million, hid all but
$50,000 (which was recovered at the time of arrest), and refused to
return remainder of money: "(T)he Guidelines do not contemplate a
scenario such as this where the appellants expect to exploit the
criminal justice system and enjoy the fruits of their crime following a
relatively short period of incarceration. . . . To permit the
appellants to keep the monetarily lucrative proceeds of their crime and
yet serve no more prison time than if the money had been surrendered or
otherwise recovered, would make a mockery of our system of justice. . .
. Although 180 months is a severe departure from the applicable range .
. ., we believe the sentences are appropriate and even necessary to
insure respect for the law and, more specifically, to see that our
system of punishment retains its deterrent effect").
U.S. v. Diaz-Bastardo, 929 F.2d 798 (1st Cir. 1991) (holding that "a
departure which rests on a combination of valid and invalid grounds may
be affirmed so long as (1) the direction and degree of the departure are
reasonable in relation to the remaining (valid) ground, (2) excision of
the improper ground does not obscure or defeat the expressed reasoning
of the district court, and (3) the reviewing court is left, on the
record as a whole, with the definite and firm conviction that removal of
the inappropriate ground would not be likely to alter the district
court's view of the sentence rightfully to be imposed"). Accord U.S. v.
Jagmohan, 909 F.2d 61 (2d Cir. 1990); U.S. v. Franklin, 902 F.2d 501
(7th Cir.), cert. denied, 111 S.Ct. 274 (1990); U.S. v. Rodriguez, 882
F.2d 1059 (6th Cir. 1989), cert. denied, 110 S.Ct. 1144 (1990). Contra
U.S. v. Zamarippa, 905 F.2d 337 (10th Cir. 1990); U.S. v.
Hernandez-Vasquez, 884 F.2d 1314 (9th Cir. 1989) (per curiam).
(Note: No cases cited in this section were subject to the Nov. 1,
1990 amendments to Chapter Seven of the Guidelines, which set forth
procedures for determining sentences after revocation of probation and
supervised release.)
U.S. v. Smeathers, 930 F.2d 18 (8th Cir. 1991) (per curiam) (in
imposing two-year sentence for violation of supervised release on
defendant originally sentenced to 14 months and three-year term of
release, district court did not abuse its discretion by considering the
conduct that caused the revocation, the factors listed in 18 U.S.C.
Section 3553(a), and the guideline range for the new criminal conduct;
sentence was within maximum provided under 18 U.S.C. Section 3583(e)(3)
and was not limited by Guideline sentence for original offense, accord
U.S. v. Dillard, 910 F.2d 461 (7th Cir. 1990); U.S. v. Lockard, 910
F.2d 542 (9th Cir. 1990); U.S. v. Scroggins, 910 F.2d 768 (11th Cir.
1990) (per curiam)).
U.S. v. Alli, 929 F.2d 995 (4th Cir. 1991) ("upon resentencing,
following revocation of probation, the court is limited to a sentence
within the guidelines available at the time of the initial sentence";
the conduct that caused revocation may be considered in determining
whether to revoke or modify probation, what sentence to select within
the guideline range, and whether to depart if the grounds for departure
were available at the initial sentencing). Accord U.S. v. White, 925
F.2d 284 (9th Cir. 1991); U.S. v. Von Washington, 915 F.2d 390 (8th
Cir. 1990) (per curiam); U.S. v. Smith, 907 F.2d 133 (11th Cir. 1990)
(per curiam).
VOLUME 4, NUMBER 2
MAY 7, 1991
Second Circuit holds sentencing court may not depart downward because
of disparity resulting from prosecutor's plea-bargaining practices.
Defendant was originally charged with possession with intent to
distribute more than five grams of crack, but pled guilty to possession
of an unspecified quantity of crack, an offense with no mandatory
minimum. Defendant was allowed to withdraw this plea, however, partly
because the court determined defendant did not actually benefit from the
agreement to plead to the lesser charge. He was then reindicted on the
original charge plus a count of using a firearm during a drug offense,
18 U.S.C. Section 924(c), which carries a mandatory consecutive
five-year term. Convicted after a jury trial on both counts, his
combined sentencing range was 147-168 months.
The district court found that it was "not unusual" for the U.S.
Attorney to use Section 924(c) "as a chip in plea bargaining"; that is,
charging defendants who refuse to plead guilty with Section 924(c) if
that section is applicable, but allowing similarly situated defendants
who plead guilty to avoid Section 924(c) charges. Because of the
difference between the statutory penalty mandated by Section 924(c) and
the otherwise applicable -- and lower -- two-level enhancement under
U.S.S.G. Section 2D1.1(b)(1) for possessing a weapon during a drug
offense, the district court concluded that this plea-bargaining practice
creates a disparity between those defendants who plead guilty and those
who go to trial. Holding that this disparity was "unwarranted" and
unforeseen by the Sentencing Commission, the court departed on the
narcotics count and imposed a total 120-month sentence, which was within
the range that would have applied if there had been no Section 924(c)
conviction but an enhancement under Section 2D1.1(b)(1) instead.
The appellate court vacated the departure: "The Commission certainly
considered that both the two-level enhancement pursuant to U.S.S.G.
Section 2D1.1(b)(1) and the five-year mandatory consecutive sentence
under Section 924(c) could apply to the same defendant, and included in
the Guidelines an explicit instruction that in such cases only the
statutory penalty should be imposed. U.S.S.G. Section 2K2.4(a),
application note 2. Theoretically, this creates no 'disparity'; the
defendant on whom the two-level enhancement is imposed may have engaged
in criminal conduct similar to the conduct underlying a Section 924(c)
conviction, but he has not been 'found guilty of similar criminal
conduct.' 28 U.S.C. Section 991(b)(1)(B)."
The court rejected the idea that the plea bargaining practices of the
U.S. Attorney created "'unwarranted disparity' in sentencing among
similarly situated defendants. The 'disparity' identified by the
district court . . . is not limited to the United States Attorney's
decision to assert or forgo Section 924(c) charges; it exists whenever
the prosecutor exercises his broad discretion to forgo a charge on which
a defendant could legitimately be prosecuted, convicted and sentenced.
Whether the prosecutor declines to bring a charge at all, or, as is not
uncommon, selects among a variety of applicable criminal statutes with
different penalties, he is creating a 'disparity' between the sentences
imposed on different defendants. And he undoubtedly has the authority
to do so."
Noting that an upward departure affirmed in U.S. v. Correa-Vargas,
860 F.2d 35 (2d Cir. 1988) had been imposed, in part, to "ameliorate to
some extent the skewing occasioned by plea bargaining," the appellate
court left open "the possibility that a prosecutor's charging decision
or a plea agreement could also result in omitting a mitigating
circumstance from the calculation of a guideline range, in which case a
downward departure might be appropriate. Here, however, the only
'mitigating circumstance' identified is the fact that defendants who
engaged in similar conduct but agreed to plead guilty to lesser charges
received less punishment than (this defendant) would receive. No ground
for departure pertaining specifically to this individual defendant, his
conduct or his offense was identified. There is no viable claim before
us of misconduct by the prosecutor or coercion of the defendant. . . .
We are left, then, with no remaining basis for departure except the
judge's disapproval of the manner in which the United States Attorney
for the Eastern District of New York generally exercises his discretion
in negotiating plea agreements in narcotics cases involving use of a
firearm. We do not believe that substituting the judge's view of the
proper general prosecutorial policy for that of the prosecutor
constitutes a valid ground for departure."
U.S. v. Stanley, 928 F.2d 575 (2d Cir. 1991).
U.S. v. Hoyungowa, No. 89-10485 (9th Cir. Apr. 16, 1991) (Tang, J.)
(district court may not depart pursuant to U.S.S.G. Section 5K2.3, p.s.,
for extreme psychological injury to family of murder victim: "this
Guideline applies by its plain terms only to the direct victim of the
crime and not to others affected by the crime, such as (the victim's)
family. . . . We hold that Guideline Section 5K2.3 applies only to
direct victims of the charged offense").
U.S. v. Pergola, No. 90-1564 (2d Cir. April 10, 1991) (Kearse, J.)
(although district court did not specifically explain why lesser
departure would not suffice, statement that "upward departure to the
maximum term of the law is required by this case" implied that "anything
less would be insufficient" and adequately supported departure under
Section 5K2.3 to statutory maximum of five years for defendant convicted
of repeatedly threatening ex-girlfriend even after his parole was
revoked for that conduct and he was ordered to stop; court
distinguished U.S. v. Kim, 896 F.2d 678 (2d Cir. 1990) and U.S. v.
Schular, 907 F.2d 294 (2d Cir. 1990), which had directed courts
considering departures under Section 5K to consider next higher offense
levels in sequence, by noting that those cases "focused solely on the
defendant's conduct" and not on "the effect of the crimes on the
victims. Though in considering either type of circumstance the
sentencing court should make clear on the record that it has considered
lesser departures than the one eventually arrived at, the requirement of
a specific step-by-step calculation and comparison is not particularly
apt where, as here, (a) harm to the victim is at issue, and (b) the type
of harm at issue is psychological rather than physical, making
observation and quantification nearly impossible").
U.S. v. Perez, 756 F.Supp. 698 (E.D.N.Y. 1991) (granting downward
departure under Section 5K2.0, p.s., from 41-51 months to the 15 months
served in pretrial detention, for a "despondent and impecunious
twenty-five year old woman, who has just experienced the sudden and
unexpected death of her only child, a son born while she was in custody
after her arrest for dealing in crack. . . . The Commission did not
take into account the emotional blow dealt a mother who gives birth to a
child while she is in custody, gives up her infant son to relatives
because she cannot adequately care for it during her incarceration, and
then is informed, while still in jail, of his sudden and inexplicable
death. Even the most inhuman would consider this cruel punishment dealt
by the fates sufficient retribution for her transgression. There are
occasions where the law's implacability must bend and give homage
through compassion to humanity's frailties and nature's cruelties. This
is such a case. . . . The government does not object.").
U.S. v. Miranda-Ortiz, 926 F.2d 172 (2d Cir. 1991) (defendant,
convicted of conspiracy to distribute cocaine after he joined conspiracy
for only a single transaction involving one kilogram of cocaine shortly
before conspiracy ended, should have offense level determined on basis
of that one kilogram without also including 4-5 kilograms of cocaine
distributed by conspiracy before he joined: "The late-entering
coconspirator should be sentenced on the basis of the full quantity of
narcotics distributed by other members of the conspiracy only if, when
he joined the conspiracy, he could reasonably foresee the distributions
of future amounts, or knew or reasonably should have known what the past
quantities were"; fact that defendant was convicted of conspiracy to
distribute more than five kilograms of cocaine is not binding at
sentencing as to drug amount).
U.S. v. Caruth, No. 90-2079 (10th Cir. Apr. 16, 1991) (Anderson, J.)
(agreeing with U.S. v. Andrus, 925 F.2d 335 (9th Cir. 1991) that "the
Guidelines permit courts not only to compare a defendant's conduct with
that of others in the same enterprise, but also with the conduct of an
average participant in that type of crime. . . . In other words, resort
may be had to both internal and external measurements for culpability,"
accord U.S. v. Daughtrey, 874 F.2d 213 (4th Cir. 1989); court affirmed
reduction for minor participant status, Section 3B1.2(b), and denial of
minimal participant status, Section 3B1.2(c), because although defendant
may have been least culpable member of extensive drug ring his actions
were not necessarily minimal compared to average participants in this
type of drug offense).
U.S. v. Martinez-Duran, 927 F.2d 453 (9th Cir. 1991) (even if statute
of conviction incorporates managerial role in offense of conviction,
defendant may receive Section 3B1.1 enhancement for managerial role in
related criminal conduct; here, defendant was convicted of renting or
managing a building for the purpose of storing, distributing and/or
using heroin, 21 U.S.C. 856(a)(2), but enhancement was proper because
there was "ample evidence . . . that he managed other drug-related
activities and people").
U.S. v. Smith, No. 90-2017 (10th Cir. Apr. 16, 1991) (Brorby, J.)
(vulnerable victim enhancement under Section 3A1.1 is not limited to
offense of conviction and could be given to bank robbery defendant for
related conduct of stealing elderly woman's car that he then used in
robbery -- it was thus improper for sentencing court to use car theft as
basis for departure rather than Section 3A1.1 adjustment; however,
"'elderly' status" does not per se demonstrate vulnerability, and
Section 3A1.1 "requires analysis of the victim's personal or individual
vulnerability" to defendant's criminal conduct).
U.S. v. Query, 928 F.2d 386 (11th Cir. 1991) (drug amounts from
related state offense were properly added to offense level rather than
using the state conviction to increase criminal history score even
though state sentence was imposed prior to federal sentence -- under
Section 4A1.2(a)(1) a "prior sentence" must be "for conduct not part of
the instant offense," and here the state and federal offenses were part
of the same course of conduct).
U.S. v. Query, 928 F.2d 386 (11th Cir. 1991) (not error for district
court to rely solely on hearsay testimony from presentence reports of
non-testifying co-conspirator to support findings as to amount of drugs,
role of defendant, acceptance of responsibility, and obstruction of
justice -- defendant failed to show statements were unreliable, and
"both the Sentencing Guidelines and case law from this circuit permit a
district court to consider reliable hearsay evidence at sentencing").
VOLUME 4, NUMBER 1
APRIL 25, 1991
D.C. and Third Circuits hold that unlawfully seized evidence that
would be excluded at trial may be considered in sentencing under
Guidelines. In the Third Circuit case, DEA agents acting on a tip
conducted a warrantless search of an apartment and seized 198 grams of
cocaine. Defendant arrived at the scene and was arrested; his car was
searched and a kilogram of cocaine was seized. The district court ruled
the kilogram from the car would be suppressed, but not the 198 grams
from the apartment. Defendant and the government then entered into a
plea agreement, part of which stipulated that the amount of cocaine for
sentencing purposes was 100-200 grams. The agreement also stated the
court was not bound by the stipulation. The court included the kilogram
of cocaine in the sentencing calculations, despite objections by both
defendant and prosecutor, and refused defendant's request to withdraw
his guilty plea.
The appellate court affirmed: "Consideration of the suppressed
evidence is consistent with the caselaw on the exclusionary rule and
follows the well-established practice of receiving evidence relevant to
sentencing from a broad spectrum of sources. We hold, therefore, that
evidence suppressed as in violation of the Fourth Amendment may be
considered in determining appropriate guideline ranges." The court noted
it "need not address the situation . . . where . . . evidence was
illegally seized for the purpose of enhancing the sentence."
As to the withdrawal of the guilty plea, the court held that "in the
unusual circumstances present here, defendant is entitled to relief." At
the plea colloquy the district court had indicated that only the 198
grams would be used in sentencing; it was after preparation of the PSI
that the issue of including the kilogram arose. Thus, "a legal issue
unforeseen by the prosecution, defense and apparently the court itself,
frustrated an agreement clearly contemplated by all concerned. The
sentence evolved not from a routine computation per se or newly
discovered information, but reflected an unexpected change in a critical
factor that for all intents and purposes had been settled during the
plea colloquy." It was left to the district court to determine on remand
"whether to grant specific performance or allow withdrawal of the plea."
U.S. v. Torres, 926 F.2d 321 (3d Cir. 1991).
In the D.C. Circuit case, undercover police made a controlled buy of
$50 worth of crack cocaine at an apartment. Within minutes an awaiting
arrest team forcibly entered the apartment without a warrant, arrested
defendant, searched the apartment and seized evidence. Defendant moved
to suppress evidence obtained from the search. The parties agreed that
the contested evidence would not be used at trial, but the government
reserved the right to introduce it at sentencing.
The sentencing court allowed the contested evidence -- weapons and
more drugs -- to be used in computing the guideline sentence, with the
result that defendant's sentencing range increased from 27-33 months to
235-293 months. Defendant argued that use of evidence seized in the
warrantless search violated his Fourth Amendment rights and that the
exclusionary rule should be applied at sentencing as well as at trial.
The appellate court, citing Torres, held that "evidence inadmissible
at trial may be admissible at sentencing," and "under the circumstances
of this case the deterrent effect (of the exclusionary rule) would not
outweigh the detrimental effect of excluding the evidence. . . . Where
there is no showing of a violation of the Fourth Amendment purposefully
designed to obtain evidence to increase a defendant's base offense level
at sentencing, this police misconduct is not sufficient to justify
interfering with individualized sentencing." The court left open "the
question whether suppression would be necessary and proper at the
sentencing phase where it is shown that the police acted egregiously,
e.g., by undertaking a warrantless search for the very purpose of
obtaining evidence to increase a defendant's sentence."
U.S. v. McCrory, No. 89-3211 (D.C. Cir. April 12, 1991) (Sentelle,
J.).
Ninth Circuit holds upward departure may not be based on conduct
underlying criminal charge on which defendant was acquitted; also
reverses imposition of consecutive sentences and rejects departure
grounds. Defendant was tried on charges of first degree murder and
assault with intent to commit murder, but convicted on the lesser
included offenses of voluntary manslaughter and assault with a dangerous
weapon. The presentence report included a reduction for acceptance of
responsibility and noted that two prior tribal court convictions not
included in the criminal history score might warrant departure under
U.S.S.G. Sections 4A1.2(i) and 4A1.3(a), p.s. With a departure, the
report calculated a maximum sentencing range of 63-78 months.
The district court sentenced defendant to 180 months. The court
denied the reduction for acceptance of responsibility, enhanced the
sentence for the discharge of a firearm, and departed for inadequate
criminal history score. The court also determined that departure was
warranted under Section 5K2.1, p.s. because it found the facts showed
that defendant intended to kill or seriously injure his victims. The
court imposed consecutive sentences for the two offenses, thus
effectively aggregating the statutory maximum sentences of ten years for
voluntary manslaughter and five years for the assault.
The appellate court reversed and remanded, with the majority holding
that the grounds for departure and imposition of consecutive sentences
were improper. The court held unanimously that the defendant "should
have been notified before sentencing that the court intended (1) to deny
him the acceptance of responsibility reduction, (2) to depart from the
Guidelines based on (his) state of mind, (3) to enhance the sentence
based on the firearm discharge, and (4) to run the sentences
consecutively rather than concurrently." The court also stated that
sentencing courts should "explain the role each factor played in the
departure decision . . . (and) . . . indicate the extent each factor
played in increasing the sentence."
On the acceptance of responsibility issue, the court found that
"(b)ecause the . . . reduction was included in the presentence report,
Brady was led to believe that this issue would not be raised at the
sentencing hearing. . . . The sentencing court should have articulated
its reasons and justifications for denying the Section 3E1.1 reduction,
should have notified the defendant before the sentencing hearing of
these tentative findings, and should have held a hearing on the . . .
issue" in order to give defendant "an adequate opportunity to present
information to the court on his acceptance of responsibility."
The majority of the court also concluded that the departure itself
was improper. It held that the sentencing court could not base the
sentence on facts underlying an acquittal, reasoning that "(w)e would
pervert our system of justice if we allowed a defendant to suffer
punishment for a criminal charge for which he or she was acquitted. The
Guidelines recognize that voluntary manslaughter is to be punished less
severely than murder by setting a lower base offense level for voluntary
manslaughter than for murder. A sentencing court should not be allowed
to circumvent this statutory directive by making a finding of fact --
under any standard of proof -- that the jury has necessarily rejected by
its judgment of acquittal. . . . We remand this portion of the sentence
noting that the jury's determination of Brady's state of mind is
dispositive in the sentencing hearing, and that the sentencing court may
not circumvent the jury's verdict by departing from the Guidelines on
this basis." Nine other circuits have considered this issue and
concluded that courts may consider a defendant's conduct despite an
acquittal on charges arising out of that conduct. See U.S. v. Averi,
922 F.2d 765 (11th Cir. 1991) (per curiam); U.S. v. Fonner, 920 F.2d
1330 (7th Cir. 1990); U.S. v. Duncan, 918 F.2d 647 (6th Cir. 1990);
U.S. v. Rodriguez-Gonzalez, 899 F.2d 177 (2d Cir. 1990); U.S. v.
Mocciola, 891 F.2d 13 (1st Cir. 1989); U.S. v. Dawn, 897 F.2d 1444 (8th
Cir. 1990); U.S. v. Isom, 886 F.2d 736 (4th Cir. 1989); U.S. v.
Juarez-Ortega, 866 F.2d 747 (5th Cir. 1989) (per curiam); U.S. v. Ryan,
866 F.2d 604 (3d Cir. 1989).
The majority also held that "(t)he decision to impose consecutive
sentences violates the Guidelines requirements" in Section 5G1.2, which
"determines whether the sentence should run concurrently or
consecutively. . . . The concurrent-consecutive determination boils
down to this: consecutive sentences are imposed only if 'no count
carries an adequate statutory maximum' to contain the sentence
prescribed by the adjusted combined offense level." Because the
prescribed guideline range fell within the statutory maximum for
voluntary manslaughter, imposing consecutive sentences "is a drastic
departure from the Guidelines and an unreasonable sentence."
It was also improper to use the prior tribal convictions to depart.
Defendant had been convicted of two misdemeanor assault and battery
offenses in 1979 and 1983, and received sentences of $50 or 25 days for
the first conviction, $150 or 15 days for the second. Noting that
"criminal history departures are warranted only when the criminal
history category 'significantly under-represents the seriousness of the
defendant's criminal history or the likelihood that the defendant will
commit further crimes,'" the court held that the tribal convictions "are
simply not serious enough to warrant an upgrade in Brady's criminal
history category." In addition, the convictions were uncounseled, and
the court held that an uncounseled conviction where defendant did not
waive counsel could not be used collaterally to impose an increased term
of imprisonment on a subsequent conviction. The court did not rule on
whether the conduct underlying the prior convictions could provide a
basis for departure. Cf. U.S. v. Eckford, 910 F.2d 216, 220 (5th Cir.
1990) (may count prior uncounseled misdemeanor convictions in criminal
history score).
U.S. v. Brady, No. 89-300074 (9th Cir. Mar. 18, 1991) (Pregerson,
J.).
Seventh Circuit holds probation under 18 U.S.C. Section 3553(e) is
not permitted when specifically prohibited by statute of conviction;
delineates method to determine extent of substantial assistance
departures. Defendant was arrested for possessing almost four kilograms
of heroin. She cooperated with the government, which later moved under
Section 3553(e) for departure from the ten-year mandatory minimum and
recommended a six-year term. The court sentenced defendant to probation
and the government appealed.
The appellate court vacated and remanded. Defendant was sentenced
under 18 U.S.C. Section 841(b), which provides that "(n)otwithstanding
any other provision of law, the court shall not place on probation . . .
any person sentenced under this subparagraph." This provision, the court
held, serves to "trump Section 3553(e)," and distinguishes this case
from U.S. v. Diagi, 892 F.2d 31 (4th Cir. 1990) (general prohibition
against probation for Class A and B felonies in 18 U.S.C. Section 3561
does not preclude departure to probation under Section 3553(e)).
To determine the extent of a departure for substantial assistance,
"only factors relating to a defendant's cooperation" may be considered.
Here, the district court improperly considered defendant's "extremely
burdensome family responsibilities." The court held that Section 5H1.6,
p.s., allows consideration of family responsibilities only in
determining whether to impose restitution and fines or, if it is an
option, probation; they may not provide a basis for departure.
The court further instructed that, as with all departures, the
sentence "must be linked to the structure of the guidelines," and courts
"must employ the rationale and methodology of the guidelines when
considering cases not adequately addressed by existing guidelines. The
sentencing judge is thus required to articulate the specific factors
justifying the extent of his departure." The "government's
recommendation should be the starting point for the district court's
analysis," and the court should "examine the government's recommendation
in light of factors like, but not limited to, those listed in Section
5K1.1(a)." The court suggested reference to analogous guidelines
provisions, such as Section 3E1.1, in determining the weight to be
accorded the Section 5K1.1(a) factors.
U.S. v. Thomas, No. 90-2183 (7th Cir. Apr. 11, 1991) (Flaum, J.).
VOLUME 3, NUMBER 20
MARCH 25, 1991
Second Circuit holds that downward departure for defendant whose
cooperation "broke the log jam in a multi-defendant case," and thereby
helped district court's "seriously overclogged docket," was neither
adequately considered nor precluded by Guidelines Sections 5K1.1 and
3E1.1; district courts retain "sensible flexibility" to depart in such
cases. Defendant pled guilty to conspiracy to possess with intent to
distribute cocaine. Even before his arrest he entered into an agreement
with the government to provide information regarding his drug-related
activities, and some of this information led to his indictment. His
cooperation led to a guilty plea by a codefendant. Thereafter,
defendant disclosed additional information and another codefendant pled
guilty.
At sentencing, defendant received a two-level reduction for
acceptance of responsibility and was subject to a sentence of 51-63
months. The government did not move for a substantial assistance
departure under U.S.S.G. Section 5K1.1, p.s., but the district court
departed to impose a 36-month term, explaining that: "I don't think the
guidelines speak to that kind of cooperation which relates to the
defendant who breaks the log jam in a multi-defendant case that's
pending in the seriously overclogged dockets of the District Courts of
the United States." The court stated that defendant's cooperation was
"constituted by a relatively early plea of guilty and a willingness to
testify, or at least the public perception of the willingness to testify
and what that does with other defendants or can do and, in this case,
did in my judgment do." The government appealed on two grounds: that
defendant's conduct was covered in Section 5K1.1 and the court could not
depart absent a government motion; and that the conduct was covered by
the acceptance of responsibility reduction.
The appellate court affirmed the departure, holding that "Section
5K1.1 does not preclude a downward departure in this case. As written,
Section 5K1.1 focuses on assistance that a defendant provides to the
government, rather than to the judicial system. . . . Garcia not only
helped the government develop the case, his cooperation after the
indictment resulted in the disposition of the charges against the
remaining two defendants. Garcia's 'activities facilitating the proper
administration of justice in the District Courts,' are not encompassed
by Section 5K1.1."
The court then rejected the argument that Section 3E1.1 precludes
this departure: "We believe that the acceptance of responsibility
differs from 'activities facilitating the proper administration of
justice in the District Courts' and that the district court properly
determined that cooperation such as Garcia's is not covered by Section
3E1.1. Garcia's willingness to testify against his co-defendants is
more than mere acceptance of responsibility." Having thus found that
defendant's mitigating circumstances have not been adequately considered
by the Sentencing Guidelines, the court concluded that they were a
permissible basis for departure and the district court was justified in
departing downward.
The court added: "In cases such as this, the district court has
'sensible flexibility' to depart in circumstances where departure from
the Sentencing Guidelines has a reasonable basis."
U.S. v. Garcia, No. 90-1274 (2d Cir. Feb. 8, 1991) (Lumbard, J.).
U.S. v. Poff, No. 89-3017 (7th Cir. Feb. 14, 1991) (Flaum, J.) (en
banc) (holding that U.S.S.G. Section 5K2.13, p.s., allowing departure
for defendant with "diminished capacity" convicted of "non-violent
offense," does not authorize departure for career offender convicted of
"crime of violence" as that term is defined in Section 4B1.2, even
though the crime was making a threat that defendant had no ability to
carry out; alternatively, even if offense could be considered
non-violent under Section 5K2.13, defendant's career offender status
"indicates a need for incarceration to protect the public," which also
precludes departure under the terms of Section 5K2.13).
U.S. v. Benskin, No. 90-5707 (6th Cir. Feb. 26, 1991) (Contie, Sr.
J.) (affirming upward departure for mail and securities fraud defendant
because Guidelines did not adequately account for long duration of the
ongoing scheme, large amount of money solicited from over 600 investors,
and emotional harm inflicted on investors, some of whom lost life
savings or college funds for children; extent of departure, from range
of 27-33 months to 60-month term, was reasonable under the
circumstances).
U.S. v. Astorri, 923 F.2d 1052 (3d Cir. 1991) (affirming finding that
departure under U.S.S.G. Section 5K2.3, p.s., "Extreme Psychological
Injury," was warranted for fraud defendant whose victims "suffered much
more psychological injury than that normally resulting from the
commission of a wire fraud offense"; court also noted, "If there is any
place in sentencing guidelines analysis where a fact-finder is to be
given considerable deference, it is here where the district court is
called upon to assess the psychological impact upon victims").
U.S. v. Simmons, 924 F.2d 187 (11th Cir. 1991) (affirming departure
from 15-year statutory minimum to 50-year term for defendant convicted
of possession of firearm by three-time felon, 18 U.S.C. Section 924(e)
-- departure was properly based on risk of recidivism, past criminal
conduct, and obstruction of justice, factors that were not accounted for
because the statutory minimum effectively nullified all guidelines
computations for this particular offense: "Neither the statute nor the
guidelines provide any means to factor the enhancement for obstruction
of justice into the offense level, or to adjust the defendant's criminal
history category based on conduct not used in calculating the statutory
sentence"; extent of the departure was "carefully and meticulously set
out" and reasonable under the circumstances).
Note: A new provision in the Guidelines, Section 4B1.4 (effective
Nov. 1, 1990), sets offense levels and criminal history categories for
defendants convicted under 18 U.S.C. Section 924(e).
U.S. v. Aymelek, No. 90-1510 (1st Cir. Feb. 15, 1991) (Selya, J.)
(prior convictions that are too remote in time to be counted in criminal
history score, and are not similar to current offense, see U.S.S.G.
Section 4A1.2(e), comment. (n.8), may still be considered as grounds for
departure under Section 4A1.3, p.s., "when and if those convictions
evince some significantly unusual penchant for serious criminality,
sufficient to remove the offender from the mine-run of other offenders";
in this case, defendant's "seven earlier convictions, though outdated,
were distinguished by their numerosity and dangerousness," and departure
was appropriate). See also U.S. v. Williams, 910 F.2d 1574 (7th Cir.
1990); U.S. v. Russell, 905 F.2d 1439 (10th Cir. 1990); U.S. v. Carey,
898 F.2d 642 (8th Cir. 1990). But see U.S. v. Leake, 908 F.2d 554 (9th
Cir. 1990) ("we conclude that the Guidelines reject the possibility that
an upward departure could be based on remote convictions having no
similarity to the (instant) offense," citing Section 4A1.2(e), comment.
(n.8)).
U.S. v. Polanco-Reynoso, 924 F.2d 23 (1st Cir. 1991) (affirming
departure, under U.S.S.G. Section 4A1.3, p.s., from criminal history
category I to category II for drug defendant who committed instant
offenses while on bail awaiting sentencing for unrelated state drug
charge that was not counted in criminal history score).
U.S. v. Richardson, 923 F.2d 13 (2d Cir. 19911) (downward departure
may not be considered for career offender based on small amount of
cocaine in instant offense -- one-half gram -- or length of time elapsed
since prior felony convictions -- 10 and 12 years; those factors were
adequately considered by Sentencing Commission). See also U.S. v. Hays,
899 F.2d 515 (6th Cir.) (small amount of drugs and lack of violence not
proper grounds for departure for career offender), cert. denied, 111 S.
Ct. 385 (1990).
U.S. v. Andrus, 925 F.2d 335 (9th Cir. 1991) (role in offense
adjustments, U.S.S.G. Section 3B1, should be determined under two-part
test: 1) "the relative culpability of the defendants vis-a-vis each
other" and 2) "in relation to the elements of the offense," which means
"in comparison with an average participant in such a crime"; here,
defendant could not qualify for minor participant status under either
standard). Accord U.S. v. Daughtrey, 874 F.2d 213 (4th Cir. 1989).
U.S. v. Astorri, 923 F.2d 1052 (3d Cir. 1991) (affirming Section
3A1.1 enhancement for defendant who defrauded his girlfriend's parents
because parents were "particularly susceptible to the criminal conduct"
-- defendant totally supported girlfriend and used promise of marriage
to persuade parents to invest more money in fraudulent scheme).
U.S. v. Williams, 922 F.2d 737 (11th Cir. 1991) (per curiam)
(defendant who received six-month jail term for contempt for refusal to
testify at co-conspirator's trial may not also receive obstruction of
justice enhancement for that same conduct, see U.S.S.G. Section 3C1.1,
comment. (n.6)).
U.S. v. Tucker, No. 90-5101 (6th Cir. Feb. 19, 1991) (Ryan, J.)
(holding that "entry of an Alford plea does not, per se, preclude a
section 3E1.1 reduction for acceptance of responsibility"; reduction
denied, however, because defendant failed to meet burden of proving she
accepted responsibility).
U.S. v. Boyd, 924 F.2d 945 (9th Cir. 1991) (road flare brandished
during bank robbery and claimed to be stick of dynamite was "dangerous
weapon" under Section 2B3.1(b)(2)(C); "consideration of the actual
nature of the device used," however, is appropriate in determining where
within guideline range to set sentence). Cf. U.S. v. Smith, 905 F.2d
1296 (9th Cir. 1990) (inoperable revolver or pellet gun is "dangerous
weapon").
U.S. v. Astorri, 923 F.2d 1052 (3d Cir. 1991) (error to increase
offense level by four under U.S.S.G. Section 2F1.1(b)(2) by giving
two-level increases for both "more than minimal planning" and "scheme to
defraud more than one victim": "The commentary does not indicate a four
level enhancement where both signs of harm are present. A two rather
than a four level increase is proper under section 2F1.1 because where,
as here, a defendant defrauds more than one victim, the scheme will
often involve more than minimal planning, and vice-versa.").
U.S. v. Cortes, 922 F.2d 123 (2d Cir. 1990) ("a probation officer
need not give Miranda warnings before conducting a routine presentence
interview").
U.S. v. White, 925 F.2d 284 (9th Cir. 1991) (reversed three-year
sentence imposed after revocation of probation under 18 U.S.C. Section
3565(b) for possession of firearm, agreeing with U.S. v. Smith, 907 F.2d
133 (11th Cir. 1990) and U.S. v. Von Washington, 915 F.2d 390 (9th Cir.
1990), that sentence imposed after revocation is limited by guideline
sentence for original offense, which here was 0-6 months; conduct that
constituted the violation of probation may not be used to set revocation
guideline range, but may be considered in determining appropriate
sentence within the range and, if there were factors that warranted
departure at the time of initial sentencing, whether to reconsider the
initial decision not to depart).
U.S. v. Morrow, 925 F.2d 779 (4th Cir. 1991) (ex post facto clause of
Constitution prohibits application of Guidelines section amended after
offense but before sentencing when amendment would increase offense
level). Accord U.S. v. Lam, 924 F.2d 298 (D.C. Cir. 1991); U.S. v.
Swanger, 919 F.2d 94 (8th Cir. 1990); U.S. v. Suarez, 911 F.2d 1016
(5th Cir. 1990).
VOLUME 3, NUMBER 19
FEBRUARY 27, 1991
First Circuit distinguishes between related and unrelated conduct
that may be used as relevant conduct in setting offense level.
Defendant was convicted of conspiracy to possess cocaine with intent to
distribute. In determining the amount of drugs involved, the district
court included amounts from four uncharged transactions it concluded
were "part of the same common scheme" as the conspiracy. The last of
these transactions was consummated solely by defendant's wife without
his knowledge, but was included because his wife (who was a
co-conspirator) "paid off part of (his) previous debt to the drug
supplier, thereby benefiting (defendant)."
The appellate court held that inclusion of the fourth transaction was
an improperly broad interpretation of the relevant conduct provision,
U.S.S.G. Section 1B1.3(a)(2): "In all of the cases cited by the
government, a defendant was held responsible under Section 1B1.3(a)(2)
for other conduct of his or her own that either was an uncharged part of
the crime of conviction, or a repetition of the crime. . . .
(Defendant's) only connection with the (fourth) transaction was as a
beneficiary of someone else's criminal activity, a link that had nothing
to do with his conduct. To significantly increase (his) sentence based
on a transaction in which he took no part strikes us as such a
substantial step away from 'charge offense' sentencing that it could not
have been contemplated as within the Section 1B1.3(a)(2) exception."
Even if defendant's acceptance of a benefit from the transaction "in
some way could be deemed culpable conduct, that conduct was distinctly
different from the crime of conviction. . . . His after-the-fact
connection to the (fourth) transaction would reveal nothing about his
culpability as a drug conspirator, and therefore would not be relevant
in determining his offense level for the charged crime." The court
cautioned that "Section 1B1.3(a)(2) is not open-ended in allowing a
sentencing court to take into account criminal activity other than the
charged offense. . . . The goal of the provision . . . is for the
sentence to reflect accurately the seriousness of the crime charged, but
not to impose a penalty for the charged crime based on unrelated
criminal activity."
The court noted, however, that under Section 1B1.4 the fourth
transaction could be taken into account in setting the sentence within
the guideline range or in deciding whether to depart.
U.S. v. Wood, No. 90-1599 (1st Cir. Feb. 1, 1991) (Coffin, Sr. J.).
U.S. v. Smallwood, 920 F.2d 1231 (5th Cir. 1991) (in calculating
offense level for defendant convicted of possession with intent to
distribute methamphetamine, court properly estimated "practical yield"
of defendant's laboratory based on amount of precursor chemical, even
though at time of arrest lab was non-operational and other necessary
precursors were not present: "The size or capability of any laboratory
involved is relevant to th(e drug quantity) calculation. U.S.S.G.
Section 2D1.1, comment. (n.2)). Neither immediate nor on-going
production is required. Instead, this guideline permits the court to to
examine the overall scheme and to infer circumstantially either the
total drug quantity involved in the offense conduct or the capability of
its production. U.S. v. Evans, 891 F.2d 686, 687 (8th Cir. 1989), cert.
denied, 110 S. Ct. 2170 (1990); U.S. v. Putney, 906 F.2d 477, 479 (9th
Cir. 1990)").
U.S. v. Thornton, 922 F.2d 1490 (10th Cir. 1991) (affirming departure
for drug defendant because she gave drugs to her 14-year-old daughter,
but vacating computation of departure that used offense level increase
as guide; appellate court held that giving drugs to daughter was "prior
uncharged criminal conduct" that was not adequately reflected in
defendant's criminal history category, and therefore departure should be
made by adjusting criminal history category under U.S.S.G. Section
4A1.3, p.s.). See also U.S. v. Fortenbury, 917 F.2d 477 (10th Cir.
1990).
U.S. v. Fonner, 920 F.2d 1330 (7th Cir. 1991) ("Just as other-crime
evidence cannot lead to a departure exceeding the increase that would
have resulted had the defendant been charged with and convicted of the
additional offenses, (U.S. v.) Ferra, 900 F.2d (1057 (7th Cir. 1990)),
so a defendant's past cannot justify an increase in criminal history
category exceeding the level that would have been appropriate had the
facts been counted expressly"; sentence remanded because departure to
120 months from 30 -- 37-month range was unreasonable -- had district
court included in criminal history score all uncounted criminal acts
that formed basis of departure, resulting range would have been only
51-63 months).
U.S. v. Delvecchio, 920 F.2d 810 (11th Cir. 1991) (court may not
automatically use career offender sentence to calculate extent of
departure for defendant who missed career offender status only because
two prior drug convictions were consolidated for sentencing, see
U.S.S.G. Sections 4A1.2(a)(2), comment. (n.3), and 4B1.2(3)(B); a
departure in this instance is appropriate if the consolidation of
sentences underrepresents defendant's criminal history, see Section
4A1.3, p.s., but "the court cannot . . . hold that because the defendant
almost falls within the definition of career offender . . . it
automatically will treat him as such . . . . (T)he court should examine
the defendant's actual criminal history, keeping in mind the concerns
underlying the career offender classification, and detemine . . . what
sentence is warranted given (1) the seriousness of the past offenses and
(2) the recidivist tendencies of the defendant."). Cf. U.S. v. Jones,
908 F.2d 365 (8th Cir. 1990) (using career offender provision to guide
departure for defendant who missed career offender status only because
he was not yet sentenced on prior violent felony conviction).
MITIGATING CIRCUMSTANCES
U.S. v. Wright, No. 90-5653 (4th Cir. Jan. 31, 1991) (Murnaghan, J.)
(reversed -- fact that inmate defendant, after conviction on instant
offense of drug possession with intent to distribute while in prison,
would have parole date for earlier, unrelated crimes deferred 26 months
was not factor Sentencing Commission failed to adequately consider and
thus could not support downward departure).
U.S. v. Pulley, 922 F.2d 1283 (6th Cir. 1991) (affirming departure
pursuant to U.S.S.G. Section 5K2.7, p.s., "Disruption of Governmental
Function," based on defendant's actions in persuading family members to
commit perjury and a co-defendant to "walk away from a confession" that
he had obtained drugs from defendant; such conduct was not adequately
accounted for in obstruction of justice guideline, Section 3C1.1, and
defendant had already received an enhancement under that section for his
own perjury).
U.S. v. Fonner, 920 F.2d 1330 (7th Cir. 1991) ("Mental health is not
a solid basis on which to depart upward. U.S.S.G. Section 5H1.3 bans
resort to mental health except as provided elsewhere, and the only
proviso, Section 5K2.13, allows downward (but not upward) departures for
non-violent offenses. A conclusion that the defendant is unusually
likely to commit more crimes (perhaps because of mental problems) is a
different matter and, in principle, could be a basis of upward
departure; nothing in Section 4A1.3 or elsewhere forbids its use.
Still, a judge is walking on eggs, for this consideration overlaps (if
it does not duplicate) the recidivism penalty built into the guidelines.
Judges may not engage in double counting.").
U.S. v. Winslow, No. 90-033-N-HLR (D. Idaho Jan. 17, 1991) (Ryan, C.
J.) (denying vulnerable victim enhancement, U.S.S.G. Section 3A1.1,
because no actual victims were specifically targeted -- while evidence
indicated that general intent of defendants' conspiracy was "to kill,
wound or maim certain victims chosen solely because of their race,
religion and/or sexual preferences, . . . there was no evidence of any
actual victims, but instead the only evidence was the defendants' talk
and speculation concerning the intended victims").
U.S. v. Barron-Rivera, 922 F.2d 549 (9th Cir. 1991) (court properly
placed count of felon in possession of firearm with count of illegal
alien in possession of firearm in one group, and count of being alien
unlawfully in U.S. after deportation in separate group, because latter
offense did not involve "substantially the same harm" under U.S.S.G.
Section 3D1.2 as the first two; defendant's argument -- that because
illegal alien counts could conceivably be grouped together, and weapons
counts were, that all three should be grouped together -- "is a classic
case of bootstrapping" that would distort the aim of Section 3D1.2 "by
combining dissimilar offenses to reduce punishment").
U.S. v. Wilson, 920 F.2d 1290 (6th Cir. 1991) (reversed -- error not
to group all six counts of using an interstate commerce facility in
attempt to commit murder; grouping of five counts involving telephone
discussions to arrange killing and one count involving letter mailed by
defendant containing money for hit man was required under Section
3D1.2(b) because all "involve the same victim" and were "connected by a
common criminal objective" -- the death of the victim).
U.S. v. St. Julian, 922 F.2d 563 (10th Cir. 1990) (affirming U.S.S.G.
Section 3C1.1 enhancement for failure to appear at sentencing hearing,
which delayed sentencing for ten days). See also U.S. v. Teta, 918 F.2d
1329 (7th Cir. 1990) (Section 3C1.1 enhancement for intentional failure
to appear for arraignment).
U.S. v. Vanderlaan, 921 F.2d 257 (10th Cir. 1990) (sentence imposed
under provisions of Narcotic Addict Rehabilitation Act, 18 U.S.C.
Sections 4251-55 (repealed Nov. 1, 1986), was "sentence of imprisonment"
pursuant to U.S.S.G. Section 4A1.2(e) that may be counted toward career
offender status).
U.S. v. Hatchett, No. 90-8030 (5th Cir. Jan. 30, 1991) (Barksdale,
J.) (pursuant to 28 U.S.C. Section 994(d) and U.S.S.G. Section 5H1.10,
p.s., socioeconomic status may not be considered in sentencing under the
Guidelines, either within the range or for departure; sentences must be
remanded because it was not clear whether district court improperly
considered defendants' social position and educational opportunities).
U.S. v. Brown, 920 F.2d 1212 (5th Cir. 1991) (per curiam) (district
court has discretion to order that guideline sentence for bank robbery
would be consecutive to any later state sentence imposed on pending
state charges from same robbery).
U.S. v. Lam, No. 90-3005 (D.C. Cir. Jan. 25, 1991) (Wald, J.)
(holding that version of U.S.S.G. Section 1B1.3(a) prior to Nov. 1989
amendment, which contained "scienter requirement," should have been
applied to drug conspiracy defendant whose offense, trial, and
presentence report occurred before that date -- the amendment effected a
substantive change in the law that could adversely affect defendant's
sentencing and its retroactive application would violate the ex post
facto clause of the Constitution; thus, in setting base offense level
court must determine quantity of drugs defendant "knew or reasonably
could have foreseen . . . was involved in the conspiracy"). See also
U.S. v. Suarez, 911 F.2d 1016 (5th Cir. 1990) (scienter required for
possession of weapon during drug offense, U.S.S.G. Section 2D1.1(b),
prior to Nov. 1, 1989); U.S. v. Burke, 888 F.2d 862 (D.C. Cir. 1989)
(same).
VOLUME 3, NUMBER 18
JANUARY 31, 1991
Ninth Circuit holds downward departure may be permitted for "aberrant
behavior" by first-time offender, but not for defense of "imperfect
entrapment." Defendant, who pled guilty to counterfeiting, received a
downward departure in his sentence for substantial assistance, 18 U.S.C.
Section 3553(e) and U.S.S.G. Section 5K1.1, p.s. He appealed, arguing
that the district court erred by concluding that it could not consider
an additional departure based on defendant's claims that his actions
constituted "aberrant behavior" and that he had a defense of "imperfect
entrapment."
The appellate court remanded, holding that the Guidelines do not
preclude a downward departure for aberrant behavior: "It is clear under
the Guidelines that 'aberrant behavior' and 'first offense' are not
synonymous. The Guidelines make due allowance for the possibility of a
defendant being a first offender. . . . Nevertheless, the Guidelines
recognize that a first offense may constitute a single act of truly
aberrant behavior justifying a downward departure. See Guidelines
Manual, Ch. 1, Part A, para. 4(d) (with respect to first offenders, 'the
Commission . . . has not dealt with the single acts of aberrant behavior
that still may justify probation at higher offense levels through
departures')." Accord U.S. v. Russell, 870 F.2d 18 (1st Cir. 1989)
(district court has discretion to make downward departure for aberrant
behavior). See also U.S. v. Carey, 895 F.2d 318 (7th Cir. 1990)
(holding that check-kiting scheme carried out over 15-month period could
not qualify as "a single act of aberrant behavior").
The court held, however, that as a matter of law a defense of
imperfect entrapment cannot justify a downward departure, agreeing with
the Eighth Circuit's conclusion in U.S. v. Streeter, 907 F.2d 781 (8th
Cir. 1990).
U.S. v. Dickey, No. 89-50340 (9th Cir. Jan. 23, 1991) (Leavy, J.).
Third Circuit holds departure by analogy may be considered for
defendant who cannot qualify for mitigating role in offense adjustment
because only other "participant" in offense was undercover agent.
Defendant pled guilty to receipt of child pornography through the mail.
He had responded to an ad placed by an undercover postal inspector, and
after corresponding for several months ordered four magazines. The
district court sentenced him to 12 months, the low end of the guideline
range, after denying an adjustment under U.S.S.G. Section 3B1.2 for a
mitigating role in the offense and ruling it could not depart downward
for mitigating circumstances.
The appellate court affirmed the denial of the Section 3B1.2
adjustment. It agreed with other circuits that have held that role in
offense adjustments require other "participants" who are "criminally
responsible." See,e.g., U.S. v. DeCicco, 899 F.2d 1531 (7th Cir. 1990);
U.S. v. Gordon, 895 F.2d 932 (4th Cir.), cert. denied, 111 S. Ct. 131
(1990); U.S. v. Carroll, 893 F.2d 1502 (6th Cir. 1989). But see U.S.
v. Anderson, 895 F.2d 641 (9th Cir. 1990) (Section 3B1.1(c) may be
applied because codefendant was tricked into committing offense). Here,
defendant was the only "participant" because the government agent was
not criminally responsible.
The court held, however, that a departure could be made by analogy to
Section 3B1.2: "If the Guidelines authorize departure in 'an atypical
case, one to which a particular guideline linguistically applies but
where conduct significantly differs from the norm,' Ch. 1, Pt. A, 4(b),
a fortiori they authorize departure in an atypical case where an
adjustment would otherwise be authorized for the same conduct but, for
linguistic reasons, the adjustment Guideline does not apply. That is to
say, the fortuitous fact that Section 3B1.2 linguistically could not
apply to (defendant) because (the undercover agent) was not a criminally
responsible 'participant' does not render (defendant's) conduct
significantly different from that of a defendant in similar
circumstances who might qualify for an offense role adjustment. . . .
(W)e hold that when an adjustment for Role in the Offense is not
available by strict application of the Guideline language, the court has
power to use analogic reasoning to depart from the Guidelines when the
basis for departure is conduct similar to that encompassed in the Role
in the Offense Guideline." See also U.S. v. Crawford, 883 F.2d 963 (11th
Cir. 1989) (affirming upward departure for aggravating role in offense
even though conduct did not technically meet definition in Section
3B1.1).
The court "emphasize(d) the limited nature of the departure" it
authorized: it applies only where there is one "participant" because
with more "there can be no departure by analogy because the adjustment
guideline is applicable of its own force." In remanding, the court noted
that defendant "is only entitled to a departure by analogy . . . if the
district court finds that he would have been entitled to (a Section
3B1.2) adjustment had (the undercover agent) qualified as a
participant." Also, any departure "would be limited to the 2 to 4 level
adjustment downward on the bases set forth in Section 3B1.2."
U.S. v. Bierley, No. 90-5099 (3d Cir. Dec. 28, 1990) (Sloviter, J.).
First Circuit holds that rehabilitation efforts after arrest and
indictment may be ground for downward departure, but only in unusual
case. Defendant, who pled guilty to two drug offenses, was given a
downward departure based on his efforts between indictment and
sentencing to end his drug addiction. The government appealed.
The appellate court reversed, holding that departure for
rehabilitation may be considered, but that this defendant's efforts were
not "unusual enough to merit" departure. "(T)he mere fact of
demonstrated rehabilitation between date of arrest and date of
sentencing cannot form the basis for a downward departure. . . .
(However), in an appropriate case, a defendant's pre-sentence
rehabilitative efforts and progress can be so significant, and can so
far exceed ordinary expectations, that they dwarf the scope of
pre-sentence rehabilitation contemplated by the sentencing commissioners
when formulating section 3E1.1. We hold, therefore, that a defendant's
rehabilitation might, on rare occasion, serve as a basis for a downward
departure, but only when and if the rehabilitation is 'so extraordinary
as to suggest its presence to a degree not adequately taken into
consideration by the acceptance of responsibility reduction.'" Accord
U.S. v. Maddalena, 893 F.2d 815 (6th Cir. 1989). But see U.S. v. Pharr,
916 F.2d 129 (3d Cir. 1990) ("post-arrest drug rehabilitation efforts
and the potential effect of incarceration on these efforts are not
appropriate grounds for discretionary departure"); U.S. v. Van Dyke,
895 F.2d 984 (4th Cir. 1990) (rehabilitative conduct after arrest
accounted for in Section 3E1.1, not proper basis for departure).
U.S. v. Sklar, 920 F.2d 107 (1st Cir. 1990).
U.S. v. Loveday, No. 89-50388 (9th Cir. Jan. 8, 1991) (Hall, J.)
(affirming upward departure for defendant who had manufactured several
homemade bombs and was convicted of possession of unregistered firearm
and sentenced under U.S.S.G. Section 2K2.2 (Oct. 15, 1988) -- in
drafting Section 2K2.2 "the Commission did not have in mind the unique
dangers homemade bombs pose to public safety," so departure warranted
under either Section 5K2.0, p.s. or Section 5K2.14, p.s. (Public
Welfare)).
U.S. v. Wylie, 919 F.2d 969 (5th Cir. 1990) (affirming upward
departure for drug conspiracy defendant based on her "allowing the use
of drugs in front of children in her home, her being the chief financial
supply for the purchase of cocaine, her coercion of others, and her
concealment of her role as a drug trafficker" through intimidation and
bribery).
Second Circuit outlines procedure for challenging government refusal
to move for substantial assistance departure. Defendant entered into a
cooperation agreement with the government that provided the government
would move for substantial assistance departure, 18 U.S.C. Section
3553(e), U.S.S.G. Section 5K1.1, p.s., if defendant "made a good faith
effort to provide substantial assistance." The agreement explicitly
established that evaluation of defendant's performance was in the sole
discretion of the government. The government did not move for departure
at sentencing and defendant appealed, claiming that the prosecutor was
required to respond to defendant's "suggestion" that the refusal was
made in bad faith and that he was entitled to a hearing on the issue.
The appellate court first determined that the government's refusal to
move for a departure for substantial assistance must be made in good
faith: "it is plain that where the explicit terms of a cooperation
agreement leave the acceptance of the defendant's performance to the
sole discretion of the prosecutor, that discretion is limited by the
requirement that it be exercised fairly and in good faith. The
government may reject the defendant's performance of his or her
obligations only if it is honestly dissatisfied."
The court then outlined the procedure for challenging a refusal:
"Defendant must first allege that he or she believes the government is
acting in bad faith. Such an allegation is necessary to require the
prosecutor to explain briefly the government's reasons for refusing to
make a downward motion. Inasmuch as a defendant will generally have no
knowledge of the prosecutor's reasons, at this first or pleading step
the defendant should have no burden to make any showing of prosecutorial
bad faith. Following the government's explanation, the second step
imposes on defendant the requirement of making a showing of bad faith
sufficient to trigger some form of hearing on that issue. See
Guidelines Section 6A1.3(, p.s.)."
Here, "the defendant never took the first step." His statements never
directly alleged bad faith, and his attorney even admitted at one point
that the government's refusal might be meritorious. Thus, defendant was
not entitled to an explanation by the government or an evidentiary
hearing.
The court also denied defendant's claim that the district court
should have departed under Section 5K2.0, p.s., even if the government's
refusal was in good faith. The court agreed such a departure "would
have been theoretically possible" because one of defendant's claimed
acts of assistance -- saving the life of a DEA informant -- "is not a
grounds for departure taken into account by the Guidelines," including
Section 5K1.1. However, defendant failed to properly raise this issue
below.
U.S. v. Khan, 920 F.2d 1100 (2d Cir. 1990).
U.S. v. Lara-Velasquez, 919 F.2d 946 (5th Cir. 1990) (district court
erred in holding it could not consider defendant's rehabilitative
potential in setting sentence within guideline range: "Guidelines do
not preclude consideration of a defendant's rehabilitative potential as
a mitigating factor within an applicable range of punishment. Indeed,
the Sentencing Guidelines expressly permit the district court to
consider all relevant and permissible character traits of the defendant
in assessing a sentence within a particular range," U.S.S.G. Section
1B1.4).
U.S. v. Agron, 921 F.2d 25 (2d Cir. 1990) ("stun gun" meets
definition of "dangerous weapon" for purposes of U.S.S.G. Section
2D1.1(b)(1) enhancement).
U.S. v. Crecelius, 751 F.Supp. 1035 (D.R.I. 1990) (using Fed. R.
Crim. P. 36 (Clerical Mistakes) or "alternative ground . . . of the
Court's inherent power to amend its sentence," to change 12-month
sentence to 12 months and 1 day -- court had "clearly expressed its
intent to sentence (defendant) to the minimum sentence" under guideline
range of 12-18 months, but a "sentence of 12 months plus 1 day is
actually a lesser sentence because it makes the recipient eligible to
earn a reduction in the time to be served for good behavior," in this
case 54 days, see 18 U.S.C. Section 3624(b)).
VOLUME 3, NUMBER 17
JANUARY 3, 1991
Tenth Circuit holds that similarly situated codefendants should
receive equivalent departures. Three codefendants pled guilty to
maintaining a crack house. They were sentenced separately and all
received upward departures based on the amount of drugs involved in the
offense. Two defendants received sentences of 36 and 72 months,
adjusted upward from ranges of 15-21 and 30-37 months, respectively.
Defendant here, however, received a departure from a 30-37 month range
to a 120-month sentence.
The appellate court remanded: "Because of the disparity in the
sentence given (defendant) as opposed to those given (his codefendants),
when each departure was based on the same conduct involving the same
quantity of drugs, we must reverse and remand for resentencing. The
sentencing guidelines incorporate the principles of equality and
proportionality. Their purpose is to narrow the 'disparity in sentences
imposed . . . for similar criminal conduct by similar offenders.' . . .
The district court's disproportionate upward departure from
(defendant's) guideline sentence range thwarts the very purpose of the
guidelines and is therefore invalid. Given that the three defendants
here were 'similar offenders' engaged in 'similar criminal conduct' with
respect to the reason given for their upward departure, they should have
received equivalent upward departures."
The court noted that this case "is distinguishable from cases in
which disparate sentences were upheld because the disparity was
explicable given the facts in the respective records . . . . Here, no
distinguishing factors were offered or appear in the record."
The court rejected, however, defendant's claim that an upward
departure could not be based on the amount of drugs in the offense of
operating a crack house: "quantity of drugs is a valid factor to
consider in determining whether an upward departure from the sentence
for a premises violation is appropriate." See also U.S. v. Bennett, 900
F.2d 204 (9th Cir. 1990) (departure for large quantity of drugs in
telephone offense); U.S. v. Correa-Vargas, 860 F.2d 35 (2d Cir. 1988)
(same); U.S. v. Crawford, 883 F.2d 963 (11th Cir. 1989) (departure for
quantity of drugs in simple possession offense); U.S. v. Ryan, 866 F.2d
604 (3d Cir. 1989) (same, plus purity and packaging).
U.S. v. Sardin, No. 89-6189 (10th Cir. Dec. 18, 1990) (Seymour, J.).
First Circuit instructs district courts to characterize departure
sentences as either upward or downward, even when both upward and
downward "interim calculations" are made, in order to determine which
party has the right to appeal. Defendant pled guilty to embezzlement
charges. The district court departed upward four offense levels from
the guideline sentencing range (GSR) because the amount embezzled, over
$11 million, was substantially in excess of the highest amount in the
applicable guideline. The court also departed downward two levels to
reward defendant for his substantial assistance, U.S.S.G. Section 5K1.1,
p.s. Defendant appealed the upward departure and argued the downward
departure should have been greater.
The appellate court upheld the sentence, but rejected "the
characterization of appellant's sentence as one embodying dual
departures -- a characterization employed both by the district court and
by the litigants." The court reasoned that "decisions to increase or
decrease offense levels prior to the imposition of a sentence, or a
court's assessment of countervailing considerations before passing
sentence, can only be seen as interim calculations. Whether or not
circumstances exist that might support departures in both directions, it
is indisputable that the sentence finally imposed can only fall below,
within, or above the GSR. In other words, in any given sentencing,
there can be at most one departure, up or down -- a phenomenon
determined by the net result of all interim calculations. Hence, to
describe a sentence as consisting of two departures, one up and one
down, is inecessarily inaccurate."
The distinction is important because, barring error in applying the
Guidelines, "a decision to depart can only confer a right of appeal on
one party." See 18 U.S.C. Section 3742(a)(3) and (b)(3). "But in each
case, the prime beneficiary of the departure . . . may not appeal."
Here, for example, "where the sentence actually imposed was above the
GSR, the only cognizable departure was upward and the only party
entitled to appeal the departure decision was the defendant." To "avoid
confusion in the future," the court instructed district courts "to avoid
terminology suggestive of multiple departures within the contours of a
single sentence."
U.S. v. Harotunian, No. 90-1393 (1st Cir. Dec. 5, 1990) (Selya, J.).
U.S. v. Cox, No. 90-1670 (8th Cir. Dec. 18, 1990) (per curiam)
(reversing upward departure given because consolidation for sentencing
of bank robbery and escape convictions effectively resulted in no
punishment for the escape: "In essence, the guidelines merged
(defendant's) escape charge into his robbery charge. This merger
effectively barred the court from imposing a separate sentence for the
escape charge. Because the Sentencing Commission already has determined
how to calculate an offense level when multiple offenses are sentenced
in the same proceeding, we conclude that the circumstances in this case
are not sufficiently 'unusual' to warrant an upward departure from the
guidelines. See U.S.S.G. Section 3D1.4"). Accord U.S. v. Miller, 903
F.2d 341 (5th Cir. 1990).
U.S. v. McHan, No. 89-5057 (4th Cir. Dec. 6, 1990) (Wilkinson, J.)
(reversing downward departure for drug defendant that was based on his
charitable activities: "Not only are the above personal factors
ordinarily irrelevant in sentencing determinations, but to depart
downward because a successful drug dealer has made charitable
contributions to his community is to distort the purpose of the
Guidelines").
U.S. v. Williams, No. 90-6085 (10th Cir. Dec. 19, 1990) (Brorby, J.)
(affirming U.S.S.G. Section 4A1.3, p.s., upward departure to career
offender level for bank robbery defendant who had committed four
separate bank robberies in 1981, which were consolidated for sentencing
and thus counted as only one offense in criminal history score: "a
sentencing judge may separate prior related convictions that resulted in
a single sentence. The judge may then count the convictions as prior
felony convictions for purposes of the Guidelines career offender
calculation . . . . We find no provision in the Guidelines preventing a
court from departing upward to the career offender section"). Accord
U.S. v. Dorsey, 888 F.2d 79 (11th Cir. 1989), cert. denied, 110 S.Ct.
756 (1990).
Fifth Circuit reaffirms holding that related conduct may be used in
U.S.S.G. Section 3B1.1 role in offense determination; Fourth Circuit
reaches same conclusion. Both cite recent "clarifying amendment" to
guideline as support. In the Fifth Circuit defendant pled guilty to one
count of possession with intent to distribute cocaine. A related
conspiracy charge was dropped, but based on the defendant's leadership
role in the conspiracy the district court imposed a four-level upward
adjustment under U.S.S.G. Section 3B1.1(a).
The appellate court affirmed, reiterating the holding in U.S. v.
Manthei, 913 F.2d 1130 (5th Cir. 1990), that "while an upward adjustment
for a leadership role under section 3B1.1 must be anchored in the
defendant's transaction, we will take a common-sense view of just what
the outline of that transaction is. It is not the contours of the
offense charged that defines the outer limits of the transaction;
rather it is the contours of the underlying scheme itself. All
participation firmly based in that underlying transaction is ripe for
consideration in adjudging a leadership role under section 3B1.1."
Contra U.S. v. Rodriguez-Nuez, No. 89-2203 (7th Cir. Dec. 3, 1990)
(Fairchild, Sr. J.) (role in offense must be based on offense of
conviction, not related conduct; enhancement for supervisory role under
Section 3B1.1(c) not applicable to defendant who supervised another in
drug distribution scheme at one residence but not in offense of
conviction, possession of drugs with intent to distribute, that occurred
at another residence).
The court added: "Any doubt concerning this conclusion must vanish
in the face of a recent clarifying amendment promulgated by the
Sentencing Guidelines Commission, effective November 1, 1990. This
amendment was not intended to change the law, see 55 Fed. Reg. 19,202
(1990), but the clarity of the new language of section 3B1.1 makes it
self-evident that the district court correctly calculated (defendant's)
offense level." The revised Introductory Commentary to Section 3B1.1
states that the role in offense adjustment "is to be made on the basis
of all conduct within the scope of Section 1B1.3 (Relevant Conduct) . .
. and not solely on the basis of elements and acts cited in the count of
conviction."
U.S. v. Mir, No. 89-5695 (5th Cir. Dec. 11, 1990) (Smith, J.).
In the Fourth Circuit defendant was convicted of five counts of
distribution of crack. The district court imposed a four-level
adjustment under Section 3B1.1(a) because defendant was a leader of five
individuals in the offenses of conviction. However, two of those
individuals were government agents. Defendant argued they could not be
counted and thus at most only three other individuals were involved in
the offenses.
The appellate court agreed that the two government agents could not
be counted: "To be included as a participant, one must be 'criminally
responsible for the commission of the offense.' U.S.S.G. Section 3B1.1,
comment. (n.1). . . . Neither (government agent) . . . can be counted
as a participant in (defendant's) organization because as government
agents neither was criminally responsible." Accord U.S. v. DeCicco, 899
F.2d 1531 (7th Cir. 1990); U.S. v. Carroll, 893 F.2d 1502 (6th Cir.
1990). The court noted, however, that defendant should have been
counted as a participant. Accord U.S. v. Barbontin, 907 F.2d 1494 (5th
Cir. 1990); U.S. v. Preakos, 907 F.2d 7 (1st Cir. 1990) (per curiam).
The court affirmed the enhancement, however, because the record
showed 17 other individuals in defendant's distribution network. The
court held that the role in offense adjustment is not limited to the
offense of conviction: "The Relevant Conduct guideline, U.S.S.G.
Section 1B1.3, plainly states that its described scope of conduct
applies to Chapter Three adjustments 'unless otherwise specified,' and
no language in the Role (in Offense) guidelines specifies or indicates a
different intent . . . . A court should look beyond the count of
conviction when considering the application of this enhancement and make
its determination after considering all conduct within the scope of
section 1B1.3." Like the Fifth Circuit, the court noted that the
"clarifying November 1, 1990 amendment" demonstrated the Sentencing
Commission's intent that relevant conduct be used for the role in
offense enhancement.
U.S. v. Fells, No. 89-5649 (4th Cir. Dec. 10, 1990) (Wilkins, J.).
U.S. v. Teta, 918 F.2d 1329 (7th Cir. 1990) (affirming finding that
defendant's intentional failure to appear for arraignment was
obstruction of justice, warranting enhancement under U.S.S.C. Section
3C1.1).
U.S. v. Kirby, No. 90-3058 (10th Cir. Nov. 28, 1990) (McWilliams, Sr.
J.) ("the instant offense" in U.S.S.G. Section 4A1.2(e) refers to the
offense on which defendant is being sentenced, and defendant sentenced
for failure to appear should have criminal history calculation based on
that offense, not on underlying drug offense; therefore, 1971 offense
on which defendant was still imprisoned within 15 years of commencement
of underlying offense, but not within 15 years of instant offense of
failure to appear, should not be counted in criminal history for failure
to appear offense).
U.S. v. Herrera-Figueroa, No. 89-50660 (9th Cir. Nov. 14, 1990)
(Reinhardt, J.) ("Concluding that the exclusion of counsel from
presentence interviews serves no rational purpose, we exercise our
supervisory power over the orderly administration of justice to hold
that when a federal defendant requests that his attorney be permitted to
accompany him at a presentence interview, the probation officer must
honor that request.").
Seventh Circuit holds courts may not, Fifth and Ninth Circuits hold
courts may, consider relevant conduct in addition to offense of
conviction for U.S.S.G. Section 2D1.1(b)(1) enhancement. In the Seventh
Circuit case, defendant was involved in drug sales and weapons
possession at one residence, but was convicted only of possessing with
intent to distribute drugs that were at another residence several miles
away where no weapons were found. The district court increased the
offense level under Section 2D1.1(b)(1), finding that the weapons were
used to facilitate "the drug business" at both residences.
The appellate court reversed, holding that the guns found at the
first residence could not be used for the enhancement. "Defendant's
possession of the weapons was contemporaneous with his commission of the
offense, but it is clear from the Guidelines and court decisions that
contemporaneity is not enough. There must be some proximity of the
weapon to the contraband (if not also to the defendant or some person
under his control)." See U.S. v. Vasquez, 874 F.2d 250 (5th Cir. 1989)
(Section 2D1.1(b)(1) improperly applied -- gun that defendant admitted
owning during period of drug-dealing was several miles away from drugs
in offense of conviction). The Seventh Circuit noted that "(t)here need
not be an exact proximity of the contraband and weapons, so long as
other evidence connects the weapons to the crime," see, e.g., U.S. v.
Paulino, 887 F.2d 358 (1st Cir. 1989) (Section 2D1.1(b)(1) properly
applied where drug supply in one apartment and guns in different
apartment in same building where drugs were sold). The court concluded,
however, that "Section 2D1.1(b)(1) says that the weapons must be
possessed 'during the commission of the offense,' and this must mean the
offense of conviction."
U.S. v. Rodriguez-Nuez, No. 89-2203 (7th Cir. Dec. 3, 1990)
(Fairchild, Sr. J.).
The Ninth Circuit defendant pled guilty to a distribution offense
involving only drugs found in his car at the time of arrest. Numerous
weapons were found "only later at his place of business, some miles
distant." Given the number of weapons and the extent of defendant's
involvement in drugs, the district court found "it was clearly probable
that the weapons were related to this offense" and applied Section
2D1.1(b)(1).
Affirming, the appellate court reached the opposite conclusion from
that of the Seventh Circuit regarding "whether the statutory language
'during the commission of the offense' refers to the offense of
conviction, or to the entire course of criminal conduct." Finding that
"the language of the guidelines . . . make(s) clear that 'specific
offense characteristics . . . shall be determined on the basis of . . .
all such acts and omissions that were part of the same course of conduct
or common scheme or plan as the offense of conviction,'" U.S.S.G.
Section 1B1.3(a)(2), the court determined that "offense" in Section
2D1.1(b)(1) "includes all conduct that was part of the same scheme."
Therefore, the district court "properly looked to all of the offense
conduct, not just the crime of conviction."
U.S. v. Willard, No. 89-30206 (9th Cir. Nov. 27, 1990) (Norris, J.).
In the Fifth Circuit, defendant did not possess a weapon during the
commission of the drug offense to which he pled guilty, but was given
the Section 2D1.1(b)(1) enhancement because he "clearly possessed a
firearm" during the related drug conspiracy and co-conspirators
possessed guns when arrested. The appellate court affirmed, holding,
like the Ninth Circuit, that Section 1B1.3(a)(2) applies to Section
2D1.1(b)(1) and the sentencing court could "consider related relevant
conduct."
U.S. v. Paulk, 917 F.2d 879 (5th Cir. 1990).
U.S. v. Nelson, No. 89-50578 (9th Cir. Nov. 27, 1990) (Poole, J.)
(upholding application of offense level increase in Section 2J1.6(b)(1),
based on statutory maximum of underlying offense, for defendant who
failed to appear for trial but was eventually acquitted of the
underlying charges; distinguished U.S. v. Lee, 887 F.2d 888 (8th Cir.
1989), which invalidated Section 2J1.6(b)(1) insofar as it applied to
defendant who failed to report to prison after trial and sentencing to
only a fraction of the statutory minimum).
U.S. v. Rothman, 914 F.2d 708 (5th Cir. 1990) (in conspiracy
guideline section calling for three-level reduction "unless the
defendant or a co-conspirator completed all the acts the conspirators
believed necessary on their part for the successful completion of the
offense," Section 2X1.1(b)(2), term "the offense" refers to underlying
offense, not the conspiracy -- thus defendant convicted of money
laundering conspiracy qualified for reduction because conspirators were
arrested after receiving money but before they could begin to launder
it).
U.S. v. Swanger, No. 90-1583 (8th Cir. Nov. 19, 1990) (per curiam)
(remanded for resentencing -- when use of amended Guidelines in effect
at time of sentencing instead of those in effect at time of offense
increased defendant's offense level, "sentencing under the amended
Guidelines violated the ex post facto clause of the Constitution").
Accord U.S. v. Suarez, 911 F.2d 1016, 1021 (5th Cir. 1990).
U.S. v. Shortt, No. 89-2571WM (8th Cir. Nov. 27, 1990) (Arnold, J.)
(reversing downward departure for defendant convicted of building and
possessing pipe bomb found in truck of man who was having affair with
defendant's wife, holding that as a matter of law U.S.S.G. Section
5K2.10, p.s. (Victim's Conduct), could not support a departure in this
case: "A concern for the proportionality of the defendant's response is
manifested by the terms of Section 5K2.10. . . . Though certainly
wrongful and provocative, adultery does not justify blowing up the
adulterers").
U.S. v. Ruklick, No. 89-3080 (8th Cir. Nov. 21, 1990) (Bright, Sr.
J.) (district court erroneously believed it could not depart downward
under U.S.S.G. Section 5K2.13, p.s., because defendant's significantly
reduced mental capacity "was not the sole cause of his drug-related
offense" -- appellate court "interpret(s) section 5K2.13 to authorize a
downward departure where, as here, a defendant's diminished capacity
comprised a contributing factor in the commission of the offense").
U.S. v. Nelson, No. 89-5270 (6th Cir. Nov. 20, 1990) (Ryan, J.)
(affirmed downward departure imposed to avoid "unreasoned disparity"
between defendant's sentence and much lower sentences of codefendants
who received departures for cooperation with authorities -- "district
courts . . . are not precluded as a matter of law from departing from
the guidelines in order to generally conform one conspirator's sentence
to the sentences imposed on his co-conspirators"; remanding for
resentencing, however, because extent of departure was "unreasonable" in
light of "substantial factual differences between (defendant's) case and
his confederates'," especially his lack of cooperation).
U.S. v. Collins, 915 F.2d 618 (11th Cir. 1990) (court may consider
successful completion of intervening state criminal sentence, which
occurred between commission of and sentencing on instant offense, as
evidence that defendant "has demonstrated his determination to avoid
future crimes" and will be less likely to recidivate; such a departure
must be guided by the procedure in U.S.S.G. Section 4A1.3).
U.S. v. Glas, No. 90 CR434 (N.D. Ill. Nov. 1, 1990) (Williams, J.)
(departing upward for criminal history category VI defendant with 39
criminal history points, court extrapolated from sentencing table to
create new criminal history categories for every three criminal history
points above 15, with three-month increase in minimum sentence for every
new level; defendant's 39 points resulted in criminal history category
XIV and, with offense level of 10, a minimum sentence of 48 months).
See also U.S. v. Dycus, 912 F.2d 466 (6th Cir. 1990) (per curiam)
(table, unpublished) (affirming use of hypothetical category VIII for 19
criminal history points).
U.S. v. Piper, No. 89-30325 (9th Cir. Nov. 9, 1990) (per curiam)
(agreeing with U.S. v. Perez-Franco, 873 F.2d 455 (1st Cir. 1989), that
"a defendant must show contrition for the crime of which he was
convicted, but he need not accept blame for all crimes of which he may
be accused" to qualify for acceptance of responsibility reduction,
Section 3E1.1). Accord U.S. v. Oliveras, 905 F.2d 623 (2d Cir. 1990);
U.S. v. Rogers, 899 F.2d 917 (10th Cir.) (dicta), cert. denied, 111 S.
Ct. 113 (1990); U.S. v. Guarin, 898 F.2d 1120 (6th Cir. 1990) (dicta).
Contra U.S. v. Mourning, 914 F.2d 699 (5th Cir. 1990); U.S. v. Munio,
909 F.2d 436 (11th Cir. 1990); U.S. v. Gordon, 895 F.2d 932 (4th Cir.),
cert. denied, 111 S. Ct. 131 (1990).
U.S. v. Rocha, 916 F.2d 219 (5th Cir. 1990) (affirmed finding that
17-year-old male kidnap victim "was unusually vulnerable due to age,"
U.S.S.G. Section 3A1.1 -- "it is reasonable to believe that (he) was
chosen as the kidnapping victim because of his young age").
U.S. v. Lawrence, 915 F.2d 402 (8th Cir. 1990) (quantities of cocaine
that defendant purchased and distributed during the course of the
marijuana conspiracy he was convicted of, but that were not part of the
same "common scheme or plan" as the marijuana offense, may still be
included as relevant conduct under U.S.S.G. Section 1B1.3(a)(2) because
the cocaine was "part of the same course of conduct" to possess and
distribute drugs).
U.S. v. Becker, No. 89-50240 (9th Cir. Nov. 20, 1990) (Reinhardt, J.)
(in determining whether prior felony was "crime of violence" under
U.S.S.G. Section 4B1.1, "we do not look to the specific conduct which
occasioned (defendant's) burglary convictions, but only to the statutory
definition of the crime. We hereby adopt the so-called 'categorical
approach' that the Supreme Court has held is appropriate for determining
whether someone is a career criminal under the Armed Career Criminal
Act, 18 U.S.C. Section 924. See Taylor v. United States, 110 S. Ct.
2143, 2159 (1990)"; affirmed finding that daytime burglary is violent
crime).
U.S. v. Houser, 916 F.2d 1432 (9th Cir. 1990) (vacated because it was
error to classify defendant as career offender under Section 4B1.1 --
two prior drug offenses were "part of a single common scheme or plan,"
Section 4A1.2(a), comment. (n.3), and were only charged and tried
separately because they occurred in different counties). See also U.S.
v. Rivers, 733 F. Supp. 1003 (D. Md. 1990) (two prior violent felony
convictions should not be counted separately because "accident of
geography" led to separate sentences for related offenses).
Third Circuit holds extreme departures require clear and convincing
standard for facts underlying departure and higher standard of
admissibility for hearsay; endorses use of analogy to relevant
guidelines in setting extent of departure for aggravating circumstances.
Defendant was convicted of several explosives and passport offenses.
The guideline range was 27-33 months, but the district court departed to
impose a 30-year term after concluding defendant was a terrorist
connected with the Japanese Red Army and had planned to use the
explosives in a "terrorist mission . . . to kill and seriously injure
scores of people." See U.S. v. Kikumura, 706 F.Supp. 331 (D.N.J. 1989)
(2 GSU #2). The court held that the Guidelines did not account for
terrorist activity, that defendant's conduct implicated several grounds
for departure listed in U.S.S.G. Section 5K2, and that defendant's
criminal history category significantly underrepresented the seriousness
of his criminal past and the likelihood of further criminal activity.
The appellate court, noting that this was "apparently the largest
departure . . . since the sentencing guidelines became effective,"
affirmed the district court's findings of fact and conclusion that
departure was warranted, but held that the extent of the departure was
not properly determined and remanded for resentencing. In affirming the
district court's findings, the court made several rulings on significant
procedural issues regarding departures.
First, for a departure of this magnitude the court held that "the
factfinding underlying that departure must be established at least by
clear and convincing evidence." (Note: The district court had held that
a preponderance of evidence was sufficient, but held alternatively --
and the appellate court agreed -- that its findings met the clear and
convincing standard.) The court recognized that "there is overwhelming
authority in our sister circuits for the proposition that guideline
sentencing factors need only be proven by a preponderance of evidence, .
. . but we note that in none of those cases did the operative facts
involve anything remotely resembling a twelve-fold, 330-month departure
from the median of an applicable guideline range." The court did not
further specify how large a departure required this heightened standard.
Similarly, the court concluded that a higher standard of
admissibility was required for hearsay statements relied on to make a
departure of this size. "Normally, hearsay statements may be considered
at sentencing . . . 'if they have some minimal indicium of reliability
beyond mere allegation.' . . . However, we believe that (this) standard,
like the preponderance standard, is simply inadequate in situations as
extreme and unusual as this one." The court held that "at a sentencing
hearing where the court departs upwards dramatically from the applicable
guideline range . . . the court should examine the totality of the
circumstances, including other corroborating evidence, and determine
whether the hearsay declarations are reasonably trustworthy." This
"intermediate standard" is less strict than that used for hearsay
statements at trial, but stronger than that used in the "garden variety
sentencing hearing." Cf. U.S. v. Fortier, 911 F.2d 100 (8th Cir. 1990)
("hearsay statements admitted against a defendant . . . violate the
Confrontation Clause unless a court finds that the declarant is
unavailable and that there are indicia of reliability supporting the
truthfulness of the hearsay statements") (3 GSU #12). As with the
factfinding, the court held that the hearsay evidence admitted by the
district court met this heightened standard.
The court also upheld the district court's findings that the
guidelines applicable to the offenses of conviction did not adequately
account for defendant's conduct, but held that the extent of departure
was unreasonable and should have been calculated by comparing the
aggravating circumstances to analogous guidelines. The court
"endorse(d) th(e) general approach" taken by other circuits that "have
recently begun to look to the guidelines themselves for guidance in
determining the reasonableness of a departure," and concluded that
"analogy to the guidelines is a useful and appropriate tool for
determining what offense level a defendant's conduct most closely
resembles." See U.S. v. Landry, 903 F.2d 334 (5th Cir. 1990); U.S. v.
Pearson, 911 F.2d 186 (9th Cir. 1990); U.S. v. Ferra, 900 F.2d 1057
(7th Cir. 1990); U.S. v. Kim, 896 F.2d 678 (2d Cir. 1990). The court
recognized that this method cannot always be "mechanically applied" and
that analogies to the guidelines "are necessarily more open-textured
than applications of the guidelines."
Rather than simply remand, because it was "convinced beyond any doubt
that the district court would impose as high a sentence as possible up
to 30 years," the appellate court proceeded to consider whether
"reasonable analogy existed to support the sentence imposed." The court
concluded that the maximum sentence imposable was 262 months, based on
an offense level 32 and criminal history category VI, and remanded for
resentencing "consistent with this opinion."
U.S. v. Kikumura, No. 89-5129 (3d Cir. Nov. 2, 1990) (Becker, J.).
U.S. v. Pharr, No. 90-1284 (3d Cir. Oct. 19, 1990) (Cowen, J.)
(reversing downward departure for theft defendant who after arrest had
made "conscientious efforts" to overcome his heroin addiction and whose
rehabilitation might be hindered by incarceration: "We read policy
statement 5H1.4 to mean that dependence upon drugs, or separation from
such a dependency, is not a proper basis for a downward departure from
the guidelines"). Contra U.S. v. Maddalena, 893 F.2d 815 (6th Cir.
1989); U.S. v. Harrington, 741 F. Supp. 968 (D.D.C. 1990); U.S. v.
Floyd, 738 F. Supp. 1256 (D. Minn. 1990); U.S. v. Rodriguez, 724 F.
Supp. 1118 (S.D.N.Y. 1989).
U.S. v. Fortenbury, No. 89-2291 (10th Cir. Oct. 26, 1990) (Logan, J.)
(court erred in departing upward in offense level, instead of criminal
history category, for defendant who illegally possessed firearms three
times after conviction for possession of firearm by felon -- commissions
of the same crime "are elements of a criminal history category, not an
offense level," and "courts cannot depart by offense level when the
criminal history category proves inadequate").
U.S. v. Lawrence, No. 89-30284 (9th Cir. Oct. 10, 1990) (Norris, J.)
(holding that neither Sentencing Reform Act nor Guidelines prohibit
downward departure for career offender). Accord U.S. v. Brown, 903 F.2d
540 (8th Cir. 1990).
U.S. v. Tellez, No. 89-6177 (11th Cir. Oct. 30, 1990) (per curiam)
(Defendant had been sentenced under pre-Guidelines law to three years'
probation after district court held the Guidelines unconstitutional, and
the sentence became final when neither party appealed. However,
defendant's sentence after probation revocation is still limited by the
sentence authorized by the Guidelines for his original offense, 18
U.S.C. Section 3565(a)(2). See U.S. v. Smith, 911 F.2d 133 (11th Cir.
1990).).
U.S. v. McMillen, No. 90-3079 (3d Cir. Oct. 29, 1990) (Stapleton, J.)
(vacated and remanded -- district court should have found that
misapplication of funds defendant, who was a bank manager with authority
to approve loan applications, was in "position of private trust,"
U.S.S.G. Section 3B1.3; also, because defendant personally approved his
own fraudulent loan applications, his position as manager "significantly
facilitated the commission or concealment of the offense").
U.S. v. Hill, 915 F.2d 502 (9th Cir. 1990) (truck driver for moving
company, convicted of conspiracy to commit theft of an interstate
shipment, was in "position of trust" per Section 3B1.3 vis-a-vis the
owners of the goods stolen -- defendant had unwatched and exclusive
control of goods for extended period of time without oversight by owners
and used that position to facilitate the offense).
U.S. v. Unger, 915 F.2d 759 (1st Cir. 1990) (federal rather than
state law is used to determine whether a juvenile offense should be
counted in criminal history score under U.S.S.G. Section 4A1.2(c), and
court may "look to the substance of the underlying state offense in
order to determine whether it falls within" the guideline).
U.S. v. Callihan, No. 89-7085 (10th Cir. Oct. 12, 1990) (Anderson,
J.) (total weight of amphetamine precursor mixture, not just weight of
controlled substance in mixture, is used to calculate base offense level
under U.S.S.G. Section 2D1.1).
U.S. v. Hickey, No. 89-1459 (6th Cir. Oct. 24, 1990) (Milburn, J.)
(remanded -- clearly erroneous for court to find that defendant with
uncontested net worth of at least $50,000 was unable to pay any fine
under U.S.S.G. Section 5E1.2).
U.S. v. Labat, 915 F.2d 603 (10th Cir. 1990) (vacating imposition of
fine to offset costs of incarceration when punitive fine was not
imposed: "an 'additional fine' under Section 5E1.2(i) cannot be imposed
unless the court first imposes a punitive fine under Section 5E1.2(a)").
U.S. v. Lopez-Cavasos, 915 F.2d 474 (9th Cir. 1990) (upholding
District of Idaho local rule that requires parties to lodge objections
to presentence report prior to sentencing hearing, leaving later
objections to discretion of court -- rule is not inconsistent with Fed.
R. Crim. P. 32(a) or (c) requirements for opportunity to comment on
presentence reports).
U.S. v. Marmolejo, No. 89-8079 (5th Cir. Oct. 26, 1990) (Clark, C.J.)
(Appellate court agreed with U.S. v. Garcia, 893 F.2d 250 (10th Cir.
1989), cert. denied, 110 S. Ct. 1792 (1990), that Guidelines apply to
Assimilative Crimes Act (ACA), 18 U.S.C. Section 13, but the sentence is
limited by state law maximum and minimum sentences. Accord U.S. v.
Young, No. 89-5016 (4th Cir. Oct. 12, 1990) (Chapman, J.); U.S. v.
Leake, 908 F.2d 550 (9th Cir. 1990). For defendant sentenced under the
ACA whose probation was revoked, the district court properly sentenced
him to six-month prison term plus one-year term of supervised release,
even though state law provided for parole but not supervised release:
"For ACA purposes, we hold that when the applicable state law provides
for parole, a sentence of imprisonment plus supervised release is 'like
punishment' when the period of imprisonment plus the period of
supervised release does not exceed the maximum sentence allowable under
state law," which here was ten years.).
U.S. v. Bear, 915 F.2d 1259 (9th Cir. 1990) (for crimes covered by
Indian Major Crimes Act, 18 U.S.C. Section 1153, Guidelines should be
applied only to offenses that are defined and punished under federal
law; burglary of a private residence is not defined under federal law,
so defendant should be sentenced in accordance with state law). Cf.
U.S. v. Norquay, 905 F.2d 1157 (8th Cir. 1990) (holding that Guidelines
apply to Indian Major Crimes Act, although sentence must be within
maximum and minimum sentences imposable under state law).
VOLUME 3, NUMBER 14
OCTOBER 12, 1990
Fifth Circuit holds that relevant conduct that "directly brought
about" offense of conviction may be considered for role in offense
adjustment. Defendant pled guilty to one count of selling two ounces of
amphetamine. Her offense level was increased under U.S.S.G. Section
3B1.1(a), "organizer or leader of a criminal activity that involved five
or more persons, "based on her role in the related manufacturing and
distribution scheme.
In affirming, the appellate court held that "the 'offense' for
Section 3B1.1(a) purposes includes 'criminal activity' greater in scope
than the exact, or more limited, activity comprising the elements of the
offense charged." Relevant conduct that "directly brought about the more
limited sphere of the elements of the specific charged offense" may be
considered.
In U.S. v. Barbontin, 907 F.2d 1494 (5th Cir. 1990), the Fifth
Circuit had held that "section 3B1.1(a) focuses upon the number of
transactional participants, which can be inferentially counted provided
that the court does not look beyond the offense of conviction to enlarge
the class of participants," and that 'a section 3B1.1(a) adjustment is
anchored to the transaction leading to the conviction." The court in
this case stated that "(o)ur holding is an application of the Barbontin
holding. . . . The Section 3B1.1(a) adjustment in this case was
'anchored to the transaction leading to the conviction,' because the
district court incorporated and considered the very activities and
persons ('participants') that directly lead to the final distribution
(by defendant) of the amphetamine produced as a result of those
activities of those persons. . . . The offense of conviction involved
the last link of a continuous chain of transaction in manufacturing,
distributing, and retailing amphetamine."
Three other circuits have held that, when counting the number of
participants, Section 3B1.1 applies only to the offense of conviction.
See U.S. v. Pettit, 903 F.2d 1336 (10th Cir. 1990); U.S. v. Tetzlaff,
896 F.2d 1071 (7th Cir. 1990); U.S. v. Williams, 891 F.2d 921 (D.C.
Cir. 1989). But see U.S. v. Haynes, 881 F.2d 586 (8th Cir. 1989)
(affirming Section 3B1.1(a) increase based on relevant conduct).
U.S. v. Manthei, No. 89-1970 (5th Cir. Sept. 20, 1990) (Barksdale,
J.).
U.S. v. Mares-Molina, No. 89-50706 (9th Cir. Sept. 10, 1990) (Leavy,
J.) (reversing finding that defendant convicted of conspiracy to import
cocaine was "organizer, leader, manager, or supervisor" pursuant to
U.S.S.G. Section 3B1.1(c) -- defendant could be considered manager or
organizer of trucking business warehouse where cocaine was stored, but
there were "no facts to support the conclusion that (he) exercised
control or was otherwise responsible for organizing, supervising, or
managing others in the commission of the offense" of conviction).
U.S. v. Hagan, No. 90-1072 (7th Cir. Sept. 25, 1990) (Ripple, J.)
(holding that "the instinctive flight of a criminal about to be caught
by the law" does not constitute obstruction of justice, U.S.S.G. Section
3C1.1). Accord U.S. v. Garcia, 909 F.2d 389 (9th Cir. 1990); U.S. v.
Stroud, 893 F.2d 504 (2d Cir. 1990).
U.S. v. Rodriquez-Macias, No. 89-10442 (9th Cir. Sept. 13, 1990) (per
curiam) (affirming U.S.S.G. Section 3C1.1 obstruction of justice
enhancement for giving false name at time of arrest). Accord U.S. v.
Saintil, 910 F.2d 1231 (4th Cir. 1990) (using false name at time of
arrest and until arraignment before magistrate had "material" effect on
government investigation).
U.S. v. Edwards, 911 F.2d 1031 (5th Cir. 1990) (affirming U.S.S.G.
Section 3C1.1 obstruction enhancement for defendant who failed to inform
authorities of whereabouts of co-conspirator after being instructed to
do so).
U.S. v. Cree, No. 89-5611 (8th Cir. Sept. 25, 1990) (Larson, Sr.
Dist. J.) (reversing U.S.S.G. Section 3A1.1 "vulnerable victim" finding
-- even if victim of involuntary manslaughter offense could be
considered vulnerable because of intoxication, there was no evidence
that defendant knew extent of victim's intoxication or that he intended
to exploit that vulnerability). But cf. U.S. v. Boise, No. 89-30071
(9th Cir. Aug. 29, 1990) (Wright, J.) (affirming finding that
six-week-old baby was "vulnerable victim" under Section 3A1.1 and
rejecting argument that Section 3A1.1 requires defendant to
intentionally select victim because of vulnerability).
U.S. v. Wilson, No. 89-5209 (4th Cir. Sept. 4, 1990) (Wilkinson, J.)
(reversing finding that recipients of letters that fraudulently
solicited funds for tornado victims were "vulnerable victims" under
U.S.S.G. Section 3A1.1 -- defendant sent letters at random, and fact
that "persons targeted might be sympathetic to the causes for which
funds were fraudulently solicited may have 'made the crime possible, but
it did not confer upon the victim the degree of vulnerability for which
Section 3A1.1 permits an upward adjustment,'" U.S. v. Creech, 913 F.2d
780 (10th Cir. 1990)).
U.S. v. Mourning, No. 89-7005 (5th Cir. Oct. 1, 1990) (Clark, C.J.)
(for acceptance of responsibility reduction under U.S.S.G. Section
3E1.1, defendant "must first accept responsibility for all of his
relevant criminal conduct," as relevant conduct is defined in U.S.S.G.
Section 1B1.3(a); reduction properly denied money laundering defendant
who did not accept responsibility for drug activity underlying offense
of conviction). Accord U.S. v. Gordon, 895 F.2d 932 (4th Cir. 1990);
U.S. v. Henry, 883 F.2d 1010 (11th Cir. 1989). Contra U.S. v. Oliveras,
905 F.2d 623 (2d Cir. 1990); U.S. v. Perez-Franco, 873 F.2d 455 (1st
Cir. 1989).
U.S. v. Von Washington, No. 90-1423 (8th Cir. Sept. 28, 1990) (per
curiam) (agreeing with U.S. v. Smith, 907 F.2d 133 (11th Cir. 1990),
that when probation is revoked pursuant to 18 U.S.C. Section 3565
defendant must be resentenced within guideline range applicable to
original offense of conviction; in resentencing, the conduct that
caused the revocation may be considered for three purposes:
reconsidering the initial decision of whether to depart (but any
departure must be supported by facts that were presented at sentencing
for the original offense); deciding whether to continue or revoke
probation; determining the appropriate sentence within the applicable
guideline range).
U.S. v. Crosby, No. 89-3932 (6th Cir. Sept. 11, 1990) (Martin, J.)
(sentencing court properly included in criminal history score a prior
state drug conviction that was also an element of defendant's continuing
criminal enterprise offense -- although U.S.S.G. Section 4A1.2(a)(1)
defines "prior sentence" as a sentence imposed "for conduct not part of
the instant offense," the Guidelines make an exception for CCE offenses,
which necessarily involve continuous criminal activity, in Section
2D1.5, comment. (n.3): "A sentence resulting from a conviction
sustained prior to the last overt act of the instant (CCE) offense is to
be considered a prior sentence under Section 4A1.2(a)(1) and not part of
the instant offense").
U.S. v. Goodman, No. 89-6170 (5th Cir. Oct. 1, 1990) (Duhe, J.)
("(w)hen the instant offense is not one of those enumerated" as a "crime
of violence" in the commentary to U.S.S.G. Section 4B1.2, court may
"look beyond the face of the indictment and consider all facts disclosed
by the record"; unlawful possession of weapon by convicted felon, who
intended to use it to retrieve another weapon with which he had
previously threatened a group of people, was "crime of violence"). Cf.
U.S. v. Alvarez, No. 89-2670 (7th Cir. Sept. 27, 1990) (Bauer, C.J.)
(unlawful possession of weapon by convicted felon properly considered
"crime of violence" where defendant struggled with arresting officer
while holding fully loaded gun); U.S. v. McNeal, 900 F.2d 119 (7th Cir.
1990) (unlawful possession of weapon by convicted felon is "crime of
violence" where defendant fired weapon); U.S. v. Williams, 892 F.2d 296
(3d Cir.) (same), cert. denied, 110 S.Ct. 322 (1990).
U.S. v. Jones, 910 F.2d 760 (11th Cir. 1990) (per curiam) ("a prior
state court case wherein the defendant enters a nolo plea and
adjudication is withheld can be used as a 'conviction' to make the
defendant eligible for career offender status under Section 4B1.1 of the
Sentencing Guidelines," even though defendant was placed on probation
for that offense).
U.S. v. Baker, No. 89-1165 (10th Cir. Sept. 12, 1990) (Tacha, J.)
(affirming upward departure of three offense levels, from 51-63 month
range to 70-month term, because "use of explosives for intimidation
during a bank robbery is an aggravating factor not considered by the
Sentencing Commission in Guidelines section 2B3.1 . . . (and) abduction
at gunpoint is an aggravating factor not considered by the Commission in
Guidelines section 2K1.6" (illegal use or possession of explosives)).
U.S. v. Thomas, No. 89-2071 (8th Cir. Sept. 11, 1990) (Wollman, J.)
(affirming departure, from 8-14 month range to 60 months, for defendant
convicted of possession of firearms by convicted felon based on
"dangerous nature of the firearms (AK47 assault rifle and 9 mm. pistol),
the fact that they were fully loaded, and the assaultive nature of
(defendant's) 1983 conviction for second degree robbery and second
degree assault").
U.S. v. George, 911 F.2d 1028 (5th Cir. 1990) (per curiam) (affirming
departure from 15-21 month range to 50-month sentence -- defendant
convicted of counterfeiting fled jurisdiction when released on bond
after conviction and before sentencing, and escape charges were not
brought against him).
U.S. v. Deane, No. 90-1085 (1st Cir. Sept. 10, 1990) (Campbell, J.)
(vacating downward departure for defendant convicted of mailing child
pornography: Sentencing Commission adequately considered "the full
range of conduct" covered by the relevant guideline, including
defendant's "passive" conduct "at the very least serious end of this
range"; fact that defendant was otherwise exemplary employee and father
was not ground for departure; and concern that Bureau of Prisons does
not offer meaningful counseling program "does not justify a downward
departure, absent exceptional circumstances and 'a finding that the
defendant has an exceptional need for, or ability to respond to,
treatment,'" U.S. v. Studley, 907 F.2d 254 (1st Cir. 1990)).
U.S. v. Newman, 912 F.2d 1119 (9th Cir. 1990) (when defendant
challenges constitutionality of prior conviction used in computing
criminal history score, "the ultimate burden of proof . . . lies with
the defendant"; "where the Government seeks the inclusion of the prior
conviction in a criminal history score calculation, its proof of the
fact of conviction would satisfy its initial burden. Then . . . the
defendant would have the burden to establish the constitutional
invalidity of the prior conviction for purposes of determining the
criminal history category" -- proof must be by preponderance of the
evidence). Accord U.S. v. Unger, No. 90-1457 (1st Cir. Sept. 28, 1990)
(Selya, J.); U.S. v. Brown, 899 F.2d 677 (7th Cir. 1990); U.S. v.
Davenport, 884 F.2d 121 (4th Cir. 1989); U.S. v. Dickens, 879 F.2d 410
(8th Cir. 1989).
U.S. v. R.L.C., No. 90-5048 (8th Cir. Sept. 12, 1990) (Heaney, Sr.
J.) (when sentencing juvenile under 18 U.S.C. Section 5037(c), "the
phrase 'maximum term of imprisonment that would be authorized if the
juvenile had been tried and convicted as an adult' prohibits a court
from sentencing a juvenile to a term of imprisonment greater than the
juvenile could have received had he been sentenced as an adult under the
sentencing guidelines"). Contra U.S. v. Marco L., 868 F.2d 1121 (9th
Cir.), cert. denied, 110 S.Ct. 369 (1989) ("maximum term of
imprisonment" is "that term prescribed by the statute defining the
offense").
VOLUME 3, NUMBER 13
SEPTEMBER 21, 1990
Eleventh Circuit affirms imposition of full term of supervised
release after revocation. Defendant had been sentenced under the
Guidelines to one year in prison and two years of supervised release.
After defendant violated the terms of his release, the district court
revoked supervised release and imposed a two-year prison term.
Defendant argued that he should have been sentenced under the Guidelines
to a six-month term, a calculation based on treating the criminal
conduct that violated his conditions of release as a Guideline offense
and then crediting him for the time served in prison on the original
offense.
The appellate court noted that there "is no specific provision for a
new guideline calculation upon revocation" of supervised release. Thus,
a sentencing court is to be guided by 18 U.S.C. Section 3583(e)(3),
which states that a court may "revoke a term of supervised release and
require the person to serve in prison all or part of the term of
supervised release." The appellate court determined that its review of
sentences that are "imposed for an offense for which there is no
applicable sentencing guideline" is limited under 18 U.S.C. Section
3742(e)(4) to whether the sentence " is plainly unreasonable," and held
that the two-year term imposed in this case "was not plainly
unreasonable."
The Ninth Circuit has also affirmed imposition of the full term of
supervised release. See U.S. v. Lockard, 910 F.2d 542 (9th Cir. 1990).
The Seventh Circuit, however, has held that the length of incarceration
for revocation of supervised release is limited by the maximum term
allowed under Section 3583(e) less time served for the original offense.
See U.S. v. Dillard, 910 F.2d 461 (7th Cir. 1990) (per curiam).
U.S. v. Scroggins, No. 89-8910 (11th Cir. Sept. 5, 1990) (per
curiam).
U.S. v. Reid, No. 89-5158 (10th Cir. Aug. 20, 1990) (Baldock, J.)
("defendant was an organizer or leader of a criminal activity that was
extensive under Section 3B1.1(a)" where drug conspiracy "involved the
defendant and three subordinates (four participants directly or
indirectly controlled by the defendant), and relied upon the knowing
services of at least two drug suppliers to supply hundreds of customers
over a three-week period").
U.S. v. Porter, 909 F.2d 789 (4th Cir. 1990) (money laundering
offense need not be grouped under U.S.S.G. Section 3D1.1 with gambling
counts, even though laundered money came from gambling proceeds -- apart
from origin of money, laundering and gambling offenses were not
"closely-related" within definition of Section 3D1.2).
Eleventh Circuit holds circumstances of predicate offenses should not
be reviewed in "crime of violence" determination. In a case where
defendant was sentenced before the November 1989 guideline amendments,
the district court looked at the actual circumstances of defendant's
prior robbery and burglary offenses and determined they were not "crimes
of violence" under U.S.S.G. Section 4B1.2 and defendant was therefore
not a "career offender." Alternatively, the court held that even if
defendant qualified as a career offender a downward departure was
warranted because the career offender sentence -- with a range of
262-327 months instead of 46-57 months -- would be "grossly unfair and
grossly excessive."
The appellate court reversed, holding that "the guidelines prohibit
the sentencing court from reviewing the underlying facts of a conviction
to determine whether it is a crime of violence for career offender
purposes." The sentencing court should only examine whether the offense
"has as an element the use, attempted use, or threatened use of physical
force," or whether "the generic, rather than the particular nature of
the predicate offense" involves a substantial risk that force would be
used. "Once the court determines that the defendant has been convicted
of a crime that usually involves a risk of harm, the inquiry ends; it
does not matter whether that risk has matured into actual harm" and
"evidence establishing the particular conduct of the defendant on the
day the crime was committed does not bear on that inquiry." Accord U.S.
v. Selfa, . . . F.2d . . . (9th Cir. June 14, 1990). Contra U.S. v.
McNeal, 900 F.2d 119 (7th Cir. 1990); U.S. v. Maddalena, 893 F.2d 815
(6th Cir. 1989). Cf. U.S. v. McVicar, 907 F.2d 1 (1st Cir. 1990)
(pursuant to U.S.S.G. Section 4B1.2, comment. (n.1) (1988), holding that
defendant's actual conduct in prior "larceny from the person" offense --
which is not listed in note 1 -- was "crime of violence"); U.S. v.
Terry, 900 F.2d 1039 (7th Cir. 1990) ("We read (Section 4B1.2,
application note 1 (1988)) as vesting a sentencing court with the
discretion to explore the underlying facts of a prior conviction when
that conviction is not one of the crimes specifically enumerated in the
application note."); U.S. v. Carter, No. 89-3516 (7th Cir. Aug. 23,
1990) ("Terry does not require a sentencing judge to explore the
underlying facts of a prior conviction that is identified as a crime of
violence in the Commentary to Section 4B1.2").
The appellate court also held that a finding that defendant's prior
offenses involved only the threat, but not actual use, of violence is
not an adequate ground for departure from the career offender guideline.
But see U.S. v. Baskin, 886 F.2d 383 (D.C. Cir. 1989) (in determining
whether departure is appropriate "sentencing judge retains discretion to
examine the facts of a predicate crime to determine whether it was (in
fact) a crime of violence notwithstanding the Commentary to the
guidelines' predetermined list of (violent) crimes"), cert. denied, 110
S. Ct. 1831 (1990). The court also held that departure "on the grounds
that the sentence was simply too harsh" was improper.
U.S. v. Gonzalez-Lopez, No. 89-8093 (11th Cir. Sept. 7, 1990) (Cox,
J.)
U.S. v. O'Neal, 910 F.2d 663 (9th Cir. 1990) (offenses of being a
felon in possession of a firearm, assault with a deadly weapon, and
vehicular manslaughter "qualify as violent felonies under Guideline
4B1.1").
U.S. v. Aichele, No. 89-10547 (9th Cir. Aug. 30, 1990) (Noonan, J.)
(reckless driving conviction is not "minor traffic infraction," U.S.S.G.
Section 4A1.2(c)(2), and therefore may be included in criminal history
calculation -- defendant's offense did not meet definition of
"infraction" in U.S.S.G. Section 1B1.9, comment. (n.1), and Guidelines
rather than state law should be used to determine this question).
U.S. v. Fousek, No. 89-5358 (8th Cir. Aug. 29, 1990) (per curiam)
(because nothing in the Guidelines "indicates that the Commission
considered the circumstance of a bankruptcy trustee embezzling estate
funds . . . the district court did not err in taking into consideration
(defendant's) position as a bankruptcy trustee as a basis for upward
departure" to 36 months from range of 12-18 months; proper to base
departure on U.S.S.G. Section 2F1.1, comment. (n.9) ("the offense caused
a loss of confidence in an important institution"), even though
defendant was sentenced under Section 2B1.1 -- "the court may depart
from the guidelines, even though the reason for departure is listed
elsewhere in the guidelines," U.S.S.G. Section 5K2.0, p.s.).
U.S. v. Carpenter, No. 89-30290 (9th Cir. Aug. 23, 1990) (Wallace,
J.) (affirming departure to 108 months from 51-63 month range for
defendant who hired two juveniles to attempt to murder his wife -- the
risks created to others by giving juveniles a rifle and instructing them
to either run the wife's car off a road with a logging truck or blow up
her house trailer, were not accounted for in the guideline calculation
and "creation of a risk" may provide basis for departure, U.S.S.G.
Section 1B1.3, comment. (n.4); also, district court reasonably
calculated extent of departure by analogizing to guidelines -- to
Section 2A2.1(b)(2) for possession of the weapon by juveniles and to
Section 3A1.1 for the risk to others -- and increasing defendant's
offense level accordingly).
U.S. v. Castro-Cervantes, 911 F.2d 222 (9th Cir. 1990) (improper to
depart upward on basis that bank robbery defendant was part of
"organized group" -- "the Guidelines implicitly take into account
participation by a robber as a member of a ring" in the role in offense
guideline, U.S.S.G. Section 3B1).
U.S. v. Harrington, 741 F. Supp. 968 (D.D.C. 1990) (Court departed
downward to 60-month statutory minimum from 97-121 month range for
first-time drug offender with long history of addiction because
defendant's substantial progress in drug treatment programs since arrest
indicated likelihood of successful rehabilitation. Court found -- after
a report from amicus appointed to research the issue -- that the
Guidelines did not preclude downward departure under these
circumstances: "Examination of the four corners of the Guidelines and
official comment on them provides no indication that the Commission
addressed the case of a first offender drug addict found by expert
opinion to be a likely candidate for successful treatment for drug
addiction. . . . Neither does the Sentencing Commission's rejection of
addiction as a factor to be considered in sentencing, Sentencing
Guideline Section 5H1.4 para. 2, establish that the Sentencing
Commission considered the likelihood of successful treatment for
addiction." Court also determined that, although Congress "rejected
imprisonment as a means of promoting rehabilitation" in passing the
Sentencing Reform Act of 1984, it "did not foreclose consideration of a
defendant's prospect of rehabilitation as a factor to be considered in
determining the duration of a prison sentence."). See also U.S. v.
Maddalena, 893 F.2d 815 (6th Cir. 1989) (sentencing court may consider
"defendant's efforts to stay away from drugs as a basis for departing")
U.S. v. Dycus, No. 89-6594 (6th Cir. Aug. 29, 1990) (per curiam,
unpublished) (affirming upward departure for defendant with history of
serious and repeated firearms offenses and 19 criminal history points;
extent of departure, from 24-30 month range to 46 months, was reasonably
based on "a hypothetical criminal history category VIII into which a
criminal history score of 19 would fall").
U.S. v. Williams, No. 89-3084 (7th Cir. Aug. 27, 1990) (Ripple, J.)
(convictions more than fifteen years old that are not "evidence of
similar misconduct," U.S.S.G. Section 4A1.2(e)(1), comment (n.8),
properly used for departure "as part of an overall assessment of the
defendant's criminal background" under Section 4A1.3 when such
convictions constituted "'reliable information' indicating more
extensive criminal conduct than otherwise reflected by the criminal
history category"; although prior arrest record itself cannot provide
basis for departure, "the guidelines allow the district court to go
beyond the arrest record itself and to consider whether the underlying
facts evidence 'prior similar adult conduct not resulting in a criminal
conviction'" under Section 4A1.3(e)).
U.S. v. Damer, 910 F.2d 1239 (5th Cir. 1990) (per curiam) (affirming
district court's refusal to grant downward departure for substantial
assistance after government made U.S.S.G. Section 5K1.1 motion -- "once
the government has filed its 5K1.1 motion, application of downward
departure is left to the discretion of the sentencing court," and here
the court did not abuse its discretion in sentencing defendant within
the guideline range).
U.S. v. Peralta, 741 F. Supp. 1197 (D. Md. 1990) (in making downward
departure for substantial assistance under 18 U.S.C. Section 3553(e) and
U.S.S.G. Section 5K1.1, sentencing court "has no authority to consider
factors other than those relevant to substantial assistance" -- the
court's "scope of discretion to evaluate the value of substantial
assistance does not include the right to consider unrelated grounds for
a departure such as, in this case, the alleged extraordinary family
circumstances or emotional state of the defendant").
VOLUME 3, NUMBER 12
SEPTEMBER 11, 1990
Fifth Circuit holds that applying guideline amendment effective
before sentencing but after arrest, which could result in longer
sentence, violates ex post facto clause; scienter required for
enhancement for possession of weapon during drug offense committed
before November 1989. Defendant pled guilty to a drug charge and was
given a two-level increase for possession of a firearm during the
offense, U.S.S.G. Section 2D1.1(b). The district court found that
defendant possessed the firearm and that she did so during a drug
offense, but did not make the finding of scienter that defendant argued
should be required following U.S. v. Burke, 888 F.2d 862 (D.C. Cir.
1989). The court in Burke based its decision on an earlier version of
U.S.S.G. Section 1B1.3(a)(3), holding that it "require(d) a showing of
scienter under section 2D1.1(b)" that a defendant possessed the weapon
"intentionally, recklessly or by criminal negligence."
The Fifth Circuit "agree(d) with the D.C. Circuit that the (former)
version of Section 1B1.3(a)(3) . . . 'operate(d) to require a showing of
scienter under section 2D1.1(b).'" The question in this case, however,
was whether that version of Section 1B1.3(a)(3) should be applied to
this defendant, or the amended version, effective Nov. 1, 1989, that
deleted the scienter language relied on in Burke. The Sentencing Reform
Act of 1984, at 18 U.S.C. Section 3553(a)(4) and (5), states that
sentencing courts "shall consider" guidelines and policy statements
"that are in effect on the date the defendant is sentenced." Defendant
was arrested before, but sentenced after, Section 1B1.3(a)(3) was
amended, and applying the amended guideline might result in a longer
sentence than if the earlier version were applied. This, the court
held, would violate the ex post facto clause: "Were the district court
now to find that (defendant) lacked the scienter required by the
pre-November 1989 version of Section 1B1.3, its enhancement of a
sentence under the current version (which does not require scienter)
would obviously violate the ex post facto clause. . . . Because amended
Section 1B1.3 may increase (defendant's) punishment, the amendment is
not simply a change in procedure which does not affect a matter of
substance."
Remanding, the court instructed the district court to follow the
version of Section 1B1.3 in effect when defendant was arrested, and
determine whether she possessed the firearm "intentionally, recklessly
or by criminal negligence."
U.S. v. Suarez, No. 90-1052 (5th Cir. Aug. 30, 1990) (Wiener, J.).
U.S. v. Smith, No. 89-2346 (6th Cir. Aug. 6, 1990) (per curiam) (the
"cross reference" provision in former U.S.S.G. Section 2K2.2(c) (Jan.
1988) (now Section 2K2.1(c)(2)), which directs courts to use guideline
for other offense defendant used firearm to commit if the resulting
offense level is higher than that for the Section 2K2.2 offense,
"applies to state as well as federal offenses"; however, the state
offense must also meet the federal definition of the offense -- here,
e.g., "the district court must apply the guidelines' definition of
aggravated assault to determine whether a state assault offense as
applied to a defendant's conduct falls within the guidelines' parameters
as the base offense of aggravated assault").
U.S. v. Graves, No. 89-50391 (9th Cir. July 16, 1990) (Price, Dist.
J.) (for enhancement for bodily injury from an assault, U.S.S.G. Section
2A2.2(b)(3), "'the victim' . . . refers only to the victim of the
aggravated assault of which the defendant is convicted," and enhancement
is not applicable to injury inflicted in related assault charge that was
dismissed).
Seventh Circuit holds term of incarceration imposed after revocation
of supervised release is not limited by guideline sentence authorized
for original offense; however, total length of incarceration for
offense and for revocation is limited by statute. Defendant had been
sentenced to a three-month prison term and two-year period of supervised
release. After release from prison his supervised release was revoked
for violation of several conditions, and the district court sentenced
him to a year and a day in prison. Defendant argued that the term
imposed upon revocation could not exceed the maximum term under the
Guidelines for his original offense, which he claimed was eight months.
The appellate court affirmed the sentence, holding that 18 U.S.C.
Section 3583(e)(3) and the legislative history establish the intent to
allow a district court to "require the person (whose supervised release
is revoked) to serve in prison all or part of the term of supervised
release." Accord U.S. v. Lockard, . . . F.2d . . . (9th Cir. July 26,
1990). Thus "the district court did not err in fixing (defendant's)
period of post-release incarceration at a term that exceeded the maximum
allowable initial sentence." Cf. U.S. v. Smith, 907 F.2d 133 (11th Cir.
1990) (sentence after revocation of probation limited by sentence
authorized for original offense, 18 U.S.C. Section 3565(a)).
The court noted, however, that defendant's possible term of
incarceration after revocation was limited by the length of supervised
release allowed under Section 3583(e)(3) less the time served prior to
release. Section 3583(e)(3) states that "a person whose term is revoked
under this paragraph may not be required to serve more than . . . 2
years in prison if the offense (for which the person was convicted) was
a Class C or D felony." The court held that this language "places
absolute limits on the total length of the sentence an offender can
serve pre- and post-release, for each category of crime. Because
(defendant) committed a Class D felony, section 3583(e)(3) limits his
total prison sentence for that crime to two years. . . . (T)he maximum
allowable prison sentence the district court could have imposed upon
(defendant) when revoking his supervised release (was limited) to
twenty-one months, two years less the three months served prior to his
supervised release." But cf. Lockard, supra (affirming two-year prison
term after revocation for defendant who originally committed Class C
felony and served 9-month term).
U.S. v. Dillard, No. 89-3056 (7th Cir. Aug. 17, 1990) (per curiam).
U.S. v. Eckford, No. 89-4862 (5th Cir. Aug. 20, 1990) (Johnson, J.)
(when calculating criminal history score under U.S.S.G. Section 4A1.1,
"district court may consider . . . prior uncounseled misdemeanor
convictions for which the defendant did not receive a term of
imprisonment").
U.S. v. Barnes, No. 89-6179 (6th Cir. Aug. 13, 1990) (Guy, J.)
(affirming upward departure for defendant convicted of being felon in
possession of firearm -- defendant had prior conviction for same
offense, committed instant offense only two months after release from
prison on earlier offense, and "prescribed guideline range would have
resulted in a sentence less than the sentence the defendant received on
his prior conviction for the same offense").
U.S. v. Parker, No. 90-1046 (6th Cir. Aug. 30, 1990) (Nelson, J.)
(district court may not make downward departure for sole purpose of
harmonizing sentence with that of codefendant when defendants' conduct
and records were dissimilar). Accord U.S. v. Enriquez-Munoz, 906 F.2d
1356 (9th Cir. 1990).
U.S. v. Whitehorse, 909 F.2d 316 (8th Cir. 1990) (downward departure
for escape defendant appropriate because of "prison officials'
ill-advised decision to release (defendant) on unsupervised furlough
despite her alcohol addiction," fact that defendant would lose two
months of "good time" credits for escape, and defendant's need for
treatment outside of prison -- defendant failed to return to prison
because she immediately went on drinking spree that prison officials
should have foreseen, and the circumstances of this case were not
considered in Guidelines; also proper under these facts to depart and
impose sentence concurrent to term being served, despite provision in
U.S.S.G. Section 5G1.3 to impose consecutive sentence, which effectively
resulted in no additional time served for escape).
U.S. v. Brown, No. 89-6342 (10th Cir. Aug. 29, 1990) (McKay, J.)
(government's confidential memorandum to court outlining defendant's
assistance is not "functional equivalent" of government motion to depart
under 18 U.S.C. Section 3553(e) or U.S.S.G. Section 5K1.1, p.s.). Cf.
U.S. v. Coleman, 895 F.2d 501 (8th Cir. 1990) (letters outlining
defendant's cooperation are not "functional equivalent" of motion).
U.S. v. Zweber, 89-30235 (9th Cir. Aug. 31, 1990) (Fletcher, J.)
("defendants could receive reductions (as minor or minimal participants
under U.S.S.G. Section 3B1.2) only for their roles in their offenses of
conviction, but not their roles in the uncharged and unconvicted
conspiracy"). See also U.S. v. Barbontin, 907 F.2d 1494 (5th Cir.
1990); U.S. v. Pettit, 903 F.2d 1336 (10th Cir. 1990); U.S. v.
Tetzlaff, 896 F.2d 1071 (7th Cir. 1990); U.S. v. Williams, 891 F.2d 921
(D.C. Cir. 1990).
U.S. v. Watkins, No. 90-4205 (5th Cir. Aug. 27, 1990) (Johnson, J.)
(affirming denial of reduction for acceptance of responsibility for
defendant convicted of possessing stolen treasury checks who used drugs
while on release pending sentencing -- unlawful conduct providing basis
for denial of reduction need not be related to offense of conviction).
U.S. v. Ramirez, No. 90-1329 (2d Cir. Aug. 17, 1990) (per curiam)
(affirming denial of reduction even though district court improperly
based denial in part on defendant's refusal to accept responsibility for
conduct outside offense of conviction, see U.S. v. Oliveras, 905 F.2d
623 (2d Cir. 1990) -- there were other, valid reasons for the denial,
and "we (can) affirm on that other (clearly permissible) basis
notwithstanding the court's reliance on one flawed basis," U.S. v.
Santiago, 906 F.2d 867 (2d Cir. 1990)).
U.S. v. Fortier, No. 89-5179ND (8th Cir. Aug. 22, 1990) (Arnold, J.)
(reversing finding that additional amount of cocaine was part of
relevant conduct that should be included in offense level -- court based
finding that cocaine belonged to defendant on multiple hearsay without
making independent finding that the hearsay was reliable; hearsay is
admissible at sentencing hearings, but "hearsay statements admitted
against a defendant . . . violate the Confrontation Clause unless a
court finds that the declarant is unavailable and that there are indicia
of reliability supporting the truthfulness of the hearsay statements").
U.S. v. Kemper, No. 89-6197 (6th Cir. July 19, 1990) (Contie, Sr. J.)
(error to reject plea agreement that stipulated to amount of drugs in
offense, and thereby to a specific guideline range, and sentence
defendant using larger amount from presentence report -- plea agreement
contained binding recommendation for specific sentence pursuant to Fed.
R. Crim. P. 11(e)(1)(C), and while court may reject such a plea
agreement if it concludes guideline range was incorrectly calculated,
see U.S.S.G. Sections 6B1.2(c), p.s., and 6B1.4(d), p.s., it must then
afford defendant opportunity to withdraw guilty plea, U.S.S.G. Section
6B1.3, p.s. (citing Fed. R. Crim. P. 11(e)(4)).
VOLUME 3, NUMBER 11
AUGUST 31, 1990
Ninth Circuit holds additional term of supervised release may not be
imposed when original term is revoked. Defendant had completed his
prison term and was serving his term of supervised release when he
violated a condition of release. The court revoked release, sentenced
defendant to a 10-month term of imprisonment, and imposed a new 24-month
term of supervised release to follow incarceration. Defendant was also
ordered to pay restitution and a fine relating to the violation.
In what appears to be the first reported appellate decision on this
issue, the circuit court reversed and remanded, holding that 18 U.S.C.
Section 3583(e) and U.S.S.G. Section 7A1.3(b), p.s., do not permit
imposition of an additional term of supervised release after revocation.
When revocation is discretionary, the statute and guideline allow a
court to extend and/or modify the term of supervised release, or to
revoke release. Following the rules of statutory interpretation, the
court concluded that "a district court is not permitted to revoke a
person's supervised release, order a term of incarceration and then
order another term of supervised release."
The court also held that neither the statute nor the guideline
authorizes imposition of restitution or a fine when a person violates a
condition of supervised release.
U.S. v. Behnezhad, 907 F.2d 896 (9th Cir. 1990).
U.S. v. Lockard, No. 89-50469 (9th Cir. July 26, 1990) (Thompson, J.)
(affirming two-year sentence imposed after revocation of two-year term
of supervised release -- court may "require the person to serve in
prison all or part of the term of supervised release without credit for
time previously served on postrelease supervision," 18 U.S.C. Section
3583(e)(3)).
Eleventh Circuit holds that sentence imposed after probation
revocation is limited by sentence authorized for original offense.
Defendant's probation was revoked after he violated one of its
conditions. His guideline range for the underlying offense had been
4-10 months, and his sentence was three years' probation with four
months served at a community treatment center. After revocation the
probation officer calculated a new guideline sentence, using both the
original offense and the conduct underlying the probation violation
(simple possession of drugs), for a range of 12-18 months. The district
court determined that the Guidelines do not apply to sentences after
probation revocation and that the statutory maximum for the original
offense controls, and imposed an 18-month prison term and three-year
term of supervised release.
Finding this to be a "case of first impression for the courts of
appeals," the appellate court reversed and remanded, holding that the
guideline sentence from the original offense limited the sentence that
could be imposed on revocation. The relevant statute, 18 U.S.C. Section
3565(a)(2), allows a court to "revoke the sentence of probation and
impose any other sentence that was available under subchapter A (18
U.S.C. Sections 3551-3559) at the time of the initial sentencing." The
court concluded that, for defendants sentenced under the Guidelines, the
"sentence that was available . . . at the time of the initial
sentencing" means the original guideline sentencing range, and "the
original determinations of total offense level and criminal history
category, based upon relevant facts established at the time of
sentencing, delimit the sentences that were then available. The
probation officer's use of the guidelines (in this case) -- adding the
base offense level for the post-sentencing conduct that violated
probation to the total offense level for the offense of conviction --
was clearly incorrect in light of section 3565."
The court added that the question of whether and to what extent the
district court may depart is also controlled by "the relevant sentencing
facts originally before the court rather than on the conduct that
constituted the probation violation." If departure was available at the
original sentencing, however, later conduct may be used in deciding
whether to depart when sentencing for the probation revocation. Also,
the later conduct may be used in determining where to sentence within
the guideline range, and whether to impose a discretionary term of
supervised release.
U.S. v. Smith, 907 F.2d 133 (11th Cir. 1990).
U.S. v. Smith, No. 89-1512SI (8th Cir. July 27, 1990) (Arnold, J.)
(affirming downward departure for career offender, from 292-365 month
range to 240 months -- "The relatively minor nature of (defendant's)
crimes, the briefness of his career, and his (young) age at the time the
crimes were committed make this an unusual case. The factors that make
the appellant a career offender are only barely present.").
U.S. v. Gaddy, No. 89-3037 (7th Cir. July 26, 1990) (Flaum, J.)
(departure may be based on pending charges of similar criminal conduct,
see U.S.S.G. Section 4A1.3(e), p.s. (departure may be considered for
"prior similar adult criminal conduct not resulting in a criminal
conviction")). But cf. U.S. v. Cantu-Dominguez, 898 F.2d 968 (5th Cir.
1990) (history of arrests, without more, cannot provide basis for
departure, citing U.S.S.G. Section 4A1.3, p.s.).
U.S. v. Montenegro-Rojo, 908 F.2d 425 (9th Cir. 1990) (vacating
earlier opinion, 900 F.2d 1376 (3 GSU #7), and holding that departure
must be remanded because district court did not state its reasons for
extent of departure; disciplinary problems during prior prison term
provide basis for departure).
U.S. v. Doering, No. 89-50092 (9th Cir. July 26, 1990) (per curiam)
(vacating upward departure imposed partly for purpose of securing
psychiatric treatment for defendant -- language of Guidelines, Sections
5H1.3 and 5K2.13, and of 28 U.S.C. Section 994(k), "makes abundantly
clear that the need for psychiatric treatment is not a circumstance
which justifies departure").
Fifth Circuit holds obstruction of justice enhancement is not
applicable to conduct that occurred before, not during, investigation or
prosecution of offense. Defendant attempted to ship firearms illegally
and used an alias when he gave the package to the shipper. The
sentencing court held that the use of the alias impeded the
investigation of the offense and warranted the enhancement for
obstruction of justice.
The appellate court reversed, basing its decision on the plain
language of U.S.S.G. Section 3C1.1: "There is simply no evidence that
(defendant) wilfully impeded or obstructed the administration of
justice, or attempted to do either, during the investigation or
prosecution of his offense. (Defendant) did not misrepresent his
identity to law enforcement officers; he misrepresented it to Federal
Express. At that time, (he) was unaware that any investigation was
taking place and prosecution had not yet begun. His intent clearly was
not to impede the investigation or prosecution of his offense. His
intent was to disguise himself in such a way so that his crime would go
unpunished. . . . Were we to countenance an offense level increase in
this instance, then consistency would demand that we permit it in a case
in which the defendant wears a mask, where he disguises his voice, he
leaves town, uses gloves, and so forth. This is not the type of conduct
intended to be covered by Section 3C1.1."
In a later case, the Fifth Circuit reversed an obstruction
enhancement given to an assault defendant who had concealed the gun he
used immediately after committing the offense but before the
investigation had begun.
U.S. v. Wilson, 904 F.2d 234 (5th Cir. 1990).
U.S. v. Luna, 909 F.2d 119 (5th Cir. 1990) (per curiam).
U.S. v. Lueddeke, No. 89-1988 (7th Cir. July 27, 1990) (Cudahy, J.)
(defendant convicted of perjury and obstruction of justice offenses
properly received Section 3C1.1 enhancement for obstruction of justice
for additional acts of interference with the investigation of those
offenses, see U.S.S.G. Section 3C1.1, comment. (n.4)).
U.S. v. Gaddy, No. 89-3037 (7th Cir. July 26, 1990) (Flaum, J.)
(Section 3C1.1 obstruction enhancement properly given to defendant who
gave false name after arrest and falsely claimed he had never been
arrested and had no fingerprints on file -- defendant gave true name two
days after arrest but "he had gone sufficiently forward to constitute an
attempt" to obstruct justice). See also U.S. v. Blackman, 904 F.2d 1250
(8th Cir. 1990) (use of alias after arrest warranted enhancement for
obstruction of justice even though police actually knew defendant's true
identity -- "Section 3C1.1 specifically encompasses an attempt to impede
or obstruct justice") (changing prior decision, at 897 F.2d 309, on
rehearing).
U.S. v. Garcia, No. 89-50589 (9th Cir. July 25, 1990) (Noonan, J.)
(Section 3C1.1 obstruction enhancement should not have been given to
defendant for brief attempt to evade arrest; also noting that a pending
amendment to Section 3C1.1, to take effect Nov. 1, 1990, will exclude
flight from arrest as an obstruction of justice). Accord U.S. v.
Stroud, 893 F.2d 504 (2d Cir. 1990).
U.S. v. Perry, 908 F.2d 56 (6th Cir. 1990) (obstruction enhancement
properly given to defendant who fled jurisdiction while on bond pending
sentencing and thereby delayed sentencing for the eight months he was at
large).
U.S. v. Creech, No. 89-6199 (10th Cir. June 26, 1990) (Moore, J.)
(reversing vulnerable victim finding, U.S.S.G. Section 3A1.1, for
defendant who threatened to harm family of recently married individual
-- court held that victim's recent marriage may have made the crime
possible, but did not make him "vulnerable" within meaning of guideline
enhancement).
U.S. v. Barbontin, 907 F.2d 1494 (5th Cir. 1990) (when imposing
U.S.S.G. Section 3B1.1(a) enhancement for being leader of criminal
activity involving five or more participants, sentencing court (1) must
make specific finding that five or more participants were involved, cf.
U.S. v. Lanese, 890 F.2d 1284 (2d Cir. 1989) (Section 3B1.1(b) requires
specific finding of the identities of the five or more participants),
cert. denied, 110 S. Ct. 2207 (1990); (2) may count defendant as one of
the participants, accord U.S. v. Preakos, 907 F.2d 7 (1st Cir. 1990)
(per curiam); and (3) may calculate "inferentially" the number of
participants, "provided that the court does not look beyond the offense
of conviction," see also U.S. v. Pettit, 903 F.2d 1336 (10th Cir. 1990)
(Section 3B1.1 adjustments must be based only on offense of conviction,
not related conduct); U.S. v. Tetzlaff, 896 F.2d 1071 (7th Cir. 1990)
(same); U.S. v. Williams, 891 F.2d 921 (D.C. Cir. 1989) (same)).
U.S. v. Jones, 908 F.2d 365 (8th Cir. 1990) (career offender
provision, U.S.S.G. Section 4B1.1, is ambiguous as to whether a
defendant who pleaded guilty to, but has not yet been sentenced for, two
prior violent felonies may be sentenced as career offender; "rule of
lenity" thus precludes sentencing as career offender, but sentencing
court may depart upward under Section 5K2.0 because of the unusual
circumstances and use Section 4B1.1 to guide extent of departure).
U.S. v. Garcia, No. 89-10332 (9th Cir. July 31, 1990) (Choy, J.)
(proper to apply U.S.S.G. Section 2D1.1(b)(1) enhancement to defendant
who was in backseat of car used in drug offense and driver had weapon
under floormat -- driver's possession of weapon was "reasonably
foreseeable" by defendant, see U.S.S.G. Section 1B1.3, comment. (n.1),
in light of the large amount of drugs involved).
U.S. v. Corley, 909 F.2d 359 (9th Cir. 1990) (following instruction
at end of Drug Quantity Table, U.S.S.G. Section 2D1.1(c), base offense
level is determined by number of marijuana plants when live plants are
seized, by weight for dried plants). Accord U.S. v. Bradley, 905 F.2d
359 (11th Cir. 1990) (per curiam).
U.S. v. Willard, No. 89-5244 (4th Cir. July 18, 1990) (Murnaghan, J.)
(sentencing judge may not sentence within an overlap and deliberately
avoid resolving a factual dispute solely because of the existence of
that overlap, unless the court makes "an express determination that the
sentence would be the same under either of the potentially applicable
ranges in the absence of any dispute as to which range applies").
U.S. v. Dean, No. 89-2786 (7th Cir. July 27, 1990) (Flaum, J.) (the
rule that the extent of a discretionary downward departure may not be
appealed by defendant also applies to substantial assistance departures
under U.S.S.G. Section 5K1.1, p.s. and 18 U.S.C. Section 3553(e)).
VOLUME 3 NUMBER 10
August 22, 1990
ACCEPTANCE OF RESPONSIBILITY
Ninth Circuit holds refusal to grant acceptance of responsibility
reduction may not be based on constitutionally protected conduct.
Defendant pled guilty to unarmed bank robbery. After arrest defendant
had requested an attorney, did not provide any statements to the
authorities or assist in the investigation, and did not offer to make
restitution until after his guilty plea. Following the recommendation
in thepresentence report, the district court denied the offense level
reduction for acceptance of responsibility because defendant had not
voluntarily surrendered to authorities or assisted in the recovery of
the money, factors listed in the commentary to U.S.S.G. Sec. 3E1.1
Defendant appealed, arguing that basing the denial on this "pre-plea
conduct" impermissibly punished him for exercising Fifth and Sixth
Amendment rights.
The appellate court held that "in determining a defendant's
acceptance of responsibility, a sentencing court cannot consider against
a defendant any constitutionally protected conduct, whether it occurs
before or after the entry of a plea. ...Thus, the district court may
not balance against evidence of remorse or acceptance of responsibility,
the fact that the defendant requested counsel, or relied upon the
privilege not to make any statement to the police or to assist them in
gathering inculpatory evidence. This construction of section 3E1.1 will
avoid an unconstitutional application of the Sentencing Guidelines."
Vacating and remanding, the court concluded that " p enalizing a
defendant for failing to provide evidence against himself or to make
incriminating statements violates his constitutionally protected
rights."
Defendant also argued that the district court erred in considering
only his pre-plea conduct, while ignoring his conduct and statements
after he had pleaded guilty. Without specifically ruling on this, the
appellate court directed the district court on remand to "make an
express finding regarding whether it has considered defendant's
post-plea conduct."
U.S. v. Watt, No. 88-3092 (9th Cir. Aug. 6, 1990) (Alarcon, J.).
U.S. v. Simpson, 904 F.2d 607 (11th Cir. 1990) (due process does not
require either sentencing judge or probation officer to inform defendant
that his sentence may be favorably adjusted under Guidelines for
acceptance of responsibility).
ROLE IN THE OFFENSE
U.S. v. Foreman, 905 F.2d 1335 (9th Cir. 1990) (abuse of position of
trust enhancement, U.S.S.G. Sec. 3B1.3, was properly given to police
officer who showed her badge and identified herself as active police
officer to DEA agents and Los Angeles police who stopped her for
questioning in airport; fact that defendant was not successful in
concealing her offense does not preclude enhancement--Sec. 3B1.3
applies to attempts to conceal).
U.S. v. Drabeck, 905 F.2d 1304 (9th Cir. 1990) (affirming Sec. 3B1.3
enhancement for abuse of position of trust for night-time janitor who
committed bank larceny--defendant had keys to bank, worked unsupervised,
and the access to areas not open to public).
OBSTRUCTION OF JUSTICE
U.S. v. Matos, 907 F.2d 274 (2d Cir. 1990) (enhancement under
U.S.S.G. Sec. 3C1.1 for obstruction of justice properly given for false
testimony at suppression hearing).
U.S. v. Dillon, 905 F.2d 1034 (7th Cir. 1990) (Sec. 3C1.1
enhancement properly given to defendant who gave false name for source
of cocaine, even though he recanted and provided true name the next
morning--government expended resources pursuing false lead, and
defendant received acceptance of responsibility reduction for subsequent
cooperation).
U.S. v. Lofton, 905 F.2d 1315 (9th Cir. 1990) (Sec. 3C1.1
enhancement properly given to defendant who, while in jail awaiting
sentencing for wire fraud charges, continued those activities using jail
telephone--defendant supplied material falsehoods to probation officer
by misleading officer that he had accepted responsibility for his
crimes, and also impeded the government's investigation of his
activities by causing it to expand the investigation to include the
later activity).
CALCULATION
U.S. v. Hanley, 906 F.2d 1116 (6th Cir. 1990) (commitment to juvenile
facility is "imprisonment" for purposes of U.S.S.G. Sec. 4A1.1(e)
enhancement for committing current offense "less than two years after
release from imprisonment").
CRIMINAL LIVELIHOOD
U.S. v. Irvin, 906 F.2d 1424 (10th Cir. 1990) (five to seven months
was "substantial period of time" within definition of "pattern of
criminal conduct" in criminal livelihood provision, U.S.S.G. Sec.
4B1.3).
DRUG QUANTITY
U.S. v. Havens, No. 89-2115 (10th Cir. Aug. 6, 1990) (McKay, J.)
(court may estimate drug quantity in attempt to manufacture
methamphetamine offense, even though at time of arrest drug could not be
manufactured because precursor chemical absent, see U.S.S.G. Sec.
2D1.4(a), comment. (n.2)).
MITIGATING CIRCUMSTANCES
Second Circuit holds government must have notice of downward
departure, but finds failure to give sufficient notice was "harmless
error" in this case; also, departure affirmed despite improper ground
because other grounds were sufficient. Defendant pled guilty to
bribery, and the guideline range was 15-21 months. The district court
imposed a three-year term of probation, explaining the departure was
justified by defendant's lack of a criminal record, his employment
record since coming to the U.S., and the "unusual nature of the bribery
transaction." The PSI did not indicate departure was warranted and the
court did not announce the departure until after both parties had spoken
at the sentencing hearing.
Noting that it had held in previous cases that defendants must be
given notice of upward departures prior to imposition of sentence, the
appellate court held "the same rule should apply to the government in
the context of downward departures." However, the court then held that
"the failure of the district court to give the government notice of its
intention to depart was harmless error." The court reasoned that the
government had, in fact, already argued against one of the departure
grounds, and that its other arguments would have failed.
The court held the departure appropriate even though one of the three
grounds--lack of criminal record--was clearly improper. Cf. Zamarripa,
infra. Although downward departure on the basis of employment history
is ordinarily not warranted, U.S.S.G. Sec. 5H1.5, p.s., the court
determined that "once it is coupled with the third factor--the unusual
circumstances of the offense--the district court was justified in
considering appellee's case to be sufficiently exceptional to justify
departure." The defendant's use of a personal check for the bribe,"in
the district court's view, reflected an utter lack ... of the
sophistication usually shown by persons bribing an official. Thus, the
picture painted of appellee is one of a person with an entirely stable
background, indicated by his employment history, and whose unusually
unsurreptitious conduct in undertaking the bribery constituted a
mitigating factor 'of a kind, or to degree' not adequately considered by
the Guidelines." But cf. U.S. v. Pozzy, 902 F.2d 133 (1st Cir. 1990)
(reversing downward departure based on aggregation of personal factors);
U.S. v. Brewer, 899 F.2d 503 (6th Cir. 1990) (same); U.S. v. Carey,
895 F.2d 318 (7th Cir. 1990) (same).
U.S. v. Jagmohan, No. 90-1045 (2d Cir. July 13, 1990) (Meskill, J.).
U.S. v. Goff, No. 89-5656 (4th Cir. July 6, 1990) (Wilkins, J.)
(vacating downward departure based on defendant's drug addiction,
receipt of drugs instead of money for participation in conspiracy,
responsibility for young children, longer sentence than co-conspirator
with more serious criminal history--Guidelines accounted for first three
factors and differences in conduct accounted for different sentence of
co-conspirator; court also held that "viewing the se factors
cumulatively" does not provide justification for departure, accord U.S.
v. Rosen, 896 F.2d 789, 792 (3d Cir. 1990) ("combination of typical
factors does not present an unusual case")).
U.S. v. Brand, 907 F.2d 31 (4th Cir. 1990) (vacating downward
departure based on personal circumstances of defendant and the
"devastating impact" her imprisonment would have on her two young
children--appellate court found that situation was not so out of the
ordinary as to warrant exception to general prohibition in U.S.S.G.
Sec. 5H1.6, p.s., against departures based on family ties and
responsibilities).
CRIMINAL HISTORY
U.S. v. Leake, No. 89-50266 (9th Cir. July 20, 1990) (Price, Sr.
Dist. J.) (pursuant to U.S.S.G. Sec. 4A1.2(e), comment. (n.8),
convictions too old to be counted in criminal history score may provide
basis for departure only if they are "evidence of similar misconduct" as
current offense--departure based partly on old assault convictions, for
defendant convicted of passing forged checks, must be remanded).
EVIDENCE FROM ANOTHER TRIAL
U.S. v. Notrangelo, No. 89-10221 (9th Cir. July 18, 1990) (Rymer, J.)
(reliable evidence from another trial may be used to adjust offense
level when defendant has notice and opportunity to challenge). Accord
U.S. v. Castellanos, 904 F.2d 1490 (11th Cir. 1990); U.S. v. Beaulieu,
893 F.2d 1177 (10th Cir. 1990). But see U.S. v. Chandler, 894 F.2d 463
(D.C. Cir. 1990) (per curiam) (table) (error to use amount of drugs
separately tried codefendant convicted of distributing).
EXTENT OF DEPARTURE
U.S. v. Vizcarra-Angulo, 904 F.2d 22 (9th Cir. 1990) ("defendant may
not challenge on appeal the extent of a downward departure"). Accord
U.S. v. Left Hand Bull, 901 F.2d 647 (8th Cir. 1990); U.S. v. Wright,
895 F.2d 718 (11th Cir. 1990) (per curiam).
PROPER AND IMPROPER GROUNDS
U.S. v. Zamarripa, 905 F.2d 337 (10th Cir. 1990) (departure based on
proper and improper grounds must be remanded). Accord U.S. v.
Hernandez-Vasquez, 884 F.2d 1457 (5th Cir. 1990) (remanded because
appellate court could not determine that improper factor was not
necessary part of basis for departure). But see Jagmohan, supra ("two
of the three grounds relied on by the court are sufficient to sustain
the departure"); U.S. v. Franklin, 902 F.2d 501 (7th Cir. 1990)
("sentence can be upheld if, standing alone, the proper factors justify
the magnitude of departure"); U.S. v. Rodriquez, 882 F.2d 1059 (6th
Cir. 1989 (upheld because "seen as a whole, the sentence is
permissible"), cert. denied, 110 S. Ct. 1144 (1990).
U.S. v. Norquay, 905 F.2d 1157 (8th Cir. 1990) (Guidelines apply to
violations of Indian Major Crimes Act, 18 U.S.C. Sec. 1153, limited by
maximum and minimum sentences established by state law). Similar
conclusions with respect to the Assimilative Crimes Act, 18 U.S.C. Sec.
13, were reached in U.S. v. Leake, No. 89-50266 (9th Cir. July 20, 1990)
(Price, Sr. Dist. J.), and U.S. v. Garcia, 893 F.2d 250 (10th Cir.
1989), cert. denied, 110 S. Ct. 1792 (1990).
VOLUME 3 NUMBER 9
JULY 6, 1990
Ninth Circuit holds upward departure to equalize sentence with that
of codefendant is not permissible; also holds type and number of
weapons are invalid grounds for upward departure in U.S.S.G. Section
2K2.1 offense. Defendant pled guilty to one count of aiding and
abetting in providing false statements in firearms acquisition, and was
sentenced under Section 2K2.1. The district court departed from the
guideline range of 4-10 months to impose a two-year term.
The departure was partly based on the two-year sentence given to a
codefendant. In reversing, the appellate court noted that the
codefendant had confessed to another offense, and thus had not pled
guilty to the same crime as defendant, and that defendant had negotiated
a more favorable plea agreement. The court found it may be appropriate
in some cases to look behind the plea agreement to assess the actual
culpability of a defendant, but "there are two other important
principles that must also be considered. . . . Plea bargaining is a
critical tool in the criminal justice system. . . . Were the plea
bargaining process to lose its effectiveness as a result of judges
ignoring the benefits of the plea bargain to which defendants are
entitled, the consequences for both the criminal and civil justice
systems might well be disastrous."
The court also found such a departure "would seriously frustrate" the
Guidelines scheme and goal of limiting judicial discretion: "Judges
would be able to determine a defendant's sentence not just on the basis
of what the Guidelines provide with respect to his conduct but also on
what they provide with respect to the conduct of any of his
co-defendants. There is little indication in the Guidelines that the
Commission contemplated so expansive an approach. . . . In short, an
upward departure for purposes of equalization is not permissible."
The court also found that upward departure based on the type and
number of weapons -- 46 AK-47 rifles and 2 other rifles -- was not
permitted under the Guidelines. The court held that the Sentencing
Commission had adequately considered and rejected both circumstances in
determining a sentence under Section 2K2.1. Cf. U.S. v. Uca, 867 F.2d
783 (3d Cir. 1989) (upward departure based on number of guns improper
for defendant sentenced under U.S.S.G. Section 2K2.3 (1987)).
The district court had also based its departure on the ground that
defendant committed the offense "for no other reason than to satisfy his
greed." The appellate court found that "profit is a primary motivating
factor in many if not most types of crimes," and thus greed is not an
unusual or extraordinary circumstance that warrants departure.
U.S. v. Enriquez-Munoz, No. 89-10256 (9th Cir. June 28, 1990)
(Reinhardt, J.).
U.S. v. Morales, No. 89-1210 (2d Cir. May 30, 1990) (Cardamone, J.)
(personal characteristics of defendant that made him "particularly
vulnerable to in-prison victimization" -- namely his "diminutive size,
immature appearance and bisexual orientation" -- were proper grounds for
departure to the statutory minimum because "it is plain that the
Commission did not consider vulnerability to the extent revealed in this
record -- where the only means for prison officials to protect
(defendant) was to place him in solitary confinement"; also, sentencing
court did not improperly rely on factors in U.S.S.G. Section 5H1.1,
p.s., that should not ordinarily be used as grounds for departure).
U.S. v. Russell, No. 89-6142 (10th Cir. June 20, 1990) (Seth, Sr. J.)
(holding that in determining reasonableness of extent of departures
above criminal history category VI, "we should afford the trial judge
due deference and not 'lightly overturn determinations of the
appropriate degree of departure'"; court declined to impose any sort of
formula for computing such departures, finding that the Sentencing
Commission "would have provided such a formula had one been intended").
See also U.S. v. Bernhardt, No. 89-6323 (10th Cir. June 11, 1990)
(McKay, J.) ("Because the Sentencing Commission has provided no guidance
for determining the reasonableness of upward departures from category
VI, we must simply use our own judgment as to whether the sentence
imposed is proportional to the crime committed, in light of the past
criminal history."). Cf. U.S. v. Schmude, 901 F.2d 555 (7th Cir. 1990)
(suggesting increases in 10-15% increments if category VI is
inadequate).
U.S. v. Gardner, No. 89-6289 (10th Cir. June 18, 1990) (Ebel, J.)
(affirming departure to lower end of career offender range because
criminal history category VI underrepresented defendant's criminal
history -- although defendant was not a "career offender" because a
second violent felony was too old to be counted, his "criminal history
closely resembled that of a career offender and the district court's
decision to sentence defendant by reference to the career offender
provisions was reasonable, particularly where, as here, the district
court chose to sentence him to the lower range for a career offender").
U.S. v. Stacy, No. 89-2780 (7th Cir. May 17, 1990) (per curiam,
unpub. disposition) (affirming upward departure based on similarity of
crime to prior offense, accord U.S. v. Carey, 898 F.2d 642 (8th Cir.
1990); U.S. v. Luna-Trujillo, 868 F.2d 122 (5th Cir. 1989), and the
additional factor of proximity in time to similar prior offense, accord
U.S. v. Sturgis, 869 F.2d 54 (2d Cir. 1989)). See also U.S. v.
Chavez-Botello, No. 89-30175 (9th Cir. June 5, 1990) (per curiam)
(similarity between current offense and prior offenses is not considered
in Guidelines and may provide basis for departure).
U.S. v. Howard, 902 F.2d 894 (11th Cir. 1990) ("sentencing court is
obligated to rule on a (U.S.S.G.) section 5K1.1 motion at the time of
sentencing," and may not postpone the ruling on the basis that most of
defendant's agreed-upon cooperation had not yet occurred at time of
sentencing and government could later file motion under Fed. R. Crim. P.
35(b) for reduction of sentence).
U.S. v. Preakos, No. 90-1055 (1st Cir. June 21, 1990) (per curiam)
(when finding defendant was organizer or leader of criminal activity
involving "five or more participants," U.S.S.G. Section 3B1.1(a), may
count defendant as one of the five).
U.S. v. White, 903 F.2d 457 (7th Cir. 1990) (enhancement for
"vulnerable victim," U.S.S.G. Section 3A1.1, properly given to defendant
who took sixty-year-old man with respiratory problems hostage during
escape attempt).
U.S. v. Schroeder, 902 F.2d 1469 (10th Cir. 1990) (reversing
"official victim" enhancement under U.S.S.G. Section 3A1.2 for defendant
convicted of interstate communication of a threat to injure -- holding
an official victim under Section 3A1.2 must be the object of the threat,
whereas here the official merely received a threat directed at others).
U.S. v. Oliveras, No. 89-1380 (2d Cir. June 4, 1990) (per curiam)
(agreeing with U.S. v. Perez-Franco, 873 F.2d 455 (1st Cir. 1989), that
defendant need only accept responsibility for offense of conviction, and
not also for counts that have been dismissed). But see U.S. v. Gordon,
895 F.2d 932 (4th Cir. 1990) ("defendant must . . . accept
responsibility for all of his criminal conduct").
U.S. v. Garcia, 903 F.2d 1022 (5th Cir. 1990) (agreeing with U.S. v.
Watford, 894 F.2d 665 (4th Cir. 1990), that sentencing courts have
discretion to impose consecutive sentences when defendant is convicted
of both Guidelines and pre-Guidelines offenses).
U.S. v. Miller, 903 F.2d 341 (5th Cir. 1990) (agreeing with U.S. v.
Rogers, 897 F.2d 134 (4th Cir. 1990), and U.S. v. Fossett, 881 F.2d 976
(11th Cir. 1989), that district courts did not have discretion under the
former version of U.S.S.G. Section 5G1.3 to impose consecutive or
concurrent sentences, but that courts could depart to impose concurrent
sentences when appropriate). Contra U.S. v. Nottingham, 898 F.2d 390
(3d Cir. 1990) (Section 5G1.3 conflicts with statute, district courts
retain discretion); U.S. v. Wills, 881 F.2d 823 (9th Cir. 1989) (same).
U.S. v. Selfa, No. 89-10309 (9th Cir. June 14, 1990) (Schroeder, J.)
(rejecting defendant's argument for hearing to determine whether his two
previous bank robberies were "crimes of violence" under career offender
provision, holding "that persons convicted of (bank robbery under) 18
U.S.C. Section 2113(a) have been convicted of a 'crime of violence'
within the meaning of Guideline Section 4B1.1. We conclude that the
elements of the crimes of which defendant was previously convicted, and
not the particular conduct of the defendant on the day the crimes were
committed, should control. Further satellite factual hearings should
not be required as a matter of course in order to determine whether the
defendant has previously been convicted of crimes of violence"). Cf.
Taylor v. U.S., 110 S. Ct. 2143, 2160 (1990) (holding that, when
determining whether a prior offense was a "violent felony" under 18
U.S.C. Section 924(e), Career Criminals Amendment Act of 1986, trial
court is required "to look only to the fact of conviction and the
statutory definition of the prior offense," and not to the facts
underlying the conviction).
U.S. v. Castellanos, No. 88-3535 (11th Cir. June 13, 1990) (Tjoflat,
C.J.) (vacating prior opinion, at 882 F.2d 474 (2 GSU #12), and
clarifying earlier holding: "evidence presented at the trial of another
may not -- without more -- be used to fashion a defendant's sentence if
the defendant objects. In such a case, where the defendant has not had
the opportunity to rebut the evidence or generally to cast doubt upon
its reliability, he must be afforded that opportunity. It was never the
position of this panel that a sentencing court may not consider
testimony from the trial of a third party as a matter of laaw; rather,
we were of the view that a sentencing court must follow the procedural
safeguards incorporated in section 6A1.3 of the guidelines. . . .").
Cf. U.S. v. Beaulieu, 893 F.2d 1177 (10th Cir. 1990) (may use reliable
evidence from another trial). But see U.S. v. Chandler, 894 F.2d 463
(D.C. Cir. 1990) (per curiam) (table, unpub.) (error to use evidence
from codefendant's trial to determine drug quantity).
U.S. v. Dillon, No. 88-3505 (7th Cir. June 20, 1990) (Kanne, J.)
(upholding sentence even though district court erred in placing
defendant in criminal history category II instead of category I, because
resulting sentencing ranges overlapped and conduct that caused court to
use category II could have been used to sentence defendant at upper end
of the lower range -- disputes over proper criminal history category
need not be resolved if resulting ranges overlap and "it is reasonable
to conclude that the same sentence would have been imposed irrespective
of the outcome of the dispute"). Accord U.S. v. Williams, 891 F.2d 921
(D.C. Cir. 1989); U.S. v. Turner, 881 F.2d 684 (9th Cir.), cert.
denied, 110 S. Ct. 199 (1989); U.S. v. Bermingham, 855 F.2d 925 (2d
Cir. 1988).
VOLUME 3 NUMBER 8
JUNE 15, 1990
Fifth Circuit holds district court should link extent of departure to
penalty under analogous guideline. Defendant was convicted of two drug
offenses, and his guideline range was 70-87 months. The sentencing
court departed to impose concurrent sentences of 300 months because
defendant had involved a minor in the offenses.
The appellate court remanded for resentencing because defendant had
not been given proper notice of the intent to depart, and also because
the extent of departure was unreasonable. The court found that U.S.S.G.
Section 2D1.2, which enhances the base offense level for "Drug Offenses
. . . Involving Underage . . . Individuals," provided guidance as to
"what sentence would be appropriate for the involvement of juveniles in
drug trafficking." Had defendant been convicted of a drug offense
involving a minor under 21 U.S.C. Section 845b and sentenced pursuant to
Section 2D1.2, his maximum sentence would be 108 months. The court
concluded that "although . . . the district court is not strictly bound
by the e adjustment specified in section 2D1.2, (it) should explain its
reasons for going beyond it." See also U.S. v. Ferra, 900 F.2d 1057 (7th
Cir. 1990) (recommending that courts attempt to link extent of departure
to analogous guidelines).
U.S. v. Landry, No. 89-3275 (5th Cir. May 30, 1990) (Johnson, J.).
Other Recent Cases:
U.S. v. Shuman, No. 88-8885 (11th Cir. June 4, 1990) (Tjoflat, C.J.)
(affirming upward departure for defendant convicted of drug offenses who
had brought her son into drug-trafficking business and caused his
resulting chemical dependence; extent of departure, from 24-30 month
range to 40 months, was reasonable compared to enhancements for similar
aggravating factors under other guidelines).
U.S. v. Miller, No. 89-2765 (5th Cir. May 30, 1990) (Smith, J.)
(court may not base upward departure on fact that defendant, whose bank
robbery convictions from several different jurisdictions were
consolidated for sentencing, could have received far greater punishment
had he been sentenced separately in each jurisdiction -- Sentencing
Commission "must have contemplated and intended this difference," see
U.S.S.G. Sections 3D1.4 and 5G1.3; court also erred in using
defendant's alcohol dependency as basis for departure, see Section
5H1.4, p.s.).
U.S. v. Murillo, No. 89-3261 (5th Cir. May 23, 1990) (Johnson, J.)
(holding that it is within district court's discretion to "rely() solely
on information contained in a presentence investigation report in
departing upward"; also, departure for "disruption of governmental
function," U.S.S.G. Section 5K2.7, p.s., was proper for defendant who
helped illegal aliens fraudulently apply for amnesty, thereby
compromising government's amnesty program).
U.S. v. Colon, No. 89-1249 (2d Cir. May 18, 1990) (Winter, J.) (court
erred in using quantities of drugs in relevant conduct as basis for
discretionary upward departure instead of factoring them into the base
offense level -- those quantities must be considered in setting the base
offense level, see U.S. v. Schaper, infra).
U.S. v. Franklin, No. 88-3257 (7th Cir. May 7, 1990) (Kanne, J.)
(upward departure warranted for defendants who continued to use or deal
drugs while out on bond for current drug charge).
U.S. v. Richison, No. 89-10080 (9th Cir. Apr. 20, 1990) (per curiam)
(defendant's alcohol and cocaine abuse may provide basis for upward
departure, but district court must articulate why defendant's dependency
was unusual -- language of U.S.S.G. Section 5H1.4, p.s., "suggests that
the Commission meant to foreclose consideration of (drug or alcohol)
dependency only as a ground for downward departure, leaving open the
possibility of taking drug or alcohol abuse into account in determining
where within the Guidelines a sentence should fall, or whether an upward
departure is warranted, if extraordinary circumstances exist"; also
remanded for district court to state specific reasons for criminal
history departure from category I to category IV instead of to lower
category).
U.S. v. Pozzy, No. 89-1879 (1st Cir. Apr. 30, 1990) (Bownes, Sr. J.)
(reversing downward departure, holding that under facts of this case it
was improper to base departure on grounds that defendant was pregnant at
time of sentencing, she may have participated in offense only to go
along with her husband, her husband's imprisonment would affect her, and
there was no halfway house near her home; appellate court also rejected
the use of a "totality of the circumstances" approach to determining
whether departure is justified).
U.S. v. Robison, No. 89-3724 (6th Cir. June 1, 1990) (Jones, J.)
(vacating departure to career offender status based on criminal activity
not counted under career offender guideline: "district court cannot
arbitrarily change the requirements for career offender status
established by the Sentencing Commission simply because it feels that
(defendant) 'got a break'" in sentencing on a prior offense). See also
U.S. v. Hawkins, 901 F.2d 863 (10th Cir. 1990) (improper to depart based
on fact defendant "narrowly missed" career offender status).
U.S. v. Brown, No. 89-5346 (8th Cir. May 10, 1990) (Lay, C.J.)
(holding that district courts are not prohibited from considering
downward departure, pursuant to U.S.S.G. Section 4A1.3, for defendants
who are to be sentenced under career offender guideline, Section 4B1.1).
U.S. v. Pettit, No. 89-3127 (10th Cir. May 25, 1990) (Babcock, Dist.
J.) (agreeing with U.S. v. Tetzlaff, 896 F.2d 1071 (7th Cir. 1990), that
adjustments under U.S.S.G. Section 3B1.1 apply only to offense of
conviction and not to "defendant's role in other criminal conduct for
which he was not convicted"). Accord U.S. v. Williams, 891 F.2d 921
(D.C. Cir. 1989).
U.S. v. White, No. 89-1598 (7th Cir. May 24, 1990) (Coffey, J.)
(obstruction of justice enhancement, U.S.S.G. Section 3C1.1, is
applicable to defendant fleeing arrest "where the facts demonstrate
clear physical endangerment of others," in this case from high-speed
chase through residential area).
U.S. v. Altman, No. 89-1479 (2d Cir. Apr. 19, 1990) (Miner, J.)
(remanded because district court erred in not allowing medical testimony
at sentencing hearing bearing on whether defendant had the requisite
mental state for obstruction of justice under U.S.S.G. Section 3C1.1).
U.S. v. Braxton, No. 89-5651 (4th Cir. May 8, 1990) (Chapman, J.)
(remanding denial of reduction -- district court incorrectly found that
possibility of rehabilitation is a necessary element of acceptance of
responsibility, U.S.S.G. Section 3E1.1, and thus erred in denying
reduction to defendant whose mental condition seemed to preclude
rehabilitation).
U.S. v. Jones, No. 88-3377 (11th Cir. Apr. 30, 1990) (Tjoflat, C.J.)
(upholding finding that bank teller was "particularly susceptible" to
crime of bank larceny and was thus a "vulnerable victim" under U.S.S.G.
Section 3A1.1).
U.S. v. McNeal, No. 89-2570 (7th Cir. Apr. 20, 1990) (Manion, J.)
(agreeing with U.S. v. Williams, 892 F.2d 296 (3d Cir. 1989), that
unlawful possession of a gun while firing it is a "crime of violence"
under U.S.S.G. Section 4B1.2(1)).
See also U.S. v. Brown, supra.
U.S. v. Emanuel, No. 88-119 (S.D. Iowa Apr. 17, 1990) (Vietor, C.J.)
(rejecting government's contention that it has power to limit extent of
any sentence reduction under Fed. R. Crim. P. 35(b) -- "once the
government files a motion for reduction of sentence the sole power to
reduce the sentence and to determine the extent of any reduction rests
with the court"; however, "the court should accord considerable weight
to the government's view of how much to reduce the sentence").
U.S. v. Jones, No. 88-3377 (11th Cir. Apr. 30, 1990) (Tjoflat, C.J.)
(in order "to limit the objections cognizable on appeal" and facilitate
appellate review, court exercises its supervisory power to instruct
district courts "to elicit fully articulated objections, following
imposition of sentence, to the court's ultimate findings of fact and
conclusions of law").
U.S. v. Schaper, No. 89-1405 (2d Cir. May 16, 1990) (Winter, J.)
(district court is required under Guidelines to consider in the base
offense level calculation quantities of drugs that were neither seized
nor charged in the indictment if they were part of the same scheme or
plan as the offense of conviction, see U.S.S.G. Section 1B1.3(a)(2)).
U.S. v. Peoples, No. 89-10333 (9th Cir. May 29, 1990) (per curiam)
(agreeing with U.S. v. Williams, 879 F.2d 454 (8th Cir. 1989), that
enhancement under U.S.S.G. Section 2K2.1(b)(2), for stolen firearm does
not require participation in or knowledge of the threft by defendaaat).
U.S. v. Aguilera-Zapata, No. 89-1279 (5th Cir. May 9, 1990) (Garwood,
J.) (in order to apply enhancement for possession of weapon during drug
offense, U.S.S.G. Section 2D1.1(b), based on co-defendant's possession
of weapon, district court must find that possession was known or
"reasonably foreseeable" to the defendant; burden of proof is on
government, by preponderance of evidence).
U.S. v. Braxton, No. 89-5651 (4th Cir. May 8, 1990) (Chapman, J.)
(proper to determine offense guideline based on stipulation that
establishes more serious offense where there is no plea agreement but
defendant orally agreed to the facts of the more serious offense:
"stipulation" in U.S.S.G. Section 1B1.2(a) "is not used in a restrictive
way so that only an agreement designated as a 'stipulation' would comply
with the guideline. . . . There is no requirement in the guidelines . .
. that this stipulation must be in writing. It is only necessary that
the facts presented to the court establish a more serious crime and that
the defendant agree to the statement of facts.")
U.S. v. Franklin, No. 88-3257 (7th Cir. May 7, 1990) (Kanne, J.)
(remand not automatically required when district court relies on both
proper and improper grounds for upward departure -- "the sentence can be
upheld if, standing alone, the proper factors justify the magnitude of
departure"). Accord U.S. v. Rodriguez, 882 F.2d 1059 (6th Cir. 1989),
cert. denied, 110 S. Ct. 1144 (1990). Contra U.S. v. Hernandez-Vasquez,
884 F.2d 1314 (9th Cir. 1989) (remand required).
VOLUME 3 NUMBER 7
MAY 18, 1990
Ninth Circuit reissues Restrepo opinion. The Ninth Circuit has
withdrawn its earlier opinion in U.S. v. Restrepo, 883 F.2d 781 (9th
Cir. 1989) (2 GSU #12), and held that quantities of drugs in counts on
which a defendant is not convicted may be used to set the offense level:
"The Sentencing Commission's intent is clear: Amounts of drugs
calculated on the basis of conduct of which the defendant is neither
charged nor convicted but that were 'part of the same course of conduct
or common scheme or plan as the offense of conviction' may properly be
used to adjust the offense level."
The court also agreed with other circuits that "the standard of proof
required for factors enhancing a sentence is a preponderance of
evidence," but found that a "more demanding interpretation of the
preponderance standard is particularly appropriate for enhancement of a
sentence under the Guidelines." Thus, the court held "that when a
preponderance of the evidence standard is used in criminal sentencing to
increase the period of confinement, it means a sufficient weight of
evidence to convince a reasonable person of the probable existence of
the enhancing factor."
U.S. v. Restrepo, No. 88-3207 (9th Cir. May 8, 1990) (Boochever, Sr.
J.).
Seventh Circuit recommends approaches to calculating extent of
departures based on seriousness of crime. Defendant was convicted of
drug and firearms offenses. The district court departed from the
guideline range of 41-51 months to a 120-month term. The court found
departure was warranted because defendant's criminal history category
underrepresented the seriousness of his criminal history and likelihood
of future criminal activity, and because the offenses of conviction --
selling two guns and 5.83 ounces of cocaine -- understated the
seriousness of defendant's criminal activity, a large-scale fencing
operation in which stolen guns were frequently purchased with cocaine.
In remanding because the district court failed to explain why it
selected 120 months, the appellate court stressed that "(e)very
departure must be 'reasonable' in extent" and courts should attempt to
"link the extent of departure to the structure of the guidelines." The
court referred to procedures for computing criminal history departures,
see U.S.S.G. Section 4A1.3, p.s. ("use, as a reference, the guideline
range for a defendant with a higher or lower criminal history
category"); U.S. v. Schmude, -- F.2d -- (7th Cir. Apr. 6, 1990)
(suggesting increases in 10-15% increments if category VI is
inadequate), and concluded that a similar approach "should be used for
departures based on the seriousness of the crime. . . . In departing
the judge should compare the seriousness of the aggravating factors at
hand with those the Commission considered. Congress prescribed the
method of analogy for crimes without guidelines, 18 U.S.C. Section
3553(b), and it is equally appropriate for crimes with guidelines but
without sufficient detail in the lists of aggravating and mitigating
circumstances. So if possessing a gun during a sale elevates the
offense by two levels, the judge might conclude that buying a gun with
drugs elevates the offense by four levels, an upward 'departure' of two
levels." But cf. U.S. v. Rodriguez-Castro, No. 89-50093 (9th Cir. May
10, 1990) (Hall, J.) (citing Montenegro-Rojo, infra, upholding upward
departure and finding that "a district court need not justify the amount
of its sentence by explicit analogy," although court "urge(d) district
courts to fully explain the reasons for the degrees of their
departures").
The court also suggested that "(a)n alternate method of computing
upward departures is to treat the aggravating factor as a separate crime
and ask how the defendant would be treated if convicted of it. . . .
See United States v. Kim, 896 F.2d 678, 684-86 (2d Cir. 1990),
recommending this analogy to the grouping rules as the standard way to
determine the amount of departure." The court found that doing so in
this case would result in a guideline range of 70-87 months. The court
emphasized that "(s)ince this is what (defendant) would have received
had he been convicted of fencing, a 'departure' should not exceed this
level. It would throw the structure of the guidelines out of kilter to
say that a defendant may receive more time on a 'departure' than he
could have received had he been convicted of the crime leading the judge
to depart."
U.S. v. Ferra, No. 89-1507 (7th Cir. Apr. 24, 1990) (Easterbrook,
J.).
Other Recent Cases:
U.S. v. Hawkins, No. 89-6192 (10th Cir. Apr. 20, 1990) (Moore, J.)
(District court departed upward, finding that bank robbery defendant's
false claim of possessing a weapon and threat to kill teller were
aggravating circumstances. Appellate court remanded, holding that
threat or intimidation is an element of the offense of robbery and that
"use of a weapon (under U.S.S.G. Section 5K2.6, p.s.) does not include
claimed possession of a nonexistent weapon," see also U.S. v. Coe, 891
F.2d 405 (2d Cir. 1989). District court also departed pursuant to
Section 5K2.9, based on defendant's admitted crack habit, but appellate
court held "fact that defendant has an addiction, without more, does not
suggest a connection between the charged offense and additional criminal
conduct to which Section 5K2.9 applies." Departure based on fact
defendant "narrowly missed" career offender status also vacated: "One
is either a career offender or one is not. No allowance is made for
'close cases.' . . . It is not a province of district judges to
elasticize the constraints within which that definition exists.").
U.S. v. Bennett, No. 89-30130 (9th Cir. Apr. 11, 1990) (Canby, J.)
(affirming upward departure for defendant convicted of using telephone
to facilitate distribution of cocaine, from 8-14 month range to 24
months, based on "unusually large quantity of cocaine" -- fact that
offense level for crime is not correlated to quantity of drug does not
preclude departure based on large amount of drug in underlying offense).
Accord U.S. v. Williams, 895 F.2d 435 (8th Cir. 1990); U.S. v.
Crawford, 883 F.2d 963 (11th Cir. 1989); U.S. v. Correa-Vargas, 860
F.2d 35 (2d Cir. 1988).
U.S. v. Pridgen, No. 89-6086 (5th Cir. Apr. 6, 1990) (Jones, J.)
(upholding departure from 41-51 month range to 97 months for robbery
defendant who, as part of plea bargain to dismiss a separate charge of
kidnapping during robbery, had stipulated to that conduct -- the
four-level enhancement for kidnapping during bank robbery, U.S.S.G.
Section 2B3.1(b)(4), "does not . . . take into account the uniquely
severe punishment prescribed by Congress" for such an offense, namely a
ten-year minimum, and is "inadequate to reflect the seriousness of the
conduct" in this case, see 18 U.S.C. Section 3553(b)).
U.S. v. Gomez, No. 89-50254 (9th Cir. Apr. 2, 1990) (Boochever, Sr.
J.) (affirming departure to 24 months from 1-7 month range for defendant
convicted of transporting illegal aliens because of "dangerous and
inhumane" treatment of the aliens -- seven adults and one child were
placed in small sealed compartment over exhaust system in van).
U.S. v. Alvarez-Cardenas, No. 89-30060 (9th Cir. Apr. 27, 1990)
(Fernandez, J.) (rejecting defendant's claim that possible deportation
warranted downward departure -- "possibility of deportation is not a
proper ground for departure"). Cf. U.S. v. Ceja-Hernandez, 895 F.2d 544
(9th Cir. 1990) (per curiam) (reversing upward departure based on
anticipated deportation after release).
U.S. v. Montenegro-Rojo, No. 89-50134 (9th Cir. Apr. 12, 1990) (Hall,
J.) (holding that, under abuse of discretion standard for review of the
extent of a departure announced in U.S. v. Lira-Barazza, 897 F.2d 981
(9th Cir. 1990), "a district court's departed sentence may reasonably be
higher than any sentence authorized by an adjacent criminal history
category without the court having to explain why a sentence within the
adjacent category would not have sufficed. . . . (T)he district court's
failure to explain in any detail why it departed as much as it did . . .
does not by itself constitute a sufficient ground for resentencing";
also, disciplinary problems during prior prison term may provide basis
for departure, accord U.S. v. Keys, 899 F.2d 1000 (10th Cir. 1990)).
U.S. v. DeCicco, No. 89-2080 (7th Cir. Apr. 20, 1990) (Flaum, J.)
(reversing finding that defendant, who "organized" unknowing
participants in fraud scheme, qualified for enhancement under U.S.S.G.
Section 3B1.1(c) as an "organizer, supervisor or manager in any criminal
activity": "(W)e find that the Sentencing Commission intended Section
3B1.1 to apply only to situations where the offender organizes or leads
criminally responsible individuals"). Accord U.S. v. Carroll, 893 F.2d
1502 (6th Cir. 1990). But see U.S. v. Anderson, 895 F.2d 932 (9th Cir.
1990) (Section 3B1.1(c) applicable when codefendant tricked into
offense).
U.S. v. Duarte, No. 89-30136 (9th Cir. Apr. 27, 1990) (Alarcon, J.)
("(D)istrict court may, but need not, consider the defendant's character
as described in letters to the court or probation office as a basis for
finding a sentence within the Guideline range" -- concluding that
U.S.S.G. Section 5H1.6, p.s., Family Ties and Responsibilities, and
Community Ties, applies to departures, not to adjustments within the
guideline range, and 18 U.S.C. Sections 3553 and 3661 allow use of such
information in sentencing).
U.S. v. Owens, No. 89-1819 (8th Cir. Apr. 24, 1990) (McMillian, J.)
(remanding order of restitution because district court thought
restitution was mandatory -- although U.S.S.G. Section 5E1.1 states that
restitution "shall be ordered . . . in accordance with 18 U.S.C. Section
3663(d)," this language "require(s) only that restitution orders be
imposed in accordance with the (Victim and Witness Protection Act) and
not that restitution shall be ordered in every case"; also, indigency
does not bar a restitution order, but courts should make specific
findings as to indigent's ability to pay).
U.S. v. Rivers, No. S 89-0396 (D. Md. Apr. 9, 1990) (Smalkin, J.)
(holding, pursuant to U.S.S.G. Section 4B1.2(3)(B), that defendant was
not career offender because sentences for two prior felony convictions
should not be counted separately under Section 4A1.2 -- "accident of
geography" caused defendant to be sentenced separately for two robberies
within twelve days, one in Baltimore City and one in Baltimore County,
second prison term was made concurrent with first term, and cases "no
doubt . . . would have been consolidated for trial and/or sentencing"
had they occurred in same jurisdiction; court also found that "the two
prior robbery offenses were committed pursuant to a single plan" and
"are not to be separately counted for career offender purposes," see
Section 4A1.2, comment. (n.3)).
VOLUME 3 NUMBER 6
APRIL 27, 1990
Ninth Circuit holds extent of departure should be guided by analogy
to relevant guidelines, not by comparison to pre-Guidelines sentencing
practices. Defendant pled guilty to eight counts of bank robbery and
attempted bank robbery. Under the multiple counts guideline, U.S.S.G.
Section 3D1.4, his offense level was increased five levels for having
more than five offense units, resulting in a guideline range of 51-63
months. The district court departed and imposed a 120-month sentence
because of the number of offenses, see Section 3D1.4, comment.
(backg'd). The court identified the reason for departure by referring
to the presentence report's explanation of its recommendation for
departure, and stated that the extent of departure was based on a
comparison to a sentence it had imposed in a pre-Guidelines robbery
case.
The appellate court held that departure was warranted, and that
incorporating the presentence report in the statement of reasons
adequately identified the aggravating circumstance. The court held,
however, that the extent of departure was unreasonable for two reasons.
First, the district judge had "indicated that the departure was
determined at least in part by his own sentencing history prior to the
guidelines. This perpetuates the kind of sentencing disparity between
individual judges that the guidelines were designed to avoid. . . . It
was inappropriate for the district judge to refer to his pre-guidelines
sentencing habits in setting the amount of departure."
Second, the court determined that the Sentencing Commission intended
district courts to guide departures by analogy to relevant guidelines
when possible, and found that by analogy to Section 3D1.4 the district
court could have added one offense level for each of the uncounted
robberies, resulting in a range of 63-78 months. The court held the
120-month sentence "so greatly exceeds the amount suggested by analogy
that the amount of departure is unreasonable." The court noted that it
did "not imply that a departure by analogy always must be on a strict
proportional basis to the guidelines sentence. Factors other than the
number of offenses may be considered, . . . (and t)here may be many
other factors justifying results different from those derived by
analogy. . . . We hold only that, based on the legitimate factors
mentioned by the district judge in his initial sentencing, 120 months is
unreasonable."
U.S. v. Pearson, No. 89-50117 (9th Cir. Apr. 6, 1990) (Boochever, Sr.
J.).
Seventh Circuit outlines procedure for extent of departure when
Criminal History Category VI is inadequate; also recommends imposition
of consecutive sentences, when appropriate, in lieu of departure.
Defendant pled guilty to one count of dealing in firearms without a
license and one count of being a felon in possession of a firearm. His
criminal history put him in category VI, and the guideline range was
21-27 months. Finding that defendant's criminal history category
underrepresented the seriousness of his criminal past, the district
court departed to give 60-month terms on each count, concurrent with
each other and a state sentence defendant was serving.
The appellate court held that the extent of departure was
unreasonable, and in remanding gave instructions on how to calculate the
degree of departure: "For any given offense level, the Guidelines
sentencing range increases roughly ten to fifteen percent from one
Criminal History Category to the next higher category. In the case of a
Category VI defendant, a sentencing judge can use this ten to fifteen
percent increase to guide the departure. For example, if the grounds
justifying a conclusion that Category VI is inadequate would normally
have warranted a one category increase . . ., the sentencing judge
should consider sentencing the defendant within a range ten to fifteen
percent higher than the range corresponding to Criminal History Category
VI." The court found that the one valid aggravating circumstance in this
case did not warrant the departure to more than double the top of the
guideline range.
In remanding, the court also noted that the district court should
consider imposing consecutive sentences, pursuant to its discretion
under 18 U.S.C. Section 3584(a) and U.S.S.G. Section 5G1.3 (Nov. 1989),
instead of departing: "While district courts are given broad discretion
on whether to impose consecutive or concurrent sentences, we urge them
to refrain from departing upward from the Guidelines and then imposing
the sentence concurrent with an unexpired sentence if they can
accomplish the same length of incarceration by sentencing within the
Guideline range and imposing the sentence to run consecutive to an
unexpired sentence."
U.S. v. Schmude, No. 89-1478 (7th Cir. Apr. 9, 1990) (Kanne, J.).
Sixth Circuit holds conduct in dismissed count was not proper ground
for departure, but rather relevant conduct that should have been used to
calculate offense level. Defendant pled guilty to conspiracy to
maintain a "crack house." A second count, dropped as part of the plea
agreement, charged defendant with unlawful possession with intent to
distribute crack and cocaine within 1,000 feet of a school, an offense
subject to enhanced penalties. The district court departed, sentencing
defendant to 96 months instead of within the guideline range of 41-51
months. The court based the departure on the conduct in the dismissed
offense and, citing U.S.S.G. Section 5K2.14, p.s., "the extreme threat
to society" posed by crack.
The appellate court remanded, holding the district court erred when
"it considered the location of the crack house as a justification for an
upward departure when it should have considered this conduct in
calculating the defendant's base offense level. The guidelines are
clear that conduct other than that for which the defendant has been
convicted may be considered by the court in determining the appropriate
sentencing range. . . . The operation of this crack house close to two
schools clearly is 'conduct that was part of the same course of conduct'
as the conspiracy."
"Consideration of the location of the crack house in this case
implicates section 2D1.3 of the guidelines, which provides that the base
offense level is to be calculated 'corresponding to double the drug
amount involved . . . for distributing or manufacturing a controlled
substance . . . within 1000 feet of a schoolyard.' That is, the
consequence in this case of considering the location of the crack house
is to double the quantity of drugs considered in calculating the base
offense level."
The court also held that the dangers involved in running crack houses
had been adequately considered by the Sentencing Commission in
formulating the Guidelines, and therefore departure was not warranted
under Section 5K2.14, p.s.
U.S. v. McDowell, No. 89-3345 (6th Cir. Apr. 13, 1990) (Guy, J.).
U.S. v. Cantu-Dominguez, No. 89-2346 (5th Cir. Apr. 6, 1990)
(Reavley, J.) ("a history of arrests that did not result in convictions
. . . is not the type of 'reliable information' that justifies a
departure" under U.S.S.G. Section 4A1.3).
U.S. v. Anders, No. 89-5465 (6th Cir. Apr. 4, 1990) (Keith, J.)
(notice requirement satisfied when presentence report specifically
identifies factors warranting departure or court advises defendant it is
considering departure based on particular factors and allows defense
counsel opportunity to comment).
U.S. v. Fleener, No. 89-5474 (6th Cir. Apr. 9, 1990) (Suhrheinrich,
Dist. J.) (not error to allow acceptance of responsibility reduction,
U.S.S.G. Section 3E1.1, for defendant who raised entrapment defense at
trial).
U.S. v. Delloiacono, No. 89-1847 (1st Cir. Apr. 12, 1990) (Cyr, Dist.
J.) (remanding sentence of probation conditioned on 1,000 hours of
community service -- defendant's guideline range required that a
sentence of probation be coupled with some form of intermittent
confinement, and community service cannot be substituted for
confinement, see U.S.S.G. Sections 5C1.1(c)(2), 5C1.1(e)).
U.S. v. Rodriguez-Gonzalez, No. 89-1346 (2d Cir. Mar. 27, 1990)
(Feinberg, J.) (conduct that is the subject of a prior acquittal may be
used to justify sentencing enhancement under the Guidelines, here an
enhancement under U.S.S.G. Section 2D1.1(b)(1) for possession of weapon
during drug offense after acquittal under 18 U.S.C. Section 924(c)).
Accord U.S. v. Mocciola, 891 F.2d 13 (1st Cir. 1989). See also U.S. v.
Isom, 886 F.2d 736 (4th Cir. 1989) (acquitted offense used for
counterfeiting guideline enhancement); U.S. v. Juarez-Ortega, 866 F.2d
747 (5th Cir. 1989) (per curiam) (used for departure); U.S. v. Ryan,
866 F.2d 604 (3d Cir. 1989) (departure).
U.S. v. Luna, No. 89-00024-P (D. Me. Mar. 23, 1990) (Carter, C.J.)
(agreeing with U.S. v. Beaulieu, 893 F.2d 1177 (10th Cir. 1990), that
reliable evidence from a trial to which defendant was not a party may be
used to determine drug quantity for sentencing purposes). Contra U.S.
v. Castellanos, 882 F.2d 474 (11th Cir. 1989); U.S. v. Chandler, 894
F.2d 463 (D.C. Cir. 1990) (table, unpublished disposition).
U.S. v. Lang, No. 89-1464 (8th Cir. Mar. 28, 1990) (Hunter, Sr. Dist.
J.) (joining Sixth and Tenth Circuits in adopting three-step procedure
for review of departures in U.S. v. Diaz-Villafane, 874 F.2d 43 (1st
Cir.), cert. denied, 110 S. Ct. 177 (1989)).
U.S. v. Rivera, No. 89-1843 (5th Cir. Apr. 3, 1990) (Jolly, J.)
(remanding for determination whether quantity of drugs sold by
co-defendants should be attributed to defendant: "In the absence of a
finding that (defendant) knew or should have known of the distribution
of heroin by his co-defendants, or in the absence of a joint undertaking
or plan, the quantities of heroin distributed by persons other than
(defendant) should not have been included in the calculation of his base
offense level."). See also North, infra (reversing use in base offense
level calculation of drug quantity that co-conspirator had obtained and
sold without knowledge of or benefit to defendant).
U.S. v. North, No. 89-1870 (8th Cir. Apr. 2, 1990) (Lay, C.J.)
(reversing adjustment for possession of firearms during commission of
drug offense, U.S.S.G. Section 2D1.1(b)(1): one weapon was inoperable
replica of nineteenth century revolver, the others belonged to
defendant's son and it was "clearly improbable" they were connected with
offense).
Note: The Ninth Circuit has withdrawn U.S. v. Restrepo, 883 F.2d 781
(9th Cir. 1989) (conduct not resulting in conviction may not be used in
setting base offense level) (2 GSU #12), and granted rehearing. See 47
CrL 1015 (1990).
VOLUME 3 NUMBER 5
APRIL 5, 1990
Third Circuit holds sentence for crimes committed on parole may run
concurrently or consecutively to unexpired term for parole violation.
Defendant pled guilty to several crimes he committed while on parole,
and his sentence for those offenses was made consecutive to the
unexpired term he had to serve when his parole was revoked. The
district court found it was compelled to make the terms consecutive
under U.S.S.G. Section 5G1.3 (1987), which stated, in part, "(i)f at the
time of sentencing, the defendant is already serving one or more
unexpired sentences, then the sentences for the instant offense(s) shall
run consecutively to such unexpired sentences. . . ."
The appellate court remanded for resentencing, holding that Section
5G1.3 conflicted with 18 U.S.C. Section 3584(a) and district courts
retain the discretion to impose consecutive or concurrent sentences
granted in Section 3584(a). Accord U.S. v. Wills, 881 F.2d 823 (9th
Cir. 1989). The court noted that the recent amendment to Section 5G1.3,
effective Nov. 1, 1989 (after defendant was sentenced), would not
prohibit concurrent sentences in a case like this where the offenses
were committed while defendant was on parole. The court also
distinguished U.S. v. Fossett, 881 F.2d 976 (11th Cir. 1989), finding
that the facts of that case -- defendant was sentenced for escape from a
federal correctional facility while serving a term of imprisonment --
"carry different sentencing ramifications." Cf. U.S. v. Rogers, 897 F.2d
134 (4th Cir. 1990) (agreeing with Fossett that Section 5G1.3 may be
reconciled with Section 3584(a) by allowing departure to concurrent
sentence when appropriate).
U.S. v. Nottingham, No. 89-5553 (3d Cir. Mar. 19, 1990) (Scirica,
J.).
U.S. v. Keys, No. 89-6104 (10th Cir. Mar. 30, 1990) (Tacha, J.)
(holding "that a prison disciplinary record may, in appropriate
situations, be a proper basis for an upward departure" under U.S.S.G.
Section 4A1.3, p.s.).
U.S. v. Harvey, No. 89-1476 (5th Cir. Mar. 26, 1990) (Johnson, J.)
(affirming upward departure on basis of inadequate criminal history
score from 18-24 month range to statutory maximum of 60 months, despite
failure of district court to first consider next higher criminal history
category or to explain why that was inadequate; court distinguished
U.S. v. Lopez, 871 F.2d 515 (5th Cir. 1989) (error to bypass guidelines
and not consider next higher criminal history category), because "Lopez
was confined to those cases where a defendant's criminal history
category is low" -- here, defendant was in category V).
U.S. v. Allen, No. 89-3095 (D.C. Cir. Mar. 20, 1990) (per curiam)
(when departing because of inadequate criminal history score, "district
court should (1) identify the correct Guidelines category, (2) consider
whether upward adjustment within the Guidelines criminal history
categories is inadequate and, if such adjustment is inadequate, (3)
state why a sentence longer than one allowed by the top criminal history
category is in order").
U.S. v. Carey, No. 89-5298 (8th Cir. Mar. 14, 1990) (McMillian, J.)
(affirming departure above statutory minimum for defendant convicted of
possessing a firearm as a convicted felon -- defendant's sentence was
enhanced under 18 U.S.C. Section 924(e)(1) to a minimum of 15 years,
superseding the guideline range of 27-33 months, see U.S.S.G. Section
5G1.1(b), but court imposed 19-year sentence because of the seriousness
of defendant's prior offenses and because two prior convictions for the
same type of offense failed to deter him).
U.S. v. Hays, No. 89-5029 (6th Cir. Mar. 29, 1990) (Brown, Sr. J.)
(remanding because district court erred in departing downward for career
offender based on small amount of drugs and non-violent criminal history
-- these factors were considered by Commission in formulating U.S.S.G.
Section 4B1.1 and could not be used as mitigating circumstances
warranting departure).
U.S. v. Brewer, No. 89-5371 (6th Cir. Mar. 29, 1990) (Wellford, J.)
(remanding because reasons for downward departure to home detention and
probation for embezzlement defendants -- degree of community support,
continued community involvement, family ties, degree of remorse and
promptness of restitution, aberrant nature of conduct, no useful purpose
for incarceration, and victim's recommendation of clemency -- were
adequately considered by Sentencing Commission; court directed that
possible aggravating factors should be considered on remand and noted
Commission's concern that white-collar criminals be treated no
differently from others).
U.S. v. Chiarelli, No. 89-3563 (3d Cir. Mar. 14, 1990) (Cowen, J.)
(proper to depart upward pursuant to U.S.S.G. Section 5K2.14, p.s., on
basis of threat to public safety caused by defendants' high-speed escape
attempt through crowded urban area -- offense guideline, Section 2B1.2,
does not account for this risk of harm from receiving stolen property;
improper to depart under Section 5K2.0, p.s., on basis of "the magnitude
of the thievery" because that is accounted for in Section 2B1.2(b)(1)).
U.S. v. Guarin, No. 89-3278 (6th Cir. Mar. 14, 1990) (Boggs, J.)
(affirming upward departure -- extent of defendant's cocaine dealing and
his dependence on dealing for livelihood were not reflected in base
offense level, see U.S.S.G. SEction 5H1.9, p.s.).
U.S. v. Bates, No. 89-2558 (5th Cir. Mar. 7, 1990) (Politz, J.)
(affirming upward departure for bank robbers who, during escape attempt,
briefly took elderly man hostage, commandeered several vehicles at
gunpoint, invaded peoples' homes to get vehicles, and fired upon
pursuing law enforcement officials).
U.S. v. Lewis, No. 89-6122 (6th Cir. Mar. 21, 1990) (Milburn, J.)
(proper to apply U.S.S.G. Section 4A1.1(d), adding two criminal history
points for committing offense while under criminal justice sentence, to
defendant convicted of failure to report, U.S.S.G. Section 2J1.6).
U.S. v. Jimenez, No. 89-2142 (7th Cir. Mar. 12, 1990) (Wood, J.)
(agreeing with five other circuits that U.S.S.G. Section 4A1.1(d) and
(e) may be applied to escapee).
U.S. v. Bucaro, No. 89-3483 (3d Cir. Mar. 14, 1990) (Hutchinson, J.)
(rejecting due process and ex post facto challenges to use of
defendant's prior adjudications of juvenile delinquency under state law
in determining criminal history score, U.S.S.G. Section 4A1.2(d)(2)).
See also U.S. v. Kirby, 893 F.2d 867 (6th Cir. 1990) (per curiam)
(juvenile convictions may be considered); U.S. v. Williams, 891 F.2d
212 (9th Cir. 1989) (not a violation of due process to use juvenile
conviction even though there was no right to jury trial in juvenile
adjudication).
U.S. v. Fuller, No. 89-1880 (1st Cir. Mar. 12, 1990) (Campbell, C.J.)
(reversing as clearly erroneous finding that defendant who pled guilty
to conspiracy to distribute marijuana qualified for adjustment as "an
organizer, leader, manager, or supervisor" under U.S.S.G. Section
3B1.1(c): "The evidence indicated that (defendant) did not rely on the
assistance of others, but instead engaged in a number of private drug
distributions, in which he essentially did all the work himself. . . .
(I)n the absence of any evidence that (defendant) exercised control over
these persons or was otherwise responsible for organizing them in the
commission of the offense, the mere fact that (defendant) had dealt with
a large quantity of marijuana does not support a finding that he was an
organizer, leader, supervisor, or manager").
U.S. v. Cross, No. 89-1865 (6th Cir. Mar. 27, 1990) (per curiam)
(affirming denial of acceptance of responsibility reduction because
defendant refused to provide financial information necessary to assess
his ability to pay a fine).
U.S. v. Moree, No. 89-4204 (5th Cir. Mar. 29, 1990) (Clark, C.J.)
(victim of obstruction of justice offense was not "unusually
vulnerable," U.S.S.G. Section 3A1.1, to defendant's scheme to "fix"
victim's criminal case when his "only particular susceptibility to the
crime was his prior indictment" and not age or unusual physical or
mental problems).
U.S. v. Moreno, No. 89-1150 (6th Cir. Mar. 27, 1990) (Guy, J.)
(remanding for resentencing: district court erred in calculating base
offense level for drug conspirators by using amount in jury verdict, 500
or more grams of cocaine, "despite the fact that the court found by a
preponderance of the evidence that the conspiracy involved over five
kilograms"; 21 U.S.C. Section 841(b), under which defendants were
sentenced, "sets forth penalty provisions only and not separate 'lesser
included' offenses. As such, the sentencing judge, not the jury, has
the prerogative to make a determination of the quantity of drugs
involved in the scheme and to sentence accordingly") (rev'g in part 710
F. Supp. 1136 (E.D. Mich. 1989) (2 GSU #1)).
U.S. v. Alston, No. 88-8802 (11th Cir. Mar. 8, 1990) (Hill, Sr. J.)
(proper to consider quantities of drugs not included in count of
conviction: "We hold that the district court was correct in considering
the total quantity of cocaine involved in the 'same course of conduct or
common scheme or plan as the offense of conviction' under Sentencing
Guidelines Section 1B1.3(a)(2). In so doing, we join six out of seven
circuits that have addressed this question"; proof is by a
preponderance of evidence).
U.S. v. Roberts, No. 88-2125 (10th Cir. Mar. 15, 1990) (Seymour, J.)
(upholding sentence pursuant to U.S.S.G. Section 1B1.2(a) because plea
established more serious offense than offense of conviction; rejecting
claim that Section 1B1.2(a) is "unconstitutionally vague" because it
does not define "more serious offense").
U.S. v. Foote, No. 89-1715 (8th Cir. Mar. 15, 1990) (Bowman, J.)
(rejecting claim that Guidelines are invalid because prosecutor has
discretion either to charge use of a firearm in the commission of a drug
offense as substantive offense under 18 U.S.C. Section 924(c), which
requires mandatory minimum sentence of five or ten years consecutive to
any other term, or to charge the firearm use "merely" as specific
offense characteristic that would enhance sentence for drug trafficking
offense, e.g., U.S.S.G. Section 2D1.1(b)(1)).
VOLUME 3 NUMBER 4
MARCH 23, 1990
Eighth Circuit upholds downward departure based on unusual personal
circumstances, notwithstanding U.S.S.G. Sections 5H1.5 and 5H1.6, p.s.
Defendant, an American Indian living on a reservation, was convicted of
two assault counts. The guideline range was 37-46 months, but the
district court departed to impose a 24-month term, citing defendant's
intoxication at the time of the offense, lack of prior criminal record,
excellent employment history, consistent efforts to overcome the adverse
living conditions on the reservation, and numerous letters of support
from the community. The government appealed.
The appellate court found that two of the reasons given for departure
-- intoxication and lack of a prior record -- were adequately accounted
for by the Guidelines and were not proper grounds for departure. The
court held, however, that the other reasons given by the district court
"are appropriate and are supported by the record." While recognizing
that "Guideline policy statements indicate that previous employment
record and family ties and responsibilities and community ties are 'not
ordinarily relevant in determining whether a sentence should be outside
the guidelines,'" see U.S.S.G. Sections 5H1.5, 5H1.6, p.s., the court
concluded that defendant's "case presents mitigating circumstances in
these areas of a magnitude 'not adequately taken into consideration by
the Sentencing Commission in formulating the guidelines.' See 18 U.S.C.
Section 3553(b). . . . We believe that the district court acted within
its discretion in sentencing (defendant) below the Guideline range, and
that (defendant's) excellent employment history, solid community ties,
and consistent efforts to lead a decent life in a difficult environment
are sufficiently unusual to constitute grounds for a departure from the
Guidelines."
This appears to be the first reported appellate court decision
specifically upholding a departure based on factors that Section 5H1
states are "not ordinarily relevant" in sentencing. The Sixth Circuit,
without discussing Section 5H1, has remanded a case after finding the
district court mistakenly believed it could not consider a defendant's
efforts to avoid drugs as a basis for downward departure. U.S. v.
Maddalena, 893 F.2d 815 (6th Cir. 1989). But cf. U.S. v. Carey, 895
F.2d 318 (7th Cir. 1990) (vacating downward departure that was based on
the "cumulative effect" of various personal circumstances, including
defendant's age and physical condition, Sections 5H1.1, 5H1.4, p.s.).
U.S. v. Big Crow, No. 89-5275 (8th Cir. Mar. 7, 1990) (Heaney, Sr.
J.).
Eleventh Circuit holds departures based on post-plea conduct should
be guided by procedure in U.S.S.G. Section 4A1.3, using appropriate
criminal history category as reference. Defendant pled guilty to
bribing a Florida public official. While free on bond pending
sentencing he was charged with a similar offense in Virginia, and with
possession of a firearm by a convicted felon. The latter charges were
transferred to Florida, but were not consolidated with the bribery
offense and defendant did not plead guilty to them until after
sentencing for the bribery charge. For the bribery offense the district
court determined departure was warranted because of the second, similar
offense, and imposed a 42-month sentence, double the top of the
guideline range. The firearm offense was not considered.
The appellate court remanded, finding that the district court made an
"unguided departure" pursuant to U.S.S.G. Section 5K2.0, p.s., when it
should have used the procedure for criminal history departures set forth
in Section 4A1.3. Noting that the Guidelines "do not explicitly address
the manner in which post-plea offenses should be factored into the
guidelines sentencing process," the court held "that Guidelines Section
4A1.3 is controlling where, as here, a departure involves post-plea
offenses." The court reasoned that "(p)ost-plea offenses, no less than
offenses which occur prior to the entry of a plea, implicate the
concerns which led to the creation of a criminal history category with
guided departure provisions."
The court also concluded that using the Section 4A1.3 procedure for
post-plea offenses would help avoid disparate treatment of defendants.
Here the 42-month sentence was twice the upper limit of the guideline
range, whereas if defendant had been convicted of both post-plea
offenses before sentencing on the bribery charge, accounting for those
offenses in his criminal history instead of departing would have
resulted in a maximum sentence of 27 months. The court held that
following Section 4A1.3, rather than allowing unguided departures under
Section 5K2.0, "is in keeping with the aims of guideline sentencing" to
limit disparity in sentencing.
U.S. v. Fayette, No. 89-5306 (11th Cir. Mar. 8, 1990) (Hatchett, J.).
Sixth Circuit holds district court may not use self-incriminating
information as basis for departure if U.S.S.G. Section 1B1.8 applies to
the plea agreement. Defendant pled guilty to a firearms charge, and the
district court departed upward because of the dangerousness of the
weapon and defendant's involvement with drugs. The departure decision
was based, in part, on incriminating information the defendant provided
pursuant to the plea agreement.
The appellate court remanded for consideration of whether U.S.S.G.
Section 1B1.8 applied to this plea agreement. Section 1B1.8 prohibits a
court, in setting the guideline range, from using self-incriminating
information given by a defendant to the government. The court held that
"if information under Section 1B1.8, or its equivalent in the form of a
plea agreement, was not to be used 'in determination of the applicable
guideline range,' then it certainly should not be used by the district
court to depart and to enhance the sentence." The sentencing court must
"set out with particularity the extent to which he considered, if at
all, information given which might be subject to Section 1B1.8(a)
limitations in respect to the departure."
On other issues relating to the departure, the court determined that
"the nature of the firearm, whether it is automatic and intended to be
used in the drug trade," and defendant's involvement in the crack
cocaine trade, are factors that may warrant departure, but the fact that
defendant came from out of town to engage in the local drug trade is
not.
U.S. v. Robinson, No. 88-4020 (6th Cir. Mar. 13, 1990) (Wellford,
J.).
Third and Eleventh Circuits hold substantial assistance departure may
not be made absent government motion, but that evidence of cooperation
may be considered in sentencing within guideline range. The Third
Circuit held that "the district court was without power to depart" under
U.S.S.G. Section 5K1.1, p.s., "in the absence of a government motion
based on defendant's cooperation." Citing 18 U.S.C. Section 3661,
however, the court remanded for resentencing because "the district court
was required to consider defendant's cooperation when sentencing within
the guideline range, though it retained discretion as to whether to give
effect to that cooperation."
The Eleventh Circuit held that the "plain language" of 18 U.S.C.
Section 3553(e) and U.S.S.G. Section 5K1.1, p.s., makes it clear that
"without a motion by the Government requesting a departure, the district
court may not depart from the guidelines on the ground of substantial
assistance." Such assistance may, however, be considered under U.S.S.G.
Section 1B1.4 in determining what sentence to impose within the
guideline range.
U.S. v. Bruno, No. 89-3512 (3d Cir. Mar. 6, 1990) (Seitz, Sr. J.).
U.S. v. Alamin, No. 88-3919 (11th Cir. Mar. 8, 1990) (Tjoflat, C.J.).
U.S. v. Tetzlaff, No. 89-2175 (7th Cir. Feb. 28, 1990) (Cummings, J.)
(U.S.S.G. Section 3B1.1(c) applies only to offense of conviction, not to
other "relevant conduct" -- adjustment for managerial status was
improper where defendant was sole participant in offense of conviction).
Accord U.S. v. Williams, 891 F.2d 921 (D.C. Cir. 1989).
U.S. v. Egson, No. 89-2418 (8th Cir. Feb. 28, 1990) (per curiam)
(district court properly found offenses of cocaine distribution and
illegal acquisition of food stamps were not "closely related" so as to
require grouping under U.S.S.G. Section 3D1.2, even though they arose
from the same transaction -- the "offenses involved separate and
distinct societal interests and thus were not required to be grouped
together as closely-related counts under section 3D1.2").
U.S. v. Lira-Barraza, No. 88-5161 (9th Cir. Feb. 28, 1990) (George,
Dist. J.) (setting forth five-step procedure for review of departures:
"(1) whether the district judge adequately identified the 'aggravating
or mitigating circumstance' (hereinafter 'circumstance'); (2) whether
the identified circumstance actually existed; (3) whether the
circumstance was adequately taken into consideration by the Sentencing
Commission; (4) if not, whether the circumstance should result in
departure; and, (5) whether the extent or degree of departure was
unreasonable").
Holding refusal to depart downward is not appealable: U.S. v.
Bayerle, No. 89-5166 (4th Cir. Mar. 9, 1990) (Butzner, Sr. J.); U.S. v.
Morales, No. 89-10168 (9th Cir. Mar. 5, 1990) (Skopil, Sr. J.); U.S. v.
Waldrop, No. 89-5671 (6th Cir. Feb. 28, 1990) (per curiam) (unpub.
disp.).
Holding defendant may not appeal extent of downward departure: U.S.
v. Pighetti, No. 89-1357 (1st Cir. Mar. 2, 1990) (Selya, J.); U.S. v.
Wright, No. 88-3948 (11th Cir. Mar. 1, 1990) (per curiam).
U.S. v. Schweihs, No. 88 CR763 (N.D. Ill. Feb. 16, 1990) (Williams,
J.) (holding that ties to organized crime, absent "specific acts leading
to some kind of (criminal) adjudication," do not support departure under
U.S.S.G. Section 4A1.3(e); however, in this case defendant's proven
connection to organized crime warrants a departure under 18 U.S.C.
Section 3553(b) because he "used that association to carry out the
crimes of which he has been convicted" -- court analogized use of those
ties to use of a weapon, and calculated the length of departure by
reference to the specific offense characteristic increase for use of a
firearm in the guideline for the offense of conviction).
U.S. v. Gaddy, No. 89-8223 (11th Cir. Feb. 20, 1990) (Tuttle, Sr. J.)
(offense level increase in U.S.S.G. Section 2A4.1(b)(4)(A), for
kidnapping victim not released within 30 days, may be applied when
victim was murdered within 24 hours; court also noted departure under
U.S.S.G. Section 5K2.1, p.s., death of victim, would have been
appropriate).
VOLUME 3 NUMBER 3
MARCH 9, 1990
Ninth Circuit limits "application note" to U.S.S.G. Section
4A1.2(a)(2), upholds separate counting of convictions for unrelated
offenses that were consolidated for sentencing. Defendant had three
prior convictions that had been consolidated for sentencing, although
the offenses were factually unrelated. Defendant argued the three
convictions should be treated as one sentence under Section 4A1.2(a)(2)
because they were "related cases" according to Application Note 3 of
that section: "Cases are considered related if they . . . were
consolidated for trial or sentencing." The sentencing court found the
cases were not related and counted them separately.
The appellate court affirmed, rejecting "that part of Application
Note 3 that suggests that cases consolidated for sentencing are to be
deemed related. These application notes are not binding law, they are
only advisory commentary to assist in the application of the statute."
The court reasoned: "A defendant convicted of multiple unrelated
offenses who fortuitously is sentenced for all offenses by one judge at
one time would subsequently face less punishment when his points are
totalled than another defendant who committed the same crimes but was
separately sentenced on successive days or on the same day by different
judges. Aside from offending the legislative intent and public policy
involved, such a result would be inequitable."
This appears to be the first court to reach this conclusion. Other
courts have allowed departures when following Note 3 resulted in a
criminal history score that underrepresented the seriousness of a
defendant's criminal history. See, e.g., U.S. v. White, 893 F.2d 276
(10th Cir. 1990); U.S. v. Geiger, 891 F.2d 512 (5th Cir. 1989); U.S.
v. Dorsey, 888 F.2d 79 (11th Cir. 1989), cert. denied, 110 S. Ct. 756
(1990).
U.S. v. Gross, No. 89-10098 (9th Cir. Feb. 27, 1990) (Hall, J.).
Other Recent Cases:
U.S. v. Daddino, No. 88 CR763 (N.D. Ill. Feb. 16, 1990) (Williams,
J.) (in determining criminal history score for "prior sentence of
imprisonment" under U.S.S.G. Section 4A1.1, "the court should count the
full time in a prior sentence that was 'imposed,' regardless of time
served on that sentence," see Section 4A1.2(b)(1)).
U.S. v. Schweihs, No. 88 CR763 (N.D. Ill. Feb. 16, 1990) (Williams,
J.) (although conviction that was reversed is not ordinarily counted in
criminal history calculation, court will count it here because it was
reversed on technical grounds and there was reliable evidence that
defendant intended to commit the crime -- court distinguished it from
actual conviction by assessing only two instead of three criminal
history points).
Second Circuit recommends using multiple counts procedure, U.S.S.G.
Section 3D1.1-.5, to guide departures based on acts of misconduct not
resulting in conviction. Defendant was indicted on six charges relating
to an attempt to aid illegal entry of aliens. He pled guilty to one
count, and the district court departed upward based on the established
facts underlying the counts that were dismissed.
The appellate court remanded, and set forth the procedure the
district court should follow in determining the extent of departure in
such a situation: "(G)uidance is found initially in the multi-count
analysis of sections 3D1.1-.5. Since the Commission carefully
constructed a system for aggregating acts of misconduct that result in
conviction (or stipulation in connection with a plea), that system must
initially be used by a judge contemplating enhanced punishment for acts
of misconduct not resulting in conviction, where the acts of misconduct
constitute offenses for which guidelines have been established." The
court stressed that the resulting calculation provides only initial
guidance: "(T)he judge need not depart upward all the way to the
aggregate guideline range resulting from that calculation. On the other
hand, the judge is not limited to that range in especially serious
cases. . . . (A) departure beyond the aggregate guideline range would
still be available despite the use of multi-count analysis."
The court found "further guidance" in the structure of the sentencing
table. Noting that it has already ruled that courts must refer to the
next higher criminal history when departing upward because of an
inadequate criminal history score, the court held that "when an offense
level is deemed inadequate and a judge is contemplating a 5K departure
by moving (in) the sentencing table to a more serious level, the judge
should consider the next higher levels in sequence to determine if they
adequately reflect the seriousness of the defendant's conduct." The
court found this procedure "consistent with the caution we have
indicated is appropriate for upward departures."
U.S. v. Kim, No. 89-1221 (2d Cir. Feb. 15, 1990) (Newman, J.).
Third Circuit holds that combination of factors, which by themselves
could not support departure, did not justify departure under 18 U.S.C.
Section 3553(b). Defendant pled guilty to sending a threatening
communication through the mail with the intent to extort money.
Defendant claimed he was eligible for downward departure under U.S.S.G.
Section 5K2.13, p.s., "diminished capacity," because he was a compulsive
gambler. He also argued that the combination of his gambling addiction
and lack of intent to carry out his threats could justify departure.
The appellate court agreed with the district court that no departure
was warranted. A condition for departure under Section 5K2.13, the
court found, is that the offense was non-violent. Defendant's argument
-- that his crime was non-violent because he did not actually use
violence -- must fail because "(c)rimes of violence . . . include
situations where force is threatened but not used." The court found that
compulsive gambling could only be considered a ground for departure
under Section 5K2.13; because defendant's crime was not non-violent and
Section 5K2.13 was thus unavailable, compulsive gambling was not a valid
ground for departure under the Guidelines.
The court also held that defendant's gambling and lack of intent to
carry out his threats -- which could not justify departure individually
-- did not warrant departure even when combined. These factors are not
"atypical" such that departure is permitted under 18 U.S.S.C. Section
3553(b), and the court concluded that "a combination of typical factors
does not present an unusual case" permitting departure under Section
3553(b). See U.S. v. Carey, 895 F.2d 318 (7th Cir. Jan. 12, 1990)
(vacating departure based on "cumulative effect" of factors). But cf.
U.S. v. Mills, No. 88 CR956 (S.D.N.Y. Jan. 17, 1990) (combination of
"extraordinary circumstances" warranted departure under U.S.S.G. Section
5H1.6, p.s.) (3 GSU #2).
U.S. v. Rosen, No. 89-5819 (3d Cir. Feb. 21, 1990) (Seitz, Sr. J.).
U.S. v. Wilson, No. 88-5215 (4th Cir. Feb. 21, 1990) (Widener, J.)
(when departing pursuant to 18 U.S.C. Section 3553(e) "there is no lower
limit placed on the court's authority" -- the court is not required to
impose a sentence of imprisonment but may impose probation).
U.S. v. Rexach, No. 89-1286 (2d Cir. Feb. 20, 1990) (Pratt, J.) (when
plea agreement "provides that the prosecutor will move for a downward
departure under the sentencing guidelines in return for the defendant's
good faith effort to provide substantial assistance, evaluation of
defendant's effort lies in the discretion of the prosecutor and may be
reviewed only on a showing of prosecutorial misconduct or bad faith,"
neither of which occurred here; also upholding requirement for
government motion in U.S.S.G. Section 5K1.1, p.s., against
constitutional challenge).
U.S. v. Lewis, No. 88-3030 (7th Cir. Feb. 20, 1990) (Manion, J.)
(requirement of government motion in U.S.S.G. Section 5K1.1 does not
violate statutory mandate in 21 U.S.C. Section 994(n) or due process).
U.S. v. Hernandez, No. 89-1912 (1st Cir. Feb. 22, 1990) (Breyer, J.)
(defendant was not deprived of notice because presentence report did not
specifically recommend departure -- the report contained the information
that warranted departure, defendant received the report well before
sentencing, and the court allowed argument on the departure at the
sentencing hearing). See also U.S. v. Burns, 893 F.2d 1343 (D.C. Cir.
Jan. 12, 1990) (advance notice of decision to depart not required when
facts supporting departure are in PSI and defendant has opportunity to
challenge departure at sentencing hearing).
U.S. v. Rogers, No. 89-5029 (4th Cir. Feb. 26, 1990) (Phillips, J.)
(agreeing with U.S. v. Fossett, 881 F.2d 976 (11th Cir. 1989), that
U.S.S.G. Section 5G1.3, requiring imposition of consecutive sentence
when offense is committed while defendant is serving unexpired term of
imprisonment, may be reconciled with discretion to impose consecutive or
concurrent sentences granted in 18 U.S.C. Section 3584(a) --
reconciliation is achieved by allowing departure when that would be
appropriate under the Guidelines or statute). Cf. U.S. v. Wills, 881
F.2d 823 (9th Cir. 1989) (Section 5G1.3 conflicts with Section 3584(a)
-- courts retain discretion to impose consecutive or concurrent
sentences).
U.S. v. Wallace, No. 89-1547 (8th Cir. Feb. 5, 1990) (Beam, J.)
(rejecting claim that due process requires filing of information
pursuant to 21 U.S.C. Section 851(a)(1) before prior offenses may be
used in sentencing defendant as career offender; also holding that
"(t)he penalty range under the guidelines for career offenders is
neither irrational nor excessive").
U.S. v. Fredericks, No. 89-6009 (10th Cir. Feb. 28, 1990) (McKay, J.)
(approving preponderance of evidence standard for sentencing factors,
including proof of uncharged criminal conduct).
U.S. v. Rodriguez, No. 89-1527 (6th Cir. Feb. 23, 1990) (Kennedy, J.)
("when a defendant seeks to establish facts which would lead to a
sentence reduction under the Guidelines, he shoulders the burden of
proving those facts by a preponderance of the evidence" -- here, court
held government met its burden of proving amount of drugs in offense,
and defendant had burden to prove less was involved; court explicitly
rejected U.S. v. Dolan, 701 F. Supp. 138 (E.D. Tenn. 1988) (placing
burden of proof of all facts on government)).
U.S. v. Guerrero, No. 89-1359 (7th Cir. Jan. 30, 1990) (Wood, J.)
(relevant conduct includes drug transactions of co-conspirators that
defendant "was aware of or that he should have reasonably foreseen").
U.S. v. Luster, No. 89-1767 (8th Cir. Feb. 22, 1990) (Henley, Sr. J.)
(remanded for resentencing because offense level was incorrectly
calculated -- although sentence imposed was within corrected guideline
range, district court sentenced at bottom of what it thought was
applicable guideline range and "might very well have sentenced the
defendant to fewer months imprisonment" had it known correct range).
Accord U.S. v. Williams, 891 F.2d 921 (D.C. Cir. 1989); U.S. v.
Bermingham, 855 F.2d 925 (2d Cir. 1988).
VOLUME 3 NUMBER 2
FEBRUARY 28, 1990
Fourth Circuit holds "past acquittals by reason of insanity may be a
basis for departure from the Guidelines range." Defendant pled guilty to
drug charges. His criminal history category was I and the guideline
range was 27-33 months. Defendant's criminal history score did not
include two acquittals by reason of insanity: one for second-degree
murder and attempted murder, and one for four counts of attempted
murder. The district court concluded that category I did not adequately
reflect the serious nature of defendant's criminal history, U.S.S.G.
Section 4A1.3, departed upward to category IV, and sentenced defendant
to 51 months.
Affirming, the appellate court noted: "It is undisputed that the
Guidelines Manual nowhere mentions or takes into account acquittals by
reason of insanity." The court also noted that "'(a) verdict of not
guilty by reason of insanity establishes two facts: (i) the defendant
committed an act that constitutes a criminal offense, and (ii) he
committed the act because of mental illness. . . . The fact that a
person has been found, beyond a reasonable doubt, to have committed a
criminal act certainly indicates dangerousness.'" (Quoting Jones v.
U.S., 463 U.S. 354, 363-64 (1982).) The court concluded: "From these
observations, it plainly follows, and we so hold, that an acquittal by
reason of insanity is reliable information that a district court may
consider in assessing whether a defendant's criminal history category .
. . adequately reflects (his) past criminal conduct or his potential for
future criminal behavior."
U.S. v. McKenley, No. 88-5137 (4th Cir. Feb. 6, 1990) (Ellis, Dist.
J.).
U.S. v. Michael, No. 89-1274 (5th Cir. Feb. 15, 1990) (Smith, J.)
(sentencing court need not, prior to the sentencing hearing, give notice
to defendant that it intends to ignore presentence report recommendation
and depart -- there is no requirement that the court issue its tentative
factfindings and sentence prior to the hearing; case remanded, however,
because one of district court's two reasons for departing was not
supported by evidence in the record).
U.S. v. Acosta, No. 89-10050 (9th Cir. Feb. 2, 1990) (Pregerson, J.)
(requirement for notice of departure met when "(a)ll of the factors
identified as bases for departure by the court when it imposed sentence
were listed as possible departure grounds in the presentence report and
commented upon by (defendant's) counsel before sentencing").
U.S. v. Coleman, No. 89-1704 (8th Cir. Feb. 7, 1990) (Magill, J.) ("a
government motion is required before a court may depart from the
mandatory minimum sentence under (18 U.S.C.) Section 3553(e)" -- letters
from the government outlining defendants' cooperation were not the
"functional equivalent" of a Section 3553(e) motion; if plea agreement
binds government to file motion court may enforce that agreement, or
plea may be withdrawn, but there was no such agreement here).
U.S. v. Newsome, No. 89-1379 (6th Cir. Jan. 31, 1990) (Nelson, J.)
(remanded because district court failed to make specific finding in open
court of aggravating circumstance that would justify upward departure).
Other Recent Cases:
U.S. v. Van Dyke, No. 89-5502 (4th Cir. Feb. 12, 1990) (Wilkins, J.)
(holding that "rehabilitative conduct" after arrest and before
sentencing -- here drug abuse treatment and counseling inmates about
drug abuse -- was not a factor on which departure could be based because
such conduct is accounted for in acceptance of responsibility guideline,
Section 3E1.1).
U.S. v. Evidente, No. 88-5208 (8th Cir. Jan. 29, 1990) (Bowman, J.)
(discretionary refusal by district court to depart downward is not
reviewable). For other circuits that have so held, see 2 GSU Index
(Appellate Review: Discretionary Refusal to Depart Downward).
U.S. v. Reeves, No. 89-4111 (5th Cir. Jan. 18, 1990) (Duhe, J.)
(affirming upward departure because defendants intended bribe to be much
larger than amount actually paid).
U.S. v. Drew, No. 88-2661 (8th Cir. Jan. 17, 1990) (Bowman, J.)
(upward departure warranted for attempt to murder government witness --
obstruction of justice guideline, U.S.S.G. Section 3C1.1, does not
adequately account for this conduct).
U.S. v. Mills, No. 88 CR956 (S.D.N.Y. Jan. 17, 1990) (Haight, J.)
(combination of "extraordinary circumstances," resulting in the "total
absence of responsible adults" to care for defendant's children if she
were incarcerated, warrants downward departure for "family ties and
responsibilities" under U.S.S.G. Section 5H1.6, p.s.).
U.S. v. Fuentes, No. 89-00156-A (E.D. Va. Dec. 28, 1989) (Ellis, J.)
(upward departure warranted under U.S.S.G. Section 5K2.0, p.s., because
the "Guideline range for (Continuing Criminal Enterprise offenses) is
manifestly inadequate in its failure to account adequately for the
dimensions and duration of this CCE," which spanned a decade and
involved numerous participants and large amount of cocaine).
U.S. v. Anderson, No. 89-10059 (9th Cir. Feb. 8, 1990) (Stotler,
Dist. J.) (bank robbery defendant properly classified as organizer or
leader, pursuant to U.S.S.G. Section 3B1.1(c), even though codefendant
was unaware of crime until after its commission because of defendant's
trickery, and district court assumed that codefendant was not criminally
responsible for robbery). But see U.S. v. Carroll, 893 F.2d 1502 (6th
Cir. 1990) (adjustment under Section 3B1.1(c) requires at least one
other "criminally responsible" person in offense).
U.S. v. Gordon, No. 89-5003 (4th Cir. Feb. 2, 1990) (Wilkins, J.)
("mitigating role adjustments apply only when there has been group
conduct and a particular defendant is less culpable than other members
of the group" -- minor participant status, U.S.S.G. Section 3B1.2(b),
not appropriate for defendant convicted of cocaine possession absent
evidence of group conduct).
U.S. v. Werlinger, No. 89-5269 (8th Cir. Feb. 2, 1990) (Lay, C.J.)
(not applicable for concealment of crime when concealment is element of
offense, here embezzlement).
U.S. v. Baker, No. 89-50170 (9th Cir. Jan. 24, 1990) (Schroeder, J.)
(rejecting defendant's argument that his misstatements to probation
officer regarding his criminal history were immaterial and thus not
grounds for enhancement because probation officer could have secured
"rap sheet" showing defendant's true criminal past).
U.S. v. Penson, No. 88-2640 (8th Cir. Jan. 12, 1990) (Heaney, Sr. J.)
(affirming enhancement for threatening a witness and providing false
information that delayed investigation of defendant).
U.S. v. Gordon, No. 89-5003 (4th Cir. Feb. 2, 1990) (Wilkins, J.)
("in order for section 3E1.1 of the guidelines to apply, a defendant
must first accept responsibility for all of his criminal conduct," not
just for count of conviction). Accord U.S. v. Moskowitz, 888 F.2d 223
(2d Cir. 1989); U.S. v. Tellez, 882 F.2d 141 (5th Cir. 1989). But cf.
U.S. v. Perez-Franco, 873 F.2d 455 (1st Cir. 1989) (defendant need only
accept responsibility for count to which he pled guilty as part of plea
agreement).
U.S. v. Evidente, No. 88-5208 (8th Cir. Jan. 29, 1990) (Bowman, J.)
(escape defendant's "past failure to accept responsibility for his
criminal conduct, and his demonstrated propensity for flight, properly
could be considered by the sentencing court in evaluating" defendant's
present claim of acceptance of responsibility).
U.S. v. Mackbee, No. 89-50231 (9th Cir. Jan. 23, 1990) (per curiam)
("Section 4A1.1 sentence enhancements apply to sentences that are
pending appeal" -- if prior conviction reversed defendant "would have
the right to petition for resentencing").
U.S. v. McCrudden, No. 89-50246 (9th Cir. Jan. 23, 1990) (per curiam)
(not improper to apply U.S.S.G. Section 4A1.1(d) enhancement for
committing offense while on unsupervised probation for traffic offense).
U.S. v. Cianscewski, No. 89-1160 (3d Cir. Jan. 18, 1990) (Becker, J.)
(holding version of U.S.S.G. Section 4B1.3 in effect before Nov. 1,
1989, "is inapplicable to defendants whose yearly profit from crime is
less than 2000 times the hourly minimum wage"; court noted that
defendants sentenced after Nov. 1, 1989, are covered by amended
guideline, which incorporates same limitation).
U.S. v. Bishop, No. 89-1221 (8th Cir. Jan. 22, 1990) (Gibson, J.)
(weight of LSD includes weight of carrier medium). Accord U.S. v. Daly,
883 F.2d 313 (4th Cir. 1989); U.S. v. Rose, 881 F.2d 386 (7th Cir.
1989); U.S. v. Taylor, 868 F.2d 125 (5th Cir. 1989). But see U.S. v.
Healy, No. 89-0177 (D.D.C. Jan. 18, 1990) (Gesell, J.) (disagreeing with
Daly, holding weight of carrier medium should not be included).
U.S. v. Moya, No. CR3-88-262-D (N.D. Tex. Feb. 1, 1990) (Fitzwater,
J.) (court not bound by amount of drugs stipulated to in plea agreement,
see U.S.S.G. Sections 1B1.3(a), 6B1.4(d), p.s.; in addition, court may
not restrict itself to sentencing defendant on amount in plea agreement
if relevant facts show larger quantity involved, see U.S.S.G. Sections
6B1.2(a), p.s., 2D1.1(a)(3)).
U.S. v. Evidente, No. 88-5208 (8th Cir. Jan. 29, 1990) (Bowman, J.)
(escape guideline, U.S.S.G. Section 2P1.1, adequately distinguishes
types of escapes and complies with statutory directive). See also U.S.
v. Medeiros, 884 F.2d 75 (3d Cir. 1989).
U.S. v. Belgard, No. 88-3173 (9th Cir. Jan. 25, 1990) (Fernandez, J.)
(rejecting constitutional challenges to role of probation officers under
Guidelines).
U.S. v. Buckner, No. 89-1438 (8th Cir. Jan. 22, 1990) (Sneed, Sr. J.)
(holding that "100 to 1 ratio" of cocaine to cocaine base in U.S.S.G.
Section 2D1.1(c), Drug Quantity Table, does not violate due process or
prohibition against cruel and unusual punishment).
VOLUME 3 NUMBER 1
FEBRUARY 15, 1990
D.C. Circuit holds court may not use evidence from the trial of
another to determine drug quantity. Two defendants were indicted on
three counts of distributing PCP. Defendant Chandler went to trial and
was convicted of distributing one kilogram or more of PCP. Defendant
Osborne pled guilty to distributing 100 grams or more of PCP, and the
sentencing judge used the one kilogram figure from Chandler's case to
set Osborne's offense level.
The appellate court held, and the government conceded, that it was
error to use the amount from Chandler's trial in Osborne's sentencing,
"for Osborne was not a party to that trial and cannot be bound by the
verdict." Accord U.S. v. Castellanos, 882 F.2d 474 (11th Cir. 1989).
But see U.S. v. Beaulieu, 893 F.2d 1177 (10th Cir. Jan. 10, 1990) (may
use evidence from co-conspirator's trial). The court added that "the
government will bear the burden of establishing the amount of PCP
Osborne distributed by a preponderance of the evidence."
U.S. v. Chandler, No. 88-3110 (D.C. Cir. Jan. 30, 1990) (per curiam).
Seventh Circuit holds court need not inform defendant of probable
guideline minimum before accepting plea, but recommends withholding
acceptance of plea until after submission of presentence report.
Defendant argued that because the offenses to which he pled guilty did
not have mandatory minimum sentences, Fed. R. Crim. P. 11(c)(1) required
the sentencing court to inform him of the minimum sentence he could
receive under the Guidelines before it accepted his plea.
The appellate court held that "the Sentencing Guidelines do not
impose a 'mandatory minimum penalty' within the meaning of Rule
11(c)(1), and the district judge did not err in failing to inform
(defendant) of the ultimate sentencing range that he would likely face
on his convictions." See also U.S. v. Foreman, No. 89-3686 (6th Cir.
Feb. 2, 1990) (per curiam) (unpublished disposition) (court not required
to inform defendant of offense level and criminal history category
before accepting plea); U.S. v. Turner, 881 F.2d 684 (9th Cir.) (same),
cert. denied, 110 S. Ct. 199 (1989). The court agreed with U.S. v.
Fernandez, 877 F.2d 1138, 1142-43 (2d Cir. 1989), that due process does
not require courts to advise defendants of their likely sentencing range
before accepting guilty pleas.
However, the court noted its "agreement with the . . . proposal in
Fernandez that district courts withhold their acceptance of guilty pleas
until after the presentence report has been submitted to the court and
the court has had an opportunity to review the information with the
defendant and counsel. . . . Like the Second Circuit, we decline to
find that Rule 11 requires the court to predict the applicable
sentencing range, but we believe that defendants will be able to make
more intelligent choices about whether to accept a plea bargain if they
have as good an idea as possible of the likely Guidelines result.
Further, we note that such a practice would accord with the . . . policy
statement at section 6B1.1(c)."
The court also reiterated its "request that district courts endeavor
to present their reasons for imposing sentence in some concise, easily
accessible form."
U.S. v. Salva, No. 89-1556 (7th Cir. Jan. 23, 1990) (Cudahy, J.).
Other Recent Cases:
U.S. v. Howard, No. 89-30093 (9th Cir. Jan. 25, 1990) (Fernandez, J.)
(agreeing with U.S. v. McDowell, 888 F.2d 285 (3d Cir. 1989), and U.S.
v. Urrego-Linares, 879 F.2d 1234 (4th Cir.), cert. denied, 110 S. Ct.
346 (1989), that "the party seeking to adjust the offense level should
be required to persuade the court that such an adjustment is merited,"
and facts must be proved by a preponderance of the evidence; also
holding the government "should bear the burden of proving the facts
necessary to establish the base offense level").
U.S. v. Kirk, No. 89-3020 (10th Cir. Jan. 22, 1990) (Kane, Sr. Dist.
J.) (following Urrego-Linares, supra, that burden of proof is on party
seeking sentencing adjustment, by preponderance of evidence).
U.S. v. Burns, No. 88-3161 (D.C. Cir. Jan. 12, 1990) (Mikva, J.)
("suggest(ing) that future plea agreements explicitly address the
possibility that the trial judge may depart from the Guidelines, even if
such a departure is not recommended by the government or the probation
officer").
U.S. v. Wivell, No. 89-5104 (8th Cir. Jan. 3, 1990) (Bowman, J.)
(requirement of 18 U.S.C. Section 3553(c) that sentencing judge "state
in open court the reasons for its imposition of the particular sentence"
is met when "the reasons appear on the record of the sentencing
proceedings in open court" -- there was "no error in the court's failure
to articulate specific reasons in the written memorandum").
U.S. v. Ameperosa, No. 89-00589-01 (D. Hawaii Jan. 18, 1990) (Kay,
J.) (holding 18 U.S.C. Section 3500 (Jencks Act) "should be extended to
providing government witnesses' statements to defendants at (contested)
sentencing hearings, where the defendant has pled guilty" and "factual
allegations by a Government witness are relevant to both the validity
and terms of Defendant's sentence").
Ninth Circuit sets standard for review of departures, holds courts
must give specific reasons for extent of departure. Noting the
three-step procedure set forth in U.S. v. Diaz-Villafane, 874 F.2d 43
(1st Cir), cert. denied, 110 S. Ct. 177 (1989), the court "agree(d) with
the First Circuit that the question of whether departure on a particular
ground is permissible under the Guidelines is a question of statutory
construction that we review de novo." The court also "in effect,
agree(d) with the second step of the First Circuit's analysis, since we
will apply the companion standards of clear error and abuse of
discretion" to "the determination of whether the particular case is one
where there should be a departure."
The court differed, however, on the standard that should be used for
the third step -- reviewing the reasonableness of the extent of the
departure. Finding that the First Circuit used, in effect, an "abuse of
discretion" standard, the Ninth Circuit held that it would "review the
extent of any departure from the Guidelines de novo." The court reasoned
that "the choice of a particular sentence should be accomplished in a
carefully guided manner. . . . That is, it should always be pursued
with an eye on the Guidelines categories themselves, and with an
adherence to the concept of discrete changes in offense or history
levels for discrete reasons."
In the present case, the court upheld the reasons for the departure,
but remanded because the sentencing court "failed to indicate how it
arrived at the sentence that it imposed."
U.S. v. Gayou, No. 89-30096 (9th Cir. Jan. 30, 1990) (Fernandez, J.).
U.S. v. Ceja-Hernandez, No. 89-30152 (9th Cir. Jan. 30, 1990) (per
curiam) (reversing upward departure based on immigration defendant's
anticipated deportation upon release that prevents court from imposing
fine or supervised release -- "Sentencing Commission would certainly
have been aware of the practice of promptly deporting aliens").
U.S. v. Chase, No. 89-1502 (1st Cir. Jan. 29, 1990) (Campbell, C.J.)
(defendant's conviction on 15 counts of bank robbery, while multiple
count adjustment procedure in U.S.S.G. Section 3D1.4 provides same
penalty for six or more counts, was aggravating circumstance warranting
upward departure from range of 57-71 months to 120-month term).
U.S. v. Williams, No. 89-1134 (8th Cir. Jan. 22, 1990) (Bowman, J.)
(upward departure warranted for defendant who pled guilty to using
telephone in commission of drug offense because of her "significant
involvement" in the underlying offense; agreeing with U.S. v.
Correa-Vargas, 860 F.2d 35 (2d Cir. 1988), that court may consider
quantity of drugs in underlying offense as factor in departure
decision).
U.S. v. Sanchez, No. 89-1356 (5th Cir. Jan. 19, 1990) (Davis, J.)
(upward departure warranted for defendant's continued unlawful conduct
while on pre-trial release, cf. U.S. v. Jordan, 890 F.2d 968 (7th Cir.
1989) (upholding departure partly based on continued criminal conduct
while awaiting trial); same conduct also used to deny reduction for
acceptance of responsibility).
U.S. v. Burns, No. 88-3161 (D.C. Cir. Jan. 12, 1990) (Mikva, J.)
(when facts providing basis for departure are contained in presentence
report, and because defendant has opportunity to challenge departure at
sentencing hearing and right to appeal sentence, neither the Guidelines
nor Fed. R. Crim. P. 32 requires advance notice of decision to depart).
See U.S. v. Jordan, 890 F.2d 968 (7th Cir. 1989). Cf. U.S. v.
Cervantes, 878 F.2d 50 (2d Cir. 1989) (notice and opportunity to comment
required prior to sentencing); U.S. v. Nuno-Para, 877 F.2d 1409 (9th
Cir. 1989) (same); U.S. v. Otero, 868 F.2d 1412 (5th Cir. 1989) (same).
U.S. v. Kennedy, No. 89-3399 (6th Cir. Jan. 9, 1990) (Milburn, J.)
(sentencing court's statement that it departed because of defendant's
"long history of violation of the law" undeterred by prior punishment
was not sufficiently specific; also, when departing upward because of
inadequate criminal history score court should first consider next
higher criminal history category).
U.S. v. White, No. 89-3003 (10th Cir. Jan. 8, 1990) (Tacha, J.)
(upward departure warranted because consolidation of prior offenses for
sentencing underrepresented defendant's criminal history, and current
offense was committed while defendant was out on bail; district court
properly used higher criminal history category to guide departure).
U.S. v. Sanchez, No. 89-1356 (5th Cir. Jan. 19, 1990) (Davis, J.)
(defendant's continued unlawful conduct while on pretrial release
justified denial of acceptance of responsibility reduction; same
conduct used as basis for upward departure).
U.S. v. Williams, No. 89-5460 (6th Cir. Jan. 25, 1990) (Contie, Sr.
J.) (abuse of discretion to give U.S.S.G. Section 2D1.1(b)(1)
enhancement to co-conspirators not present at commission of crime where
weapon was allegedly possessed, when co-conspirator who possessed weapon
was not given same enhancement).
U.S. v. Holland, No. 89-0342-01 (D.D.C. Jan. 11, 1990) (Greene, J.)
(staying decision in U.S. v. Roberts, No. 89-0033 (D.D.C. Nov. 16, 1989)
(2 GSU #16), "insofar as it broadly holds unconstitutional the
sentencing law and the guidelines in their entirety"; court will "apply
the statute and the guidelines pending disposition of the current
appeals").
VOLUME 2 NUMBER 20
JANUARY 26, 1990
Second Circuit holds that flight from arrest, without more, does not
constitute obstruction of justice. Defendant pled guilty to three
counts of bank burglary. When he was detected at one of the banks he
went to great lengths to avoid arrest, including running across
rooftops, hiding under a boat, pulling loose from an officer twice, and
jumping a fence. In light of these efforts, the sentencing court
enhanced defendant's offense level for "obstruction of justice,"
pursuant to U.S.S.G. Section 3C1.1.
The appellate court vacated and remanded, holding that "flight from
arrest, in itself, does not constitute obstruction of justice under . .
. Section 3C1.1." The court determined that "Guidelines Section 3C1.1
contains a clear mens rea requirement that limits its scope to those who
'willfully' obstruct or attempt to obstruct the administration of
justice. . . . (W)e are convinced that the word 'willfully' . . .
requires that the defendant consciously act with the purpose of
obstructing justice. We therefore hold that mere flight in the
immediate aftermath of a crime, without more, is insufficient to justify
a section 3C1.1 obstruction of justice enhancement."
The court noted, however, that flight from arrest may still be
considered in sentencing: "a defendant who flees in order to avoid
apprehension may be sentenced to the maximum term within the applicable
guideline range, while one who voluntarily surrenders may be sentenced
to the minimum."
U.S. v. Stroud, No. 89-1258 (2d Cir. Jan. 8, 1990) (Meskill, J.).
Other Recent Case:
U.S. v. Carroll, No. 88-2260 (6th Cir. Jan. 9, 1990) (Ryan, J.) (role
in offense adjustment, U.S.S.G. Section 3B1.1, for organizer or leader
requires at least one other "criminally responsible" person in offense
-- may not be applied where only other participants were undercover
agents).
Tenth Circuit holds that sentencing court may use evidence from
co-conspirators' trial to resolve factual dispute. Defendant pled
guilty to drug charges. The sentencing court, relying on testimony from
the trial of two co-conspirators, increased his offense level under
U.S.S.G. Section 3B1.1(a) for being an "organizer or leader." Defendant
appealed, citing U.S. v. Castellanos, 882 F.2d 474 (11th Cir. 1989) (2
GSU #12), which held that evidence from a co-conspirator's trial could
not be used to resolve a dispute over drug quantity because the
defendant had no opportunity to cross-examine the witnesses and present
evidence at that trial.
The appellate court affirmed, finding "no constitutional, statutory,
or procedural rule . . . that would bar the sentencing judge's
consideration of relevant and reliable information of the type used in
this case." Noting its difference with Castellanos, the court held that
"the constitutional requirements mandated in a criminal trial as to
confrontation and cross-examination do not apply at non-capital
sentencing proceedings," and concluded that "the better rule . . . is
that reliable hearsay -- including testimony from a separate trial --
may be used at sentencing to determine the appropriate punishment."
U.S. v. Beaulieu, No. 88-2586 (10th Cir. Jan. 10, 1990) (Brown, Dist.
J.).
Fifth Circuit outlines procedure when plea stipulation indicates more
serious offense. Defendant pled guilty to a drug offense, but facts in
the plea agreement indicated he committed a more serious offense. The
government contended he should be sentenced pursuant to U.S.S.G. Section
1B1.2(a), which in this case would have resulted in a four-year
sentence, the statutory maximum for the offense of conviction. The
court, however, sentenced defendant to probation for five years. The
government appealed.
The appellate court remanded and outlined the procedure for
sentencing under Section 1B1.2(a). The court held that "the
determination that the stipulation contained in or accompanying the
guilty plea 'specifically establishes a more serious offense' than the
offense of conviction must be expressly made on the record by the court
prior to sentencing." In making that decision "the trial court must
follow the directive contained in Fed. R. Crim. P. 11(f) and satisfy
itself that a 'factual basis for each essential element of the crime
(has been) shown.'"
The court also determined that a court may "depart from the
guidelines and sentence below the statutory maximum for the offense of
conviction when the guideline calculations for the stipulated offense
yield a sentencing range above the statutory maximum . . . provided
that appropriate and adequate reasons for the departure are assigned. .
. . We find nothing in either the relevant statutory or guideline
provisions . . . which would make departure inapplicable to the
sentencing procedure for guilty plea convictions."
U.S. v. Martin, No. 89-1011 (5th Cir. Jan. 11, 1990) (Politz, J.).
Sixth Circuit holds that district court need not explain reasons for
not following government recommendation for substantial assistance
departure, but suggests "it would be helpful." Defendant pled guilty to
a drug charge. His sentencing range was 63-78 months, but the
government, pursuant to the plea agreement, recommended a departure to
48 months for defendant's substantial assistance, U.S.S.G. Section
5K1.1. Without commenting on the government's recommendation, the court
imposed a 63-month sentence. Defendant appealed, claiming it was
reversible error for the court to fail to state any reasons for imposing
the 63-month sentence.
The appellate court affirmed, basing its decision on U.S. v. Duque,
883 F.2d 43 (6th Cir. 1989). There, the court held the sentencing judge
was not required "to state with particularity his reasons for setting a
sentence that falls within the guidelines where the guideline range was
less than 24 months." Id. at 43. See also 18 U.S.C. Section 3553(c)(1).
The court also held that "section 5K1.1, is discretionary. . . .
Defendant does not point to any provision in the guidelines or other
authority which requires a sentencing judge to explain the refusal to
grant a motion for a departure from the guidelines range. Although the
notes to section 5K1.1 specify that reasons must be stated for a
downward departure based upon a defendant's cooperation, there is no
converse requirement that a court explain its decision to refuse a
departure and impose a sentence within the guidelines."
The court noted, however, that "when the government has made a
recommendation based upon a Rule 11 plea agreement obligation to do so,
it would be helpful, even if not required, for a district judge to
indicate why he is not following the recommendation."
U.S. v. Jones, No. 89-1374 (6th Cir. Jan. 10, 1990) (per curiam)
(unpublished disposition).
Other Recent Cases:
U.S. v. Carey, No. 89-1826 (7th Cir. Jan. 12, 1990) (Flaum, J.)
(vacating downward departure for "cumulative effect" of defendant's age
and physical condition, fact that voluntary restitution was almost
complete, and offense was single act of aberrant behavior -- district
court's reasons "were, in part, improper and otherwise not sufficiently
articulated"; also, reasons for departure must be stated at time of
sentencing in open court, not in memorandum filed nunc pro tunc).
U.S. v. Rivalta, No. 89-1159 (2d Cir. Dec. 21, 1989) (Feinberg, J.)
(remanding to sentencing court for more explicit finding on whether
death of victim "resulted" from defendants' criminal activity, U.S.S.G.
Section 5K2.1, p.s.; facts supporting such a departure must be proved by
preponderance of the evidence).
U.S. v. Boshell, No. CR-88-361-S (E.D. Wash. Jan. 11, 1990)
(McNichols, J.) (downward departure warranted because "blindly applying
the Guidelines" to defendant, who went to trial, would be unfair and
counter to "every essential purpose underlying" the Guidelines where
co-conspirators who pled guilty in order to be sentenced under
pre-Guidelines law received much lighter sentences; also, consistent
with 18 U.S.C. Section 3661, personal characteristics may be considered
despite Section 5H1 recommendations to the contrary pursuant to 28
U.S.C. Section 994(e)).
U.S. v. Kirby, No. 88-5869 (6th Cir. Jan. 16, 1990) (per curiam)
(adjudication of delinquency and subsequent commitment may be considered
in criminal history computation).
U.S. v. Carroll, No. 88-2260 (6th Cir. Jan. 9, 1990) (Ryan, J.)
(criminal history points may be added to escapee's score pursuant to
Section 4A1.1(d) and (e)). Accord U.S. v. Wright, 891 F.2d 209 (9th
Cir. 1989); U.S. v. Vickers, 891 F.2d 86 (5th Cir. 1989); U.S. v.
Goldbaum, 879 F.2d 811 (10th Cir. 1989); U.S. v. Ofchinick, 877 F.2d
251 (3d Cir. 1989).
U.S. v. Hearrin, No. 89-1020 (8th Cir. Jan. 3, 1990) (Gibson, J.)
(for purposes of criminal livelihood provision, U.S.S.G. Section 4B1.3,
"pattern of criminal conduct" does not require separate criminal
offenses but may mean planned acts over period of time during single
course of conduct).
U.S. v. Watford, No. 88-5197 (4th Cir. Jan. 16, 1990) (Wilkins, J.)
(affirming Guideline sentence for conspiracy to run consecutively to
sentences on related substantive counts that occurred before Nov. 1,
1987, even though Guidelines would require concurrent sentences if
substantive offenses were controlled by Guidelines, see Sections
3D1.2(b)(1), 5G1.2(c) and (d); also holding that burden is on defendant
to show Guidelines should not apply because he withdrew before Nov. 1,
1987, from conspiracy that continued past that date).
U.S. v. Gurgiolo, No. 89-3519 (3d Cir. Jan. 12, 1990) (Gibbons, C.J.)
(pursuant to Drug Quantity Tables, U.S.S.G. Section 2D1.1, crimes
involving Schedule III substances may not be given a base offense level
above 20 -- accordingly, heroin equivalent for purposes of combining
with Schedule I and II substances cannot be more than 59 grams; also,
drug quantity includes total weight of substance, not "pure" weight of
drug).
U.S. v. Mitchell, No. 89-1795 (8th Cir. Jan. 2, 1990) (Heaney, Sr.
J.) (reversing order of restitution because there was no finding
defendant was able to pay the amount -- sentencing court must make "an
informed decision," supported by evidence and "consistent with the
defendant's ability to pay as set forth in the Commentary to U.S.S.G.
Section 5E1.1").
U.S. v. Boshell, No. CR-88-361-S (E.D. Wash. Jan. 11, 1990)
(McNichols, J.) ("consistent with 18 U.S.C. Section 3661, the relevance
of the factors set forth at U.S.S.G. Section 5H1 in rendering a
departure determination is a matter of judicial discretion, and such
discretion may not be proscribed, pre-empted or limited by the
Sentencing Commission"; also holding Guidelines unconstitutional as
applied to defendant who "would be penalized for going to trial" if
sentenced under Guidelines, as evidenced by much shorter sentences for
co-conspirators who pled guilty and were sentenced under pre-Guidelines
law).
VOLUME 2, NUMBER 19
JANUARY 12, 1990
District court holds substantial assistance departure should apply to
those who help to exonerate persons suspected of criminal activity.
Defendants assisted a federal investigation by providing information
that helped to demonstrate that another person had not committed a
crime, and the government moved for a downward departure pursuant to
U.S.S.G. Section 5K1.1, p.s. However, that section only allows
departure for substantial assistance "in the investigation or
prosecution of another person who has committed an offense" (emphasis
added), and not for exonerating another person.
The court concluded that assisting in the exculpation of another was
a "mitigating circumstance of a kind, or to a degree, not adequately
taken into consideration by the Sentencing Commission," 18 U.S.C.
Section 3553(b), and therefore it had the power to depart downward. The
court also found that the benefit to the government, namely stopping
"the expense of a fruitless inquiry and the diversion of effort from
more promising work," was another circumstance not considered by the
Commission that warranted departure.
U.S. v. Huss, No. 89 CR760 (N.D. Ill. Dec. 20, 1989) (Zagel, J.).
U.S. v. Summers, No. 89-5116 (4th Cir. Jan. 2, 1990) (Wilkins, J.)
(when sentencing court departs downward because defendant's criminal
history category has been "exaggerated" by minor offenses, it must guide
departure by reference to appropriate lower criminal history categories,
U.S.S.G. Section 4A1.3, p.s.; in this case court should use the criminal
history category that would result absent consideration of the minor
offenses).
U.S. v. Strange, No. 89-5826 (6th Cir. Dec. 28, 1989) (per curiam)
(unpublished disposition) (affirming upward departure, from 27-33 month
range to 66 months, because case is "sufficiently unusual" -- "a
combination of mental illness and a prior criminal history that leads
strongly to the conclusion that the defendant is likely to continue to
engage in conduct that has the very real potential for death or serious
injuries to others," and "psychiatric evaluations indicated that
intensive long-term psychotherapy would be necessary").
U.S. v. Maddalena, No. 89-1533 (6th Cir. Dec. 21, 1989) (Kennedy, J.)
(remanding for resentencing -- district court mistakenly believed it
could not consider defendant's efforts to avoid drugs as basis for
downward departure).
U.S. v. Geiger, No. 89-1429 (5th Cir. Dec. 20, 1989) (Reavley, J.)
(affirming upward departure, from 21-27 month range to 120 months,
because defendant's criminal history score did not adequately reflect
seriousness of prior criminal conduct -- three earlier drug convictions
were consolidated for sentencing and thus counted as one offense, see
U.S.S.G. Section 4A1.2(a)(2) & comment. (n.3), and the current offense
was committed while defendant was on probation and out on bail).
U.S. v. Speight, No. 88-0245 (D.D.C. Dec. 12, 1989) (Oberdorfer, J.)
(pursuant to U.S.S.G. Section 5K2.13, p.s., departing downward from
188-235 month range to mandatory minimum of 120 months, to be served
concurrently with unexpired state sentence, "because defendant's long
history of mental illness establishes that he acted with significantly
reduced mental capacity at the time he committed the offenses").
Trio of district court cases explores definition of "crime of
violence" under Guidelines. In N.D. Ill. the court had to determine if
possession of a weapon by a convicted felon was a "crime of violence"
under the career offender guidelines, U.S.S.G. Sections 4B1.1, 4B1.2.
Concluding that defendant's prior burglaries and the present offense
were "crimes of violence," the court held: (1) that it could "consider
the circumstances of the offense in deciding whether it was a 'crime of
violence,'" see also Maddalena, supra ("court has the discretion to
consider evidence other than the statute in determining whether an
offense was a 'crime of violence'"); (2) "that the crime of possession
of a handgun by a convicted felon by its nature involves a substantial
risk that physical force may be used against another person"; and (3)
"that the crime of burglary, which involves breaking and entering into a
building without permission of the owner, clearly involves as one of its
elements the use of physical force against property and is a crime of
violence." (Note: An amendment to Section 4B1.2, effective Nov. 1,
1989, deleted reference to 18 U.S.C. Section 16 and amended the
definition of "crime of violence." See U.S.S.G. App. C, amendment 268.)
U.S. v. Colston, No. 88 CR843 (N.D. Ill. Dec. 12, 1989) (Plunkett,
J.).
A court in S.D.N.Y. had to determine whether two prior burglaries of
motel rooms constituted "crimes of violence" under the career offender
provisions. The government claimed that a motel room was considered a
"dwelling" under the law of the state of conviction, and that U.S.S.G.
Section 4B1.2(1)(ii) (Nov. 1989) provides that "burglary of a dwelling"
is a crime of violence. Nevertheless, the court held they were not
violent crimes. Noting the part of the definition in Section
4B1.2(1)(ii) that states "or otherwise involves conduct that presents a
serious potential risk of physical injury to another," the court
determined that "the clear thrust of this section is to categorize
crimes using physical force against persons as violent crimes . . . .
Absent any showing that (defendant's) burglary convictions involved the
use of or threatened use of violence against persons, it would be a
hypertechnical and distorted interpretation of the Guidelines to
classify these offenses as prior violent felonies."
U.S. v. Johnson, No. 89 CR0176 (S.D.N.Y. Dec. 21, 1989) (Sweet, J.).
In D.D.C. the court had to determine whether defendant could receive
a downward departure for diminished capacity under U.S.S.G. Section
5K2.13, p.s. That section allows departure, in part, if the current
offenses were "non-violent." Using the amended definition of "crime of
violence" in Section 4B1.2(1), the court concluded that neither of
defendant's offenses -- possession with intent to distribute cocaine and
possession of a weapon by a felon -- were violent. The court concluded
that it should only consider the nature of the offenses charged, not the
actual circumstances of their commission. It held that, "(w)hile both
drug trafficking and possession of a weapon by a felon on occasion may
present some risk of injury to a person, the crimes are not themselves
ones that . . . necessarily pose such a risk by their very nature."
U.S. v. Speight, No. 88-0245 (D.D.C. Dec. 12, 1989) (Oberdorfer, J.).
U.S. v. Pierce, No. 88-2985 (5th Cir. Jan. 4, 1990) (Jones, J.)
(affirming upward adjustment for obstruction of justice, U.S.S.G.
Section 3C1.1, for attempting to flee arrest and to influence testimony
of witness).
U.S. v. Salyer, No. 89-1485 (6th Cir. Dec. 21, 1989) (Contie, Sr. J.)
(defendant convicted of conspiracy to interfere with civil rights, for
burning cross on black couple's lawn, was properly given upward
adjustment under U.S.S.G. Section 3A1.1 for victim vulnerability --
defendant "should have known" the victims were "particularly susceptible
to the criminal conduct" because of their race, and the offense
guideline did not already incorporate that factor, see Section 3A1.1,
comment. (n.2)).
U.S. v. Evans, No. 89-1758 (8th Cir. Dec. 14, 1989) (Fagg, J.)
(pursuant to U.S.S.G. Section 2D1.1, comment. (n.12) and Section 2D1.4,
comment. (n.2), sentencing court properly approximated and used in
setting offense level the amount of methamphetamine defendants were
capable of producing, 22.5 kilograms, not .0688 kilograms actually
seized).
U.S. v. Williams, No. 89-3135 (D.C. Cir. Nov. 29, 1989) (Wald, C.J.)
(role in offense adjustment for being "manager" of a criminal activity,
U.S.S.G. Section 3B1.1(c), applies only to defendant's role in offense
of conviction -- adjustment may not bed applied to defendant convicted
of possession of illegal weapon who admitted running a crack operation
in house where weapon was found). Cf. U.S. v. Foster, 876 F.2d 377, 378
(5th Cir. 1989) (courts should not apply adjustment for "use of special
skill," U.S.S.G. Section 3B1.3, "unless such a skill is used to
facilitate commission or concealment of 'the offense' -- the one charged
in the indictment -- and not any other crime or crimes that may have
been revealed during presentence investigation").
U.S. v. Garcia, No. 88-2557 (10th Cir. Dec. 29, 1989) (Ebel, J.)
(held "that the sentencing guidelines apply to assimilative crimes, but
that the sentence imposed may not exceed any maximum sentence and may
not fall below any mandatory minimum sentence that is required under the
law of the state in which the crimes occur"; also held "the commentary
to Section 2X5.1 of the sentencing guidelines, which 'require(s)' courts
to apply guidelines applicable to analogous federal crimes in
determining sentences for assimilative crimes, has no legal effect to
the extent that it exceeds the less-restrictive mandate of the
Sentencing Reform Act of 1984 to give only 'due regard' to analogous
federal sentencing guidelines").
U.S. v. Bakhtiari, No. 88 CR889 (S.D.N.Y. Dec. 18, 1989) (Sweet, J.)
(Defendant sentenced for offense that occurred prior to conviction and
sentencing for earlier, separate offense should receive a consecutive,
not concurrent, term of imprisonment for current offense. Although the
Guidelines "are here not particularly helpful," "(t)he sentencing
factors set forth at 18 U.S.C. Section 3553(a)(2) . . . favor making the
sentence on the instant offense run consecutively with the term of
imprisonment imposed on the (prior) convictions." The term of supervised
release imposed in this case would also be consecutive to the term of
supervised release in the earlier offense. The court noted that
imposing concurrent sentences when, as here, the second term is shorter
than the first, "in effect would require (defendant) to serve no time
for the (second offense)," and "thus would fail entirely 'to reflect the
seriousness of the offense, to promote respect for the law, and to
provide just punishment' for his behavior. 18 U.S.C. Section
3553(a)(2)(A).").
U.S. v. Denardi, No. 89-3365 (3d Cir. Dec. 19, 1989) (Seitz, J.) (18
U.S.C. Section 3742(a) does not authorize appeal of district court's
discretionary refusal to depart from an otherwise valid guideline
sentence). Accord U.S. v. Tucker, No. 89-1222 (1st Cir. Dec. 19, 1989)
(Torruella, J.). See also U.S. v. Draper, 888 F.2d 1100 (6th Cir.
1989); U.S. v. Franz, 886 F.2d 973 (7th Cir. 1989); U.S. v. Colon, 884
F.2d 1550 (2d Cir. 1989); U.S. v. Fossett, 881 F.2d 976 (11th Cir.
1989).
U.S. v. Williams, No. 89-3135 (D.C. Cir. Nov. 29, 1989) (Wald, C.J.)
(noting agreement with U.S. v. Bermingham, 855 F.2d 925, 930-31 (2d Cir.
1988), that when a disputed sentence "falls within either of two
arguably applicable Guidelines ranges and it is clear that the same
sentence would have been imposed under either Guidelines range, the
court need not resolve the dispute . . . . Where it appears, however,
that the district court chose a sentence because it was at the low end
of the applicable Guidelines range, the court should remand for proper
resentencing.").
VOLUME 2, NUMBER 18
DECEMBER 29, 1989
First Circuit holds departures are warranted only where the
circumstances "are sufficiently unusual to remove a case from the
heartland" of typical guideline cases. Defendant pled guilty to a
string of bank robberies and robbery attempts committed in a three-week
period. The district court concluded a downward departure was warranted
because defendant did not use a weapon, was "ineffective" and
"half-hearted" as a bank robber, committed the crimes during a brief
period when he suffered from cocaine addiction, had a minimal prior
record, and expressed the desire to reform.
The appellate court vacated the sentence, finding that most of the
district court's reasons for departure were factors already considered
by the Sentencing Commission. The court also found that two factors
that might warrant departure -- defendant's excellent conduct in prison
before sentencing and his "lack of enthusiasm" in committing the
robberies -- were "clearly insufficient" to support a departure in this
case. The court stressed that "departures must be bottomed on
meaningful atypicality . . ., the circumstances triggering a departure
must be truly 'unusual,'" and "the trial court's right to depart, up or
down, must be restricted to those few instances where some substantial
atypicality can be demonstrated."
U.S. v. Williams, No. 89-1689 (1st Cir. Dec. 15, 1989) (Selya, J.).
U.S. v. Coe, No. 89-1205 (2d Cir. Nov. 30, 1989) (Newman, J.) (short
span of time in which robberies were committed and defendant's false
claim of having weapon were not permissible grounds for upward departure
under U.S.S.G. Section 5K2.0, p.s.; departure was warranted because
defendant's pattern of behavior indicated he was likely to commit future
offenses, U.S.S.G. Section 4A1.3, p.s., and district court should follow
procedure for such departures set forth in U.S. v. Cervantes, 878 F.2d
50 (2d Cir. 1989), by determining which criminal history category "best
encompasses the defendant's prior history" and then using the
corresponding sentencing range for that category "to guide its
departure").
U.S. v. Mahler, No. 88-5193 (4th Cir. Dec. 8, 1989) (Widener, J.)
(use of replica of handgun in robbery warranted upward departure --
replicas are not covered in the Guidelines definitions of firearms or
dangerous weapon, and are therefore "an aggravating circumstance" not
adequately considered by Sentencing Commission; sentencing court
treated replica as an unloaded gun under U.S.S.G. Section 2B3.1(b)(2)(C)
and increased offense level by three).
U.S. v. Jordan, No. 89-1774 (7th Cir. Dec. 7, 1989) (Cummings, J.)
(departure from 70-87 months to 120 months warranted because defendant's
attempt to flee from arrest resulted in injury to government agent,
there was evidence defendant continued to deal and use drugs while
awaiting sentencing, and criminal history score did not represent
seriousness of past activity).
U.S. v. Yellow Earrings, No. 89-5142 (8th Cir. Dec. 1, 1989) (Bright,
Sr. J.) (affirming downward departure for assault defendant, from range
of 41-51 months to 15 months, because victim "substantially provoked"
the offense (see U.S.S.G. Section 5K2.10, p.s.)).
U.S. v. Otero, No. 89-3077 (11th Cir. Dec. 11, 1989) (per curiam)
(defendant who claimed he was unaware that co-conspirator had firearm
was properly given enhancement for firearm possession under U.S.S.G.
Section 2D1.1(b)). Cf. U.S. v. Missick, 875 F.2d 1294 (7th Cir. 1989)
(departure for defendant who supplied drugs to persons possessing
weapons was not proper because defendant had no direct contact with and
was not charged as co-conspirator with those who possessed weapons).
U.S. v. Mocciola, No. 89-1471 (1st Cir. Dec. 5, 1989) (Aldrich, Sr.
J.) (defendant who pled guilty to drug possession charge may be given
enhancement for possession of firearm under U.S.S.G. Section 2D1.1(b)(1)
despite acquittal by jury on charge of using a weapon during a drug
trafficking crime under 18 U.S.C. Section 924(c)(1)). See also U.S. v.
Isom, 886 F.2d 736, 738 & n.3 (4th Cir. 1989) (acquittal does not
necessarily preclude use of underlying facts of offense at sentencing);
U.S. v. Juarez-Ortega, 866 F.2d 747, 749 (5th Cir. 1989) (per curiam)
(same); U.S. v. Ryan, 866 F.2d 604, 609 (3d Cir. 1989) (same).
U.S. v. Green, No. 89-5198 (8th Cir. Nov. 15, 1989) (Wollman, J.)
(although gun was not loaded and was found in different room from most
of drugs, defendant's "undenied possession of a firearm and ammunition
in the same place where she conducted drug transactions and the
additional hazard the presence of the firearm created in her drug
operation satisfy us that connection of the gun to the offense is not
clearly improbable," and an upward adjustment under U.S.S.G. Section
2D1.1(b)(1) was proper).
U.S. v. Gerante, No. 89-1235 (1st Cir. Dec. 8, 1989) (Campbell, C.J.)
(sentencing court properly converted $68,000 that originated from prior
drug transaction into estimated quantity of cocaine to determine
relevant quantities for purpose of calculating base offense level under
U.S.S.G. Section 2D1.1(a)(3); case must be remanded, however, because
court did not make explicit finding required by Fed. R. Crim. P.
32(c)(3)(D) on disputed issue of whether the $68,000 did in fact
originate from prior drug transaction).
U.S. v. Garcia, No. 89-1499 (5th Cir. Nov. 30, 1989) (Jolly, J.)
(court may base offense level on amount of drugs under negotiation in an
uncompleted drug transaction, see U.S.S.G. Sections 2D1.1, comment.
(n.12), 2D1.4, comment. (n.1) (Nov. 1989); here, defendant sold eight
ounces of cocaine but had negotiated to sell 16 ounces, and the larger
amount was properly used to determine base offense level).
U.S. v. Lanese, No. 89-1133 (2d Cir. Nov. 29, 1989) (Re, J.)
(remanding for resentencing: "district court did not make a specific
finding of the identities of the 'five or more participants,' or that
the criminal activity was 'otherwise extensive,'" and thus appellate
court could not determine whether defendant's sentence was correctly
increased for being a "manager or supervisor" under U.S.S.G. Section
3B1.1(b); also reversed codefendant's sentence because finding that he
was a "manager or supervisor" was "clearly erroneous").
U.S. v. Ford, No. 89-3205 (6th Cir. Nov. 27, 1989) (Kennedy, J.) (no
double jeopardy when sentencing court used same information, given by
defendant to probation officer, to grant defendant reduction for
acceptance of responsibility and to impose sentence near high end of
guideline range).
U.S. v. Vickers, No. 89-3308 (5th Cir. Dec. 8, 1989) (per curiam)
(agreeing with U.S. v. Goldbaum, 879 F.2d 811 (10th Cir. 1989), and U.S.
v. Ofchinick, 877 F.2d 251 (3d Cir. 1989), that it is not improper to
add points to criminal history score, pursuant to U.S.S.G. Section
4A1.1(d) and (e), of defendant convicted of escape from custody). See
also U.S. v. Wright, No. 88-1277 (9th Cir. Dec. 4, 1989) (Canby, J.)
(when defendant is convicted of escape offense it is not error or
violation of double jeopardy to add criminal history points under
U.S.S.G. Sections 4A1.1(d) and (e)). But see U.S. v. Bell, 716 F. Supp.
1207 (D. Minn. 1989) (adding criminal history points under Section
4A1.1(d) amounts to double counting); U.S. v. Clark, 711 F. Supp. 736
(S.D.N.Y. 1989) (same).
U.S. v. Williams, No. 89-50017 (9th Cir. Dec. 6, 1989) (Nelson, J.)
(not a violation of due process to use juvenile conviction in criminal
history calculation even though there was no right to jury trial in the
juvenile adjudication; also, "commitment to juvenile hall is a form of
confinement" that falls within U.S.S.G. Section 4A1.2(d)(2)(A)).
Fourth Circuit holds that limited power to sentence below statutory
minimum for substantial assistance, 18 U.S.C. Section 3553(e), also
applies to 18 U.S.C. Section 3561(a)(1) to allow probation for Class A
and B felonies. Defendant pled guilty to conspiracy to possess and
distribute cocaine. He argued that the circumstances of his case made a
sentence of probation appropriate, and that 18 U.S.C. Section 3553(e)
allowed it. The district court disagreed, holding that the prohibition
against probation for Class A and B felonies in 18 U.S.C. Section
3561(a)(1) applied.
The appellate court remanded, holding that probation could be given
to a defendant who qualified under Section 3553(e): "As we view Section
3553(e), there is no logical distinction between the two situations,
i.e., between the mandatory minimum sentence and the prohibition against
probation. The statute was intended to free the sentencing judge to
exercise, on motion of the Government, a prudent discretion by
disregarding, where there has been substantial governmental assistance
by the defendant, both the affirmative mandate to impose a minimum
prison sentence and the negative mandate of Section 3561(a)(1) not to
grant probation to a Class A or a Class B offender."
U.S. v. Daiagi, No. 88-5161 (4th Cir. Dec. 15, 1989) (Russell, J.).
U.S. v. Rosa, No. 88-3692 (3d Cir. Dec. 8, 1989) (Stapleton, J.)
(defendant in conspiracy that began before and ended after Nov. 1, 1987,
properly sentenced under Guidelines despite claim he withdrew from the
conspiracy before then -- defendant failed to "affirmatively renounce"
conspiracy before that date; remanded for resentencing, however, for
district court to make specific findings required by Fed. R. Crim. P.
32(c)(3)(D) when defendant disputes information in presentence report,
here the government's version of offense).
U.S. v. Jordan, No. 89-1774 (7th Cir. Dec. 7, 1989) (Cummings, J.)
(holding defendant not entitled to notice before sentencing hearing that
district court would depart -- defendant was "not unfairly surprised
with new evidence or information" at the hearing and was allowed to
contest all factors used to determine his sentence). Cf. U.S. v.
Nuno-Para, 877 F.2d 1409 (9th Cir. 1989) (defendant must be given notice
of and opportunity to comment on factors that may constitute grounds for
departure prior to sentencing, Fed. R. Crim. P. 32(a)(1)); U.S. v.
Cervantes, 878 F.2d 50 (2d Cir. 1989) (same); U.S. v. Otero, 868 F.2d
1412 (5th Cir. 1989) (same).
U.S. v. Cyrus, No. 88-3156 (D.C. Cir. Dec. 12, 1989) (Mikva, J.)
(higher penalties in Guidelines for possession of cocaine base (crack)
than for cocaine do not violate equal protection, due process, or the
eighth amendment).
VOLUME 2, NUMBER 17
DECEMBER 6, 1989
Fourth Circuit holds lack of prior criminal record and fact that
possible loss of employment may make restitution more difficult are not
proper grounds for departure; holds finding on minimal planning was
"clearly erroneous." Defendant pled guilty to check kiting and making
false statements to a bank. He borrowed money from friends to pay back
the illegally obtained funds, but still owed over $6,400 to the banks.
The district court resolved a dispute over the appropriate offense level
by finding the offense did not involve "more than minimal planning,"
U.S.S.G. Section 2F1.1(b)(2), resulting in an offense level of 8 and
guideline range of 2-8 months. Under the Guidelines, defendant could be
sentenced to probation, with a minimum two months of intermittent or
community confinement. See U.S.S.G. Sections 5B1.1(a)(2), 5C1.1(c).
The court imposed a term of probation for five years with no
confinement, holding that departure was warranted because defendant had
not "been in any trouble before," and because a term of imprisonment
could cost defendant his job and make restitution to the banks and
repayment to his friends more difficult.
The appellate court reversed, finding that both the departure and
offense level calculation were improper. The court held that two points
must be added to the offense level under Section 2F1.1(b)(2) because
"the record is undisputed that the check kiting scheme required more
than minimal planning and . . . any finding of fact that the increment
was not justified would be clearly erroneous. As a matter of law the
increment must be added."
The departure was improper because "the district court cannot credit
(defendant) for lack of a record of prior criminal behavior. Th(at)
fact . . . is taken into consideration in the Sentencing Table . . . .
Having received credit for his lack of prior offenses in the
determination of the sentencing range, (he) is not entitled to further
credit in the form of a downward adjustment."
The court also concluded that "we do not think that the economic
desirability of attempting to preserve (defendant's) job so as to enable
him to make restitution warrants a downward adjustment," reasoning that
"(defendant) is no different from any other person convicted of a
similar offense. Both would be unable to work; it is not unlikely that
both would be discharged; without earned income both would be hindered
or presented from making restitution." In remanding, the court noted
that the various conditions of community and intermittent confinement
"provide the sentencing court with other options that may allow
(defendant) to keep his job."
U.S. v. Bolden, No. 88-5183 (4th Cir. Nov. 22, 1989) (Winter, J.).
U.S. v. Lucas, No. 88-2239 (6th Cir. Nov. 13, 1989) (Milburn, J.)
(district court may depart upward to account for psychological injury to
robbery victims; robbery guideline allows departure for physical injury
to robbery victims, but does not address psychological injury).
U.S. v. Smith, No. 88-2817 (10th Cir. Nov. 3, 1989) (Moore, J.)
(sentencing court's "brief statement" that "the force and violence used
by the defendant in committing the offense . . . justifies an upward
departure from the guidelines" does not satisfy the requirement for a
specific statement of reasons to justify a departure).
U.S. v. Pitman, No. 89-1264 (6th Cir. Nov. 2, 1989) (per curiam)
(unpublished disposition) (convictions that occurred more than 10 years
prior to current offense, and thus could not be used for calculating
criminal history score, could be used as basis for departure under
U.S.S.G. Section 4A1.3, p.s.; also, large sum of money found at
defendant's home at time of arrest and other reliable evidence
indicating defendant was a drug trafficker provided additional basis for
departure).
U.S. v. Sadler, No. 88-10055 (D. Idaho Oct. 2, 1989) (Ryan, C.J.)
(holding that "defendant's educational and vocational skills, mental and
emotional condition, previous employment record, and family and
community ties, although not ordinarily relevant (pursuant to U.S.S.G.
Section 5H1.1, et seq., p.s.), exist in the present case in such a
quality and to such a degree as to warrant a downward departure"). Cf.
U.S. v. Rodriguez, No. 88 CR117 (S.D.N.Y. Oct. 27, 1989) (Guidelines'
general prohibition against consideration of defendants' "personal
characteristics" does not preclude departure in "atypical" case) (2 GSU
#16).
Seventh Circuit holds that conviction for offense that occurred
during and was related to conspiracy of current conviction may count
toward career offender status. Defendant was convicted of conspiracy to
possess cocaine with intent to distribute. He was sentenced to 30 years
in prison as a career offender under U.S.S.G. Section 4B1.1. "Two prior
felony convictions" are required for career offender status, and
defendant disputed one of the convictions used by the court. The
conspiracy in the instant offense took place in Milwaukee and lasted
from Nov. 1, 1987, to Sept. 13, 1988. During the course of the
conspiracy, defendant was arrested and convicted in California for
possession of cocaine. Because the California cocaine was connected
with the Milwaukee conspiracy, "(d)oubt whether this was a 'prior
conviction' within the meaning of the guidelines arises from the fact
that although the (California) conviction preceded his current
conviction, it punished conduct that took place after the offense
underlying the current conviction . . . had begun and that indeed was
part of that offense."
The appellate court held that the California conviction was properly
deemed a "prior felony conviction." "Nothing in the guidelines'
definition of a career offender requires . . . that every act
constitutive of the offense underlying his current conviction have been
committed after the prior conviction, and we can think of no reason for
such a requirement." The court concluded that "the 'subsequent' offense
need not be entirely subsequent to preserve the relation between the
guideline and its animating policy of punishing the recidivist more
severely."
The court also reasoned that, in this particular case, "the evidence
presented to the jury makes clear that (defendant's) subsequent
participation in the conspiracy was sufficient by itself to support the
conspiracy conviction. The 'instant offense' was 'subsequent' in the
practical sense that the part of the conspiracy that preceded the prior
conviction could be lopped off without affecting (his) guilt."
U.S. v. Belton, No. 89-1649 (7th Cir. Nov. 20, 1989) (Posner, J.).
Fourth Circuit carves "very narrow" exception to Fed. R. Crim. P. 35
to allow district court to amend improper guideline sentence. Defendant
was convicted of distributing cocaine. Her sentencing range was 6-12
months, and she was not eligible for probation. The district judge
stated that he intended, pursuant to U.S.S.G. Section 5C1.1(c), to
sentence defendant to three months' imprisonment followed by supervised
release with a condition of three months of community or intermittent
confinement. At sentencing, however, the judge actually sentenced
defendant to three months of community confinement followed by three
months of supervised release. Neither the government nor defendant
objected, but the judge "subsequently realized that he had incorrectly
interpreted section 5C1.1(c). Without notice to the parties the
district judge then sua sponte issued an amended judgment and sentencing
order that changed (defendant's) sentence" to that which he originally
intended.
The appellate court held that the court could amend the sentence.
Although Rule 35 substantially restricts the power of district courts to
amend sentences, "this is an unusual case and we recognize the inherent
power in a court to correct an acknowledged and obvious mistake." The
court cautioned, however, that this "inherent power is not without
limitation," and held "that the authority to modify a sentence to
correct an acknowledged and obvious mistake exists only during that
period of time in which either party may file a notice of appeal. After
that time, we believe that the sentence has become final, and the
district court lacks any authority to modify it."
The court stressed "that our holding is a very narrow one. The power
of a district court to amend a sentence does not extend to a situation
where the district judge simply changes his mind about the sentence.
Nor should this be interpreted as an attempt to reenact former Rule 35
by judicial edict. Our decision is limited to the case where the
district court states that a particular kind of sentence is to be
imposed and then imposes a different sentence solely because of an
acknowledged misinterpretation of the pertinent guidelines section."
The appellate court found, however, that the district court may not
increase the sentence in defendant's absence, Fed. R. Crim. P. 43(a),
and remanded for resentencing.
U.S. v. Cook, No. 89-5622 (4th Cir. Nov. 22, 1989) (Wilkins, J.).
U.S. v. Soliman, No. 89-1162 (2d Cir. Nov. 13, 1989) (Kaufman, J.)
(upholding sentencing judge's consideration of foreign conviction in
deciding to sentence at top of guideline range, but cautioning district
judges to be aware of "possible constitutional infirmities surrounding a
foreign conviction" and to exercise "informed discretion" in deciding
whether to rely on foreign conviction to increase sentence within range
or to justify departure under U.S.S.G. Section 4A1.3(a), p.s.).
U.S. v. McDowell, No. 89-3265 (3d Cir. Oct. 25, 1989) (Rosenn, Sr.
J.) ("a sentencing court considering an adjustment of the offense level
. . . need only base its determination on the preponderance of the
evidence" standard, and "the burden of ultimate persuasion should rest
upon the party attempting to adjust the sentence").
U.S. v. Francois, No. 88-5110 (4th Cir. Nov. 22, 1989) (Chapman, J.)
(rejecting due process challenge to substantial assistance provisions:
"the requirement that the government file the motion does not deprive
the defendant of any constitutional rights whether the failure to make
the motion be under (U.S.S.G.) Section 5K1.1 or under (Fed. R. Crim. P.)
35(b), because there is no constitutional right to the availability of a
substantial assistance provision to reduce a criminal sentence").
U.S. v. Savage, No. 89-1643 (7th Cir. Nov. 2, 1989) (Easterbrook, J.)
(rejecting claim that U.S.S.G. Section 2J1.6, Failure to Appear, is
unconstitutional on the ground that it does not allow sentencing court
to consider mitigating factors such as prompt voluntary surrender).
VOLUME 2 NUMBER 16
NOVEMBER 22, 1989
D.C. Circuit holds offense level increase for firearm possession may
not be applied absent showing of scienter. Defendant pled guilty to
possession of heroin with intent to distribute. He had travelled by
train with the heroin in a tote bag. The police also discovered a gun
in the bag. Defendant claimed he was unaware that the gun was in the
bag, and argued that the court should not apply the increase under
U.S.S.G. Section 2D1.1(b) unless he had knowingly possessed it. The
sentencing court did, however, and defendant appealed.
The appellate court, noting that "(t)he United States conceded at
oral argument that Section 2D1.1(b) should not be read to apply in the
absence of scienter," reversed and remanded. The court concluded that
while Section 2D1.1 "is silent as to scienter," language in Section
1B1.3(a) regarding specific offense characteristics "suggests that a
defendant's mental state must be taken into account."
The court construed Section 1B1.3(a)(3) to mean that "the sentencing
judge should upgrade the sentence of a drug defendant who possessed a
dangerous weapon or firearm whenever it is found that the defendant
possessed it 'intentionally, recklessly or by criminal negligence.'"
This standard applies "(i) where it is shown that the defendant knew
that he was in possession of a weapon; or (ii) where there is
insufficient proof to show that the defendant knew he was in possession
of a weapon, but it is shown that possession was avoidable but for the
defendant's recklessness or criminal negligence."
The court stated that "possession with proof of knowledge" includes
both actual and "constructive possession," and that in either case "the
Government must show possession of a weapon in reasonable proximity to
the scene of the drug transaction." In a case of "possession without
proof of knowledge" the government must prove that, "in addition to
having direct physical control of the weapon, the defendant failed to
take reasonable steps that would have disclosed the weapon in question."
(Emphasis in original.)
On other issues, the court held that the application of Section
2D1.1(b) "is not contingent on a finding that the gun . . . was
operable" or "that the defendant used the firearm or would have used the
firearm to advance the commission of the underlying drug offense," that
facts necessary for sentencing may be proved by a preponderance of the
evidence, and that "insofar as Section 2D1.1(b) relates to a matter that
would enhance the defendant's sentence, the burden of proof is on the
prosecution."
U.S. v. Burke, No. 88-3179 (D.C. Cir. Oct. 31, 1989) (Edwards, J.).
Other Recent Case:
U.S. v. White, No. 89-1313 (7th Cir. Oct. 25, 1989) (Easterbrook, J.)
(When drug amounts from separate transactions are combined under Section
1B1.3(a)(2) to set offense level, the "(s)entence must be based on the
sales that were part of one 'common scheme or plan' (such as a single
conspiracy) or a single 'course of conduct' (the unilateral equivalent
to the conspiracy). Offenses of the same kind, but not encompassed in
the same course of conduct or plan, are excluded." Court also advised
district courts to "marshall their findings and reasons in sentencing
cases in the same way they do when making oral findings and conclusions
under Fed. R. Civ. P. 52(a).").
Third Circuit holds that jury's rejection of coercion and duress
defense does not preclude departure under U.S.S.G. Section 5K2.12.
Defendant was convicted by a jury of bank robbery offenses. The verdict
indicated that the jury rejected her defense that she was forced to
commit the crimes because of the coercion and duress imposed by two
codefendants. At sentencing the district court indicated it thought a
departure under Section 5K2.12 was warranted, but declined to depart
because that would have been inconsistent with the jury verdict.
The appellate court remanded. Section 5K2.12 provides, in part: "If
the defendant committed the offense because of serious coercion . . . or
duress, under circumstances not amounting to a complete defense, the
court may decrease the sentence below the applicable guideline range."
The court held that "section 5K2.12 makes it clear that the Commission
intended to provide for a downward departure in some situations where
the evidence of coercion does not amount to a complete defense. Indeed,
in situations where the coercion does amount to a complete defense, the
defendant would be acquitted." Thus the provision must be read "as
providing a broader standard of coercion as a sentencing factor than
coercion as required to prove a complete defense at trial," and "the
district court has the power to depart if (defendant) proves coercion or
duress by a preponderance of the evidence."
U.S. v. Cheape, No. 89-3207 (3d Cir. Nov. 14, 1989) (Becker, J.).
Eleventh Circuit upholds criminal history departure to career
offender status where consolidation of prior convictions
underrepresented defendant's criminal past. Defendant pled guilty to
four counts of bank robbery and one escape count. In 1982 he had pled
guilty to four bank robberies in two different states. The earlier
robberies had been combined for sentencing under Fed. R. Crim. P. 20(a),
and as a result were treated under U.S.S.G. Section 4A1.2(a)(2) as one
sentence in the criminal history calculation for the current sentencing.
The district court found that the resulting criminal history score
inadequately represented defendant's past and likely future criminal
conduct, concluded that defendant should be treated as a career
offender, and departed upward to impose a 262-month sentence.
The appellate court affirmed, holding that departure was justified
despite the language of Section 4A1.2(a)(2): "We do not believe that
the Commission intended that someone with a history such as
(defendant's) should be treated as having only one prior conviction,
solely because he is permitted to take advantage of Rule 20(a)'s
procedural device." The court noted that Application Note 3 of Section
4A1.2 "recognizes that strict application of the related case criteria
may not properly reflect a defendant's criminal history," and states
that in such a case "the court should consider whether departure is
warranted." In addition, Section 4A1.3 states that "departure under this
provision is warranted when the criminal history category significantly
underrepresents the seriousness of the defendant's criminal history or
the likelihood that the defendant will commit further crimes."
U.S. v. Dorsey, No. 88-8442 (11th Cir. Sept. 29, 1989) (Roney, C.J.).
District court holds departure warranted where defendant lacked
knowledge of or control over size of drug transaction. Defendant pled
guilty to conspiring to distribute cocaine; he had allowed his
apartment to be used to store cocaine in return for payment of his rent.
The court determined that defendant was entitled to an offense level
reduction as a "minimal participant," U.S.S.G. Section 3B1.2(a), thus
lowering the guideline range from 41-51 months to 27-33 months.
The court imposed a sentence of 18 months, however, finding departure
was warranted under U.S.S.G. Section 5K2.0 because "the Guidelines do
not sufficiently consider the fact that defendant had no knowledge of,
and played no role in determining, the size of the drug transaction in
which he participated. As a result, the Guidelines overstate the
severity of defendant's offense conduct." The court reasoned that drug
offenses "are graded under the Guidelines strictly on the basis of the
quantity/weight of the drug in question," and thus "the applicable base
offense level is wholly unaffected by the degree to which the
participant had knowledge of the size or scope of the drug transaction."
In a case where a defendant "had no knowledge of or control over the
quantity of drugs involved, nor stood to gain anything more from a
larger rather than smaller transaction, predicating a sentence so
predominantly upon drug quantity may result in punishment unfitting of
the crime . . . notwithstanding the availability . . . of a four point
adjustment for 'minimal offense role.'" That reduction, "designed to
assist in evaluating the severity of offenses of every nature described
in the Guidelines -- gives insufficient consideration to the
significance in drug offenses of a participant's lack of knowledge of or
stake in the scope of a transaction, in view of the weight-driven system
of grading such offenses."
U.S. v. Batista-Segura, No. S 89 CR. 377 (S.D.N.Y. Oct. 19, 1989)
(Sweet, J.).
District court holds successful rehabilitation of drug addict
warranted departure. Defendant was found guilty of selling a small
amount of crack for $10. The guideline range was 8-14 months, but the
applicable statute required that if a sentence of imprisonment was given
it had to be for not less than one year. Thus, the court would have to
sentence defendant to a minimum one-year term unless it could depart to
give a sentence of probation.
The court found that the circumstances of the case warranted
departure. The defendant "has accomplished an impressive
rehabilitation," overcoming his drug addiction and remaining drug-free
for almost two years, reuniting with his family, and obtaining
employment. The court concluded it would be "senseless, destructive and
contrary to the objectives of the criminal law to now impose a year's
jail term on this defendant."
The court also concluded that the Guidelines' general prohibition
against consideration of a defendant's "personal characteristics" did
not preclude this departure. Although offender characteristics "were
essentially left out of the Guideline calculation, they are provided for
through Policy Statements and through the departure power," allowing for
departures in "atypical" cases such as this. See U.S.S.G. Ch. 1, Pt. A,
intro. comment at 1.6.
U.S. v. Rodriguez, No. 88 CR117 (S.D.N.Y. Oct. 27, 1989) (Leval, J.).
U.S. v. Draper, No. 88-5933 (6th Cir. Nov. 2, 1989) (Taylor, Dist.
J.) ("A sentence which is within the Guidelines, and otherwise valid, .
. . is not appealable on the grounds that the sentencing judge failed to
depart from the Guidelines on account of certain factors which the
defendant feels were not considered by the Guidelines and should reduce
his sentence."). Accord U.S. v. Franz, No. 88-2739 (7th Cir. Oct. 4,
1989) (2 GSU #15).
U.S. v. Roberts, No. 89-0033 (D.C.D.C. Nov. 16, 1989) (Greene, J.)
(Holding "the sentencing statute and the guidelines issued pursuant
thereto" unconstitutional on due process grounds for causing "de facto
transfer of the sentencing authority from the judge to the prosecutor."
Also holding that the substantial assistance provisions, U.S.S.G.
Section 5K1.1 and 18 U.S.C. Section 3553(e), violate due process by
"preclud(ing) a defendant from contesting the refusal of the prosecution
to acknowledge his substantial cooperation with law enforcement
authorities so as to establish his eligibility for sentencing leniency";
defendants in two cases before the court may present evidence that they
provided substantial assistance.).
VOLUME 2 NUMBER 15
OCTOBER 30, 1989
Eighth Circuit holds that portion of "failure to report" guideline
violates statutory mandate. Defendant was sentenced to an 18-month
prison term on a drug conviction, but failed to report to prison. She
pled guilty to a charge of failure to surrender for service of sentence.
The applicable sentencing guideline, Section 2J1.6, requires an
increase in the base offense level of six based upon the maximum
statutory penalty for the underlying offense. In this case the maximum
was 15 years or more, resulting in an offense level increase of nine.
Defendant argued on appeal that the guideline violates the Sentencing
Reform Act by failing to consider the actual sentence imposed for the
underlying offense, rather than the maximum potential penalty.
The appellate court agreed: "Section 2J1.6 ignores the significant
difference in circumstances between failing to report for trial or
sentencing, when a real possibility exists that the maximum sentence
will be imposed, and failing to report for service after sentencing
where the sentence to be served is but a fraction of the maximum. The
language of (18 U.S.C. Section) 3553 to consider the nature and
circumstances of the offense and to impose a sentence that reflects the
seriousness of the offense, and the language in (28 U.S.C. Section)
991(b)(1) that the sentencing practices provide certainty and fairness,
avoid unwarranted sentencing disparities, and consider mitigating
factors, convince us that Congress intended courts to consider this
significant difference when sentencing a defendant for failure to
appear. . . . We therefore hold that the application of section 2J1.6
in this case is not sufficiently reasonable and violates the statutory
mandate given to the Sentencing Commission. We conclude that the
appropriate remedy is to invalidate the application of section 2J1.6
insofar as it deals with a defendant's failure to appear after a
sentence has been imposed that is but a fraction of the maximum. This
will necessitate resentencing as if there were no guideline applicable
to this offense."
U.S. v. Lee, No. 88-5292 (8th Cir. Oct. 16, 1989) (Gibson, J.).
Under U.S.S.G. Section 1B1.8(a) district court may not, when
determining guideline range, use incriminating statements made pursuant
to plea agreement unless the agreement so provides, Tenth Circuit holds.
Defendant's plea agreement stipulated that in return for her
cooperation in the investigation of other drug suspects she would "not
be subject to additional federal criminal prosecution for crimes
committed in this judicial district," but it also had a disclaimer that
while the government would inform the court of her cooperation,
"(s)entencing will remain in the sole discretion of the trial court."
Self-incriminating information that defendant provided to the government
was mentioned in her presentence report, and the court used it to
increase her offense level. Defendant argued on appeal that under
U.S.S.G. Section 1B1.8 the district court should not have used this
information in sentencing.
The appellate court agreed. Section 1B1.8(a) reads: "Where a
defendant agrees to cooperate with the government by providing
information concerning unlawful activities of others, and the government
agrees that self-incriminating information so provided will not be used
against the defendant, then such information shall not be used in
determining the applicable guideline range, except to the extent
provided in the agreement." The court held that the language of the plea
agreement here was sufficient to invoke the restriction in Section
1B1.8(a). The court also noted that "we believe the language and spirit
of Guidelines Section 1B1.8 require the agreement to specifically
mention the court's ability to consider defendant's disclosures during
debriefing in calculating the appropriate sentencing range before the
court may do so." One of the advantages of Section 1B1.8, to "assure
potential informants that their statements will in no way be used
against them," would "be undercut if we allow ambush by broadly worded
disclaimers. . . . The full disclosure approach we require here will
ensure defendants are not unfairly surprised by sentencing
determinations and will allow both the defendant and the government to
bargain with full information."
U.S. v. Shorteeth, No. 88-2853 (10th Cir. Oct. 10, 1989) (Logan, J.).
Eighth Circuit adopts narrow definition of "substantial portion of
his income" in Criminal Livelihood guideline; impending guideline
amendment has similar effect. Defendant earned $450 from his criminal
activities out of an annual income of approximately $1,525, and the
district court determined that this constituted a "substantial portion
of his income" under the Criminal Livelihood provision, U.S.S.G. Section
4B1.3. The appellate court reversed, holding that because the
"substantial portion" language was derived from the Dangerous Special
Offender statutes, 18 U.S.C. Section 3575(e)(2) and 21 U.S.C. Section
849(e)(2), the definition from those statutes should apply to this
provision. Those statutes defined "substantial source of income" as an
amount that exceeds the yearly minimum wage under the Fair Labor
Standards Act and also exceeds half of the defendant's declared adjusted
gross income. The current yearly minimum wage is approximately $6,700,
the court found, and thus the Criminal Livelihood provision should not
have been applied here.
A concurring opinion noted that Section 4A1.3 has been amended,
effective Nov. 1, 1989, to reach a similar result. The relevant
language now reads: "If the defendant committed an offense as part of a
pattern of criminal conduct engaged in as a livelihood. . . ." The
commentary to the guideline states that "engaged in as a livelihood"
means that the defendant earned income from the criminal conduct in
excess of the yearly minimum wage and "that such criminal conduct was
the defendant's primary occupation in that twelve-month period."
U.S. v. Nolder, No. 88-2648 (8th Cir. Oct. 4, 1989) (Wollman, J.).
Other Recent Case:
U.S. v. Leeper, No. 88-3726 (11th Cir. Sept. 29, 1989) (per curiam)
(remanding for resentencing because on the facts of this case, offense
level enhancement for "substantial interference with the administration
of justice" under perjury guideline, U.S.S.G. Section 2J1.3(b)(2),
should not be applied when conduct in question occurred before and did
not relate to offense of conviction; this position was taken by
Department of Justice on appeal, and the appellate court agreed).
First Circuit holds departure may not be based on "community
sentiment." The district court departed upward in sentencing a defendant
convicted of possessing cocaine on board an aircraft. The court found
departure was warranted "to discourage the utilization of the Puerto
Rico International Airport, an airport with lesser law-enforcement
capabilities than those in the mainland, as a connecting point for
international narcotics trafficking," and because of the strong local
public sentiment against this type of offense.
The appellate court remanded, holding that "the guidelines do not
allow departures for reasons such as these. The basic flaw in the
district court's reasoning is that it depends entirely upon the mere
commission of the offense of conviction. . . . Because the grounds for
departure derived their essence from the offense itself, not from
idiocratic circumstances attendant to a particular defendant's
commission of a particular crime, the grounds, virtually by definition,
fell within the heartland" of typical cases encompassed by the
Guidelines. The court also determined that departures based on local
sentiment are inconsistent with the statutory language, and would
undermine the goal of "national uniformity in sentencing."
U.S. v. Aguilar-Pena, No. 88-1477 (1st Cir. Oct. 12, 1989) (Selya,
J.), rev'g 696 F. Supp. 781 (D.P.R. 1988).
Other Recent Case:
U.S. v. Warters, No. 89-2155 (5th Cir. Sept. 29, 1989) (Garwood, J.)
(departure may be warranted for defendant convicted of misprision of
conspiracy if facts demonstrate defendant was member of conspiracy and
guilty of that offense -- "(a) misprision defendant's personal guilt of
the underlying offense is . . . a circumstance not taken into account in
formulating the misprision guidelines under section 2X4.1").
Seventh Circuit holds it has no jurisdiction to review refusal to
depart. Defendant pled guilty to a charge of bank fraud. He requested
a downward departure in his sentence on the grounds that there were
mitigating factors present in his case that were not adequately
considered by the Guidelines. The district court refused to depart,
finding that the factors defendant raised were "considered in the
guideline range."
The appellate court held that it did not have jurisdiction to review
a district court's refusal to depart from the Guidelines. The court
determined that 18 U.S.C. Section 3742(a) controlled appellate review of
sentences under the Guidelines. While subsection (2) of that statute
"seems to support appellate review of a refusal to depart from the
guidelines" when read literally, the court concluded that "the structure
of section 3742 as a whole" and the legislative history lead to the
conclusion "that Congress did not intend a district court's decision
refusing to depart from the guidelines to be appealable."
The court noted that a similar decision was reached by the Second
Circuit in U.S. v. Colon, No. 89-1141 (2d Cir. Sept. 6, 1989) ("the
discretionary failure to depart downward is not appealable"), and that a
"compatible" decision was reached by the Fifth Circuit in U.S. v.
Buenrostro, 868 F.2d 135, 139 (5th Cir. 1989) ("we will uphold a
district court's refusal to depart from the guidelines unless the
refusal was in violation of law"). The court "agree(d) with the Fifth
Circuit that, when a district court's refusal to depart is in violation
of law, appellate review of that decision is available under 18 U.S.C.
Section 3742(a)(1)." See also U.S. v. Fossett, 881 F.2d 976, 979 (11th
Cir. 1989) (claim that "district court did not believe it had the
statutory authority to depart from the sentencing guideline range . . .
presents a cognizable claim on appeal").
U.S. v. Franz, No. 88-2739 (7th Cir. Oct. 4, 1989) (Ripple, J.).
Fourth Circuit applies "reasonableness" standard in review of refusal
to make departure permitted by Guidelines. Defendant requested, and was
denied, a departure based on a claim that he acted under coercion or
duress, a departure specifically listed in U.S.S.G. Section 5K2.12, p.s.
The appellate court determined that "where the defendant challenges a
district court's decision to grant or deny a requested downward
departure" it would "review to determine whether it was 'reasonable' for
the district court to conclude that (defendant) did not act under
'coercion' or 'duress,' and that he therefore was not eligible for a
downward departure under Guidelines Section 5K2.12. See 18 U.S.C.
Section 3742(e)(3)." The court affirmed the refusal to depart.
U.S. v. McCrary, No. 88-5698 (4th Cir. Oct. 16, 1989) (per curiam).
VOLUME 2 NUMBER 14
OCTOBER 6, 1989
D.C. Circuit holds district courts have discretion to review
circumstances of prior convictions that may place defendant in career
offender status. Defendant claimed he was improperly designated a
career offender under the Guidelines because one of the two prior
convictions required for that status was not a "crime of violence" in
Illinois, the state where he was convicted. The offense, robbery, is
listed as a crime of violence in the Commentary to guideline Section
4B1.2, Application Note 1. The sentencing judge "apparently believed
that he did not have discretion to review the facts" of that offense and
sentenced defendant as a career offender.
The appellate court remanded for resentencing, holding that a
sentencing court "retains discretion to examine the facts of a predicate
crime to determine whether it was a crime of violence notwithstanding
the Commentary to the guidelines' predetermined list of crimes which it
considers to be crimes of violence." In this case, classifying defendant
"as a career offender based on statutory characterizations of his
previous crimes may be improper if an analysis of the facts demonstrates
that they were not in fact crimes of violence. . . . (I)t may be
appropriate, as provided by the guidelines, for a district judge to
depart from the guidelines' statutory definition of a particular crime
depending on the facts of the case."
U.S. v. Baskin, No. 88-3102 (D.C. Cir. Sept. 22, 1989) (Will, Sr.
D.J.).
Other Recent Cases:
U.S. v. Darud, No. 89-5050 (8th Cir. Sept. 28, 1989) (per curiam)
(under guideline Section 5G1.3, sentence for guideline offense that also
served as basis for parole revocation on earlier offense must be served
consecutively to the prior unexpired sentence; revocation of parole and
resulting reincarceration on earlier offense did not "arise out of the
same transactions or occurrences" as the present offense so as to
warrant concurrent sentences under Section 5G1.3).
U.S. v. Smith, No. 88-6115 (6th Cir. Sept. 28, 1989) (Ryan, J.),
rev'g U.S. v. Smith, No. 87-20219-4 (W.D. Tenn. Aug. 26, 1988) (1 GSU
#15) (in determining sentencing range for drug offense committed before
Jan. 15, 1988 amendments to Guidelines, district court erred in refusing
to consider drug quantities charged in a count dismissed under plea
bargain).
U.S. v. Boyd, No. 88-2632 (5th Cir. Sept. 27, 1989) (per curiam)
(defendant "cannot base a challenge to his sentence solely on the lesser
sentence given . . . to his codefendant").
Eleventh Circuit holds departure may be based on quantity of drugs in
simple possession offense and on role in offense that fell short of
guideline Section 3B1.1 definition. Defendant was indicted for
conspiracy to distribute cocaine, but pled guilty to simple possession
of cocaine. Her guideline sentencing range was 0-4 months. The
sentencing court imposed an 11-month sentence, finding that the amount
of cocaine in defendant's possession and her role in the offense were
not adequately accounted for in the guideline computation and warranted
an upward departure.
The appellate court held that "the district court did not err in
considering the amount of narcotics possessed by appellant in deciding
whether to depart from the guideline sentencing range." The court agreed
with the reasoning in U.S. v. Ryan, 866 F.2d 604 (3d Cir. 1989), which
held that the Guidelines' listing of quantity as a specific offense
characteristic for some drug offenses, but not for simple possession,
does not preclude courts from using quantity to determine whether
departure was warranted in a drug possession case. See also U.S. v.
Correa-Vargas, 860 F.2d 35 (2d Cir. 1988); guideline policy statement
Section 5K2.0.
The court also held that the sentencing court was not "precluded from
considering a defendant's role in the offense merely because her action
did not rise to the level of an aggravating role, as defined by
guideline 3B1.1." The court agreed with the Fifth Circuit that
"(s)entencing under the guidelines is not . . . an exact science" and
that the "guidelines are not intended to cover all contingencies or
rigidly bind district judges." (Quoting U.S. v. Mejia-Orosco, 867 F.2d
216 (5th Cir.), cert. denied, 109 S. Ct. 3257 (1989).)
U.S. v. Crawford, No. 88-3993 (11th Cir. Sept. 15, 1989) (Tjoflat,
J.).
Other Recent Cases:
U.S. v. Anderson, No. 89-1203 (8th Cir. Sept. 29, 1989) (per curiam)
(vacating departure from criminal history category IV to VI because
district court "failed to compare (defendant's) history to that of 'most
defendants with a (c)ategory (VI) criminal history'" pursuant to
guideline policy statement Section 4A1.3, "the procedure required for
departure").
U.S. v. Jackson, No. 88-8470 (11th Cir. Sept. 15, 1989) (per curiam)
(affirming upward departure in criminal history from category III to IV
because criminal history score did not reflect seriousness of
defendant's criminal past -- two prior armed robberies, committed
separately but tried together, were counted as one offense under
Guidelines).
U.S. v. Jackson, No. 88-1686 (7th Cir. Sept. 25, 1989) (Kanne, J.)
(holding there is "no sixth amendment right to assistance of counsel at
a presentence interview conducted by a probation officer").
First Circuit establishes policy of summary review for meritless
appeals of guideline sentences. Defendant set forth several claims of
error on appeal of his guideline sentence, all of which the appellate
court found "altogether meritless." Noting that the Sentencing Reform
Act and the Guidelines will likely result in an increase in such
appeals, partly because defendants have "little to lose by trying," the
court set forth a policy of review for appeals of guideline sentences:
"To the extent that such appeals raise valid questions, we will respond
in kind. On the other hand, if a criminal defendant protests his
innocence merely because he has time on his hands, and without any
supportable basis in law or fact -- as in this case -- we will
henceforth respond summarily. Sentencing appeals prosecuted without
discernible rhyme or reason, in the tenuous hope that lightning may
strike, ought not to be dignified with exegetic opinions, intricate
factual synthesis, or full-dress explications of accepted legal
principles. Assuredly, a criminal defendant deserves his day in court;
but we see no purpose in wasting overtaxed judicial resources razing
castles in the air."
U.S. v. Ruiz-Garcia, No. 89-1517 (1st Cir. Sept. 28, 1989) (Selya,
J.).
Tenth Circuit finds no double jeopardy violation in prosecuting
defendant for crime that was previously used to enhance sentence for a
different offense. Defendant was indicted in Utah on drug and firearm
charges. He had previously been convicted in South Dakota for a
different drug offense, and his sentence for that crime was partly based
on evidence of other alleged crimes, including the Utah offense.
Defendant claimed that the Utah prosecution would violate double
jeopardy and the Sentencing Guidelines because the conduct underlying
the Utah offense had already been used to enhance his South Dakota
sentence.
The appellate court held that "(t)he Double Jeopardy Clause's ban on
multiple prosecutions for the same offense is not implicated here
because defendant is not now facing a trial in Utah for the same offense
for which he previously has been convicted in South Dakota. The Utah
offense and the South Dakota offense are different." Furthermore, the
South Dakota sentencing hearing did not constitute a prosecution for the
Utah offense: "Although the South Dakota district court inquired into
the Utah offense during the sentencing hearing and made findings
concerning it, at no time was defendant in jeopardy for the Utah
offense. Rather, defendant was only 'in jeopardy' of receiving a
harsher sentence for the South Dakota offense than he otherwise would
have received."
The court also found nothing in the Guidelines precluded a
defendant's subsequent prosecution for a different offense.
U.S. v. Koonce, No. 89-4013 (10th Cir. Sept. 25, 1989) (Ebel, J.).
District court holds "substantial assistance" provisons violate due
process. Evidence presented at the sentencing hearing established that
defendant had cooperated with the government and provided important
testimony at a codefendant's trial. The government did not move for a
reduction of sentence under either 18 U.S.C. Section 3553(e) or Section
5K1.1 of the Guidelines. The court, however, ruled that defendant had
provided "substantial assistance" within the meaning of the statute and
guideline, reduced defendant's sentence below the statutory minimum and
guideline range, and held the statutory and guideline provisions
unconstitutional.
The court held that the provisions violate substantive due process
because only the government may present evidence on this issue:
"(W)here a statute like 18 U.S.C. Section 3553(e) or a regulation like
Section 5K1.1 withholds from the defendant the right to present to the
court an issue so intimately related to the appropriate length of
sentence, then such a statute or regulation must be struck down as
fundamentally unfair. . . . Either side must be able at least to raise
the possibility of a downward departure for cooperation." The court also
noted it could not raise the issue sua sponte, with the result that in
cases like this "the provisions require the Court to ignore facts of
which it already has knowledge and which are indisputably relevant."
In addition, the provisions violate procedural due process because
the procedure "is tipped too far in favor of the Government" and is
therefore "inherently unfair." The court recognized that "defendants
have no inherent right to the availability of the 'substantial
assistance' provision, but once that provision is made available to one
party to the litigation, due process requires that it be made available
to all parties." The provisions also violate due process by "den(ying)
to the Defendant an opportunity to contest the facts relied upon by the
Government in deciding not to move for a departure. It also apparently
offers a defendant no opportunity to challenge the decision."
At least two appellate courts have specifically upheld these
provisions against due process challenges. See U.S. v. Huerta, 878 F.2d
89 (2d Cir. 1989); U.S. v. Ayarza, 874 F.2d 647 (9th Cir. 1989). Other
courts have questioned or limited the requirement that no reduction in
sentence may be granted absent a motion by the government. See, e.g.,
U.S. v. Justice, 877 F.2d 664 (8th Cir. 1989) (expressing concerns about
requirement for motion by government); U.S. v. White, 869 F.2d 822 (5th
Cir. 1989) (Section 5K1.1 "doesn't preclude a district court from
entertaining a defendant's showing that the government is refusing to
recognize such substantial assistance"); U.S. v. Galan, No. 89 Cr. 198
(S.D.N.Y. June 8, 1989) (where plea agreement states government will
make Section 5K1.1 or Section 3553(e) motion if defendant cooperates,
refusal to move for reduction must be made in good faith).
U.S. v. Curran, No. 88-10027-02 (C.D. Ill. Sept. 29, 1989)
(ILLEGIBLE).
VOLUME 2 NUMBER 13
SEPTEMBER 21, 1989
When facts stipulated in plea agreement establish more serious
offense than offense of conviction, court should apply guideline most
applicable to stipulated offense. Defendant pleaded guilty to two
counts of using a telephone to facilitate a narcotics offense, but as
part of the plea agreement stipulated to facts that established the more
serious offense of conspiracy to possess marijuana with intent to
distribute. In light of the stipulation and other factors, the district
court departed from the guideline range to impose consecutive 48-month
terms, the statutory maximum for the two counts of conviction.
The Fifth Circuit affirmed, because the district court imposed an
appropriate sentence even though it did not follow the proper procedure.
Instead of departing, the district court should have used guideline
Section 1B1.2(a), which provides that "in the case of conviction by a
plea of guilty . . . containing a stipulation that specifically
establishes a more serious offense than the offense of conviction, the
court shall apply the guideline in such chapter most applicable to the
stipulated offense." The appellate court determined that after the
sentence for the stipulated offense is calculated, a district court
"must formally implement that sentence in terms of the actual convicted
offense. . . . If the guideline sentence for the stipulated offense
exceeds the maximum statutory sentence for the actual convicted offense,
. . . 'the statutory maximum shall be the guideline sentence.'" (Quoting
guideline Section 5G1.1(a).) "For multiple-count convictions, the
guidelines direct the court to order consecutive sentences so that the
aggregate sentence equals the guideline sentence for the more serious
stipulated offense." Guideline Section 5G1.2(d).
In this case, the statutory maximum for each count of conviction was
48 months. The appellate court found that, depending on whether a
two-level reduction for acceptance of responsibility was granted,
defendant's guideline sentence for the stipulated offense would be 78-97
months or a minimum of 97 months. Thus, the 96-month term imposed by
the district court fell within the appropriate sentencing range, and the
appellate court affirmed: "(T)he district court's failure to articulate
its sentence in this manner did not affect any substantial right of the
defendant because the sentence imposed . . . was permissible under a
correct application of the guidelines."
U.S. v. Garza, No. 89-1078 (5th Cir. Sept. 7, 1989) (Clark, C.J.).
Other Recent Cases:
U.S. v. Allen, No. 88-5340 (8th Cir. Sept. 12, 1989) (Arnold, J.)
(quantities of cocaine distributed before Nov. 1, 1989, but not included
in count of conviction, may be considered in determining base offense
level pursuant to guideline Section 1B1.3(a)(2)).
U.S. v. Tharp, No. 88-1829 (8th Cir. Sept. 12, 1989) (Arnold, J.)
(holding that "Guidelines are properly applied to a conspiracy begun
before their effective date and ending after it"). Accord U.S. v.
White, 869 F.2d 822, 826 (5th Cir.) (per curiam), cert. denied, 109 S.
Ct. 3172 (1989). But see U.S. v. Davis, infra.
U.S. v. Sciarrino, No. 89-5243 (3d Cir. Sept. 1, 1989) (Gibbons,
C.J.) (use of reliable hearsay evidence "in making findings for purposes
of guideline sentencing" does not violate due process; before the
Guidelines "the use of hearsay in the sentencing stage of a criminal
proceeding was permissible," and "the enactment of the Sentencing Reform
Act of 1984 requires no different rules with respect to what evidence
may be used in determining a sentence than were already in place").
U.S. v. Baker, No. 88-1833 (5th Cir. Aug. 25, 1989) (per curiam)
(Guidelines' method of using drug quantity, rather than purity, to set
base offense level not improper; also, court may consider drug purity
when deciding where to sentence within guideline range).
U.S. v. Daly, No. 88-5672 (4th Cir. Aug. 24, 1989) (Phillips, J.)
(gross weight of "carrier mediums" plus LSD, not just weight of the
drug, should be used to calculate base offense level). Accord U.S. v.
Taylor, 868 F.2d 125 (5th Cir. 1989).
U.S. v. Stern, No. 89-3070 (6th Cir. Aug. 24, 1989) (per curiam)
(sentencing court not bound by government's "concession" in plea
agreement that defendant was "minor participant," or by government's
recommendation that defendant be sentenced at lower end of guideline
range).
U.S. v. Davis, No. 87 CR853 (S.D.N.Y. Aug. 25, 1989) (Griesa, J.)
(under the specific circumstances of this case, where "the great bulk of
the criminal activity" in multi-year drug conspiracy count occurred
before effective date of Guidelines, "it is inappropriate to apply the
Sentencing Guidelines" to that count).
Ninth Circuit vacates upward departure because district court relied
in part on improper factors. Defendant pleaded guilty to transporting
illegal aliens and was sentenced to a 24-month term, eight months above
the guideline maximum. The district court departed from the guideline
range on the basis of a high-speed chase preceding arrest, defendant's
criminal record, and obstruction of justice by using an alias.
The appellate court found that the high-speed chase was an improper
ground for departure because defendant "was not the driver and there is
no evidence on the record before us that he was responsible for this
chase." The court also held that criminal history is a proper ground
"only in limited circumstances where the defendant's record is
'significantly more serious' than that of other defendants in the same
category." (Quoting guideline policy statement Section 4A1.3.) There was
no evidence that was the case here.
The court held that obstruction of justice by use of an alias was a
proper ground for departure, but that when "a court relies on both
proper and improper factors, the sentence must be vacated and the case
remanded." The court added that it saw "no justification for enhancing
(defendant's) guideline sentence by a period of more than 3 months on
account of using an alias in the district court proceedings," and
instructed the district court to "impose such an amended sentence upon
remand."
U.S. v. Hernandez-Vasquez, No. 88-5236 (9th Cir. Sept. 13, 1989) (per
curiam).
Sixth Circuit affirms departure above category VI based on inadequacy
of criminal history calculation. Defendant pleaded guilty to two drug
counts and to being a felon in possession of a firearm. His guideline
range was 57-71 months, based on an offense level of 18 and criminal
history category VI. The district court departed to impose a 120-month
sentence, finding that even category VI inadequately represented
defendant's criminal history.
The sentencing court found that "defendant's violent, dangerous
criminal history and the lenient treatment from the incarceration
standpoint that defendant received" for his prior convictions justified
a departure above criminal history category VI, see guideline policy
statement Section 4A1.3. In addition, defendant's "record of violating
probationary requirements and continuing in his violent behavior against
victims, women in particular, indicates the failure of prior punitive
and rehabilitative measures," demonstrates that he is a threat to the
public welfare and safety, and justifies departure under guideline
policy statement Section 5K2.14.
The appellate court affirmed, holding that "(c)learly, this
defendant's criminal history was sufficiently unusual to justify,
factually and legally, the district court's upward departure." The court
also held that the sentence of 120 months "was reasonable and
appropriate, considering all of the circumstances."
U.S. v. Joan, No. 88-3857 (6th Cir. Aug. 25, 1989) (Gilmore, J.).
Other Recent Cases:
U.S. v. Colon, No. 89-1141 (2d Cir. Sept. 6, 1989) (Winter, J.)
(holding that "the discretionary failure to depart downward is not
appealable" and dismissing case). See also U.S. v. Fossett, No. 88-3904
(11th Cir. Aug. 7, 1989) ("Sentencing Reform Act prohibits a defendant
from appealing a sentencing judge's refusal to make a downward departure
from the guideline sentencing range").
U.S. v. Lopez-Escobar, No. 88-6157 (5th Cir. Sept. 6, 1989)
(Higginbotham, J.) (affirming upward departure from guideline maximum of
24 months to statutory maximum of five years, based on large number of
aliens in illegal immigration offense).
U.S. v. Kinnard, No. 88-6437 (6th Cir. Aug. 31, 1989) (per curiam)
(affirming upward departure to 90 months from range of 63-78 months
based on high purity of cocaine, see commentary to guideline Section
2D1.1).
U.S. v. Sharp, No. 88-5186 (9th Cir. Aug. 29, 1989) (per curiam)
(mitigating circumstances sufficient to warrant departure below minimum
guideline sentence may not be used to justify sentence below minimum
established by Anti-Drug Abuse Act of 1986).
U.S. v. Edwards, No. 88-4190 (6th Cir. Aug. 21, 1989) (per curiam)
(upward departure not warranted by district court's "unproven suspicion"
that defendant was part of a larger fraud scheme, and that more money
was involved in offense than was reflected in guideline computation;
nor is departure warranted by defendant's refusal to assist authorities
in identifying other persons involved in alleged scheme, see guideline
policy statement Section 5K1.2).
U.S. v. Concepcion, No. 88 CR. 0607 (S.D.N.Y. Aug. 17, 1989) (Sweet,
J.) (Departure was warranted "in view of the unusual circumstances
presented by a re-sentencing (under the Guidelines) that follows upon a
defendant's satisfactory completion of a prison term" imposed by a court
that had held the Guidelines unconstitutional. A fine of $2,000 was
imposed, in lieu of additional prison time called for under the
Guidelines, in light of defendant's success during probation: "The
availability of such post-incarceration information in the context of
re-sentencing is a circumstance of a kind unanticipated by the
Sentencing Commission.").
U.S. v. Restrepo, No. 88-3208 (9th Cir. Sept. 12, 1989) (Wright, Sr.
J.) (no due process violation to put burden on defendant to prove that
firearm was not connected with drug offense so as to avoid weapons
enhancement under guideline Section 2D1.1(b)(1)). Accord U.S. v.
McGhee, No. 88-5878 (6th Cir. Aug. 18, 1989) (2 GSU #12).
U.S. v. Davenport, No. 88-5661 (4th Cir. Aug. 28, 1989) (Chapman, J.)
(defendant, not the government, has the burden of proof when challenging
the constitutionality of prior conviction used to enhance present
Guideline sentence).
VOLUME 2 NUMBER 12
SEPTEMBER 5, 1989
Eleventh Circuit holds evidence from a co-conspirator's trial may not
be used to resolve dispute over quantity of drugs. Defendant and four
others were indicted on drug charges. Defendant pleaded guilty to one
count and stipulated that nine ounces of cocaine were involved in the
offense. The presentence report, however, stated that over five
kilograms were involved. The district court resolved the dispute by
relying on testimony presented at the trial of one of defendant's
co-conspirators, which supported the five-kilogram figure.
The appellate court held that the "reliance on testimony adduced at
the trial of another was fundamental error," and remanded for
resentencing. "We have held that a sentencing judge may rely on the
evidence presented at the defendant's own trial in resolving disputed
facts for sentencing purposes. . . . This procedure is entirely proper:
such a defendant has had the opportunity to cross-examine the
Government's witnesses, make objections to the evidence, and put on his
own case. . . . When the sentencing judge relies on evidence adduced at
the trial of another, however, no such procedural guarantees are
present." The court noted that, if appellant's testimony at the
co-conspirator's trial constituted an admission as to quantity, that
testimony could be used for sentencing. The court determined there had
been no such admission, however.
U.S. v. Castellanos, No. 88-3535 (11th Cir. Aug. 17, 1989) (Tjoflat,
J.).
Sixth Circuit holds burden of proof to avoid weapons enhancement may
be placed on defendant to show it was "clearly improbable" that weapon
was connected with offense. Defendant was convicted on drug charges.
His offense level was increased by two levels under guideline Section
2D1.1(b) because he possessed weapons during the commission of the
offense. The commentary to that section states the adjustment should be
applied "unless it is clearly improbable that the weapon was connected
with the offense." Defendant argued on appeal that shifting the burden
of proof on the probability of a connection between the weapons and the
offense violated due process.
The appellate court rejected defendant's claim, finding that the
"possession of a firearm during the commission of a drug offense may
fairly be considered by the court as a fact, or bearing on the extent of
punishment," rather than "one of the elements of the substantive crime,
to be established to the satisfaction of the jury beyond a reasonable
doubt. Not all factors that bear on punishment need to be proven before
a jury." The court found that Supreme Court cases supported this
conclusion, and also rejected defendant's claim that application of
Section 2D1.1(b) violated his Sixth Amendment right to a jury trial.
U.S. v. McGhee, No. 88-5878 (6th Cir. Aug. 18, 1989) (Nelson, J.).
Other Recent Cases:
U.S. v. Duque, No. 88-3999 (6th Cir. Aug. 24, 1989) (Gilmore, J.)
(under 18 U.S.C. Section 3553(c)(1), sentencing court need not state
reasons for particular sentence within guideline range if that range
does not exceed 24 months).
U.S. v. Turner, No. 88-5143 (9th Cir. Aug. 1, 1989) (Alarcon, J.)
(sentencing court need not inform defendant of applicable offense level
and criminal history category before accepting guilty plea). See also
U.S. v. Fernandez, 877 F.2d 1138 (2d Cir. 1989) (sentencing court not
required to inform defendant of likely guideline sentence before
accepting plea, but "where feasible, should").
U.S. v. Ligon, No. CR88-00013-01-P (W.D. Ky. Aug. 14, 1989) (Siler,
C.J.) (following U.S. v. Urrego-Linares, 879 F.2d 1234 (4th Cir. 1989),
holding that defendant must "carry the burden of proof in showing
acceptance of responsibility").
Third Circuit finds Sentencing Commission "adequately considered"
differences between escapes from secure and non-secure facilities, bars
use of proposed guideline changes as basis for departures. Defendant
pleaded guilty to escape from a non-secure prison facility. He argued
he should receive a downward departure because the Commission failed to
distinguish in the escape guideline between escape from a secure prison
versus "walking away" from a non-secure prison camp, as evidenced by a
Commission request for comment on whether it should reduce the base
offense level for escapes from non-secure facilities.
In rejecting defendant's claims, the appellate court noted that, in
Section 2P1.1(b)(2), the Commission provided for an offense level
reduction for escapees from non-secure facilities who returned
voluntarily within 96 hours, showing the Commission did, in fact, make a
distinction. Also, the May 17, 1989, final amendments to the Guidelines
do not include the proposed amendment on which defendant relied, showing
that "the Commission obviously rejected the proposal on further
consideration. (Defendant's) argument that the Commission has not
considered the issue therefore fails without question."
The court also held that "the existence of a proposal for amendment
to the Guidelines is not a legitimate ground for departure from them."
"(T)he fact that the Commission has invited public comment on a proposed
change in no way indicates that it will in fact adopt this change. Any
presumption to the contrary would precipitate departures from the
Guidelines before the Commission had made a decision," and could deter
the Commission from proposing amendments.
U.S. v. Medeiros, No. 89-5296 (3d Cir. Aug. 18, 1989) (Sloviter, J.).
Sixth Circuit outlines standard of review for departures. In
upholding a departure to a six-year term from the guideline range of
30-37 months, the court determined it would follow the three-step
process for review of departures outlined by the First Circuit in U.S.
v. Diaz-Villafane, 874 F.2d 43 (1st Cir. 1989). The court also agreed
with the Fifth Circuit, in U.S. v. Roberson, 872 F.2d 597 (5th Cir.
1989), that "'(t)he court's discretion to depart from the Guidelines is
broad.'"
The court held that two factors used by the district court to justify
departure were invalid: "defendant's national origin is not a factor
which the court should consider in sentencing under the Guidelines," and
"defendant's inability to speak English, while not specifically
addressed in the Guidelines, is similarly a factor irrelevant to
sentencing." Other factors used by the district court were valid,
however, including defendant's illegal entry into the U.S. while serving
a foreign sentence, dependence on criminal activity, and propensity to
commit future crimes. "While one of the factors found in the present
case standing alone might not support the court's sentence, seen as a
whole, the sentence is permissible."
U.S. v. Rodrequez, No. 88-3604 (6th Cir. Aug. 15, 1989) (Milburn,
J.).
Other Recent Case:
U.S. v. Akhtar, No. 89 CR. 0264 (S.D.N.Y. Aug. 1, 1989) (Sweet, J.)
(on government's motion pursuant to guideline policy statement Section
5K1.1 and 18 U.S.C. Section 3553(e), court departed from guideline range
of 97-121 months to impose sentence of one year and one day).
Ninth Circuit holds conduct that does not result in a conviction
should not be grouped with counts of conviction in setting guideline
range for narcotics offense. Defendant was convicted of two counts of
distributing cocaine. At the trial and at the sentencing hearing, a
codefendant testified that defendant was involved in two other instances
of cocaine possession. The sentencing court found that all four
instances were part of a common scheme or plan in which defendant
participated, and used the total amount of cocaine to set the offense
level. Defendant claimed that the language of the multiple counts, or
"grouping," guideline allows a court to use only the quantity of drugs
in the offenses of conviction.
In a divided opinion, the appellate court agreed: "In our view, the
Multiple Counts section, by its explicit terms, applies only to counts
of which the defendant has been convicted. . . . (T)he opening sentence
of the Multiple Counts section refers to 'all the counts of which the
defendant is convicted,' Guidelines at 3.9 . . ., and Section 3D1.1
provides instructions for when 'a defendant has been convicted of more
than one count. . . .' Guidelines at 3.10." The court concluded that
"language that the government cites in the Relevant Conduct section --
which provides that conduct related to counts of conviction can be
grouped together with conduct not related to any count of conviction --
conflicts with the above quoted language of the Multiple Counts
section."
"At best," the court determined, "the Guidelines are ambiguous
because they support both the interpretation offered by (defendant) and
the interpretation offered by the Government. Given this ambiguity, our
interpretation of the Guidelines should be informed by the 'rule of
lenity.'" Applying that rule, the court held that "the district court
erred in interpreting the Multiple Counts section of the Guidelines to
require aggregation under subsections 3D1.2(d) and 1B1.3(a)(2) of
quantities of drugs involved in counts of which (defendant) was
convicted with quantities of drugs involved in counts of which
(defendant) was neither charged nor convicted."
The dissenting judge found that the "Guidelines, read in conjunction
with the commentary sections, are not ambiguous," and the quantities
could be aggregated.
U.S. v. Restrepo, No. 88-3207 (9th Cir. Aug. 24, 1989) (Pregerson,
J.) (Boochever, Sr. J., dissenting).
Other Recent Cases:
U.S. v. Rodriguez-Reyes, No. 89-2115 (5th Cir. Aug. 14, 1989)
(Reavley, J.) (agreeing with First and Third Circuits that career
offenders under guideline Section 4B1.1 may not receive acceptance of
responsibility reduction; agreeing with First Circuit that district
court may account for it by sentencing at lower end of guideline range).
See U.S. v. Alves, 873 F.2d 495 (1st Cir. 1989); U.S. v. Huff, 873
F.2d 709 (3d Cir. 1989).
U.S. v. Cain, No. 88-3977 (11th Cir. Aug. 11, 1989) (per curiam)
(count of retaining and concealing stolen U.S. Treasury checks,
guideline Section 2B5.2, should be grouped pursuant to Section 3D1.2
with counts of willfully possessing same stolen checks, Section 2B1.1).
U.S. v. Williams, No. 88-2698 (8th Cir. July 20, 1989) (Gibson, Sr.
J.) (increase pursuant to guideline Section 2K2.2(b)(1) for stolen
firearm does not require that defendant knew firearm was stolen; also,
conduct in dismissed counts may be considered for adjustments to offense
level).
U.S. v. Donatiu, No. 88 CR441 (N.D. Ill. Aug. 3, 1989) (Rovner, J.)
("court must follow (guideline policy statement) Section 5K1.1 in
departing from a guideline sentence based on a defendant's substantial
assistance," and the court "may not depart unless the government first
brings a motion").
U.S. v. Lester, No. 89-13-A (W.D. Va. Aug. 2, 1989) (Williams, Sr.
J.). (Defendant who claimed acceptance of responsibility at sentencing
hearing would not be given that reduction -- he previously told
probation officer he had been entrapped, and had told two or three
different stories about the offense. Court reasoned that truthfulness
and actions of defendant are factors to consider for acceptance of
responsibility.).
VOLUME 2 NUMBER 11
AUGUST 21, 1989
Ninth and Eleventh Circuits disagree as to whether Sentencing
Commission may mandate consecutive sentences. In the Ninth Circuit
case, defendant was serving a state sentence at the time he was
sentenced in the district court. Under guideline Section 5G1.3, "(i)f
at the time of sentencing, the defendant is already serving one or more
unexpired sentences, then the sentences for the instant offense(s) shall
run consecutively to such unexpired sentences." Prior to taking
defendant's plea, the district court did not inform him that the
Guidelines required that the sentence imposed be consecutive to his
current term. Defendant claimed on appeal that failure to advise him of
that fact violated Fed. R. Crim. P. 11.
The appellate court determined that whether a violation of Rule 11
occurred hinged upon whether the consecutive sentence was a "direct
consequence" of the plea, of which defendant had to be informed. That
issue, in turn, depended upon whether "in this case, the trial judge had
discretion to impose a consecutive or concurrent sentence." Guideline
Section 5G1.3 indicates that the trial judge does not have such
discretion, but the court concluded that the guideline conflicts with 18
U.S.C. Section 3584(a), which states that "(m)ultiple terms of
imprisonment imposed at different times run consecutively unless the
court orders that the terms are to run concurrently."
The court held "that a judge has discretion to impose a concurrent or
consecutive sentence, as a matter of law, under section 3584(a). First,
section 3584(a) unambiguously confers that discretion upon the trial
judge. . . . If the guidelines are to be consistent with Title 18, the
discretion cannot be taken away." The court also found that "although
the language of the guidelines would deprive the judge of discretion,
the Sentencing Commission's commentary suggests that the guidelines are
not meant to change section 3584(a), but rather to reflect it." Thus,
"the district judge had discretion to impose either a consecutive or
concurrent sentence . . ., the resulting sentence was not a 'direct
consequence' of (defendant's) plea . . . (and t)he judge . . . did not
violate Rule 11." See also U.S. v. Scott, No. JH-87-0570 (D. Md. May 23,
1988) (Section 5G1.3 inconsistent with Section 3584(a); court will
depart from Section 5G1.3 when determining whether to impose concurrent
or consecutive sentences).
U.S. v. Wills, No. 88-3291 (9th Cir. Aug. 9, 1989) (leavy, J.).
In the Eleventh Circuit case, defendant argued unsuccessfully that
the district court should have allowed her to serve her sentence
concurrently with an earlier, unexpired sentence. Citing the discretion
given to sentencing courts in 18 U.S.C. Section 3584(a), the appellate
court found that the Sentencing Reform Act "places limits on the court's
discretion in this regard. In considering whether a term should run
consecutively or concurrently, the Act requires the court to consider
the factors set forth in 18 U.S.C.A. Section 3553(a). . . . That
section, in turn requires the court to consider any pertinent policy
promulgated by the . . . Sentencing Commission."
The court cited Section 5G1.3 as such a Commission policy, and
concluded that "the district court could have ordered appellant to serve
her sentence concurrently only if the court had followed the procedures
for departing from the sentencing guidelines." See also U.S. v. Mendez,
691 F. Supp. 656 (S.D.N.Y. 1988) (holding Section 5G1.3 does not
conflict with Section 3584(a)).
U.S. v. Fossett, No. 88-3904 (11th Cir. Aug. 7, 1989) (Tjoflat, J.).
Recent Cases:
U.S. v. Haynes, No. 88-2277 (8th Cir. Aug. 11, 1989) (Henley, Sr. J.)
(defendant acquitted of a Continuing Criminal Enterprise charge may
still be given an offense level increase under guideline Section
3B1.1(a) for being an organizer or leader based upon his relevant
conduct in the criminal activity).
U.S. v. Fuente-Kolbenschlag, No. 88-5424 (11th Cir. Aug. 3, 1989)
(per curiam) (increasing offense level under both counterfeiting
guideline Section 2B5.1(b)(2) for "manufacturing" counterfeit currency,
and guideline Section 3B1.3 for use of "special skill," does not result
in improper "double-enhancement"; also, disputes on overlapping
guideline ranges are appealable under 18 U.S.C. Section 3742(a)(2) "if
the appealing party alleges that the sentencing guidelines have been
incorrectly applied, even in cases where the guideline ranges advocated
by each of the parties overlap"). Cf. U.S. v. Bermingham, 855 F.2d 925
(2d Cir. 1988) (guideline range dispute may be left unresolved if same
sentence would be imposed); U.S. v. Turner, No. 88-5143 (9th Cir. Aug.
1, 1989) (following Bermingham).
U.S. v. Scroggins, No. 88-8218 (11th Cir. July 31, 1989) (Tjoflat,
J.) ("loss" under theft guideline Section 2B1.1(b) includes cost of
repairing property damage, in this case damage to postal vending
machines defendant robbed; also, district court properly denied
reduction for acceptance of responsibility to defendant who continued to
use drugs after his arrest because such use "cast doubt on the sincerity
of (defendant's) avowed acceptance of responsibility").
U.S. v. Natal-Rivera, No. 88-2462 (8th Cir. July 14, 1989) (Henley,
Sr. J.) (Guidelines do not violate due process, and district court did
not err, by not taking defendant's "cultural heritage" into account as a
mitigating factor).
U.S. v. Hewitt, No. 89 Cr. 0025 (S.D.N.Y. Aug. 4, 1989) (Sweet, J.)
(when factors relating to defendant's past criminal conduct were used to
increase offense level under the criminal livelihood provision, Section
4B1.3, court would not use those same factors as basis for upward
departure in criminal history category under Section 4A1.3 -- using both
sections "would doubly punish defendant for the common nature of his
criminal acts, and do so in furtherance of nearly identical sentencing
principles. Such sentencing practices involving 'double counting' are
inappropriate and, in all likelihood, are unlawful.").
District court denies request to order government to move for
sentence below statutory minimum, notes differences in motions under
guideline policy statement Section 5K1.1 and 18 U.S.C. Section 3553(e).
Defendant was subject to a five-year mandatory minimum sentence, and his
guideline range was 51-61 months. As part of a written plea agreement
the government stated it would "have the option" to move under Section
5K1.1 for a departure from the Guidelines if defendant cooperated with
the government. The defendant cooperated to some extent, but the
government chose not to make the Section 5K1.1 motion. Defendant
contended he made a good faith effort to cooperate, and was entitled to
a departure from the statutory minimum sentence to allow a sentence at
the low end of the guideline range, even without a motion by the
government.
The court noted that defendant's request for sentencing below the
statutory minimum indicated it was actually a request to order the
government to make a motion under 18 U.S.C. Section 3553(e), which
grants a court "the authority to impose a sentence below a level
established by statute as minimum sentence so as to reflect a
defendant's substantial assistance" to the government. Section 5K1.1,
on the other hand, allows a departure "from the guidelines" if a
defendant "has made a good faith effort to provide substantial
assistance." The court concluded that, "(b)ecause of the apparent
confusion surrounding the distinction between Section 3553(e) and
Section 5K1.1, the Court will construe the plea agreement against the
government, the drafter, and will assume the parties used '5K1.1' as the
shorthand for a departure from both the Sentencing Guidelines and the
statutory minimum."
Although both sections require a motion by the government, and
neither section limits the government's discretion, the court found it
is "a well established principle" that if a plea was induced by a
promise or agreement of the prosecutor, that promise must be fulfilled
or the defendant may be entitled to specific performance of the
agreement. Thus, in this case, "if the government has breached its
obligation under the plea agreement to recommend a departure based upon
defendant's assistance, this Court may order specific performance of
that promise." In determining whether the government breached its
promise, the court noted that "(a)lthough the government clearly
reserved the right to determine whether to recommend a downward
departure, it has an obligation to make that determination in good
faith."
To determine whether the government acted in good faith, the court
had to determine "the standard by which defendant's cooperation is to be
measured." Defendant argued that under Section 5K1.1 he only had to make
"a good faith effort to provide substantial assistance." The court held,
however, that since defendant sought a departure from the statutory
minimum, "Section 3553(e) provides the relevant standard." Under that
standard, defendant must actually provide "substantial assistance," not
just make a good faith effort to do so. The facts before the court
demonstrated that defendant did not provide substantial assistance, and
the government therefore acted in good faith. Defendant's motion was
denied.
U.S. v. Nelson, No. 4-89-14 (D. Minn. Aug. 1, 1989) (Doty, J.).
District court finds upward departure justified because defendants
hid large sum of stolen money. Defendants pleaded guilty to bank
larceny and conspiracy. They had stolen a Wells Fargo truck, and at the
time of their arrest almost $1.6 million was not recovered, apparently
because defendants hid the money for later use. The guideline range for
one defendant was 37-46 months, for the other 30-37 months.
The government urged the court to depart from the guideline ranges
and impose the statutory maximum of 15 years against each defendant.
The court agreed, finding that the "unique" facts of this case were not
adequately considered by the Sentencing Commission: "The Defendants
have stashed the proceeds of the crime, and they refuse to disclose the
location. They plan to be millionaires upon their release from prison.
The Defendants have obviously made a calculated decision -- if they have
to spend some time in prison, they are going to make it worth their
while."
"The Sentencing Commission did not foresee cases in which the
Defendants plan to exploit the letter of the law to their financial
advantage. . . . A sentence imposed under the guidelines would be
unjust. Under these circumstances, it is our duty to depart upward from
the guidelines. Only a maximum statutory sentence will thwart the
Defendants' attempt to defeat the system. . . . If the Defendants have
a change of heart and decide to turn over the money to the Government,
we will entertain a motion for reduction of sentence."
U.S. v. Valle, No. 89-080-CR (S.D. Fla. July 19, 1989) (Scott, J.).
Other Recent Case:
U.S. v. Gonzalez, No. 88 Cr. 559 (S.D.N.Y. July 27, 1989) (Haight,
J.) (Defendant, mother of three small children, was granted downward
departure from guideline sentence requiring short term of confinement
and given probation. Although policy statement Section 5H1.6 states
that "family ties and responsibilities . . . are not ordinarily relevant
in determining whether a sentence should be outside the Guidelines,"
court holds that "the qualifying adverb 'ordinarily' implies that family
ties in some circumstances may be considered in a downward adjustment;
and where the father is in prison and the imprisonment of the mother
would place minor children at hazard, I am prepared to depart from the
ordinary," at least "when the mother's involvement is as peripheral as
in the case at bar.").
VOLUME 2 NUMBER 10
AUGUST 4, 1989
Fourth Circuit holds defendant bears burden of proof when seeking
offense level reduction. Defendant contended the district court erred
in not reducing his offense level for acceptance of responsibility,
arguing he was entitled to the reduction because the government did not
prove by clear and convincing evidence that he was not.
The appellate court found that other courts examining the standard of
proof question "have generally agreed that a preponderance standard is
the proper measure." The court also noted that, in a pre-Guidelines
case, the Supreme Court concluded that applying the preponderance
standard to factual findings made by a sentencing court satisfied due
process. See McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986).
As to the burden of proof, "the guideline in question involved a
potential decrease in the offense level which would have had the effect
of lowering (defendant's) ultimate sentencing range. In these
circumstances, we hold that the defendant has the burden of establishing
by a preponderance of the evidence the applicability of the mitigating
factor in question. . . . However, if the government seeks to enhance
the sentencing range and potentially increase the ultimate sentence, it
should bear the burden of proof. Such a scheme is entirely consistent
with the directives of the Supreme Court in McMillan and with due
process requirements. . . . (N)either concerns of procedural due
process nor any other good reason suggest that a defendant should be
able to put the burden on the government to prove that the defendant
should not receive any particular mitigating adjustment."
This appears to be the first appellate court opinion concerning
burdens of proof for adjustments to offense level. Previously GSU has
reported two district court cases on this matter. See U.S. v. Clark,
No. CR. SCR 88-60(1) (N.D. Ind. May 11, 1989) (burden is on defendant to
prove decrease is warranted, on government for increase) (2 GSU #6);
U.S. v. Dolan, 701 F. Supp. 138 (E.D. Tenn. 1988) (government has burden
of proof when challenging presentence report recommendation of downward
adjustment in offense level) (1 GSU #19). See also U.S. v. Lovell,
infra.
U.S. v. Urrego-Linares, No. 88-5646 (4th Cir. July 20, 1989)
(Wilkins, J.).
District court holds party seeking offense level adjustment bears
burden of proof; burden is on government when preponderance of evidence
favors neither party. The government contested reductions that
defendant sought in his base offense level. The court held that "where
there is a dispute as to facts being taken into account by the court
relative to an adjustment to the base offense level under the
Guidelines, the party who desires to obtain an adjustment . . . must
bear the burden of coming forward with sufficient proof to establish a
prima facie case that the adjustment is appropriate."
"(W)here the proponent of the adjustment has established a prima
facie case warranting that adjustment, the burden shifts to the opposing
party to come forward with rebuttal evidence. At that point, the issues
are determined by a preponderance of the evidence and the resolution of
the issues is clear-cut unless the evidence does not preponderate in
favor of either party's position.
"In the (latter) event . . . the burden of persuasion must be placed
upon the government for . . . recent authority dealing with
pre-Guidelines sentencing procedures concluded that the government
should bear the burden of persuasion on all matters disputed in
presentence investigation reports when those matters were relied upon by
the sentencing judge."
U.S. v. Lovell, No. CR. 88-20171-TU (W.D. Tenn. July 7, 1989)
(Turner, J.).
District court allows withdrawal of guilty pleas because of large
miscalculations by government and defense counsel as to anticipated
sentencing ranges. During their preliminary estimates of defendants'
probable Guideline ranges, government and defense attorneys did not
include certain "relevant conduct" in their calculations, resulting in
much lower ranges than the court ultimately found. Defendants argued
that because of the miscalculation they "did not receive the benefit of
their bargain with the government which induced these pleas," and that
the error provided "fair and just reasons" to allow withdrawal of their
guilty pleas pursuant to Fed. R. Crim. P. 32(d).
The court agreed: "While it is true that all parties involved knew
that the plea agreement calculations were only preliminary and subject
to change, it does not follow that the plea negotiations created no
expectations regarding a sentencing range." The court held that one
defendant's expected range was close to his final range, and denied
leave to withdraw his plea. For two defendants, however, the actual
ranges of 41-51 months, versus expected ranges of 27-33 and 21-27
months, were "too far afield" and "simply beyond the scope of expectancy
created by the plea agreement. It would be unfair and unjust to enforce
the contract between the defendant and the government where the
defendant was induced by a promise which could not be kept."
The court stressed that "'considerable caution' will be used in
granting relief from pleas. . . . Only under exceptional circumstances
. . . will a motion to withdraw a guilty plea be granted."
U.S. v. Bennett, No. CR88-30 (N.D. Ind. July 13, 1989) (Lee, J.).
First Circuit outlines procedure for sentencing when there is no
specific guideline for the offense. Defendant was convicted of contempt
of court for refusing to testify at a criminal trial, despite a grant of
immunity. The guideline for contempt offenses, Section 2J1.1, does not
set a specific offense level, leaving it to the court to impose a
sentence based on the principles set forth in 18 U.S.C. Section
3553(a)(2). The district court imposed a three-year sentence.
The appellate court vacated and remanded for resentencing, holding
that the sentence imposed was "unlawfully long." In part, the court
based its decision on the facts of the case: defendant believed in good
faith that he had a legal basis for refusing to testify; he showed no
disrespect for the court; and he had no prior convictions. The court
also found the three-year sentence did not comport with the directive of
18 U.S.C. Section 3553(b), which provides: "In the absence of an
applicable sentencing guideline . . . the court shall also have due
regard for the relationship of the sentence imposed to sentences
prescribed by the guidelines applicable to similar offenses and
offenders, and to the applicable policy statements of the Sentencing
Commission." The "applicable policy statement" in Section 2J1.1 refers
to Section 2X5.1, which directs a sentencing court to "apply the most
analogous offense guideline" when no specific guideline was promulgated,
and states that "(i)f there is not a sufficiently analogous guideline,
the provisions of 18 U.S.C. Section 3553(b) shall control."
The appellate court determined that "(t)hese various statements all
amount to the same thing: they tell the district court to look for
analogies. And, in deciding whether the sentence is 'plainly
unreasonable' (under 18 U.S.C. Section 3742(e)(4)), that is also what we
must do." The court determined that Section 2J1.5, "Failure to Appear by
Material Witness," was "a closely analogous guideline." Under the
circumstances of this case, using Section 2J1.5 would result in a
maximum sentence of six months. The court held that "any sentence in
excess of six months . . . is 'plainly unreasonable,' and hence
unlawful" under 18 U.S.C. Section 3742(e)(4), and instructed the
district court to sentence defendant to a term of six months or less.
U.S. v. Underwood, No. 89-1315 (1st Cir. July 24, 1989) (Breyer, J.).
District court concludes Sentencing Commission did not adequately
consider effects of certain Guidelines sections on escape convictions.
Defendant, incarcerated for a pre-Guidelines offense, escaped from
custody after the effective date of the Guidelines. Defendant's offense
level resulted in a sentencing range of 18-24 months. In addition,
guideline Section 5G1.3 requires a consecutive sentence for offenses
committed by a defendant already serving an unexpired sentence.
Defendant raised two objections. First, since an individual cannot
commit the offense of escape unless he is under a criminal justice
sentence, the two-point addition to the criminal history score mandated
by Section 4A1.1(d) is not appropriate in escape cases. Second, the
Parole Commission will impose an additional period of incarceration on
his earlier, pre-Guidelines offense regardless of the term imposed for
the escape. This "sentence," defendant contended, is a factor not
adequately considered by the Sentencing Commission in adopting Section
5G1.3.
The court held "that the Sentencing Commission inadequately
considered the impact of Section 4A1.1(d) in an escape case," and
departed from the guideline to reduce defendant's criminal history score
by two points. The court found that "being incarcerated is an element
of the offense" of escape, and under Section 4A1.1(d) this same status
enhances the criminal history score. The court determined that "(a)
basic policy of the guidelines is to avoid double counting. . . . The
underlying principle is that if one provision . . . accounts for an
element of the offense or a specific offense characteristic, another
provision designed to account for the same factor should not apply. The
same principle holds true even if the double counting relates to an
element of the current offense and calculation of the criminal history
score." The court concluded that nothing in the guidelines, policy
statements, or commentary indicates that this principle should be
abrogated by applying Section 4A1.1(d) in an escape case, or "that the
Commission was even aware of the double counting that occurs when
Section 4A1.1(d) is applied to an escape case."
The court specifically disagreed with two earlier decisions that had
upheld the use of Section 4A1.1(d) in escape cases, U.S. v. Ofchinick,
877 F.2d 251 (3d Cir. 1989), and U.S. v. Jimenez, 708 F. Supp. 964 (S.D.
Ind. 1989). See also U.S. v. Goldbaum, No. 88-2239 (10th Cir. July 21,
1989), infra. At least one other court has found that using Section
4A1.1(d) in an escape case constitutes improper double counting. See
U.S. v. Clark, No. 88-0793 (S.D.N.Y. Mar. 27, 1989).
The court also agreed that defendant's sentence for the escape should
run concurrently with any additional time imposed by the Parole
Commission. "Since (defendant's) offenses place him within the
jurisdiction of both the Parole Commission and this court, the court
cannot dictate exactly the amount of time (defendant) will serve. . . .
Nevertheless, the court cannot close its eyes and ignore the practical
effect of the Parole Commission's probable course of action. . . .
There is no evidence that the Sentencing Commission adequately
considered this conflict between pre-guideline sentences and
post-guideline sentences when it drafted guideline Section 5G1.3."
U.S. v. Bell, No. CR. 5-88-021(01) (D. Minn. June 30, 1989)
(Magnuson, J.).
Other Recent Case:
U.S. v. Goldbaum, No. 88-2239 (10th Cir. July 21, 1989) (Anderson,
J.) (affirming use of guideline Section 4A1.1(d) to add two points to
criminal history score of defendant convicted of escape). See also U.S.
v. Bell, supra.
VOLUME 2 NUMBER 9
JULY 13, 1989
Second Circuit holds courts are not required to advise defendants of
likely guideline sentence before accepting plea bargain, but "where
feasible, should" do so. Defendant pleaded guilty to importing more
than 500 grams of cocaine. The facts showed, and defendant did not
dispute, that the offense actually involved 25 kilograms. The district
court calculated the offense level based on the larger amount, which
resulted in a substantially longer sentence despite a downward departure
under Section 5K1.1 of the Guidelines for defendant's cooperation.
Defendant argued (1) that the court erred in using the larger amount,
and (2) that the court should have informed him it would do so at the
time of his guilty plea to prevent unfair surprise and enable him to
fully understand the consequences of his guilty plea.
Affirming the sentence, the appellate court noted that it had already
rejected the first argument in U.S. v. Guerrero, 863 F.2d 245 (2d Cir.
1988). The court also rejected defendant's notice argument, holding
that Fed. R. Crim. P. 11(c)(1) requires a sentencing court to apprise a
defendant only of the statutory minimum and maximum penalties faced, not
what the likely sentence under the Guidelines will be. "The district
court was not required to calculate and explain the Guideline sentence
to the appellant before accepting the plea, for, once appellant was
informed of the possible consequences enumerated in the Rule -- the
maximum and the minimum sentences -- the requisites of Rule 11 were
met."
The court added, however, that "the sentence likely to be imposed can
in some instances be readily calculated from the universe of facts
before the district court at the time of the plea. In those cases where
the applicable Guidelines sentence is easily ascertainable at the time
the plea is offered, the district court has full discretion to -- and,
where feasible, should -- explain the likely Guidelines sentence to the
defendant before accepting the plea." But cf. U.S. v. Ware, 709 F. Supp.
1062 (N.D. Ala. 1989) (defendant not entitled to pretrial resolution of
dispute involving application of Guidelines to facts of case: "such a
procedure . . . creates an undue risk that error could affect the
defendant's decision to go to trial or plead guilty").
U.S. v. Fernandez, No. 88-1409 (2d Cir. June 15, 1989) (Pierce, J.).
Second Circuit holds defense attorney's underestimation of probable
sentencing range does not warrant withdrawal of guilty plea. After
defendant pleaded guilty to two offenses, the district court calculated
the guideline sentence range to be 51-63 months. Defendant moved to
withdraw his pleas, but the court denied the motion and imposed a
57-month sentence. On appeal, defendant argued he should be allowed to
withdraw the pleas because he was denied effective assistance of counsel
by his attorney's erroneous estimate of a sentencing range of 21-27
months. Defendant claimed he relied on that estimate, and thus his
pleas were not voluntarily made with full knowledge of the consequences.
The appellate court found that when defendant pleaded guilty he was
aware of the maximum terms he faced, that the length of the sentence to
be imposed was within the sole discretion of the sentencing judge, and
that even if the sentence was more severe than expected he was bound by
his plea. Moreover, under pre-Guidelines law, "it seems clear that we
would not have reversed a district judge for refusing to allow
withdrawal of a plea under (Fed. R. Crim. P.) 32(d) on the ground that
counsel's estimate was erroneous. We do not see why the presence of the
Guidelines should change the law in this respect. If anything, they
seem to us to reinforce our earlier decisions on the issue. Under the
Guidelines there will be many more detailed hearings regarding
imposition of sentence, as in this case. A sentencing judge will now
frequently indicate, as a result of such hearing, what the sentence may
be. In those circumstances, allowing defendants to use the presentence
prong of Rule 32(d) to withdraw their pleas would pervert the rule and
threaten the integrity of the sentencing process. Defendants may not
plead guilty in order to test whether they will get an acceptably
lenient sentence."
U.S. v. Sweeney, No. 89-1072 (2d Cir. June 22, 1989) (per curiam).
Ninth Circuit holds defendants must be given notice of factors
warranting departure, and that courts must follow Guideline standards
for departure. Defendants pleaded guilty to one count of aiding and
abetting the transportation of illegal aliens. The facts showed the
operation was very large and well organized, and that both defendants
were key participants. At the sentencing hearing the court, without
informing defendants in advance, departed upward from the guideline
ranges.
The appellate court held "that the failure to notify appellants of
the basis for departure in advance of the imposition of sentence
violated Fed. R. Crim. P. 32(a)(1)." The court determined that Rule
32(a)(1) and 18 U.S.C. Section 3553(d) "indicate that the presentence
report or the court must inform the defendant of factors that they
consider to constitute grounds for departure. . . . This requirement is
not satisfied by the fact that the relevant information is present
within the presentence report. . . . Rather, such information either
must be identified as a basis for departure in the presentence report,
or, the court must advise the defendant that it is considering departure
based on a particular factor and allow defense counsel an opportunity to
comment." Accord U.S. v. Cervantes, No. 89-1002 (2d Cir. June 20, 1989);
U.S. v. Otero, 868 F.2d 1412 (5th Cir. 1989).
The court found that the sentencing court could properly base a
departure on the large size of the operation, but held that it "erred in
relying on two factors considered and accounted for by the guidelines in
its decision to depart from those guidelines," namely defendants' roles
in the offense and profit motive. "Such a ruling indicates
dissatisfaction with the guidelines rather than a reasoned judgment that
particular characteristics of the offense or the offenses have not been
accounted for. Moreover, because the court's statement of reasons
contained an improper as well as a proper basis for departure, we have
no way to determine whether any portion of the sentence was based upon
consideration of the improper factors." The court vacated and remanded
for resentencing, and emphasized that the decision to depart is limited
by statute and "must be based on the guidelines or policy statements in
the guidelines."
U.S. v. Nuno-Para, No. 88-5163 (9th Cir. June 20, 1989) (Nelson, J.).
District court finds departure warranted because Sentencing
Commission failed to account for civil remedies. Defendant pleaded
guilty to trafficking in counterfeit goods. The total offense level was
11, and the guideline range was 8-14 months. The court departed from
the Guidelines to impose a 36-month term of probation and $6,000 fine:
"Under the special circumstances of this case, a term of imprisonment
would serve none of the stated purposes of sentencing. (Defendant) is
the mother of a young child, she has no prior criminal involvement, no
record of drug or alcohol abuse, and a close-knit extended family. She
has freely acknowledged her guilt and immediately after apprehension she
sought to cooperate with the government. . . . She poses no threat to
the public and will be justly punished, sufficiently deterred, and
adequately rehabilitated" by this sentence.
The court also noted that in this type of crime -- counterfeiting
trademarks of high-priced, designer-label items -- the companies whose
merchandise is copied "have powerful civil remedies available for
protecting their interests," and, "(i)n fact, that approach to enforcing
trademark rights is far more prevalent, effective, and reasonable than
enlisting our already overburdened police, prosecutors, and courts to
act on behalf of" such companies. The court concluded that departure in
this case was appropriate, "the Sentencing Commission not having
considered the availability of extraordinary civil remedies to deal with
the crimes charged here."
U.S. v. Hon, No. 89 Cr. 0052 (S.D.N.Y. May 31, 1989) (Sweet, J.).
Other Recent Case:
U.S. v. Missick, No. 88-3095 (7th Cir. May 24, 1989) (Cummings, J.)
(departure not appropriate for defendant who supplied drugs, through a
courier, to persons possessing firearms -- defendant did not possess
weapon, had no direct contact with, and was not charged as
co-conspirator with, those who had weapons).
Recent Cases:
U.S. v. Wilson, No. 88-6086 (6th Cir. June 29, 1989) (Contie, Sr. J.)
(the offense level reduction in guideline Section 2K2.1(b)(2), covering
possession of a firearm by a convicted felon "solely for sport or
recreation," is not applicable to a firearm possessed as collateral;
reference to "intended lawful use" in the Commentary cannot be used to
broaden the "unambiguous language . . . in the guideline itself").
U.S. v. Sanchez-Lopez, No. 88-3102 (9th Cir. June 22, 1989) (Alarcon,
J.) ("(w)hether a defendant is a 'minor' or 'minimal' participant in the
criminal activity is a factual determination subject to the clearly
erroneous standard"; career offender provision does not result in
"impermissible double enhancement" of penalties, nor involve
"unconstitutional sub-delegation of congressional authority to the
various states" because state convictions may trigger the provision).
U.S. v. Mann, No. 88-2085 (8th Cir. June 13, 1989) (Gibson, J.)
(quantity of drugs in prior drug sale, not included in indictment or
offense of conviction but part of "same course of conduct or common
scheme," may be considered by sentencing court).
U.S. v. Moore, No. 88-2573 (8th Cir. June 8, 1989) (per curiam)
(separate instances of bank robbery, though committed at same bank, may
not be grouped under guideline Section 3D1.2).
U.S. v. Ofchinick, No. 89-3008 (3d Cir. June 7, 1989) (Greenberg, J.)
(defendant convicted of escape from custody may receive criminal history
enhancement under guideline Section 4A1.1(d) and (e) for escaping while
under sentence of imprisonment and while still in confinement, even
though being in custody is element of offense).
U.S. v. Zayas, No. 89-1031 (1st Cir. June 7, 1989) (Torruella, J.)
(district court "clearly justified" in refusing reduction for acceptance
of responsibility to defendant who committed perjury during trial).
Recent Case:
U.S. v. Ortiz, No. 89-1056 (3d Cir. June 29, 1989) (Seitz, J.) (under
"due deference" standard of 18 U.S.C. Section 3742(e), appellate review
standard varies depending on whether issue is factual, legal, or mixed;
question of defendant's "aggravating role" in offense is "essentially
factual" and reviewed under clearly erroneous standard).
VOLUME 2 NUMBER 8
JUNE 27, 1989
Second Circuit outlines procedure for departure based on criminal
history, holds defendant must be given notice of possible departure.
Defendant pleaded guilty to importation of cocaine; his guideline range
was 33-41 months. The court departed and imposed a 60-month sentence,
finding that defendant's criminal history score, which placed him in
Category I, did not adequately represent his past criminal conduct.
The appellate court vacated the sentence, partly because the district
court may have based the departure on factors already considered by the
Sentencing Commission, but also because the court failed either to
adequately set forth the reasons for departing or to use other criminal
history categories as a guide: "We believe that the district court
should explicitly articulate its reasons for departing pursuant to
Section 4A1.3. Failure to do so renders the sentence unlawful under 18
U.S.C. Section 3742(d)(1). . . . It is necessary . . . that the court
clearly identify any aggravating factors and specify its reasons for
utilizing a particular criminal history category." The court found that
"(a) precise procedure regulates the exercise of discretion in making
this type of departure. . . . (T)he Guidelines require a judge to 1)
determine which category best encompasses the defendant's prior history,
and 2) use the corresponding sentencing range for that category 'to
guide its departure.'" (Citing policy statement Section 4A1.3.) Accord
U.S. v. Lopez, 871 F.2d 513 (5th Cir. 1989) (departure for inadequate
history score should be tied to specific criminal history category).
In this case, "(t)he departure to a 60-month term of imprisonment --
from an initial range of 33-41 months -- can only be supported by
placing (defendant) in Criminal History Category IV. The district
court's cryptic statement regarding this departure does not satisfy the
congressional requirement that specific reason or reasons be cited. . .
. Nor was an explanation offered for selecting a sentence appropriate
for a defendant in Category IV rather than Category II or III."
The court also held that a defendant must be given notice of and an
opportunity to present arguments on possible departures. The court
based this ruling, in part, on the language of Fed. R. Crim. P.
32(a)(1), which gives defense counsel the right to "an opportunity to
comment upon . . . other matters relating to the appropriate sentence."
Accord U.S. v. Otero, 868 F.2d 1412 (5th Cir. 1989) (defense must have
notice and opportunity to be heard if court intends upward departure).
U.S. v. Cervantes, No. 89-1002 (2d Cir. June 20, 1989) (Kaufman, Sr.
J.).
Ninth Circuit holds district court must clearly identify factors
warranting departure. Defendant pleaded guilty to bank robbery. His
criminal history score placed him in Category VI, and the guideline
range was 63-78 months. The court departed from the range to impose a
sentence of 96 months, explaining that departure "is justified under
Sections 4A1.3 and 5K2.0 of the Sentencing Guidelines because the
guideline sentence does not adequately reflect defendant's criminal
history. Since defendant is in the highest category by reason of
several convictions, additional convictions which would otherwise be
included in the calculation add nothing further. Defendant is very
close to career criminal status. Other similar criminal conduct is not
reflected. All of this reflects strong, recidivist tendencies."
The appellate court vacated and remanded, holding that the sentencing
court's "conclusory statement of reasons . . . fails to clearly identify
the specific aggravating circumstances present in this case. The
statement also fails to indicate whether the court found that the
Sentencing Commission inadequately considered those circumstances in
formulating the guidelines. Absent such a finding, departure is not
permitted." (Citing 18 U.S.C. Sections 3553(b) and 3742(d)(3).)
U.S. v. Michel, No. 88-1280 (9th Cir. June 8, 1989) (Wiggins, J.).
Fifth Circuit reverses departures for failure to articulate valid
rationale, failure to consider adjustment to criminal history. In one
case, defendant pleaded guilty to possession of an unregistered firearm
with an altered serial number. The evidence showed that defendant, a
convicted felon, was stopped at a border checkpoint where 18 different
weapons, all with altered serial numbers, were found in his car. The
guideline range was 27-33 months. The court departed to impose an
eight-year sentence, stating that the guidelines were "weak and
ineffectual with respect to (defendant's) crime" and that defendant was
addicted to heroin.
The appellate court vacated the sentence, holding that "(t)he
sentencing court's articulated rationale for departing from the
guidelines in this case, and the resulting sentence," were
"unreasonable." The court stated that "(a) sentencing court's personal
disagreement with the guidelines does not provide a reasonable basis for
sentencing," and found that the "record does not disclose that
(defendant's) drug addiction provided a reasonable basis for
(departure). The guidelines admonish that drug dependence is not
ordinarily relevant in determining whether a departure is warranted,"
and the district court's "single statement" that defendant was a heroin
addict "does not sufficiently explain why (defendant's) addiction is so
extraordinary that a departure was justified. Without a more
particularized rationale, we cannot gauge the reasonableness of this
departure nor can we gauge the extent to which addiction justifies the
sentence imposed."
U.S. v. Lopez, No. 88-2765 (5th Cir. June 12, 1989) (Clark, C.J.).
In another case, defendant pleaded guilty to falsely representing
himself as a U.S. citizen. The sentencing judge departed from the
guideline range to impose the statutory maximum of three years'
imprisonment, citing defendant's "prior history" and status as an
illegal alien. The appellate court reversed, first finding that the
sentencing judge should have considered an upward adjustment to
defendant's criminal history category if it did not adequately represent
his criminal past. The sentence here exceeded the highest possible
guideline sentence, using Category VI, by 50%, and "(n)othing in the
record indicates that (the district) court considered the possible
sentences which would result from an adjustment to criminal history
category V or VI. Nor did the court provide any explanation why such
adjustments, if they were considered, are inadequate in this case."
The appellate court also found that "(t)he judge's comments suggest
that (defendant's) status as an illegal alien and his cavalier attitude
toward United States citizenship requirements influenced the judge in
departing from the recommended sentence. Since the offense for which
(defendant) was convicted already takes into account his illegal
immigration status, this was not a valid reason for departure."
U.S. v. Rios, No. 88-6126 (5th Cir. June 12, 1989) (per curiam).
Eighth Circuit voices concern about Section 5K1.1 provision that
departure for substantial assistance requires motion by government.
Defendant pleaded guilty to a drug offense. He argued that he was
entitled to a departure under Section 5K1.1 for substantial assistance
to the government. The government did not dispute that defendant
provided substantial assistance, but refused to make a Section 5K1.1
motion, and the district court did not depart from the guideline
sentence.
Although the appellate court upheld the refusal to depart, it had
"several problems with Section 5K1.1's requirement that a motion by the
government is necessary before a district judge can depart from the
guidelines." Such an arrangement "places discretion that has
historically been in the hands of a federal judge into the hands of the
prosecutor." Whether the prosecutor abuses this discretion "is a
question that appears to be unreviewable," and "the issue of whether a
defendant has provided substantial assistance to authorities may be a
disputed factual issue" that the prosecutor, not the court, now
resolves.
"(W)e are not positive that this provision, in the absence of a
motion by the government, would divest a sentencing court of the
authority to depart below the guidelines in recognition of a defendant's
clearly established and recognized substantial assistance to
authorities. We believe that in an appropriate case the district court
may be empowered to grant a departure notwithstanding the government's
refusal to motion the sentencing court if the defendant can establish
the fact of his substantial assistance to authorities." The court
decided it did not have to reach this issue, however, finding that
defendant's assistance may in fact have been recognized by a lenient
plea agreement.
U.S. v. Justice, No. 88-2539 (8th Cir. June 8, 1989) (Gibson, Sr.
J.).
District court to determine in camera whether prosecutor refused in
good faith to follow agreement to move for "substantial assistance"
departure. Defendant provided information to an assistant U.S. attorney
pursuant to his plea and a "cooperation agreement" he signed with the
government. The AUSA did not believe some of the information, concluded
that defendant had breached the cooperation agreement, and informed
defendant's attorney that the government no longer intended to move for
a downward reduction of sentence under 18 U.S.C. Section 3553(e) and
policy statement Section 5K1.1 of the Guidelines. Defendant moved to
compel the government to file such a motion.
The court found that, while the statute and policy statement "place
sole responsibility and discretion for determining what constitutes
'substantial assistance' on the prosecutor, and not on the trial court,"
when there is a cooperation agreement and the government refuses to move
for departure, the court may scrutinize whether the prosecutor's
decision was made "in good faith." The court wanted "to know in detail
what actual assistance (defendant) has rendered to the government, and
what use the government has made or intends to make out of any
information furnished . . . in order to determine whether there is any
basis to conclude that, in the totality of the circumstances, the
government acted in bad faith in refusing to make a motion on
(defendant's) behalf under the guidelines or the statute."
As to procedure, the court determined there was "no need . . . to
conduct the equivalent of a trial on the issue, because the issue is not
the ultimate objective reality, but rather the subjective state of the
prosecutor's mind." The disclosures could be made ex parte and in
camera, and the materials provided would "be placed under seal pending
this Court's further order or for the purpose of appellate review."
This appears to be the first reported case in which a district court
has ordered a prosecutor to defend a decision to refuse to move for a
reduction of sentence. Another district court has held that, under the
specific circumstance of the case, letters from the prosecutor satisfied
the requirements of 18 U.S.C. Section 3553(e) and Section 5K1.1 when the
prosecutor refused to file a motion. See U.S. v. Coleman, 707 F. Supp.
1101 (W.D. Mo. 1989) (because of prosecutor's representations to
defendants and mistaken belief that a motion was not required, court
treated letters from prosecutor detailing defendants' assistance as
"functional equivalent" of Section 3553(e) motion).
U.S. v. Galan, No. 89 Cr. 198 (S.D.N.Y. June 8, 1989) (Haight, J.).
VOLUME 2 NUMBER 7
JUNE 5, 1989
Third Circuit holds that when plea agreement establishes facts
relevant to sentencing no further proof of those facts is required.
Defendant entered a plea of guilty to theft of 122 pieces of mail valued
at $22,500. Although defendant never withdrew his plea, he challenged
the presentence report, claiming he only stole 40-45 packages with a
value of less than $20,000, a value that would result in a lower offense
level. On appeal, defendant argued that the dispute over the value of
the stolen property was not foreclosed by his guilty plea, and that the
government should have been required to prove the value through the
dispute resolution procedures of Fed. R. Crim. P. 32(c)(3)(D) and
guideline Section 6A1.3.
The appellate court rejected this view, finding that "the plea
agreement encompassed an understanding both as to the number of parcels
taken and their value," that there was "no suggestion in the plea
agreement that (defendant) reserved the right to challenge the
valuation," and that defendant "did not seek to withdraw the plea when
the judge ruled that the indictment valuation would be used for
sentencing." Thus, the court held, defendant's "plea of guilty admitted
the value for purposes of his sentence and no further proof or
stipulation was required."
U.S. v. Parker, No. 88-3752 (3d Cir. May 10, 1989) (Greenberg, J.).
Fifth Circuit holds judge must resolve factual disputes before
sentencing. Defendant pleaded guilty to conspiracy to possess marijuana
with intent to distribute. He objected to the presentence report,
claiming that the amount of marijuana used to set his offense level was
too high and that he should not have been classified as an organizer or
leader. The district court did not rule on these objections or make
explicit factual findings. Instead, the court departed from the
recommended sentencing range and imposed the statutory maximum of five
years, giving as reasons defendant's privileged social background and
prior criminal activity. The appellate court vacated the sentence and
remanded.
The court noted that "the presentence report and the defendant's
objections to that report are essential considerations in proper
sentencing." Furthermore, "(t)he guidelines explicitly require that the
sentencing court resolve disputed sentencing factors, without regard to
whether the court ultimately determines that a departure from the
guidelines is warranted. Sentencing Guideline 6A1.3(b). Without a
clear resolution of the facts that form the basis for the district
court's sentence, this court cannot gauge either the need for or
reasonableness of the departure." The court held that "failure to comply
with (Fed. R. Crim. P.) 32(c) and guideline 6A1.3(b) requires that we
vacate (defendant's) sentence and remand this action for resentencing. .
. . The method by which the district court chooses to address the
requirements of Rule 32(c) and guideline 6A1.3(b) in a given case is for
that court to select. . . . The only requirement we make is that the
record reflect the trial court's resolution of any disputed sentencing
factors in accordance with the federal rules and the guidelines."
The court also held that "the district court must . . . redetermine,
in light of its fact findings, whether a departure is warranted." In
doing so, the district court should not consider defendant's education
or socio-economic status, as those factors are excluded under the
Guidelines.
U.S. v. Burch, No. 88-2680 (5th Cir. May 10, 1989) (Clark, C.J.).
District court determines that party seeking adjustment to base
offense level bears burden of proof. Defendant, who pleaded guilty to
engaging in a continuing criminal enterprise, objected to an offense
level increase for obstruction of justice and claimed he should have
received a two-level decrease for acceptance of responsibility. The
court held an evidentiary hearing on the dispute, and first concluded
that "the preponderance of evidence standard is the appropriate standard
of proof to be applied in evidentiary hearings held under the
Guidelines."
As to whether the government or defendant bore the burden of proof,
the court concluded "that the burden should shift depending on the
disputed factor at issue. It is clear to this court that the government
should bear the burden of proof when showing that the defendant's base
offense level should be increased." On the other hand, "(h)aving the
government carry the burden of proof in the context of decreasing the
base offense level seems inappropriate. . . . The defendant's base
offense level cannot be reduced under the Guidelines without proof that
a factor exists which warrants such a reduction, e.g., acceptance of
responsibility. . . . Surely the government need not carry the burden
of proving that the defendant's base offense level should not be
decreased if there is no proof in the record warranting such a decrease.
If evidence is submitted by the defendant warranting a decrease . . .,
the government can then go forward with evidence disputing the same.
But first there must be evidence warranting such a reduction and who is
better to offer this evidence than the defendant." But cf. U.S. v.
Dolan, 701 F. Supp. 138 (E.D. Tenn. 1988) (holding that government had
burden of proof when it challenged presentence report recommendation of
downward adjustment for acceptance of responsibility). In this case,
the court found that neither party satisfied its burden, and no
adjustments to the offense level were allowed.
U.S. v. Clark, No. CR. SCR 88-60(1) (N.D. Ind. May 11, 1989) (Sharp,
C.J.).
Fifth Circuit holds that lack of connection between drug offense and
weapon precludes offense level increase under guideline Section
2D1.1(b)(1). Defendant pleaded guilty to possession of cocaine with
intent to distribute. Police found a loaded pistol at his residence,
which was several miles from the scene of the drug purchase where
defendant was arrested. The district court adjusted his offense level
under guideline Section 2D1.1(b)(1), which directs courts to increase
the offense level by two "(i)f a firearm . . . was possessed during
commission of (a drug-related) offense."
The appellate court held that "(i)t is a strained interpretation,
given this situation, to conclude that defendant possessed the gun
during the commission of the offense, even applying the deferential
clearly-erroneous standard of review." There was no showing that the gun
and drugs were connected in any way, and they were, in fact, always
several miles apart. Although the court found that under the language
of the guideline "this is a close case," it held that "the adjustment
made was inappropriate and must be vacated."
U.S. v. Vasquez, No. 88-2775 (5th Cir. May 19, 1989) (Smith, J.).
Other Recent Cases:
U.S. v. White, No. 88-5613 (4th Cir. May 22, 1989) (Wilkins, J.)
(whether to apply acceptance of responsibility guideline "is clearly a
factual issue and thus reviewable under a clearly erroneous standard").
U.S. v. Pinto, No. 88-2896 (7th Cir. May 19, 1989) (Easterbrook, J.)
(although Sentencing Commission's Application Notes "are not formally
binding," sentencing court may use notes to illuminate meaning of
guidelines).
U.S. v. Harry, No. 88-1743 (5th Cir. May 18, 1989) (per curiam) (when
term of probation is imposed under guideline Section 5B1.2, maximum
length of term that may be imposed is determined by defendant's total
adjusted offense level, not the base offense level).
U.S. v. Daughtrey, No. 88-5151 (4th Cir. May 11, 1989) (Wilkins, J.)
(issue of minimal or minor participant status "is an 'essentially
factual' question" and, under the "due deference" standard of review,
sentencing court's decision will be affirmed "unless clearly
erroneous").
U.S. v. Ayarza, No. 88-3123 (9th Cir. May 9, 1989) (Wiggins, J.)
(rejecting separation of powers and due process challenges to
requirement of substantial assistance provision, Section 5K1.1, that
such downward adjustment may be made only "upon motion of the
government").
U.S. v. Galvan-Garcia, No. 88-2752 (5th Cir. May 1, 1989) (Johnson,
J.) (affirming offense level increase for obstruction of justice where
defendant threw bags of marijuana out of vehicle during high-speed
chase).
U.S. v. Rafferty, No. CR. 88-01508-01 (D. Hawaii May 5, 1989) (Ezra,
J.) (increasing offense level for obstruction of justice where defendant
gave false information to arresting officers and false testimony at
detention hearing).
U.S. v. Ramirez-de Rosas, No. 88-5219 (9th Cir. May 5, 1989) (Wright,
Sr. D.J.) (upholding departure based on high-speed chase on ground that
it constituted either "dangerous treatment of aliens" (see Application
Notes to Section 2L1.1) or an "aggravating circumstance" not adequately
considered by the Sentencing Commission; under these circumstances
departure to 30-month sentence from guideline range of 0-4 months was
"completely reasonable").
As of this writing, all seven circuits that have considered due
process challenges to the Sentencing Guidelines have rejected them, most
recently the First, Sixth, and Seventh Circuits. See U.S. v. Seluk, No.
88-1779 (1st Cir. Apr. 27, 1989) (per curiam); U.S. v. Allen, No.
88-5739 (6th Cir. May 4, 1989) (Contie, Sr. J.); U.S. v. Pinto, No.
88-2896 (7th Cir. May 19, 1989) (Easterbrook, J.). In light of this
strong trend, Guideline Sentencing Update will not report future cases
upholding the Guidelines against due process challenges.
VOLUME 2 NUMBER 6
MAY 19, 1989
First Circuit holds that defendant must accept responsibility only
for count of conviction. Defendant pleaded guilty to one of five
counts. In setting the offense level, a dispute arose over whether
defendant had to accept responsibility for the dismissed counts in order
to receive the two-level reduction for acceptance of responsibility.
Defendant claimed that could cause him to incriminate himself on the
other offenses, and that in any event he had accepted responsibility for
all counts at the sentencing hearing. The sentencing court "ruled that
the Sentencing Guidelines required a defendant to admit responsibility
for all his criminal activity, not just the counts to which he was
pleading guilty, even if that meant incriminating himself on the other
counts."
The appellate court reversed and remanded. "We conclude that the
only plausible reading of the Guidelines for cases in which a plea
agreement has been made, is that 'acceptance of personal responsibility
for his criminal conduct' means the criminal conduct to which the
defendant pleads guilty." The court found that forcing a defendant to
accept responsibility for all counts would violate the fifth amendment,
because it was possible that statements concerning dismissed counts made
during plea negotiations might be admissible in other litigation. "A
plea bargain can unravel at any time, . . . (and) the judge need not
accept the plea agreement. . . . Nor need the judge automatically
accept a dismissal of an indictment filed by the government." Also,
statements made to a probation officer for a presentence report are not
protected by Fed. R. Evid. 410 from possible future admission. The
court concluded that, "(g)iven both the language of the Guidelines and
the constitutional restrictions, the acceptance of responsibility
section can only be interpreted to mean that a defendant who has made a
plea agreement must accept responsibility solely for the counts to which
he is pleading guilty."
To defendant's argument that he had accepted responsibility for all
counts during the sentencing hearing, the court held that the district
judge has "substantial discretion" as to whether that acceptance was
timely.
U.S. v. Perez-Franco, No. 88-1768 (1st Cir. Apr. 28, 1989) (Bownes,
J.).
First and Third Circuits hold that defendants sentenced pursuant to
career offender guideline may not receive acceptance of responsibility
reduction. Defendants in both cases qualified as career offenders under
guideline Section 4B1.1 and were sentenced under the offense level table
in that section. Each defendant claimed he should have received the
two-level reduction for acceptance of responsibility.
The appellate courts held that this reduction should not be applied
to the offense levels in the career offender table. Both courts
reasoned that this conclusion was consistent with the legislative
mandate of 28 U.S.C. Section 994(h), which was to "assure that the
guidelines specify a sentence (for a career offender) to a term of
imprisonment at or near the maximum term authorized"; accepting
defendants' position would undercut that policy.
Denying the reduction is also consistent with the Guidelines. The
First Circuit found that if the Guidelines "application instructions"
are followed, "a career criminal is never allowed the two-point
reduction from his career-offender level determination." The Third
Circuit concluded that "(i)nasmuch as the career offender table has no
provision for adjustments, we would be no more entitled to give
(defendant) a two-level reduction under Section 3E1.1 than we would be
permitted to increase his level by reason of any of the factors (used
in) the ordinary total offense level calculation."
The courts also noted that Section 4B1.3, the criminal livelihood
provision, provides a reduction for acceptance of responsibility. The
lack of a similar provision in Section 4B1.1 indicates the Commission
did not intend the reduction to apply.
The First Circuit added that the reduction may still be reflected in
the actual sentence. The career offender offense level gives a
sentencing range, and "(i)n determining the exact amount of time to be
served from that range, a court may factor into its sentence a
defendant's acceptance of responsibility." In addition, the sentencing
court "might determine that acceptance of responsibility by a career
offender in certain instances constituted 'unusual circumstances' such
as to warrant a departure from the guidelines."
U.S. v. Alves, No. 88-1752 (1st Cir. May 8, 1989) (Bownes, J.); U.S.
v. Huff, No. 88-3733 (3d Cir. May 10, 1989) (Greenberg, J.).
Other Recent Cases:
U.S. v. Wright, No. 88-1687 (1st Cir. Apr. 27, 1989) (Breyer, J.)
(affirming sentence and holding: sentencing court may consider relevant
related conduct in dismissed counts and "past behavior relevant to
determining an appropriate penalty for the crime" when setting offense
level; whether defendant was a minor or minimal participant is a "mixed
question" of fact and law reviewed under "clearly erroneous" standard).
U.S. v. Graham, No. CR-88-0667 (N.D. Cal. Apr. 7, 1989) (Orrick, Sr.
D.J.) (when live marijuana plants are seized, weight is immaterial and
number of plants is used to calculate the offense level).
Fifth Circuit addresses several departure issues. Defendant, a
recent parolee, lived with an elderly man who, according to defendant,
died in a household accident. Fearing he would be accused of murder,
defendant initially fled the house but later returned, put the body in
the trunk of the man's car and drove around Texas for several days while
using the man's credit card. Eventually, defendant disposed of the body
by placing it in a dumpster and burning it. When arrested by state
police for public intoxication, defendant tried to hide the credit card.
The police found the card, defendant told the story, and he was
indicted on state charges and a federal charge of credit card fraud.
Defendant pleaded guilty to the credit card offense, and the sentencing
judge departed from the guideline range of 30-37 months to impose a
120-month sentence.
Defendant challenged two of the sentencing court's reasons for the
departure: that his conduct, in the treatment and disposal of the body,
was "extreme conduct" under Section 5K2.8; and that criminal history
category VI did not adequately reflect his criminal record or potential
for future criminal activity. The appellate court rejected both
challenges.
The court concluded that Section 5K2.8 is not, as defendant argued,
limited to harm done to the victim: "Section 5K2.8 directs the
sentencing court's attention to the defendant's conduct, not the
victim's harm, and thus does not implicate the limiting language in
section 5K2.0." The court also determined that a "victim" under Section
5K2.8 need not be the direct victim of the offense of conviction.
Defendant claimed that the district court, in determining that
criminal history category VI was inadequate, should not have considered
as separate three 1979 convictions that were consolidated for
sentencing. The appellate court found that the Guidelines allow
consideration of concurrent sentences in that situation. The court also
held that, once a sentencing court gives specific reasons for departing
from the guideline range, it need not explain why a specific term is
chosen: "Nothing in (18 U.S.C. Section) 3553 requires the sentencing
judge to justify his choice of sentence further by explaining, for
example, why 120 months is more appropriate than 100 months."
In addition, defendant claimed that, once the sentencing court
determined that category VI was inadequate, it should have gone to the
next offense level to guide the departure. This argument is premised on
the fact that the Guidelines instruct courts to move between criminal
history categories when the applicable category is inadequate. The
court determined that the Guidelines do not require courts to do this
and, in fact, to do so would be inappropriate: "Arbitrarily moving to a
new offense level when the highest criminal history category proves
inadequate would skew the balancing of factors which the Commission
created in the Sentencing Table."
Defendant also challenged the district court's calculation of the
guideline range for the offense of conviction. The appellate court
noted that "even if the court decides to depart, it must impose a
reasonable sentence. The recommended range provides a point of
reference for the sentencing court. . . . If the court identifies the
wrong recommended range, its frame of reference may be skewed. . . .
Accordingly, whether the court incorrectly determined the recommended
range is relevant to our review of a sentence imposed under the
departure provisions." Reviewing under the "clearly erroneous" standard,
the court rejected defendant's various challenges to the sentencing
court's guideline calculation, including its findings that the deceased
was a "vulnerable victim" under Section 3A1.1 and that a vulnerable
victim need not be the victim of the offense of conviction; and that
defendant tried to obstruct justice by hiding the credit card.
U.S. v. Roberson, No. 88-1624 (5th Cir. Apr. 28, 1989) (Smith, J.).
Other Recent Case:
U.S. v. Velasquez-Mercado, No. 88-2621 (5th Cir. Apr. 28, 1989)
(Jones, J.) (upward departure warranted where defendant organized scheme
to transport large number of illegal aliens, molested women passengers,
and attempted to evade authorities in high-speed chase).
First Circuit outlines standard of review for departures. In
upholding a departure from a sentencing range of 27-33 months to 10
years, the First Circuit set forth a three-step standard for reviewing
departure cases. The first step is to "assay the circumstances relied
on by the district court in determining that the case is sufficiently
'unusual' to warrant departure. That review is essentially plenary."
Next, the reviewing court should "determine whether the
circumstances, if conceptually proper, actually exist in the particular
case. That assessment involves factfinding and the trier's
determinations may be set aside only for clear error."
Finally, "the direction and degree of departure must, on appeal, be
measured by a standard of reasonableness. . . . In this context,
reasonableness is determined with due regard for 'the factors to be
considered in imposing a sentence,' generally, and 'the reasons for the
imposition of the particular sentence, as stated by the district
court.'" (Citing 18 U.S.C. Sections 3553(a) and 3742(d)(3).) "This third
step involves what is quintessentially a judgment call. . . .
(A)ppellate review must occur with full awareness of, and respect for,
the trier's superior 'feel' for the case. We will not lightly disturb
decisions to depart, or not, or related decisions implicating degrees of
departure."
The court added that "we read the Guidelines as envisioning
considerable discretion in departure decisions, at least at this early
stage of their existence. . . . Although we are cognizant that
departures should be the exception rather than the rule, . . . we must
nonetheless defer, within broad limits, to the trial judge's intimate
familiarity with the nuances of a given case."
U.S. v. Diaz-Villafane, No. 88-1998 (1st Cir. May 4, 1989) (Selya,
J.).
VOLUME 2 NUMBER 5
MAY 2, 1989
Fifth Circuit holds that degree of departure for inadequate criminal
history score should be tied to a specific criminal history category.
Defendant pleaded guilty to immigration offenses. Two prior convictions
for immigration offenses were not counted in her criminal history score
because they fell just outside the ten-year limit of Section
4A1.2(e)(2), giving defendant a score of zero and sentencing range of
4-10 months. The sentencing court found that the criminal history score
underrepresented defendant's past criminal behavior and likely
recidivism, and departed from the Guidelines to impose a two-year
sentence.
The appellate court remanded the case for resentencing because the
district court simply departed from the Guidelines instead of adjusting
defendant's criminal history category: "There is no question that a
sentencing court may sometimes justify its departure from the Guidelines
based upon the inadequacy of a defendant's criminal history score. . . .
However, the Guidelines provisions treating adjustments for criminal
history indicate that in considering a departure from the Guidelines
'the Commission intends that the court use, as a reference, the
guideline range for a defendant with a higher or lower criminal history
category, as applicable.' . . . (T)he district court was justified in
considering that a level of zero was not representative of defendant's
true criminal history. Nevertheless, we conclude that the court should
not have completely disregarded the Guidelines without further
explanation.
"Under section 4A1.3, the judge should have considered the sentencing
ranges that would be indicated by raising defendant's criminal history
category to II or higher."
In remanding for resentencing, the court "emphasize(d) that in some
cases involving defendants with low criminal history scores, it may be
justified to impose a sentence reflecting a much higher criminal history
category or to go beyond the range corresponding to the highest category
VI. However, in such cases the sentencing judge should state
definitively that he or she has considered lesser adjustments of the
criminal history category and must provide the reasons why such
adjustments are inadequate."
U.S. v. Lopez, No. 88-2962 (5th Cir. Apr. 14, 1989) (Smith, J.).
Fifth Circuit upholds decision not to group firearm offenses.
Defendant pleaded guilty to possession of a pistol by a convicted felon
and unlawful possession of an unregistered firearm, a silencer for the
pistol. Defendant claimed the district court should have grouped the
two counts as closely related offenses under guideline Section 3D1.2(d)
instead of sentencing him pursuant to Section 3D1.4 according to the
combined offense level for the two separate offenses.
Section 3D1.2(d) lists offense guidelines that are specifically
included in or excluded from the grouping section. Because the
guideline covering defendant's offenses, Section 2K2.2, is not on either
list, the district court had to determine if grouping was appropriate.
In this instance, the appellate court noted, the Guidelines indicate
that "'a case-by-case determination must be made based upon the facts of
the case and the applicable guidelines (including specific offense
characteristics and other adjustments) used to determine the offense
level.' This determination is in some parts legal rather than factual,
and so is not shielded by the clearly erroneous standard. The
determination does, however, depend on factual and case-specific
conclusions. A reviewing court must therefore give 'due deference' to
the district court, and respect the informed judgment made by that
court." (Citing 18 U.S.C. Section 3742.)
Looking at "the language of the guidelines and the explanatory
comments," the court found that "(t)he possession of an unregistered
silencer and the unlawful possession of a pistol by a convicted felon do
not clearly fall under the language of (guideline Section 3D1.2(d)).
Indeed, the 'total amount of harm or loss' and 'the quantity of the
substance involved' are not relevant factors in determining the offense
level for the crimes (defendant) has committed. . . . Given the plain
language of the relevant provision and the different nature of
(defendant's) offenses, we find no error in the court's conclusion that
his offenses should not have been grouped together under Section
3D1.2(d) of the guidelines."
Defendant also argued that his offense level on the silencer count
should have been reduced six points, pursuant to Section 2K2.2(b)(3),
because the silencer was possessed as part of a gun collection. The
court held that "the advisory notes to this section make clear that only
a lawful collection of guns can be considered as a mitigating factor
under Section 2K2.2(b)(3). . . . (I)t would be contrary to the clear
intent of this provision to find that an illegal gun collection, such as
one possessed by a convicted felon, should be used to reduce the
sentence of a person guilty of violating a firearms statute. Common
sense and the commentary to the guidelines preclude this result."
U.S. v. Pope, No. 88-1464 (5th Cir. Apr. 14, 1989) (Williams, J.).
Other Recent Cases:
U.S. v. Nunley, No. 88-2169 (8th Cir. Apr. 19, 1989) (Arnold, J.)
(stipulation in plea agreement between defendant and government that
defendant accepted responsibility in accordance with Guideline Section
3E1.1 is not binding on sentencing court; denial of "minimal
participant" reduction upheld as not clearly erroneous).
U.S. v. Brett, No. 88-1899 (8th Cir. Apr. 24, 1989) (Lay, C.J.)
(affirming upward adjustment for obstruction of justice for giving false
name when arrested).
U.S. v. Roberts, No. 88-5087 (4th Cir. Apr. 24, 1989) (Chapman, J.)
(amount of drugs sought in conspiracy, not amount actually obtained, are
used to set offense level).
U.S. v. Sailes, No. 88-5810 (6th Cir. Apr. 13, 1989) (Nelson, J.)
(drugs involved in relevant conduct, not just in offense of conviction,
are used to set base offense level).
Second Circuit finds that decision not to depart was within sound
discretion of sentencing court; also, offense level should be based on
total amount of drugs in transaction even if defendant is minimal
participant. Defendant, who pleaded guilty to a drug violation,
received a four-level reduction for minimal role in the offense, and a
two-level reduction for acceptance of responsibility. Defendant argued
that his minimal role entitled him to a downward departure in addition
to the four-level reduction already granted, that his insubstantial
prior criminal record provided a further basis for downward departure,
and that the sentencing judge exceeded his discretion by not so
departing.
The appellate court found that "(t)his argument is without merit.
The decision to depart is a matter within the sound discretion of the
sentencing judge. . . . Moreover, Congress expected that that broad
discretion would be exercised only when the basis for departure was a
circumstance not already factored into the Guidelines. . . . Here,
(defendant) suggests as bases for departure two factors, minimal role
and insubstantial criminal record, both of which were explicitly
considered by the Commission in formulating the Guidelines and were
taken into account by the District Court in its guideline calculation.
Under such circumstances, a decision not to depart from the applicable
guideline range cannot possibly be in excess of the discretion confided
in sentencing judges, even if we make the doubtful assumption that the
discretion not to depart could ever be exceeded."
Defendant had also argued that the district court erred in
calculating his base offense level on the basis of the total amount of
the drugs in the overall scheme in which he participated. This
challenge was rejected "in light of our holding in United States v.
Guerrero, 863 F.2d 245 (2d Cir. 1988), despite the fact that (defendant)
possessed minimal knowledge of the scope of the transaction and had
minimal control over its execution. In Guerrero, we held that, under
section 1B1.3 (relevant conduct), the offense level calculation includes
all acts aided and abetted by the defendant that are a part of the same
course of conduct or common scheme as the offense of conviction."
U.S. v. Paulino, No. 88-1433 (2d Cir. Apr. 13, 1989) (per curiam).
Other Recent Case:
U.S. v. Salazar-Villarreal, No. 88-2625 (5th Cir. Apr. 21, 1989) (per
curiam) (affirming upward departure, from 4-10 months to 3 years, for
reckless conduct by driver of van carrying 24 illegal aliens -- one
passenger killed and others injured in crash when driver attempted to
elude authorities).
Defendant not entitled to pretrial resolution of dispute regarding
application of Guidelines to facts of the case. The district court
referred this case to a magistrate to resolve pretrial matters. A
dispute arose over whether the conduct alleged in the indictment
constituted an "organized criminal activity" within the meaning of
Section 2B1.2(4) of the Guidelines, which would result in a higher base
offense level if defendant were convicted. The parties proposed
submitting the dispute to the magistrate, who concluded that resolving
this dispute before trial would be improper: "(S)uch a procedure not
only seeks to have the court enter an advisory opinion, but also creates
an undue risk that error could affect the defendant's decision to go to
trial or plead guilty." The court adopted the magistrate's report as its
opinion.
U.S. v. Ware, No. CR89-AR-010-S (N.D. Ala. Apr. 10, 1989) (Acker,
J.).
Eighth Circuit rejects due process challenge to Guidelines, approves
"two-track" sentencing procedure. The Eighth Circuit held that the
Guidelines are not vulnerable to a due process challenge based on the
elimination of judges' sentencing discretion. The court found that
"some discretion, some power to fit sentences to the individual
offender, is left," and that "in any event the Constitution does not
guarantee individualized sentencing, except in capital cases."
The court appears to be the first appellate panel to consider the
"two-track" sentencing approach used by several district courts while
awaiting the Supreme Court decision on the Guidelines. See, e.g., U.S.
v. Brittman, 687 F. Supp. 1329 (E.D. Ark. 1988) (1 GSU #11). The
district court found the Guidelines unconstitutional and imposed
sentence under prior law, but also filed a Statement of Reasons for
Imposing Sentence, as required by the Sentencing Reform Act, that
explained what sentence the court would have imposed under the
Guidelines. The appellate court held that "the District Court acted
prudently in using this two-track procedure. As the Court observed, 'if
the Guidelines and the Commission are held constitutional, only a new
commitment order will have to be executed.' . . . It will not be
necessary to have a second sentencing hearing." The court affirmed and
remanded for resentencing.
U.S. v. Brittman, No. 88-1973 (8th Cir. Apr. 19, 1989) (Arnold, J.).
VOLUME 2 NUMBER 4
APRIL 18, 1989
Court may consider drug quantities not in indictment or offense of
conviction when setting offense level, Fifth Circuit holds. Defendant
pleaded guilty to attempting to possess, with the intent to distribute,
more than 500 grams of cocaine. The district court found as a fact that
the offense actually involved more than 5 kilograms of cocaine, and
based defendant's offense level on that amount. Defendant appealed his
sentence, arguing that the district judge impermissibly looked beyond
the indictment in determining the amount of cocaine involved in the
offense.
The appellate court affirmed the sentence, finding that "(t)he
guidelines make plain that the district court is not bound by the
quantity of drugs mentioned by the indictment." (Citing application note
11 to Section 2D1.1, application notes 1 and 2 to Section 2D1.4.) The
court held that "the district court clearly acted properly in
considering" that defendant's transaction was part of a larger scheme
involving 5 kilograms of cocaine, "rather than restricting its inquiry
to the amounts actually mentioned in the indictment." Accord U.S. v.
Perez, No. 88-3409 (6th Cir. Mar. 29, 1989), infra.
U.S. v. Sarasti, No. 88-2734 (5th Cir. Mar. 24, 1989) (Higginbotham,
J.).
District court declines to consider conduct for which there is
insufficient evidence against defendant in calculating base offense
level, and holds that invalid conviction may not be used in criminal
history score. Defendant and others were charged in a five-count
indictment for cocaine offenses. Defendant was only mentioned in counts
I and V, and pleaded guilty to count V, distribution of two ounces of
cocaine. In calculating defendant's base offense level "(t)he probation
office aggregated all of the cocaine charged in counts II, III, IV and V
and 28.3 grams not charged against any of the defendants."
The court found that in determining offense level it may consider
quantities of drugs not included in the count of conviction (Section
2D1.1, application note 6), acts that were "part of the same course of
conduct or common scheme or plan as the offense of conviction" (Section
1B1.3(a)(2)), and "relevant information" that has "sufficient indicia of
reliability to support its probable accuracy" (Section 6A.1(3)(a)).
"However, the court will not use the information as a basis for
calculating the guideline offense level or criminal history score unless
the government can establish the reliability of the information by a
preponderance of the evidence. In Landry's case the government has
provided no evidence to tie the defendant to counts II and III of the
indictment, and insufficient evidence to warrant consideration of the
drugs in count IV in calculating Landry's base offense level." The court
held that the quantities of drugs from counts II, III, and IV could
therefore not be used to set defendant's offense level.
Defendant also successfully challenged his criminal history score.
He had been sentenced to make $140 restitution on a bad check charge in
1986, but was jailed for eight days when he failed to make payment. Had
defendant paid the $140 he would not have been incarcerated and the
offense would not have been counted in his criminal history. The court
agreed with defendant that the sentence was constitutionally invalid
because "(a) court may not order the offender incarcerated unless it
makes a finding that the offender willfully refused to pay or failed to
make sufficient bona fide efforts to acquire the resources to pay."
Since there was no evidence to support such a finding, the sentence was
invalid and the eight-day jail term should not have been included in
defendant's criminal history. The court also found that the Guidelines
"specifically provide for this type of challenge at sentencing." Section
6A1.3(a) allows the parties "an adequate opportunity to present
information to the court" regarding "any factor important to the
sentencing determination," and application note 6 to Section 4A1.2
states: "Convictions which the defendant shows to have been
constitutionally invalid may not be counted in the criminal history
score."
U.S. v. Landry, No. CR3-88-090(02) (D. Minn. Mar. 31, 1989)
(Magnuson, J.).
District court finds dangerous nature of cocaine base warrants
departure. Defendant was found guilty of possession of 22.1 grams of
cocaine base (crack). The guideline sentencing range was 0-4 months.
However, the court concluded that departure was appropriate: "The Drug
Quantity Table (in the) Guidelines Manual recognizes that cocaine base
is a much more dangerous controlled substance than cocaine and heroin.
The table reflects that 20-34.9 grams of cocaine base is the equivalent
of 2-3.4 kilograms of cocaine or 400-699 grams of heroin. Section 2D2.1
which sets forth the Base Offense Levels for unlawful possession of
controlled substance does not have a specific reference to cocaine base
in setting forth the respective levels. The highest level is 8 for
heroin. Therefore the Court concluded that there should be an upward
departure from the Guidelines for cocaine base. Based upon the amount
of cocaine base in this case, namely 22.1 grams, . . . a sentence of 10
months incarceration is appropriate." See also U.S. v. Ryan, No. 88-3344
(3d Cir. Jan. 26, 1989) ("departure from the guideline might well be
reasonable in view of the Commission's failure to take into account the
unusual danger of crack in drafting the guidelines governing drug
possession") (2 GSU #1).
U.S. v. Coleman, No. 88-20037-4 (W.D. Tenn. Feb. 27, 1989) (McRae,
Sr. J.).
Other Recent Cases:
U.S. v. Perez, No. 88-3409 (6th Cir. Mar. 29, 1989) (Martin, J.)
("Under the sentencing guidelines, the amount of the drug being
negotiated, even in an uncompleted distribution, shall be used to
calculate the total amount in order to determine the base level.").
U.S. v. Peoples, No. 88-20234-4 (W.D. Tenn. Mar. 27, 1989) (McRae,
Sr. J.) (rejecting arguments attacking Anti-Drug Abuse Act of 1986 and
Guidelines on basis of different treatment of cocaine and cocaine base;
making upward adjustment for obstruction of justice because defendant
threw controlled substance to the ground when running from authorities).
U.S. v. Norquay, No. CR. 6-88-98 (D. Minn. Mar. 28, 1989) (Devitt,
Sr. J.) (Guidelines will not be applied to violations of the Major
Indian Crimes Act, 18 U.S.C. Section 1153).
Fifth Circuit holds acceptance of responsibility and obstruction of
justice determinations are factual questions subject to "clearly
erroneous" standard of review. The appellate court upheld findings that
the defendant had not accepted responsibility for his crime and had
obstructed justice: "Whether or not a defendant has accepted
responsibility is a factual question, depending largely upon credibility
assessments. With respect to such assessments, we defer to the
conclusions of the sentencing judge. We will therefore affirm the
sentencing judge's findings unless they are 'without foundation.' . . .
In this case . . . (w)e see no reason to conclude that these findings
were 'without foundation.'"
Similarly, "(w)hether or not a defendant has obstructed the
administration of justice is a factual question, and the district
court's resolution of the question enjoys the protection of the clearly
erroneous standard. . . . We therefore ask only whether there was
sufficient evidence in the record to permit the sentencing judge to
conclude that (defendant) obstructed the administration of justice." The
court concluded that the "evidence suffices to support the judge's
finding."
U.S. v. Franco-Torres, No. 88-1382 (5th Cir. Mar. 24, 1989)
(Higginbotham, J.).
Eleventh Circuit holds acceptance of responsibility is factual issue
subject to "clearly erroneous" standard, affirms enhancement of criminal
history. The district court denied credit for acceptance of
responsibility and enhanced defendant's criminal history category from I
to IV. The appellate court found that the Guidelines and Sentencing
Reform Act indicate that acceptance of responsibility is a factual
finding entitled to great deference and subject to review under the
"clearly erroneous" standard. See Guidelines Section 3E1.1 commentary
at 3.22; 18 U.S.C. Section 3742(d). Reviewing the record, the court
held that the district court's findings were not clearly erroneous.
Defendant conceded that departure from criminal history category I to
category III would be appropriate, but argued that enhancement to
category IV was unreasonable. The court disagreed, holding that the
district court properly found conduct that justified departure under
guideline Section 4A1.3, and that "(b)ased on this information, which
the defendant does not argue is unreliable, the district court
reasonably could conclude that criminal history category IV more
adequately reflects the seriousness of (defendant's) criminal history
and the likelihood of recidivism than does category III."
U.S. v. Spraggins, No. 88-3824 (11th Cir. Apr. 5, 1989) (per curiam).
District court refuses to grant in forma pauperis status for
frivolous appeal of sentence. The court denied petitioner's application
to proceed on appeal in forma pauperis because it determined that "the
issues for which petitioner seeks review are frivolous from an objective
standard." "The direct appeal of a sentence imposed pursuant to the
Sentencing Guidelines Act by an individual proceeding pro se and
requesting in forma pauperis status upon appeal after having had the
previous benefit of retained counsel presents a situation unlike others
considered by this court. Upon considering the applicable rules, the
court determines that the standards contained therein, i.e., that a
litigant may not proceed in forma pauperis upon appeal if that appeal is
not taken in good faith, apply to this situation."
U.S. v. Wilson, No. CR88-12-VAL (M.D. Ga. Mar. 17, 1989) (Owens,
C.J.).
Other Recent Case:
U.S. v. Mejia-Orosco, No. 88-5584 (5th Cir. Mar. 31, 1989) (per
curiam) (denying petition for rehearing and reaffirming earlier
decision, 867 F.2d 216; amendment to 18 U.S.C. Section 3742, including
addition of "due deference" language, does not affect applicability of
"clearly erroneous" standard to sentencing courts' factual
determinations).
VOLUME 2 NUMBER 3
APRIL 4, 1989
Fifth Circuit holds that whether prior conviction falls within scope
of immigration offense guideline adjustment is question of law subject
to de novo review. Defendant pleaded guilty to aiding and abetting the
transportation of illegal aliens. His offense level was increased by
two under guideline Section 2L1.1(b)(2), which provides for an increase
if a defendant "previously has been convicted of smuggling,
transporting, or harboring an unlawful alien, or a related offense." On
appeal defendant argued that a previous conviction for aiding and
abetting the illegal entry of another did not constitute a "related
offense."
In affirming the sentence, the appellate court noted: "To the extent
that this appeal deals with express or implied findings of fact, such as
whether the defendant had a prior conviction of the kind comprehended by
section 2L1.1(b)(2), we apply the clearly erroneous standard of review.
However, on the question of law as to whether a given prior conviction
falls within the scope of section 2L1.1(b)(2), our review is de novo."
After first concluding that the finding of a prior conviction for
aiding and abetting the illegal entry of another was not clearly
erroneous, the court determined that the prior offense was a "related
offense" under Section 2L1.1(b)(2): "Under the plain meaning of the
term 'related offense,' aiding and abetting the illegal entry of another
is clearly related to the offense of smuggling, transporting, or
harboring an illegal alien. It is difficult to imagine a situation in
which aiding the entry of an illegal alien does not involve some aspect
of smuggling, transporting, or harboring that person."
U.S. v. Reyes-Ruiz, No. 88-1632 (5th Cir. Mar. 13, 1989) (Johnson,
J.).
Defendant must be given notice before sentencing of factors that may
be used for upward departure, Fifth Circuit holds. At sentencing, the
district court departed from the Guidelines because of the purity of the
cocaine involved in the offense. However, the defendant was not given
notice either by the court or the presentence report that this was being
considered.
The appellate court vacated and remanded for resentencing: "Federal
Rule of Criminal Procedure 32(a)(1) provides, 'At the sentencing
hearing, the court shall afford the counsel for the defendant . . . an
opportunity to comment upon the probation officer's determination and on
other matters relating to the appropriate sentence.' This rule
contemplates that the court may base its sentencing decisions on matters
not raised in the presentence report. If, however, the court intends to
rely on any such additional factor to make an upward adjustment of the
sentence, defense counsel must be given an opportunity to address the
court on the issue." In this case, defendant had no notice "that the
cocaine might be considered of unusually high purity or that, if it were
found to be, the court might adjust the sentence imposed."
U.S. v. Otero, No. 88-5583 (5th Cir. Mar. 23, 1989) (Rubin, J.).
Fifth Circuit holds that weight of LSD in guideline computation
includes weight of distribution medium. Defendant challenged his
sentence for conspiracy to distribute LSD, claiming the Guidelines were
ambiguous as to whether the weight of the drug alone or the weight of
the drug plus the medium should be used to calculate his sentence.
Affirming the sentence, the appellate court stated: "We believe the
guidelines answer this argument, as Section 2D1.1 states: 'The scale
amounts for all controlled substances refer to the total weight of the
controlled substance. Consistent with the provisions of the Anti-Drug
Abuse Act, if any mixture of a compound contains any detectable amount
of a controlled substance, the entire amount of the mixture or compound
shall be considered in measuring the quantity.' There is no ambiguity in
this statement." Accord U.S. v. Bishop, No. 88-3005 (N.D. Iowa Feb. 7,
1989) (offense level for LSD violation based on weight of drug plus
medium) (see 2 GSU #1).
U.S. v. Taylor, No. 88-3677 (5th Cir. Mar. 6, 1989) (Jones, J.).
Low drug purity does not warrant offense level reduction, Fifth
Circuit holds. Defendant claimed that she was entitled to a reduction
in her offense level because of the low purity of the drug that was
produced. The appellate court rejected her argument: "The guidelines
provide for no such reduction. The guidelines do provide for an
increase in the offense level when the government seizes drugs of
unusually high purity, but this guideline provision does not create a
corresponding reduction in a 'weak' drug case. See Guideline 2D1.1 and
commentary."
U.S. v. Davis, No. 88-2587 (5th Cir. Mar. 17, 1989) (Clark, C.J.).
Fifth Circuit upholds upward departure for "egregious" criminal
history of repeat offenses. Defendant pleaded guilty to transporting a
stolen truck in interstate commerce. The district court imposed the
statutory maximum of five years, rather than the 30-37 month guideline
sentence, finding that defendant's criminal history calculation did not
adequately reflect the nature of his criminal record. Defendant had a
long history of similar offenses and had been in custody or a fugitive
almost continuously since December 1975.
The appellate court found departure was appropriate "for a defendant
with a record so egregious as (defendant's). Considering his record,
the sentence imposed by the district court was reasonable. Indeed, the
district court was justified in concluding that the only reliable way to
keep (defendant) from driving stolen trucks is to keep him in prison."
U.S. v. Fisher, No. 88-1790 (5th Cir. Mar. 7, 1989) (Rubin, J.)
District court upholds criminal history enhancement based on factors
that are also elements of escape offense. In the context of a due
process challenge to the Guidelines, which the court rejected, the
defendant also argued that his criminal history calculation led to an
"inequitable result."
Defendant was charged with escaping from a federal prison camp.
Section 2P1.1(a) sets the offense level for the crime of escape at 13
"if from lawful custody resulting from a conviction or as a result of a
lawful arrest for a felony." Points are to be added to the criminal
history calculation "if defendant committed the instant offense while
under any criminal justice sentence" or "less than two years after
release from imprisonment." See guideline Section 4A1.1(d) and (e).
Thus, defendant's criminal history category would be increased by adding
points for facts that comprise elements of the crime charged.
The court held that this is not inequitable or unconstitutional:
"While there is no indication in the comments to the sentencing
guidelines that the Commission considered this occurrence, there are
valid reasons for enhancing defendant's sentence," including helping
correctional officers "to keep control of and to encourage good behavior
from prisoners."
U.S. v. Jimenez, No. TH 88-14-CR (S.D. Ind. Mar. 8, 1989) (Tinder,
J.).
Fifth Circuit upholds Sentencing Guidelines against due process and
other constitutional and statutory challenges. The Fifth Circuit has
become the third appellate court to reject a due process challenge to
the Guidelines. See U.S. v. Frank, 864 F.2d 992 (3d Cir. 1988); U.S.
v. Vizcaino, No. 88-1302 (2d Cir. Mar. 6, 1989) (2 GSU #2). Defendants
had raised several constitutional challenges to the Guidelines: (1) the
Guidelines too narrowly limit sentencing courts' discretion, thereby
violating defendants' due process rights to present mitigating factors;
(2) the acceptance of responsibility guideline deprives defendants of
their right to a jury trial by encouraging guilty pleas in contravention
of the sixth amendment; and (3) applying the Guidelines to a conspiracy
that began prior to their effective date violates the ex post facto
clause.
Rejecting defendants' constitutional claims, the court held:
(1) Defendants have no due process right to present mitigating
factors prior to sentencing: "The Constitution does not require
individualized sentences. . . . Congress has the power to completely
divest the courts of their sentencing discretion and to establish an
exact, mandatory sentence for all offenses. . . . If Congress can
remove the sentencing discretion of the district courts, it certainly
may guide that discretion through the guidelines."
(2) The acceptance of responsibility reduction, guideline Section
3E1.1, does not violate the sixth amendment even though "(a) defendant
who puts the government to its proof by challenging factual guilt cannot
receive" it. "Even assuming that the sole purpose of this guideline is
to encourage guilty pleas, it is not unconstitutional for the government
to bargain for a guilty plea in exchange for a reduced sentence."
(3) The ex post facto clause "is not violated by applying an
increased penalty to (a) conspiracy that continued after the effective
date of the increased penalty. . . . (Defendant's) conspiracy offense
continued well after November 1, 1987, and thus was an offense committed
after the effective date" of the Guidelines.
Defendants also argued that the Sentencing Commission violated its
statutory mandate with respect to the availability of probation, the
criminal history calculation, the reduction in sentence for cooperating
with the government, and the Guidelines' effect on the prison
population. The court rejected these claims, holding that "the
Commission acted well within its broad grant of authority and pursuant
to congressional goals and principles."
To defendants' final argument, that the Guidelines never became
effective because the required General Accounting Office report was
inadequate and untimely, the court stated: "This court will not
scrutinize the merits or timeliness of reports intended solely for the
benefit of Congress. . . . Such a determination is for Congress and is
essentially a political question outside the province of the judiciary."
U.S. v. White, No. 88-1073 (Mar. 24, 1989) (per curiam).
VOLUME 2 NUMBER 2
MARCH 17, 1989
Fifth Circuit holds findings under Guidelines are factual, not legal,
and reviewable under clearly erroneous standard; sets requirements for
reasons justifying sentences. Defendant appealed his sentence,
contending it was too long because the district court erroneously found
that he was an "organizer, leader, manager, or supervisor" under
guideline Section 3B1.1(c). The appellate court affirmed the sentence.
The court noted that "(t)o decide (defendant's) appeal of this
finding, we must first determine whether the finding was factual or
legal. We hold that it was factual." The court then determined that
other "sophisticated factual determinations" courts must make under the
Guidelines are also factual findings that "enjoy the protection of the
'clearly erroneous' standard. A more exacting approach to appellate
review of sentences would frustrate the purpose of the guidelines. . . .
If factual findings were narrowly construed, and legal issues
commensurately expanded, actual applications of the guidelines would be
subject to review for legal error. District courts would have an
incentive to insure against appellate reversal by footing their
sentencing decisions on reasonable departures. Such a result would
clearly undermine the purpose of the sentencing guidelines.
"The standard of review which we establish today avoids this odd
result. We will affirm sentences imposed by district judges who make
factual findings that are not clearly erroneous, and who apply the
guidelines to those findings. In such cases, the sentencing judge need
not offer further reasons justifying the sentence. When, however, the
judge departs from the guideline range, an additional reasonableness
requirement applies: the judge must offer reasons explaining why the
departure is justified in terms of the policies underlying the
sentencing guidelines.
"Implicit in what we have said is the conclusion that the district
court's simple statement that the defendant is a 'manager' or 'leader'
is a finding of fact. . . . (W)e 'decline to require the judge to write
out' more specific findings about the defendant. . . . Nonetheless, we
urge district courts to clarify their ultimate factual findings by more
specific findings when possible. Specific findings will both guide
reviewing courts to the evidentiary basis for sentencing judgments, and
also help the trial judge to identify matters relevant to application of
the guidelines."
U.S. v. Mejia-Orosco, No. 88-5584 (5th Cir. Feb. 17, 1989) (Clark,
C.J.).
Fifth Circuit holds "minimal participant" status is a question of
fact, sets standard of review for refusals to depart from Guidelines.
Defendant appealed his sentence on the basis that the district court
erred in not finding that he was a "minimal participant" entitled to a
reduction in offense level under guideline Section 3B1.2(a). Applying
the standards of review set forth in Mejia-Orosco, supra, the court held
that minimal participant status is a question of fact and that the
district court's finding was not clearly erroneous.
Defendant also claimed the district court should have departed
downward because defendant thought the substance involved was marijuana,
not heroin. The appellate court determined that "we will uphold a
district court's refusal to depart from the guidelines unless the
refusal was in violation of law," and held there was no such violation
here.
U.S. v. Buenrostro, No. 88-2490 (5th Cir. Mar. 8, 1989)
(Higginbotham, J.).
Second Circuit upholds Sentencing Reform Act and Guidelines against
due process challenge. The district court rejected defendant's due
process challenges to the Act and Guidelines. In affirming, the appeals
court held that there is no due process right to individualized
sentencing in non-capital cases, that the Guidelines "provide . . .
satisfactory procedural safeguards to satisfy the demands of the due
process clause," and that the Act does not vest excessive sentencing
authority in the executive branch in violation of due process. See also
U.S. v. Frank, 864 F.2d 992 (3d Cir. 1988) (upholding Act against
substantive due process challenge).
U.S. v. Vizcaino, No. 88-1302 (2d Cir. Mar. 6, 1989) (Oakes, C.J.).
Second Circuit affirms upward departure for offenses not included in
criminal history calculation. Defendant pleaded guilty to bank robbery.
As part of the plea agreement he stipulated to the facts of a second
bank robbery, for which he had been charged but not convicted, in order
to allow that crime to be included in calculating his offense level. On
these facts, defendant was in criminal history Category III and his
sentencing range was 37-46 months.
The district court determined, however, that defendant's criminal
history calculation underrepresented the seriousness of his criminal
record because (1) it did not include two unrelated state felony
convictions because defendant had not yet been sentenced on those
charges, and (2) defendant had committed the bank robberies while
awaiting sentencing on the state convictions. The court departed from
criminal history Category III to Category V and imposed a 60-month
sentence.
The appellate court found departure was authorized by policy
statement Section 4A1.3 of the Guidelines, which allows departure if
"the criminal history category does not adequately reflect the
seriousness of the defendant's past criminal conduct or the likelihood
that the defendant will commit other crimes." Factors to consider in
making this determination include "whether the defendant was pending . .
. sentencing . . . on another charge at the time of the instant offense"
(Section 4A1.3(d)), and whether defendant "committed the instant offense
while on bail or pretrial release for another serious offense" (Section
4A1.3(4)). The court concluded that the district court's decision to
depart was not unreasonable, and that the 60-month sentence "was not
unreasonable under the particular circumstances of this case."
The court also restated its emphasis in earlier cases that district
courts have "'wide discretion' . . . in determining what circumstances
to take into account in deciding whether to depart from the guidelines,"
and "may 'exercise their sound judgment in departing from the
Guidelines' when necessary to account for factors not reflected in the
applicable guideline range." See U.S. v. Correa-Vargas, 860 F.2d 35 (2d
Cir. 1988); U.S. v. Guerrero, 863 F.2d 245 (2d Cir. 1988). The Second
Circuit has "decided that it is best to allow district judges 'sensible
flexibility' in sentencing under the new act."
U.S. v. Sturgis, No. 88-1131 (2d Cir. Feb. 15, 1989) (Altimari, J.).
Fifth Circuit affirms upward departure where criminal history
calculation did not account for large quantity of drugs in prior offense
or for similarity to present offense. Defendant pleaded guilty to
conspiring to possess 200 pounds of marijuana. In 1975 he had been
convicted of intent to distribute 1,653 pounds of marijuana. Citing
policy statement Section 4A1.3 of the Guidelines, the district court
found that defendant's criminal history calculation did not adequately
reflect the amount of drugs involved in each offense or the fact that
the prior conviction was for the same type of offense, and departed from
the guideline range of 46-57 months to sentence defendant to 72 months'
imprisonment.
Affirming the departure, the appellate court reasoned: "The
recidivist's relapse into the same criminal behavior demonstrates his
lack of recognition of the gravity of his original wrong, entails
greater culpability for the offense with which he is currently charged,
and suggests an increased likelihood that the offense will be repeated
yet again. While the prior similar adult criminal conduct that has
resulted in conviction may have already been counted under section
4A1.2(e)(1) or (2) when computing the criminal history category, the
similarity between the two offenses provides the district court with
additional reason to enhance the sentence under section 4A1.3."
The court also instructed sentencing courts that use Section 4A1.3 to
make specific findings: "When a district court relies on section 4A1.3
to depart from the established guidelines, it should articulate its
reasons for doing so explicitly. We do not, of course, require
sentencing judges to incant the specific language used in the
guidelines, and, indeed, such a ritualistic recital would make the
sentence less comprehensible to the defendant and our review more
difficult. What is desirable, however, is that the court identify
clearly the aggravating factors and its reasons for connecting them to
the permissible grounds for departure under section 4A1.3."
U.S. v. Luna-Trujillo, No. 88-2689 (5th Cir. Mar. 6, 1989) (Rubin,
J.).
District court finds Guidelines did not adequately consider
terrorism, departs upward. Defendant, a member of the Japanese Red Army
(JRA) terrorist organization, was convicted on explosives, weapons, and
immigration charges. The guideline range for all counts of conviction
totaled 27-33 months. Citing "the aggravating factors concerning these
offenses, and finding the Sentencing Commission did not adequately
consider (and in fact did not consider) the kind or degree of the
conduct at issue or the type or kind of individual who committed these
offense," the court departed from the Guidelines and imposed prison
terms totaling 30 years.
The court specifically found that defendant was "an international
terrorist, who has trained members of and has been given training by the
JRA, who quietly acquired the elements for and constructed three
anti-personnel bombs with the intent of murdering scores and severely
wounding scores more of the survivors of the blast in order to wage war
on the enemy of the JRA -- the United States." The court noted that "the
Sentencing Guidelines specifically list 'death,' 'physical injury,' 'the
dangerousness of the instrumentality (weapon),' 'disruption of
governmental function' and 'extreme conduct' as factors warranting
departure. Sections 5K2.1, 5K2.2, 5K2.6, 5K2.7 and 5K2.8."
In this case, however, "none of the applicable guidelines takes these
critical factors into account. In point of fact, the Guidelines do not
consider terrorism or conduct remotely similar to that of (defendant).
Here, because (defendant) intended to cause death and horrible injury, a
departure from the guidelines is warranted. Moreover, because the
defendant's bombs were intended to cause multiple deaths and injuries, .
. . greater departure is warranted."
The court also found that departure was warranted, under policy
statement Section 4A1.3, because defendant's applicable criminal history
category significantly underrepresented the seriousness of his criminal
history and the likelihood that he would commit further crimes. This
finding was based upon an earlier arrest for terroist activity and
defendant's terrorist training. In addition, the court determined that
defendant's actions constituted a threat to national security, public
health, or safety, thereby justifying a departure under policy statement
Section 5K2.14.
U.S. v. Kikumura, No. CR. 88-166 (D.N.J. Feb. 10, 1989) (Lechner,
J.).
VOLUME 2 NUMBER 1
FEBRUARY 22, 1989
Third Circuit reverses departure because factors relied on were
adequately considered by Sentencing Commission. Defendants pleaded
guilty to federal firearms offenses. The district court sentenced both
defendants above the guidelines, finding that the number and
untraceability of the weapons involved, the potential unlawful use of
the weapons, and the threat they posed to the public welfare justified
upward departure.
The appellate court reversed, holding that in formulating the
applicable guidelines the Commission adequately considered the factors
relating to the number of guns, traceability, and unlawful purpose, and
therefore, pursuant to 18 U.S.C. Section 3553(b), "no upward departure
was permissible." Basing the departure on the threat to public welfare
(guidelines policy statement Section 5K2.14) was similary unsustainable
because "the Guidelines clearly contemplate the very activities charged
in these cases."
The court also emphasized that "the Guidelines, commentaries and
policy statements clearly indicate that departures should be rare," and
that the legislative history indicates that departures "are to be the
exception, not the rule." The "overriding congressional purpose of
reducing sentencing disparity and achieving general uniformity of
treatment," the court added, "will be destroyed if courts depart often
from the Guidelines."
U.S. v. Uca, No. 88-1607 (3d Cir. Feb. 9, 1989) (Gibbons, C.J.).
Third Circuit holds that factors not considered in setting base
offense level for offense of conviction may be considered for departure.
Defendant was charged with possession of a controlled substance with
intent to distribute, but was convicted of the lesser included offense
of simple possession. Based upon the amount, purity, and packaging of
the drugs, which are not sentencing factors under the guideline for the
offense of simple possession, the district court departed from the 0-6
month guideline and sentenced defendant to 10 months' imprisonment.
The appellate court upheld the departure, finding that the omission
of these factors in setting the guideline range for defendant's crime,
although they are included in guidelines for other offenses, did not
preclude their use in determining whether departure was warranted. The
Sentencing Commission specifically stated, in policy statement Section
5K2.0, that "a factor may be listed as a specific offense characteristic
under one guideline but not under all guidelines. Simply because it was
not listed does not mean that there may not be circumstances when that
factor would be relevant to sentencing." The court noted that the Second
Circuit, in U.S. v. Correa-Vargas, 860 F.2d 35 (2d Cir. 1988), rejected
arguments "nearly identical" to defendant's, and agreed with that court
that "departure may be warranted on the basis of conduct which is not an
element of the offense of conviction."
Defendant also argued that the Guidelines only allow departures in
"unusual" cases, and that his situation did not meet that requirement.
The court acknowledged that the Guidelines "suggest" in some places that
departure is warranted only in unusual cases, but determined that this
case could be considered unusual because of the drug involved, namely
"crack" (cocaine base). The guideline for simple possession does not
account for the "particularly insidious and dangerous" nature of cocaine
base, the court found, and thus "the district court's departure from the
guideline might well be reasonable in view of the Commission's failure
to take into account the unusual danger of crack in drafting the
guidelines governing drug possession."
U.S. v. Ryan, No. 88-3344 (3d Cir. Jan. 26, 1989) (Greenberg, J.).
Fifth Circuit holds sentencing court may use reliable facts
underlying acquitted offense as basis for departure. Defendant was
convicted by a jury of two counts of distributing cocaine, and acquitted
of one count of carrying a firearm during a drug trafficking offense.
The sentencing court determined that the facts underlying the firearm
offense were not in dispute, and departed from the recommended guideline
range of 12-18 months to impose concurrent sentences of 76 months for
the two distribution offenses. A codefendant was convicted of all three
counts and given the same term of incarceration. Defendant argued on
appeal that basing the departure on the firearm offense in effect
overrode the jury's determination that he did not possess a firearm, and
that it was also improper to give him the same sentence as a codefendant
who was found guilty of one more offense.
The appellate court affirmed the departure, holding that "the
district court did not abuse its discretion in considering evidence of
(defendant's) possession of a handgun despite (defendant's) acquittal of
the substantive firearm offense." The court reasoned: "Although the
jury may have determined that the government had not proved all of the
elements of the weapons offense beyond a reasonable doubt, such a
determination does not necessarily preclude consideration of underlying
facts of the offense at sentencing so long as those facts meet the
reliability standard. The sentencing court was not relying on facts
disclosed at trial to punish the defendant for the extraneous offense,
but to justify the heavier penalties for the offenses for which he was
convicted."
The court also held that defendant's other argument, "that receiving
the same overall sentence as his codefendant after being convicted of
fewer offenses was per se an abuse of discretion, is also without merit.
It is within the sentencing court's discretion to treat codefendants
differently. . . . A defendant convicted of fewer substantive counts
may receive a heavier sentence if justified."
U.S. v. Juarez-Ortega, No. 88-2547 (5th Cir. Jan. 31, 1989) (per
curiam).
Defendant's substantial cooperation warrants departure reducing
sentence from 78-97 months to 14 months. Defendant pleaded guilty to
conspiracy to possess with intent to distribute 500 grams or more of a
controlled substance. After adjustment, the applicable guideline range
was 78-97 months. Pursuant to guideline policy statement Section 5K1.1,
however, which authorizes departures for "Substantial Assistance to
Authorities," the court sentenced defendant to 14 months' incarceration.
This sizeable departure was based upon defendant's prompt and valuable
cooperation, which led to convictions of his codefendants, and upon his
"sincere and heartfelt" contrition and the fact that this was "an
isolated incident of aberrant behavior."
U.S. v. Campbell, No. CR. 88-00203-A (E.D. Va. Jan. 26, 1989) (Ellis,
J.).
District court limits use of conduct not included in offense of
conviction when setting base offense level. Defendants were charged
with conspiracy to distribute more than five kilograms of cocaine, and
convicted by a jury of the included offense of conspiring to distribute
500 or more grams of cocaine. Although the court was "convinced by a
preponderance of the evidence that they, in fact, conspired to
distribute 5 or more kilograms of cocaine," it used the lesser amount to
calculate defendants' base offense levels.
Under guideline Section 1B1.3(a)(1), the base offense level where the
offense guideline specifies more than one base offense level is to be
determined on the basis of "all acts . . . committed . . . by the
defendant . . . that occurred during the commission of the offense of
conviction . . . or that otherwise were in furtherance of the offense."
The court concluded: "The key words of limitation in the guideline are
the words 'offense of conviction.' The offense of conviction was
conspiracy to distribute 500 or more grams of cocaine. By statutory
definition, this includes a range of cocaine between 500 grams and 5
kilograms. The lesser does not include the greater. Activity in
connection with 5 or more kilograms could not logically occur during the
lesser offense nor be in furtherance of it." Accordingly, the court
calculated the base offense level using the lesser amount of drugs in
the offense of conviction.
U.S. v. Moreno, No. 88-CR-20033-BC-03 (E.D. Mich. Jan. 25, 1989)
(Churchill, J.).
District court holds offense level for LSD violation should be based
on weight of drug plus delivery medium. Defendants were found guilty of
drug violations involving LSD. The base offense level depended upon the
amount of the controlled substance involved in the relevant conduct.
Here, blotter paper was impregnated with LSD; the paper could be
ingested along with the drug. The issue was whether to calculate the
offense level using the total weight of the paper and drug or the weight
of the drug alone.
The applicable statute, 21 U.S.C. Section 841(b)(1)(A)(v) and (B)(v),
refers to violations involving "a mixture or substance containing a
detectable amount of (LSD)." The court determined that "the blotter
paper . . . is a 'substance' which contains a detectable amount of LSD,"
and therefore under the "plain language of the statute" the relevant
weight for sentencing is the total weight of the paper and drug.
Defendants argued that the court should use the "dosage equivalency
table" on page 2.45 of the Guidelines Manual, which would result in a
lower weight. The court found, however, that the preface to the table
indicates that it is to be used "where the number of doses, but not the
weight of the controlled substances, are known," and that since the
weight is known in this case there is no need to use the table. In
addition, the court noted that a recent Sentencing Commission
publication specifically stated that the Commission "has not addressed
the issue" of whether to use the weight of blotter paper plus LSD or LSD
alone, and that sentencing courts may have to make that determination.
U.S. v. Bishop, No. 88-3005 (N.D. Iowa Feb. 7, 1989) (Hansen, J.).
VOLUME 1 NUMBER 21
JANUARY 19, 1989
Supreme Court upholds constitutionality of Sentencing Reform Act
against delegation and separation of powers challenges. In Mistretta v.
United States the Supreme Court held, by an 8-1 vote, that although the
United States Sentencing Commission is "an unusual hybrid in structure
and authority," its Guidelines were not subject to constitutional
challenge on the grounds that Congress delegated excessive legislative
power to the Commission or that the placement and structure of the
Commission violated separation of powers.
The Court first held that "Congress' delegation of authority to the
Sentencing Commission is sufficiently specific and detailed to meet
constitutional requirements." Congress set forth the goals and purposes
the Commission was to pursue in carrying out its mandate and "prescribed
the specific tool -- the guidelines system -- for the Commission to use
in regulating sentencing." The Court also found that Congress gave
specific instructions as to how to set up the guidelines, including the
determination of sentencing ranges, factors to use in formulating
offense categories and in setting offense levels, and aggravating and
mitigating circumstances that may or may not be considered.
The Court noted that "the Commission enjoys significant discretion in
formulating guidelines. . . . But our cases do not at all suggest that
delegations of this type may not carry with them the need to exercise
judgment on matters of policy." In this instance the discretion granted
to the Commission was proper: "Developing proportionate penalties for
hundreds of different crimes by a virtually limitless array of offenders
is precisely the sort of intricate, labor-intensive task for which
delegation to an expert body is especially appropriate. Although
Congress has delegated significant discretion to the Commission to draw
judgments from its analysis of existing sentencing practice and
alternative sentencing models, 'Congress is not confined to that method
of executing its policy which involves the least possible delegation of
discretion to administrative officers.' . . . We have no doubt that in
the hands of the Commission 'the criteria which Congress has supplied
are wholly adequate for carrying out the general policy and purpose' of
the Act."
On the separation of powers issue, the Court first held that the
location of the Commission was proper. "Congress' decision to create an
independent rulemaking body to promulgate sentencing guidelines and to
locate that body within the Judicial Branch is not unconstitutional
unless Congress has vested in the Commission powers that are more
appropriately performed by the other Branches or that undermine the
integrity of the Judiciary." In the past the Court has held "that
Congress, in some circumstances, may confer rulemaking authority on the
Judicial Branch," and also that "Congress may delegate to the Judicial
Branch non-adjudicatory functions that do not trench upon the
prerogatives of another Branch and that are appropriate to the central
mission of the Judiciary." In light of this precedent and practice, the
Court "discern(ed) no separation-of-powers impediment to the placement
of the Sentencing Commission within the Judicial Branch. As we
described at the outset, the sentencing function has long been a
peculiarly shared responsibility among the Branches of government and
has never been thought of as the exclusive constitutional province of
any one Branch. . . . Given the consistent responsibility of federal
judges to pronounce sentence within the statutory range established by
Congress, we find that the role of the Commission in promulgating
guidelines for the exercise of that judicial function bears considerable
similarity to the role of this court in establishing rules of procedure
under the various enabling acts. . . . Just as the rules of procedure
bind judges and courts in the proper management of the cases before
them, so the Guidelines bind judges and courts in the exercise of their
uncontested responsibility to pass sentence in criminal cases. In other
words, the Commission's functions, like this Court's function in
promulgating procedural rules, are clearly attendant to a central
element of the historically acknowledged mission of the Judicial
Branch."
While conceding that "the degree of political judgment about crime
and criminality exercised by the Commission and the scope of the
substantive effects of its work does to some extent set its rulemaking
powers apart from prior judicial rulemaking," the Court concluded "that
the significant political nature of the Commission's work" did not
preclude its placement in the Judicial Branch: "Our
separation-of-powers analysis does not turn on the labelling of an
activity as 'substantive' as opposed to 'procedural,' or 'political' as
opposed to 'judicial.' . . . Rather, our inquiry is focused on the
'unique aspects of the congressional plan at issue and its practical
consequences in light of the larger concerns that underlie Article III.'
. . . In this case, the 'practical consequences' of locating the
Commission within the Judicial Branch pose no threat of undermining the
integrity of the Judicial Branch or of expanding the powers of the
Judiciary beyond constitutional bounds by uniting within the Branch the
political or quasi-legislative power of the Commission with the judicial
power of the courts." Furthermore, in light of the Guidelines' "limited
reach, the special role of the Judicial Branch in the field of
sentencing, and the fact that the Guidelines are promulgated by an
independent agency and not a court, it follows as a matter of 'practical
consequences' the location of the Sentencing Commission within the
Judicial Branch simply leaves with the Judiciary what has long belonged
to it."
The Court also rejected various contentions concerning the propriety
of judicial membership on the Commission. Although the Court found the
requirement of judicial service "somewhat troublesome," it concluded
that neither the text of the Constitution, historical practice, nor the
Court's precedents would prohibit Article III judges from undertaking
extrajudicial duties in their individual capacities. The Court found
that "(s)ervice on the Commission by any particular judge is voluntary,"
and it is doubtful that any judge could be forced to serve against his
will. Service by judges on the Sentencing Commission does not undermine
the integrity of the Judicial Branch by diminishing the independence of
the Judiciary or by improperly lending "judicial prestige and an aura of
judicial impartiality to the Commission's political work." Nor will
judicial service on the Commission "have a constitutionally significant
practical effect on the operation of the Judicial Branch. We see no
reason why service on the Commission should result in widespread
judicial recusals. That federal judges participate in the promulgation
of guidelines does not affect their or other judges' ability impartially
to adjudicate sentencing issues."
While the Court was "somewhat more troubled" by the argument that
judicial service on the Commission might undermine public confidence, it
concluded that "the participation of federal judges on the Sentencing
Commission does not threaten, either in fact or in appearance, the
impartiality of the Judicial Branch. . . . (T)he Sentencing Commission
is devoted exclusively to the development of rules to rationalize a
process that has been and will continue to be perfomed exclusively by
the Judicial Branch. In our view, this is an essentially neutral
endeavor and one in which judicial participation is peculiarly
appropriate."
The Court summarily rejected "petitioner's argument that the mixed
nature of the Commission violates the Constitution by requiring Article
III judges to share judicial power with nonjudges. . . . (T)he
Commission is not a court and exercises no judicial power. Thus, the
Act does not vest Article III power in nonjudges or require Article III
judges to share their power with nonjudges."
Finally, the Court held that "(t)he notion that the President's power
to appoint federal judges to the Commission somehow gives him influence
over the Judicial Branch or prevents, even potentially, the Judicial
Branch from performing its constitutionally assigned function is
fanciful. . . . We simply cannot imagine that federal judges will
comport their actions to the wishes of the President for the purpose of
receiving an appointment to the Sentencing Commission." The Court also
found that the removal power "poses a similarly negligible threat to
judicial independence. The Act does not, and could not under the
Constitution, authorize the President to remove, or in any way diminish
the status of Article III judges, as judges. . . . Also, the
President's removal power under the Act is limited" to removal only for
good cause. "Under these circumstances, we see no risk that the
President's limited removal power will compromise the impartiality of
Article III judges serving on the Commission and, consequently, no risk
that the Act's removal provision will prevent the Judicial Branch from
performing its constitutionally assigned function of fairly adjudicating
cases and controversies."
In dissent, Justice Scalia reasoned that Congress can delegate
rulemaking power only when that power is ancillary to executive or
judicial functions. The Sentencing Commission has no executive or
judicial functions, he concluded, but rather has been given "a pure
delegation of legislative power," and he found "no place within our
constitutional system for an agency created by Congress to exercise no
governmental power other than the making of laws."
Mistretta v. United States, No. 87-7028 (U.S. Jan. 18, 1989)
(Blackmun, J.).
VOLUME 1 NUMBER 20
JANUARY 4, 1989
Second Circuit upholds departure based on quantity of drugs involved
in relevant conduct but not used to determine guideline range. Pursuant
to a plea agreement, defendant pled guilty to one count of distributing
a small sample of heroin; two counts relating to the sale of a larger
quantity of the drug were dropped. The district court accepted
defendant's claim that the base offense level should be calculated
according to the offense of conviction, rather than the overall conduct
of which it was a part. After adjustments, this produced an offense
level of 10 and a guideline range of 6 to 12 months. The court departed
upward, however, because of the defendant's admitted involvement in the
scheme to sell the larger amount of heroin, and sentenced defendant to
63 months.
Defendant argued on appeal that the Sentencing Commission had already
taken drug quantity into account in setting the base offense level for
his offense, and therefore quantity could not be used as a basis for
upward departure. The court determined that "if the sentencing judge
had . . . selected a base offense level from the drug quantity table
that correlated with the total amount of drugs in the ultimate
transaction," which in this case would have resulted in a range of 51 to
63 months, "we would doubt that this same quantity could be used to
justify a departure above that range. But where, as in this case, a
judge selects a guideline range that is not based on all the relevant
conduct of the defendant, it is not 'unreasonable,' which is our
standard of review, 18 U.S.C. Section 3742(d)(3) (Supp. IV 1986), for
the judge to depart above that range because of relevant conduct
established at a hearing or admitted by the defendant." The court
concluded that the departure "was not unreasonable . . . in light of the
large quantity of narcotics in the ultimate transaction that (defendant)
admitted he had facilitated."
As a preliminary matter, the court rejected defendant's contention
that the guidelines in effect on the date of his offense, Dec. 4, 1987,
required the guideline range "to be determined solely by the quantity of
narcotics handled on the day of the offense." The court noted that the
current versions of guideline Sections 1B1.2 and 1B1.3, which were
revised Jan. 15, 1988, "clearly" allow the sentencing court to base the
guideline range not only on the offense of conviction, but also on the
"relevant conduct" of defendant, as that term is defined in Section
1B1.3. Reviewing the earlier versions of these sections in effect at
the time of defendant's offense, the commentary to the sections, and
statements of the Sentencing Commission regarding the later revision,
the court held that the Jan. 15, 1988 revisions merely clarified the
language of the earlier versions. The sentencing court should have
based the offense level on the larger quantity of drugs involved in the
overall scheme, the court found. Nevertheless, the court upheld the
sentence: "The appropriate guideline range was therefore fifty-one to
sixty-three months, and the sixty-three month sentence was therefore
proper under the Guidelines."
U.S. v. Guerrero, No. 88-1198 (2d Cir. Dec. 12, 1988) (Newman, J.).
Mandatory minimum sentence to be used if applicable guideline range
is lower. The Eighth Circuit has upheld a sentence based on the
mandatory minimum called for by statute, rather than the lower sentence
calculated under the Guidelines. Defendant was convicted of being a
felon in possession of a firearm and sentenced to 15 years without
parole, the mandatory minimum. Although the offense occurred after Nov.
1, 1987, the appellate court rejected defendant's argument that he
should have been sentenced under the Guidelines: "In fact, the district
court did apply the Guidelines, but unfortunately for the defendant,
they provide that where the Guidelines sentence would be less than the
statutory minimum, that statutory minimum 'shall be the guideline
sentence.' Sentencing Guidelines Section 5G1.1(b)."
U.S. v. Savage, No. 88-1906 (Dec. 16, 1988) (Woods, J., sitting by
designation).
Guidelines apply to conspiracy begun before but ending after
effective date of Sentencing Reform Act. In E.D. Pa. defendants were
charged with conspiracy to receive and sell stolen treasury checks. The
conspiracy began "on or about September 1, 1987 and continued until
December 8, 1987." Seven checks were stolen after Nov. 1, 1987,
including four on Dec. 8.
The court found that "the crime in the instant case, conspiracy, was
'committed' after November 1, 1987 -- the effective statutory date of
the Sentencing Reform Act of 1987 -- and after December 7, 1987 -- the
date of the enactment of the Sentencing Act of 1987." Reviewing prior
case law, which held that statutory changes that take effect during the
course of an ongoing conspiracy will be applied, the court determined
that it found "no ex post facto violation in the application of the
Sentencing Reform Act of 1984 and the Sentencing Act of 1987 to the
conspiracy in the case at bar. The conspiracy here was a crime that
continued until after the effective dates of both acts." The court held,
however, that the amendments to the SRA made by the Criminal Fines
Improvements Act of 1987, effective Dec. 11, 1987, would not apply to
these defendants.
U.S. v. Gasparotti, No. 88-00094-01 (E.D. Pa. Dec. 19, 1988) (Van
Antwerpen, J.).
Special verdict not required to decide whether Guidelines apply or to
determine the amount of drugs involved. Defendant, charged in D. Md.
with engaging in a drug conspiracy that existed from 1983 through July
1988, requested "special interrogatories to the jury designed to elicit
answers to two factual questions relevant to sentencing, viz., (1)
whether defendant was a member of the conspiracy on or after November 1,
1987, and (2) what quantity of drugs was involved in the conspiracy."
The first inquiry concerned whether the Guidelines applied to the
conspiracy count, the second inquiry concerned the penalty imposable,
since quantity of drugs is a sentencing factor.
The court denied defendant's request, finding that "(i)t is the
almost universal view that special verdicts are not to be employed in
federal criminal cases," and that no case has found that a trial judge
must seek a special factual finding from the jury to aid in determining
sentencing factors. The court held that "(t)he determination of facts
relevant to sentencing has consistently been understood . . . to be
within the trial judge's province. . . . The trial judge has always
been able to base factual determinations relevant to sentencing on,
inter alia, the evidence adduced at trial. . . . This Court sees no
reason why it cannot exercise its fact-finding function relevant to
sentencing in this case as it always has, viz., without the aid of a
jury's special findings."
The court added: "(T)he entire Guideline sentencing scheme depends
on the trial judge's resolution of a myriad of factual issues that bear
on the calculation of the relevant offense level and criminal history
category. Because of this mechanistic approach to sentencing, if
defendant's present request is granted, then it could logically be
argued that no sentencing fact can be determined by the judge, but all
must be submitted to the jury, because the resolution of each fact
affects the sentence that the judge must, except in unusual
circumstances, now impose. . . . Neither the Sentencing Reform Act nor
the Constitution compels such a result."
U.S. v. Sheffer, No. S 88-0293 (D. Md. Dec. 1, 1988) (Smalkin, J.).
Decisions holding guidelines invalid:
U.S. v. Dahlin, No. 88 CR20001 (N.D. Ill. Nov. 22, 1988) (Roszkowski,
J.) (holding "that the Sentencing Guidelines are an unconstitutional
delegation of legislative power and therefore invalid"; defendant will
be sentenced "according to the old procedures").
U.S. v. Bergmark, No. 88 CR620 (N.D. Ill. Nov. 21, 1988) (Rovner, J.)
(Guidelines invalid; defendant will be sentenced under prior law if
found guilty).
VOLUME 1 NUMBER 19
DECEMBER 1, 1988
District court allocates burden of proof to government and determines
standard of proof when resolving disputed facts in presentence report.
Both defendant and the government objected to portions of the
presentence report, which recommended an increase in defendant's offense
level for his role in the offense and a reduction for acceptance of
responsibility. The government conceded that it should bear the burden
of proving defendant's sentence should be increased, but argued that
defendant should bear the burden of showing his sentence should be
reduced.
The court noted that under pre-guidelines sentencing procedures
courts had concluded that "the Government bore the burden of persuasion
on all matters disputed in PSI's where those matters were relied upon by
the sentencing judge." Rejecting the government's argument, the court
found that "it is clear that whatever determination the Court makes with
respect to either of the disputed matters in the PSI, that determination
will have the effect of either increasing or reducing the Guidelines
applicable to defendant. . . . This is not essentially different from
the situation which existed prior to promulgation of the Guidelines."
The court concluded that it was "not unreasonable" for the Government to
bear the burden of proving defendant was not eligible for the acceptance
of responsibility reduction because the government "should for the most
part have as much access to (information on this issue) as the
defendant."
The court held that the standard of proof required at the sentencing
hearing is "a preponderance of the evidence," rejecting defendant's
claim that a "clear and convincing" standard was required.
U.S. v. Dolan, No. CR-1-88-57 (E.D. Tenn. Nov. 22, 1988) (Edgar, J.).
District court allows withdrawal of guilty plea because of "plain
error of law." A defendant in W.D. Mo. sought leave under Fed. R. Crim.
P. 32(d) to be released from his guilty plea on the ground that it was
based upon an erroneous computation by both defense counsel and the
government. The parties miscalculated the penalty for the instant
offense, "failure to appear," which was to be based upon the maximum
penalty authorized for the underlying offense. Because the error
apparently resulted from a misreading of the complex statutory scheme
involved, rather than merely a "bad guess" by the attorneys as to the
expected sentence, the court allowed the withdrawal: "I am mindful that
Guideline confusion is likely to be rather common, and there must be
considerable caution used in granting relief from pleas that may have
been affected by judgment-calls that turn out to be erroneous. This
case is exceptional, however, in that a plain error of law has been made
in computing the expected sentence, and the error was apparently shared
by Government counsel."
U.S. v. Loman, No. 88-00125-01-CR-W-6 (W.D. Mo. Oct. 25, 1988)
(Sachs, J.).
Upward departure warranted by specific offense characteristics.
Defendant, a government employee, pleaded guilty to theft of government
property, false claims against the government, and tax evasion. The
applicable guideline range was 30 to 37 months, but the court found "at
least three factors involved in the defendant's offenses which the
Guidelines either fail to address or to consider adequately" and which
warranted upward departure. The court determined that the Guidelines
address the severity of the offenses, but not their duration, which in
this case was over six years. The court further found that departure
was warranted by the facts that defendant "abused a process relied upon
by the government" and that he "totally violated his oath of employment
by engaging in this protracted, devious conduct."
The court relied in part upon the Sentencing Commission's policy
statement Section 5K2.7, which provides for upward departure when
"defendant's conduct resulted in a significant disruption of a
governmental function," and held that "stealing government funds in
excess of one million dollars, over a six year period, and by way of
fifty-three separate instruments," caused such a disruption.
Additionally, Section 5K2.9 provides for departure if "defendant
committed the offense in order to facilitate or conceal the commission
of another offense." By evading taxes, the court found, "defendant
concealed the crimes of theft and false claims."
The court determined that the above factors warranted an increase in
defendant's offense level from 19 to 24, for a sentencing range of 51 to
63 months. Defendant was sentenced to a 60-month term.
U.S. v. Burns, No. 88-0302 (D.D.C. Oct. 14, 1988) (Johnson, J.).
District court finds "good time" provisions of Sentencing Reform Act
not severable from Guidelines. A court in S.D.N.Y. that had earlier
held the Guidelines invalid concluded that the good time provisions of
the SRA cannot be severed from the Guidelines. "The legislative history
suggests that the Act was meant to be a complete package, with the goals
of eliminating disparities and establishing more certainty in
sentencing. . . . The fact that there is no severability clause is some
indication that Congress intended to have the various components
accepted as a package, or not at all. . . . (I)f sentences were imposed
under the old system and good time were calculated under the new system,
disparities in sentencing and uncertainty over release dates could be
increased, subverting the overriding Congressional purpose." Defendant
will be sentenced under prior law.
U.S. v. Ortega-Fernandez, No. 88 CR. 261 (S.D.N.Y. Oct. 12, 1988)
(Griesa, J.).
Decisions invalidating the Guidelines:
U.S. v. Christman, No. Cr. 88-4-2 (D. Vt. Nov. 19, 1988) (per curiam)
(holding, in "special session en banc," that "the Sentencing Guidelines
promulgated as provided in the Sentencing Reform Act of 1984 are
unconstitutional" on separation of powers grounds; defendants will be
sentenced under prior law).
U.S. v. Schetz, No. 87 CR981-4 (N.D. Ill. Nov. 3, 1988) (Duff, J.)
(holding Sentencing Reform Act unconstitutional because membership of
Sentencing Commission and President's authority to appoint and remove
commissioners violate separation of powers).
U.S. v. Cortes, No. 88 CR159 (S.D.N.Y. Oct. 7, 1988) (Kram, J.)
(holding Sentencing Commission and Guidelines violate separation of
powers, and Guidelines are not severable from other provisions of
Sentencing Reform Act).
VOLUME 1 NUMBER 18
NOVEMBER 10, 1988
Third Circuit upholds Sentencing Guidelines. Finding no violations
of due process or separation of powers, the Third Circuit reversed a
district court ruling and held the Sentencing Reform Act constitutional.
This is the second opinion by a court of appeals on the
constitutionality of the Guidelines. The Ninth Circuit found the
Guidelines invalid in Gubiensio-Ortiz v. Kanahele, No. 88-5848 (9th Cir.
Aug. 23, 1988) (see GSU #14).
The court determined that, other than in death penalty cases, there
is no "federal substantive liberty interest" in individualized
sentencing, and thus the narrowing of judicial discretion in the
Guidelines does not violate substantive due process. On the separation
of powers issue, the court concluded that (1) "Congress may lawfully
curtail judicial discretion in sentencing," (2) it lawfully delegated
that authority to the Sentencing Commission by providing "an abundance
of substantive guidance to the Commission," and (3) neither the
composition nor placement of the Commission unconstitutionally increased
the power or impaired the function of the executive or judicial
branches.
U.S. v. Frank, No. 88-3268 (3d Cir. Nov. 7, 1988) (Gibbons, C.J.)
(reversing in part 682 F. Supp. 815 (W.D. Pa.) (GSU #6)).
Second Circuit affirms upward departure based upon quantity of drugs
where offense of conviction does not list quantity as sentencing factor.
Appellant was indicted on two drug-related offenses, but those charges
were dropped in return for a plea of guilty to "use of a communication
facility in the commission of a drug offense." Quantity of drugs is not
a sentencing factor for that offense under the Guidelines, but the
sentencing judge considered the large amount of drugs involved to be an
aggravating circumstance and departed from the guideline range of 6-12
months to impose the statutory maximum of 48 months.
The appellate court determined that the sentencing court could
properly consider the quantity of drugs. "(T)here is no place in the
Guidelines where the Commission states that it has rejected quantity as
a factor in sentencing telephone-count offenders," and courts have the
discretion to consider factors not foreclosed by the Commission. The
Commission specifically stated in policy statement Section 5K2.0 that "a
factor may be listed as a specific offense characteristic under one
guideline, but not under all guidelines. Simply because it was not
listed does not mean that there may not be circumstances when that
factor would be relevant to sentencing." (Emphasis in court's opinion.)
See also U.S. v. Restrepo, infra.
Rejecting appellant's claim that the sentencing court improperly used
a "real-offense" methodology, the court found that although "the
Guidelines basically adopt a charge-offense method, they contain
sufficient elements of the real-offense methodto allow the district
court in this case to look to the actual facts in determining sentence."
Moreover, the commentary to guideline Section 1B1.4 states that
"information that does not enter into the determination of the
applicable guideline sentencing range may be considered in determining
whether and to what extent to depart from the guidelines."
To appellant's claim that departure from the Guidelines in this case
would undermine the congressional goal of uniformity in sentencing, the
court noted that "the statutory goal is 'avoiding unwarranted sentencing
disparities. . . .'" (Emphasis by court.) The court observed that, if
anything, the proposed plea bargain would have resulted in greater
disparity, allowing a sentence of 6-12 months when the original charges
carried sentences of 12.5-15.5 years: "From that perspective, a
sentence of 6-12 months creates more discrepancy and is, therefore, much
less 'uniform' than a sentence of four years. Allowing judges to
ameliorate to some extent the skewing occasioned by plea bargaining may
well carry out the intent of the statute. A rigid refusal to allow
judges to depart from the Guidelines in this situation simply always
transfers discretion from the district judge to the prosecutor, a result
that we believe Congress did not intend."
U.S. v. Correa-Vargas, No. 88-1167 (2d Cir. Oct. 18, 1988) (Feinberg,
C.J.).
District court explores authority under Guidelines to accept plea to
reduced charge. In E.D. Pa. defendants were charged with three drug
offenses, the two most serious of which each carried mandatory minimum
terms of 10 years. Under a plea agreement defendants would plead guilty
to the third, lesser charge, and receive 5-year terms, and the other two
counts would be dismissed. The issue for the court was "whether, within
the framework of the guidelines," it could properly accept a plea
agreement where the sentence under the remaining count would be half the
mandatory minimum for each dismissed count, and less than half of the
applicable guideline ranges for those counts. In addition, because the
agreed sentence of 60 months was approximately double the top of the
guideline range for the remaining offense, the court had to determine
whether such a departure was justified.
Following policy statement Section 6B1.2, "Standard for Acceptance of
Plea Agreements," the court first determined that "the remaining charges
adequately reflect the seriousness of the actual offense behavior and
that accepting the agreement will not undermine the statutory purposes
of sentencing." Section 6B1.2(a). The court based this conclusion upon
the facts of the case, the difficulty of presenting the case and
obtaining convictions on the more serious charges, and concern over
revealing the identity of a government informant.
The court then determined that under Section 6B1.2(c)(2) the proposed
sentences "depart(ed) from the applicable guideline range for
justifiable reasons." The large quantity of drugs involved constituted
an "aggravating circumstance" under 18 U.S.C. Section 3553(b) that
warranted an upward departure. While the statutory offense of
conviction does not address the quantity of drugs, the court found it
was a proper factor to consider for purposes of departure. See
Correa-Vargas, supra.
The court also relied upon policy statement Section 5K2.14, which
authorizes departures above the guideline range "(i)f national security,
public health, or safety was significantly endangered." The court
concluded that "taking public health as meaning national public health,
and safety as meaning national safety, . . . activities involving the
storage of drugs, which in this event turned out to amount to 30 kilos
of cocaine, did indeed carry with them a threat to the public health and
safety of the nation."
U.S. v. Restrepo, No. 88-00086 (E.D. Pa. Aug. 16, 1988) (Pollak, J.).
Guidelines held inapplicable to Assimilative Crimes Act. In what
appears to be a question of first impression, a court in D. Kan. held
that the Guidelines should not be used when sentencing under the
Assimilative Crimes Act (ACA), 18 U.S.C. Section 13. That Act provides
that persons found guilty "of any act or omission (on federal territory)
which, although not made punishable by any enactment of Congress, would
be punishable if committed or omitted within the jurisdiction of the
State, Territory, Possession, or District in which such place is
situated, . . . shall be guilty of a like offense and subject to a like
punishment."
The court found that the ACA "has been consistently interpreted to
require that the state statute fixes the punishment or sentence to be
imposed." Passage of the Sentencing Reform Act by itself does not change
that practice, the court held: "There is no clear and manifest
indication that Congress intended to repeal the 'like punishment'
provision of the ACA. In fact, application of the sentencing guidelines
to crimes under the ACA would gut the very policy behind the ACA,
because those convicted of state crimes incorporated under the ACA would
no longer be treated as if the crime had occurred in the surrounding
state."
The court noted that the Guidelines, at Section 2X5.1, "indicate that
the guidelines do cover assimilative crimes, at least if such crime is a
felony or Class A misdemeanor." The court held, however, that "the
commission cannot amend or repeal laws, only Congress can. Congress has
not amended the ACA by applying the sentencing guidelines to
assimilative crimes."
U.S. v. Richards, No. 88-9005M-01 (D. Kan. Oct. 21, 1988) (Reid, U.S.
Magis.).
District court holds grading and probation provisions of Sentencing
Reform Act severable from Guidelines. The SRA precludes a sentence of
probation where the offense is a Class B felony, as defined by the Act's
grading provisions. See 18 U.S.C. Sections 3559(a)(1)(B) and
3561(a)(1). A court in S.D.N.Y. that previously found the Guidelines
invalid determined that these provisions are severable from the
Guidelines and remain valid, thereby precluding probation for a
defendant convicted of a Class B felony.
Noting that "(w)hether a statutory provision is severable is
primarily a matter of legislative intent," and that "(a) presumption
favors severability," the court found the provisions severable: "There
is nothing in the structure of the statute that, upon invalidation of
the guidelines, vitiates the effectiveness of the grading and probation
provisions or otherwise makes those provisions nonsensical in the
context of the rest of the Act. Thus, if there is any reason that the
presumption in favor of severability should be overcome, it will be
through more subtle evidence of Congressional intent."
The court added: "While I agree in principle with the Ninth Circuit
. . . when it says in Gubiensio(-Ortiz v. Kanahele, No. 88-5848 (9th
Cir. Aug. 23, 1988)) that Congress intended a 'comprehensive' approach
that would make sentencing more determinate, it does not necessarily
follow that Congress intended for the remainder of the Act to be
jettisoned should the guidelines be found unconstitutional. . . . The
abolition of probation for defendants convicted of crimes punishable by
imprisonment for twenty years or more serves to narrow the judge's
discretion and thereby helps to standardize sentencing. It was that
goal of Congress -- the reduction of disparities in sentencing -- that
the Gubiensio court called Congress' 'overriding goal' in passing the
Sentencing Reform Act. Although Congress would undoubtedly have
preferred that the constitutionality of the guidelines be upheld . . .
there is no reason to believe that Congress would not wish other
provisions to be enforced that further its purposes."
U.S. v. Hernandez, No. 88 Cr. 374 (S.D.N.Y. Oct. 7, 1988) (Haight,
J.).
VOLUME 1 NUMBER 17
OCTOBER 25, 1988
Ninth Circuit affirms upward departure. Appellant pled guilty to one
count of transportation of illegal aliens. The probation officer
recommended a 7-month term of imprisonment, the upper limit of the
applicable guideline range, but the district court sentenced appellant
to 2 years. Appellant contended that the sentence was excessive, an
unwarranted departure from the Guidelines, that it violated due process
and constituted cruel and unusual punishment.
Acknowledging that it was bound by the decision in Gubiensio-Ortiz v.
Kanahele, No. 88-5848 (9th Cir. Aug. 23, 1988), holding the Guidelines
constitutionally infirm, the appellate court nevertheless determined to
"proceed as if the Guidelines remain applicable to this defendant in
order to avoid the necessity of reconsidering his appeal if the Supreme
Court should sustain their constitutionality." The court reasoned that
"the issue in the present case is whether the sentence was properly
imposed in excess of the Sentencing Guidelines. Because we hold that it
was, we do not rely upon the statute held to be unconstitutional. We
conclude the sentence here was proper under the Guidelines, or under the
law, in the absence of Sentencing Guidelines."
In upholding the departure the court concluded: "At sentencing, the
district judge carefully set out his reasons for departure from the
Guidelines as required by 18 U.S.C. Section 3553(c). . . . He examined
(appellant's) 'role in these events, the nature of the operation, the
length of time it existed, (and) the number of aliens moved through it'
in determining to depart from the Guidelines, and in fixing the sentence
imposed. . . . On the basis of the record before the district court, it
is clear that departure from the Guidelines was not unreasonable. The
district court set out a number of reasons . . . that demonstrate that
the conduct involved varied significantly from the norm. The case thus
represents an unusual or atypical case where departure from the
Guidelines is entirely appropriate. Nor was the extent of departure
unreasonable. (Appellant's) varied activities in the scheme and his
position as the 'right hand man' to a leader reflect (his) significant
participation and provide the basis for a substantial departure from the
Guidelines."
The court also held appellant's other arguments were without merit:
"There was no violation of appellant's due process rights. The sentence
was well within the statutory maximum and he was afforded a full hearing
before sentencing. Further, the two-year sentence does not represent
cruel and unusual punishment. As indicated above, the sentencing judge
did consider the gravity of the offense and (appellant's) participation
in the scheme in arriving at the sentence. He also was mindful of the
sentences imposed upon the other participants and assessed the
individual participants' culpability and participation before
pronouncing sentence."
U.S. v. Nuno-Huizar, No. 88-5192 (9th Cir. Sept. 29, 1988) (per
curiam).
Ninth Circuit holds supervised release provision of Sentencing Reform
Act invalid. In Gubiensio-Ortiz, supra, the Ninth Circuit held the
Sentencing Reform Act unconstitutional. The question in this case "is
whether the SRA's supervised release provision (18 U.S.C. Section 3583)
is severable from the rest of the Act." The court held that it was not:
"In Gubiensio, we considered the severability of the provision relating
to good time credits and concluded: 'Congress having chosen a
"comprehensive" approach to making sentencing more determinate, we will
not sever companion sections of the guidelines system that would
introduce piecemeal reforms.' . . . We reach the same conclusion as to
the supervised release provision. Severing the provision would leave in
place two competing systems of post-custodial supervision -- parole and
probation under pre-SRA law and supervised release under the SRA. The
simultaneous availability of both systems would be senseless."
U.S. v. Jackson, No. 88-5204 (9th Cir. Sept. 29, 1988) (per curiam).
Eleventh Circuit upholds constitutionality of SRA's substantial
assistance provisions. Appellants were convicted on drug conspiracy
charges and sentenced under the Anti-Drug Abuse Act of 1986. They
argued that the Sentencing Reform Act's "substantial assistance"
provisions (18 U.S.C. Section 3553(e) and Fed. R. Crim. P. 35(b)), which
grant courts authority to impose or reduce sentences below a statute's
mandatory minimum, violate the equal protection clause "because minor
participants and those of relatively low culpability are without
sufficient knowledge to avail themselves of the provision."
In rejecting the equal protection claim, the court held that
"Congress' desire to ferret out drug kingpins is obviously served by
encouraging those with information as to the identity of kingpins to
disclose such information. Hence, there is a rational relationship
between the statute and Congress' purpose. Moreover, all 'minor'
figures are treated similarly by the statute, which belies any claim of
unequal treatment. . . . Appellants' equal protection challenge to the
'substantial assistance' provision is without merit."
The court also rejected appellants' claim that the provision was
unconstitutional because it delegated to prosecutors "unbridled
discretion to decide who is entitled to a sentence reduction. . . .
(T)he only authority 'delegated' by the rule is the authority to move
the district court for a reduction of sentence in cases in which the
defendant has rendered substantial assistance. The authority to
actually reduce a sentence remains vested in the district court. . . ."
The court added that "although the term 'substantial assistance' is not
defined in the statute, the discretion of prosecutors is limited by
considering the 'substantial assistance' provision within the overall
context of the Anti-Drug Abuse Act itself."
U.S. v. Musser, No. 87-3616 (11th Cir. Oct. 4, 1988) (per curiam) (to
be reported at 856 F.2d 1484).
SECOND CIRCUIT:
U.S. v. Perez, No. 88 CR128 (S.D.N.Y. Oct. 11, 1988) (Sprizzo, J.)
(holding Guidelines invalid: "(I)f Congress wishes to eliminate
sentencing disparity, there are constitutional ways to do it. Congress
can eliminate judicial discretion entirely. . . . However, Congress
does not have the power to set up a Commission to direct Judges as to
how they should exercise a judicial power once conferred in particular
cases. In short, Congress cannot exercise judicial power and may not
delegate to a Commission the authority to do what it may not do. . .
.").
THIRD CIRCUIT:
U.S. v. Liell, No. 88-00119-01 (M.D. Pa. Oct. 3, 1988) (Muir, Sr.
D.J.) (holding Guidelines constitutional, sentencing defendant under
Guidelines and also providing "alternate sentence" in case Supreme Court
declares Sentencing Reform Act unconstitutional in whole or in part).
ELEVENTH CIRCUIT:
U.S. v. Fernandez, No. 88-114-Cr-T-13(08) (M.D. Fla. Sept. 23, 1988)
(Krentzman, Sr. D.J.) (holding placement and membership of Commission
violate separation of powers; sentence will be imposed under prior law,
but court will conduct hearings and state and explain sentences under
both Guidelines and prior law to avoid further sentencing proceedings if
Supreme Court upholds Guidelines).
VOLUME 1 NUMBER 16
OCTOBER 3, 1988
District court defines "substantial portion of his income"
requirement of criminal livelihood provision. Guideline Section 4B1.3
establishes a minimum offense level (requiring a term of imprisonment)
for an offense committed "as part of a pattern of criminal conduct from
which he derived a substantial portion of his income." A court in
S.D.N.Y. noted that "substantial portion of his income" "admits of at
least two possible meanings." It may apply when "the income received
from a pattern of criminal activity constitutes a substantial percentage
of the defendant's annual income," or it may be construed to apply only
to "offenders for whom the portion of their income derived from the
pattern of criminal activity is sufficiently large in amount to be
considered 'substantial.'"
The court concluded that "the latter interpretation is correct and
that Section 4B1.3 should be applied only when the defendant derives
substantial income, defined in absolute terms, from criminal activity.
This interpretation is a reasonable construction of the statutory
language and is most consonant with the purpose and legislative history
of the guideline." The other interpretation would produce the
"anomalous" result of sentence enhancement for persons with small
incomes but whose percentage of income from criminal activity was high,
"while someone who engaged in a substantial scale of narcotics dealing
would not come under the guideline if that person had a comparatively
large source of other income."
The court also noted that the Sentencing Reform Act requires the
Guidelines to be "'entirely neutral as to the . . . socio-economic
status of offenders.' . . . It would be wholly contrary to (the Act)
(and might also raise constitutional questions . . .) for the commission
to have required a term of imprisonment for every indigent defendant who
engages in a pattern of criminal conduct without mandating similar
treatment for the wealthy defendant who derives substantial income from
criminal activity." But cf. U.S. v. Kerr, 686 F. Supp. 1174 (W.D. Pa.
1988) (holding criminal livelihood provision does not violate equal
protection, due process, or the Act) (see GSU #10). Since the defendant
in this case was indigent and did not gain "substantial" income from his
criminal activity, the court did not apply Section 4B1.3.
U.S. v. Rivera, No. 88 CR. 0059 (S.D.N.Y. Sept. 20, 1988) (Leval,
J.).
District court holds role in offense adjustment is not applicable to
solitary drug dealer. Guideline Section 3B1.1(a) provides that "(i)f
the defendant was an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive," the
offense level should be increased by four. Defendant grew and sold
marijuana alone, but the government argued that if one considered
defendant's customers his operation was "otherwise extensive" under
Section 3B1.1(a). The court held that this section could not be applied
to defendant: "Section 3B1.1(a) . . . requires not only that the
operation be extensive or have five or more participants, but also that
the defendant be an organizer or leader. The record does not support
the proposition that (defendant) organized or led anyone. One who
commits a series of solitary crimes does not become an organizer or
leader because his crime crime is extensive; one ordinarily does not,
simply by virtue of selling drugs, lead or organize those to whom he
sells."
U.S. v. Weidner, No. SCr. 88-15 (N.D. Ind. Sept. 19, 1988) (Miller,
J.) (sentencing memorandum).
District court denies defendant's request for a pre-trial guideline
computation. "A pre-trial sentencing guideline determination is
completely inappropriate; under the prior sentencing system, a request
that this Court state what its sentence would be if the defendant
pleaded guilty would have been equally inappropriate."
U.S. v. Quezada, No. 88 CR204 (E.D.N.Y. Aug. 31, 1988) (Platt, C.J.).
Upward departure from Guideline sentence warranted for fugitive
status and uncounted criminal history. Defendant's Guideline range was
30-37 months. "However, he committed this offense while on conditions
of release and in fugitive status in the State of New Hampshire. In
addition, there is a history of thefts from others not resulting in
convictions and sentences. Therefore, the Court finds that Criminal
History Category III significantly under-represents the seriousness of
his criminal history and the likelihood that he will commit further
crimes. Criminal History V more adequately represents this defendant's
past course of conduct." The court sentenced defendant to a term of 55
months.
U.S. v. Swirzewski, No. 87-86-01 (D. Vt. July 26, 1988) (Billings,
J.) (statement of reasons for sentence).
Downward departure warranted by youthfulness. A court in D.N.D. held
that a deviation from the sentencing guidelines was justified by the
"youth and lack of sophistication" of a "naive and immature" 18-year-old
who pleaded guilty to a computer theft misdemeanor. The court noted
that while Guideline Section 5H1.1 states that "(a)ge is not ordinarily
relevant in determining whether a sentence should be outside the
guidelines," an exception is provided for the elderly and infirm. It
would be "age discrimination," the court found, to ignore youthfulness.
U.S. v. Kopp, No. C-1-88-06-01 (D.N.D. Apr. 29, 1988) (Kautzman, U.S.
Magis.) (transcript of sentencing).
Upward departure warranted to discourage drug traffic and account for
local sentiment. Defendant entered a guilty plea in D.P.R. to
possession of cocaine on board an aircraft. Noting increasing use of
Puerto Rico "as a convenient stopoverpoint for the distribution of
narcotics . . . via commercial, scheduled airline flights," the court
held: "it is our honest judicial conviction that departure from the
guidelines is warranted in order to discourage the utilization of the
Puerto Rico International Airport, an airport with lesser
law-enforcement capabilities than those in the mainland, as a connecting
point for international narcotics trafficking. . . . Sentence within
the guidelines in a case of this nature would also be in violation of
the Puerto Rico public sentiment, feelings, and mores regarding this
type of crime." The court sentenced defendant to 48 months; the
Guideline range was 21-27 months.
U.S. v. Aguilar-Pena, No. 87-617 (D.P.R. Mar. 23, 1988) (Fuste, J.)
(sentencing findings).
District court notes standard for modification of sentence under
revised rule 35. A defendant in S.D.N.Y. sentenced under the Guidelines
requested a reduction in sentence under Fed. R. Crim. P. 35. The court
noted that "(u)nder the old rule, a motion for reduction of sentence is
committed to the sound discretion of the District Court." Under the new
rule, effective Nov. 1, 1987, that discretion is removed, the court
found, and a court may only "correct a sentence determined on appeal to
be erroneous" or, on motion by the government, may within a year lower
the sentence of a defendant who provided substantial assistance in the
investigation or prosecution of another. Since neither of those
conditions applied here, the court held there was "no basis for reducing
the sentence."
U.S. v. Soto, No. 87 Cr. 0976 (S.D.N.Y. Aug. 24, 1988) (Kram, J.).
Court in D. Md. sentences under Guidelines in accordance with stay
order, notes possible exception. Following U.S. v. Bolding, 683 F.
Supp. 1003 (D. Md. 1988), in which all judges of the district found the
Guidelines invalid but determined to apply them pending final resolution
of their constitutionality, the court denied defendant's request to be
sentenced under prior law. The court noted, however, that "(a) valid
reason for a departure from the general practice of sentencing under the
1984 Act would be presented if, for example, a defendant whom the Court
would not be likely to imprison under prior law would be imprisoned
under the 1984 Act but would be eligible for release under that Act
before a final adjudication of its constitutionality could reasonably be
expected."
U.S. v. Davis, No. HAR 87-0553 (D. Md. Sept. 20, 1988) (Smalkin, J.).
Decisions upholding the Guidelines:
SEVENTH CIRCUIT:
U.S. v. Franz, No. 88 CR0455 (N.D. Ill. Aug. 26, 1988) (Zagel, J.)
(holding guidelines valid; neither Guidelines nor Commission violate
delegation doctrine, due process, or separation of powers).
EIGHTH CIRCUIT:
U.S. v. Roy, No. Cr. 6-88-59 (D. Minn. Sept. 13, 1988) (Devitt, Sr.
D.J.) (upholding constitutionality of Sentencing Guidelines law and
finding that Congress may delegate legislative power to Sentencing
Commission and establish Commission as independent agency in the
judicial branch).
TENTH CIRCUIT:
U.S. v. Costelon, No. 88-CR-69 (D. Colo. Aug. 1, 1988) (Finesilver,
C.J.) (concluding: "(1) the Act does not violate separation of powers
principles; (2) Congress did not improperly delegate its legislative
authority to establish sentences; and (3) defendant's right to due
process of law is not denied but, rather, is expanded under the Act").
Decisions invalidating the Guidelines:
SECOND CIRCUIT:
U.S. v. Johnson, No. 88 Cr. 298 (S.D.N.Y. Aug. 30, 1988); U.S. v.
Sefair, No. 88 Cr. 301 (S.D.N.Y. Aug. 29, 1988); U.S. v. Fields, No. 88
Cr. 286 (S.D.N.Y. Aug. 29, 1988) (Haight, J.) (finding Guidelines
invalid but severable from Act; "the remainder of the Act should
stand," except for provisions abolishing parole.
THIRD CIRCUIT:
U.S. v. Whyte, No. A. 88-0047 (E.D. Pa. Sept. 9, 1988) (Katz, J.)
(holding Guidelines invalid because "(t)he judicial branch has no
authority to legislate or execute sentences binding on all judges";
since defendant "is subject to a substantial period of incarceration
under either the old statutory standards or the new guidelines" and
"will remain in jail until he is sentenced," sentencing is continued
until after decision of Supreme Court in Mistretta v. U.S.).
SEVENTH CIRCUIT:
U.S. v. Eastland, No. 87 CR948 (N.D. Ill. Sept. 8, 1988) (Aspen, J.)
(concluding Guidelines "are invalid under the nondelegation theory or,
alternatively, as an excessive delegation," and adopting finding of
Gubiensio-Ortiz v. Kanahele, No. 88-5848 (9th Cir. Aug. 23, 1988) that
composition of Commission violates separation of powers).
ELEVENTH CIRCUIT:
U.S. v. Jackson, No. CR88-96A-01 (N.D. Ga. Sept. 1, 1988) (Ward, J.)
(finding Sentencing Reform Act violates delegation doctrine and
separation of powers; defendant shall be sentenced under prior law).
U.S. v. Salas, No. 87-422-Cr-T-15B (M.D. Fla. July 19, 1988)
(Castagna, J.) (adopting U.S. v. Russell, 685 F. Supp. 1245 (N.D. Ga.
1988), holding Guidelines invalid).
VOLUME 1 NUMBER 15
SEPTEMBER 14, 1988
Fifth Circuit exercises supervisory power to order use of Guidelines
in all district courts pending Supreme Court decision. "After
considering the merits of the constitutional arguments raised in various
appeals before this court, the impending Supreme Court resolution of the
constitutional issues, and the impact on the administration of criminal
justice in the interim, we exercise our supervisory power to direct that
the sentencing guidelines be applied in all district courts of the Fifth
Circuit pending the decision of the Supreme Court . . . in (U.S.) v.
Mistretta and the implementation of that decision by this court." The
court stated its ruling does not preclude further constitutional
challenges to the Guidelines and noted that all but 6 of the circuit's
65 district judges now use the Guidelines.
U.S. v. White, No. 88-1073 (5th Cir. Sept. 8, 1988) (per curiam).
Government request to stay decision holding Guidelines
unconstitutional denied. The Eleventh Circuit refused to grant an
emergency stay of the order in U.S. v. Bogle, No. 87-00856-CR (S.D. Fla.
June 15, 1988) (en banc) (see GSU #11 and #14), pending appeal on the
merits. The court found that the government failed to demonstrate it
would suffer irreparable injury if the stay were not granted. On the
other hand, "some defendants who would have gotten probation under the
pre-guideline system will be required to serve a term of imprisonment"
under the Guidelines, and would thereby suffer an "unnecessary
deprivation of liberty (that) clearly constitutes irreparable harm."
The court "encouraged" district courts to determine on a case-by-case
basis whether they should make findings that would be necessary under
the Guidelines in order to alleviate future administrative problems if
the Guidelines are upheld.
U.S. v. Bogle, No. 88-5700 (11th Cir. Aug. 26, 1988) (per curiam).
District court examines evidentiary procedures when determining
offense level. A court in S.D. Ohio resolved several evidentiary issues
relating to guideline sentencing. The court held it is not limited to
considering evidence admissible at trial or already contained in the
presentence report -- the Guidelines have not repealed the practice of
considering any information with "sufficient indicia of reliability to
support its probable accuracy" that defendant has "an opportunity to
explain or rebut." In addition, the court held "for purposes of this
case" that it "will apply a preponderance of the evidence test to the
factual matters set forth in the presentence report which are used to
determine the offense level," not the "clear and convincing evidence"
standard defendant sought.
The court also examined "to what extent a court may consider evidence
of prior unindicted criminal activity . . . in determining the
appropriate offense level under the sentencing guidelines." There was
evidence of defendant's involvement with drugs several months prior to
the offense of conviction, possession with intent to distribute cocaine.
The court determined Guideline Section 1B1.3 authorizes that "conduct
that is not formally charged or is not an element of the offense of
conviction may enter into the determination of the applicable guideline
sentencing range" if "the alleged prior act and the offense of
conviction were part of the same course of conduct or common scheme or
plan for purposes of Section 1B1.3(a)(2)." The court concluded that the
acts in question were part of a "a continuing course of narcotics
dealing on the part of defendant," and were thus "relevant conduct for
the purpose of determining the offense level." But see U.S. v. Smith,
infra. The court "would have been free prior to the guidelines to
consider evidence of a continuing pattern of drug activity on the part
of a defendant," and the Guidelines have not changed that.
The court also denied defendant's motion to withdraw his guilty plea
under Fed. R. Crim. P. 32(d): "The fact that a defendant receives a
higher sentence under the guidelines than he anticipated does not
constitute grounds in this case for allowing defendant to withdraw his
guilty plea."
U.S. v. Silverman, No. CR2-88-028 (S.D. Ohio Aug. 23, 1988) (Graham,
J.) (memorandum opinion).
Use of counts dismissed as part of plea bargain limited in setting
offense level. A W.D. Tenn. court held that conduct included in setting
the base offense level "must be established by a finding of the jury, a
plea of guilty confirmed by a finding of guilt in open court, or a
stipulated offense other than the offense of conviction on a plea of
guilty or nolo contendere." Other conduct, however, "if established in
the record," may be considered for certain adjustments to the offense
level.
Defendant agreed to a plea bargain in which he would plead guilty to
one drug count and a second drug count would be dropped. Guidelines
Sections 1B1.3(a)(2) and 3D1.2(d) required, however, that the amount of
drugs from the second count be considered in setting the base offense
level. The court concluded that "the Guidelines and Commentaries of the
Commission which authorize or require that alleged criminal conduct
included in counts to be dismissed pursuant to a plea agreement and
therefore not proven against or admitted by the defendant, be added to
counts to which a plea of guilty and a finding of guilt are made for the
purpose of determining the Base Offense Level, are beyond the scope of
the enabling legislation, 28 U.S.C. Sections 991-998, and therefore
inapplicable in the calculations of the Base Offense Level in this
case." Even if the legislation authorized such use of unproven conduct,
the court held, the "procedure of including the alleged conduct of a
dismissed count, creates 'a mitigating circumstance (unjust punishment)
. . . to a degree not adequately taken into consideration by the
Sentencing Commission . . .'" "which would authorize and require
sentencing below the guideline range" by the amount the base offense
level was increased by the inclusion of the dismissed counts. The
court's decision here differs from two other cases -- Silverman, supra,
and U.S. v. Ruelas-Armenta, 684 F. Supp. 1048 (C.D. Cal. 1988) (see GSU
#9).
Nonetheless, the court concluded "that conduct other than the conduct
which was necessary to establish the essential elements of the offense
or offenses of conviction, if established in the record, may be
considered for adjustment to the Base Offense Level pursuant to Parts A,
B, C and E of Chapter 3 of the Manual, the precise sentence within the
range of the guidelines, fines and restitution. . . ." (Note: Parts A,
B, C and E of Chapter 3 cover victim-related adjustments, role in the
offense, obstruction, and acceptance of responsibility.)
U.S. v. Smith, No. 87-20219-4 (W.D. Tenn. Aug. 26, 1988) (McRae, Sr.
D.J.) (ruling on sentencing hearing).
Guideline section mandating consecutive sentences held contrary to
statute. In D. Md. a defendant being sentenced for escaping from
federal custody still had time remaining on an earlier sentence. In
such a situation, Guideline Section 5G1.3 states that "the sentences for
the instant offense(s) shall run consecutively to . . . unexpired
sentences, unless one or more of the instant offense(s) arose out of the
same transactions or occurrences as the unexpired sentences." The court
found Section 5G1.3 inconsistent with 18 U.S.C. Section 3584(a), which
states that "if a term of imprisonment is imposed on a defendant who is
already subject to an undischarged term of imprisonment, the terms may
run concurrently or consecutively," and that "terms of imprisonment
imposed at different times run consecutively unless the court orders
that the terms are to run concurrently." The Sentencing Commission
apparently interpreted Section 3584(a) as creating a presumption in
favor of consecutive sentences, the court found, whereas it "creates a
presumption in favor of consecutive sentences only where the Court
remains silent on the issue."
The court concluded that the Commission "failed to give adequate
consideration to Section 3584(a) when formulating Guideline Section
5G1.3. Accordingly, the Court will depart from Guideline Section 5G1.3
. . . when determining whether to impose . . . sentence concurrently or
consecutively." The court ordered the terms to run concurrently.
U.S. v. Scott, No. JH-87-0570 (D. Md. May 23, 1988) (Howard, J.)
(memorandum and order).
District court finds problems with plea bargaining under Guidelines;
lifts stay of order invalidating Guidelines. "Defects" in plea bargains
under the Guidelines led a court in D.D.C. to conclude "it would be
imprudent to continue to apply the guidelines." Thus, the court lifted
the stay of its order invalidating the Guidelines in U.S. v. Brodie, 686
F. Supp. 941 (D.D.C. 1988), and will "abide by prior law."
In one case before the court a plea to a "lesser included offense," a
misdemeanor, resulted in the same sentence under the Guidelines
warranted by the originally charged felony offense. The court concluded
that in such an instance the "benefit" of a plea bargain may be
"entirely illusory," and that "it should not participate in a scheme
which implicitly or explicitly promises the defendant that his plea will
bring him more lenient treatment when, under the guidelines, that is not
what will occur." The court concluded that, "in order to avoid
misleading criminal defendants in this respect, it should advise such
defendants of this fundamental fact at the time of the taking of the
plea, or in any event prior to the time that sentence is imposed, so as
to permit a withdrawal of the guilty plea."
In a second case, the Guideline sentence for a defendant convicted at
trial on one count was ten times that which two other defendants
(involved in the same activity and charged with four offenses) would
receive in plea bargains dropping three counts in exchange for guilty
pleas to another count. The court concluded that "these variations in
punishment fly in the face of the dominant congressional purpose
underlying the enactment of the new law -- that of eliminating
unwarranted disparity."
The court noted that if a plea bargain includes an agreement to
dismiss or not pursue charges, Guideline Section 6B1.2 provides that
"the court may accept the agreement (only) if the court determines, for
reasons stated on the record, that the remaining charges adequately
reflect the seriousness of the actual offense behavior and that
accepting the agreement will not undermine the statutory purposes of
sentencing." The court concluded that following Section 6B1.2 "in
practice raises well-nigh insurmountable obstacles." It would require
courts to probe -- perhaps unconstitutionally -- into prosecutorial
decisionmaking, and the Sentencing Commission has "plainly stated" that
Fed. R. Crim. P. 11(e), which requires that charges remaining after a
plea bargain reflect the seriousness of the actual offense, "does not
authorize judges to intrude upon the charging discretion of the
prosecutor." The result is "to leave prosecutors free to employ their
charging discretion as they see fit, without any judicial interference
or inquiry." The objective of uniform sentencing is not met when "the
discretion to impose disparate sentences for equally situated offenders
is simply shifted from judges to prosecutors, if the latter are free to
pick and choose among the charges."
U.S. v. Bethancurt, No. 88-0188 (D.D.C. Aug. 29, 1988) (Greene, J.)
(opinion).
VOLUME 1 NUMBER 14
AUGUST 26, 1988
Ninth Circuit invalidates Guidelines. In the first appellate court
opinion on the constitutionality of the Sentencing Reform Act of 1984, a
divided panel of the Ninth Circuit held that provisions of the Act
establishing the Sentencing Commission and authorizing the promulgation
of the Sentencing Guidelines violate separation of powers. The court
also held that the Act's modification of "good time" credits may not be
severed from the guideline sentencing system and is thus invalid.
The court began its analysis "by considering whether federal judges
serving as commissioners may constitutionally perform the rulemaking
functions Congress has assigned to them." Reviewing the Commission's
work and statutory mandate, the court concluded "that the Commission is
assigned the function of promulgating substantive rules and policies
governing primary conduct and having the force and effect of law, tasks
that only the legislative or executive branches, not the judicial
branch, may constitutionally perform." The Commission's functions, in
the court's view, are "quintessentially political in nature, requiring
substantive, policy decisions that are intended to affect all future
federal criminal defendants -- a far cry from Article III's limited
grant of judicial power to decide cases and controversies."
The court refused to recharacterize the Commission as an executive
branch agency, finding that Congress clearly intended it to be in the
judiciary. Moreover, "(t)he Commission is constitutionally infirm not
merely because it resides in the judicial branch, but, independently,
because its principal officers include federal judges, while its
function is political and not judicial in nature."
As to whether the Act "works a substantial and unjustified
interference with the operation of the judicial branch and its
officers," the court found that "service by federal judges on the
Sentencing Commission has significant collateral effects on the
operation of the judicial branch." There is "a continuous and fairly
significant entanglement between the judicial and executive branches," a
possibility of undue executive influence from the President's powers of
appointment and removal, and a threat to the impartiality of the
judiciary and the public's perception of impartiality. Such effects are
not justified by any overriding need, the court concluded. Congress
could have "secure(d) the contributions of individuals with expertise in
sentencing and judicial administration" by using former or retired
judges or informal input from the judiciary.
The court also held that the Act's revision of "good time" credits
was invalid. The statutory scheme and legislative history indicate this
change was closely connected to implementation of the Guidelines as part
of "a 'comprehensive' approach to making sentencing more determinate,"
and the court refused to implement it separately. The dissent contended
that Congress could and properly did delegate to the Commission the
power to prescribe sentences, and that in practice the placement,
structure, and functions of the Commission neither expand nor infringe
upon the constitutionally assigned duties of any of the three branches.
Gubiensio-Ortiz v. Kanahele, No. 88-5848 (9th Cir. Aug. 23, 1988)
(Kozinski, J.) (Wiggins, J., dissenting).
Second Circuit holds dispute over which guideline range applies may
be left unresolved if sentence is unaffected. The Second Circuit has
answered the question "whether, and under what circumstances, a dispute
as to which of two guideline ranges should apply to a defendant may be
left unresolved where the sentence imposed falls within both the
guideline range deemed applicable by the Government and a lower
guideline range deemed applicable by the defendant." The court held that
such disputes need not be resolved when the same sentence would be
imposed under either guideline range, but must be resolved if the
sentencing judge applied the range urged by the government and selected
the sentence because it is at or near the low end of that range.
The dispute in this case arose over the application of a Guideline
section to defendant's crime, and which offense level and guideline
range should apply. Under the government's interpretation the
applicable range was 9-15 months, while in defendant's view a range of 4
to 10 months applied. The sentencing court agreed with the government,
and gave defendant a 9-month sentence.
The appellate court determined from the structure of the sentencing
table and policy statements of the Sentencing Commission that
overlapping ranges were designed, in part, to avoid litigation over
minor differences in offense levels. From this, the court concluded
that "disputes about applicable guidelines need not be resolved where
the sentence falls within either of two arguably applicable guideline
ranges and the same sentence would have been imposed under either
guideline range. . . . It makes little sense to hold, and review the
outcomes of, all the hearings necessary to make these precise
determinations in those instances where the sentence is unaffected by
the outcome. . . . As long as the sentencing judge is satisfied that
the same sentence would have been imposed no matter which of the two
guideline ranges applies, the sentence should stand."
A dispute over sentencing ranges may not be left unresolved, however,
in the situation "where a sentencing judge determines that the
appropriate sentence is whatever number of months are at or near the
bottom of the applicable guideline range. . . . If the judge's
intention is not clear, the appellate court will face the choice of
either adjudicating a guideline application dispute that might in fact
be of no consequence or remanding so that the judge's intention may be
clarified." In this case, the court remanded "for clarification of the
Judge's intent." The court also observed that "(a)rticulation of the
judge's intentions at the time of sentencing will contribute
significantly to the efficient functioning of the guideline system," and
that it would "be helpful if prosecutors and probation officers alert
district judges to this matter in all cases where a sentence falls
within the overlapping area of disputed guideline ranges."
U.S. v. Bermingham, No. 88-1025 (2d Cir. Aug. 11, 1988) (Newman, J.).
Good time penalty warrants downward departure, W.D. Tenn. holds.
Defendant pled guilty to escape from custody after failure to return to
a halfway house. As a result of the incident, Bureau of Prison
officials took away sixty days of good time. The court concluded that
this action warranted a departure from the Guideline sentence imposed
for the escape offense: "The Court . . . finds that the sentence should
be imposed below the guidelines in the amount of two months because the
Bureau of Prisons has penalized the defendant for this conduct by
depriving him of sixty days good time. This is done pursuant to 18
U.S.C. Section 3553 as the Court's explanation for sentencing below the
guidelines."
U.S. v. Hamer, No. 88-20060-4 (W.D. Tenn. Aug. 8, 1988) (McRae, Sr.
D.J.) (order on Guideline variance).
S.D. Fla. provides reasons for earlier ruling denying government
request to stay order invalidating Guidelines. On June 15, 1988, the
judges of S.D. Fla., sitting "en banc," held the Guidelines invalid on
separation of powers grounds (see GSU #11). The court denied the
government's motion to stay that order on June 30, and also determined
that the Sentencing Reform Act's modification of "good time" credits
survived and remained in effect, but the provisions abolishing parole
did not (see GSU #12).
In a recent opinion detailing the reasons for the June 30 order, the
court stated it denied the request for a stay because: (1) the
government "is without a 'fair prospect' of prevailing in the Supreme
Court"; (2) developments in the law subsequent to that ruling,
including Morrison v. Olson, 108 S. Ct. 2597 (1988), do not compel a
different result; (3) imposition of a stay would result in irreparable
injury to defendants who would receive prison terms under the Guidelines
but not under prior law; (4) exceptions for such defendants on a
case-by-case basis would require use of a dual sentencing system, which
would be overly burdensome; and, (5) if the Supreme Court finds the
Guidelines unconstitutional it will not be easier to change from a
Guideline to non-Guideline system than vice-versa if the Guidelines are
upheld.
U.S. v. Bogle, No. 87-856-CR (S.D. Fla. Aug. 11, 1988) (Marcus, J.).
Decisions upholding the Guidelines:
SECOND CIRCUIT:
U.S. v. Schender, No. CR-87-00806-02 (E.D.N.Y. July 13, 1988)
(Sifton, J.) (memorandum and order rejecting constitutional challenges
and claims that Guidelines are inconsistent with enabling statute and
that effective date of Sentencing Reform Act should be Dec. 18, 1987).
THIRD CIRCUIT:
U.S. v. Huff, No. 88-72 (W.D. Pa. Aug. 17, 1988) (Diamond, J.)
(opinion rejecting constitutional challenges, including arguments that
use of uncharged conduct, evidence not admissible to prove guilt, and
facts not proven beyond reasonable doubt in calculating Guideline
sentence violate due process).
SEVENTH CIRCUIT:
U.S. v. Weidner, No. SCr. 88-15 (N.D. Ind. Aug. 11, 1988) (Miller,
J.) (memorandum and order upholding Guidelines against separation of
powers and due process challenges).
Decisions invalidating the Guidelines:
THIRD CIRCUIT:
U.S. v. Kapantais, No. 87-251 (W.D. Pa. Aug. 16, 1988) (Bloch, J.)
(memorandum opinion holding composition and placement of Sentencing
Commission violate separation of powers; other provisions of Sentencing
Reform Act, such as factors to consider and statement of reasons,
appellate review, abolition of parole, supervised release, and repeal of
Youth Corrections Act, remain valid and shall be applied in sentencing).
U.S. v. Rossi, No. 87-241 (W.D. Pa. Aug. 11, 1988) (McCune, Sr. D.J.)
(memorandum and order finding "the Guidelines to be legislation and void
for failure of Congress to adopt them").
ELEVENTH CIRCUIT:
U.S. v. Richardson, No. CR88-222-1A (N.D. Ga. Aug. 9, 1988) (Freeman,
J.) (order holding Guidelines violate separation of powers; court will
sentence defendants under prior law).
VOLUME 1 NUMBER 13
AUGUST 3, 1988
District court holds exceptional military service record warrants
departure. A court in D. Md. held "that a person's military record is a
relevant sentencing factor that was not considered by the Sentencing
Commission and should be considered as an aggravating or a mitigating
factor at sentencing" under 18 U.S.C. Section 3553(b). The defendant
pled guilty to a mail theft offense, with a resulting Guideline sentence
of 1-7 months. The court determined that probation was a permissible
sentence, and that under Guideline Section 5B1.1(a)(2) the defendant
would be required to serve some period of intermittent or community
confinement. The court found, however, "that the defendant's
exceptional military record is a mitigating factor that warrants
departure from Guideline Section 5B1.1(a)(2). Therefore, the defendant
will be sentenced to a period of probation, without a condition or
combination of conditions requiring intermittent confinement or
community confinement." (Emphasis in original.)
U.S. v. Pipich, No. S 88-097 (D. Md. July 20, 1988) (Smalkin, J.)
(memorandum opinion).
Probation officers' role, specific Guidelines provisions upheld
against constitutional attack. A court in D. Or. rejected challenges to
the role of probation officers under the Sentencing Reform Act, and to
the acceptance of responsibility and career offender sections of the
Guidelines. The defendants argued that the "fundamental change in the
role of the probation officer" under the Act violates separation of
powers and due process. The court considered the role of the probation
officer before and after the effective date of the Guidelines and
concluded that "while the duties and role are significantly changed, in
their essentials they are still the same," and there is no
constitutional violation.
The court rejected the claim that Guideline Section 3E1.1, which
provides a reduction in offense level for acceptance of responsibility,
"chills the exercise" of the sixth amendment right to jury trial and the
fifth amendment privilege against self-incrimination. This provision
"is not constitutionally objectionable on its face" because it "is not
designed for the purpose of inducing involuntary incriminating
statements or involuntary guilty pleas" and "a guilty plea, as such, is
neither a prerequisite to receiving the benefit of the reduction nor
sufficient in itself to entitle a defendant to reduction." Nor is it
unconstitutional, the court found, to encourage a guilty plea with a
promise of leniency, or to impose a stiffer sentence on defendants who
do not accept responsibility for their actions. The court also held
that Section 3E1.1 was not unconstitutional as applied in this case.
One defendant challenged the constitutionality of the career offender
provision, Guideline Section 4B1.1. The court held that the provision
is not an "impermissible delegation of legislative authority," is not "a
new crime 'legislated' by the (Sentencing Commission) in violation of
the separation of powers doctrine," does not exceed the authority
granted the Commission by the Sentencing Reform Act, and is not a
"status offense" but rather "a permissible sentence enhancement
provision."
The court also rejected a challenge to Guideline Sections 4A1.2 and
4A1.3(a), which allow consideration of "tribal convictions" for
departure purposes, and challenges to the Guidelines as a whole based on
unlawful delegation, separation of powers, and due process grounds.
U.S. v. Belgard, No. 88-5-PA (D. Or. June 30, 1988, as amended July
25, 1988) (Burns, J.) (opinion and order).
Decisions upholding the Guidelines:
SECOND CIRCUIT:
U.S. v. Hickernell, No. 88 Cr. 87 (S.D.N.Y. July 27, 1988) (Brieant,
C.J.) (memorandum and order upholding Guidelines against constitutional
and statutory challenges; defendant will be sentenced under Guidelines,
but "(e)xecution will be stayed until ten (10) days following issuance
of the mandate of the Court of Appeals in United States v. Carlos
Martinez, 87 Cr. 1020 (KTD), unless the Court of Appeals shall direct
otherwise").
THIRD CIRCUIT:
U.S. v. Schwartz, No. 87-103 (D. Del. July 8, 1988) (Schwartz, C.J.)
(opinion holding: "(1) there is no excessive delegation to the
(Sentencing) Commission; (2) the creation of the Commission does not
breach separation of powers; and (3) the placement of the Commission in
the Judicial Branch does not violate Article III").
EIGHTH CIRCUIT:
U.S. v. Whitfield, No. 3-88-7 (D. Minn. July 27, 1988) (Devitt, Sr.
D.J.) (order upholding Guidelines against separation of powers
challenge).
Decisions invalidating the Guidelines:
SECOND CIRCUIT:
U.S. v. Alafriz, No. S 88 CR. 0002 (S.D.N.Y. July 6, 1988) (Sweet,
J.) (opinion holding that the Sentencing Reform Act violates separation
of powers, due process, and the non-delegation doctrine, that the
Guidelines "prevent courts from performing their Article III function"
to consider defendants as individuals for sentencing purposes, and that
defendants "will be sentenced under pre-guideline standards").
U.S. v. Sumpter, No. 88 CR. 275 (S.D.N.Y. July 5, 1988) (Conboy, J.)
(opinion and order holding that the presidential removal power over the
Sentencing Commission's judges violates separation of powers and that
the defendant will be sentenced under prior law).
THIRD CIRCUIT:
U.S. v. Brown, No. 88-00010-01 (E.D. Pa. July 21, 1988) (Newcomer,
Sr. D.J.) (memorandum and order holding Guidelines invalid on separation
of powers grounds, but court will "stay the effect of this memorandum
and order and sentence defendant under the 1984 Act and guidelines until
the constitutionality of the Act has been decided").
EIGHTH CIRCUIT:
U.S. v. Bester, No. 5-88-08 (D. Minn. July 19, 1988) (Magnuson, J.)
(memorandum and order adopting "the reasoning and holding" of U.S. v.
Horton, No. 4-87-128 (D. Minn. May 20, 1988) (see GSU #9), holding that
"the Sentencing Reform Act of 1984 and Guidelines promulgated thereunder
are unconstitutional" and defendant will be sentenced under prior law).
TENTH CIRCUIT:
U.S. v. Swapp, No. 88-CR-006J (D. Utah July 18, 1988) (Jenkins, C.J.)
(memorandum opinion of "en banc" court holding Guidelines invalid
because "the Sentencing Reform Act of 1984 violates the separation of
powers doctrine, the nondelegation doctrine and the procedural
requirements of article I"; defendants in this district will be
sentenced under prior law, but the U.S. Probation Office is directed "to
process its presentence investigation reports under both the old and the
new systems in case a defendant may have to be resentenced at a later
date").
U.S. v. Brown, No. 88-10036-01 (D. Kan. July 14, 1988) (Crow, J.)
(memorandum and order holding Guidelines invalid on separation of powers
grounds; court will "state and explain the appropriate sentence for
defendants" under both Guidelines and prior law, entering only the
latter on judgment and commitment with Guideline sentence to be entered
in the future if Guidelines are ultimately upheld).
VOLUME 1 NUMBER 12
JULY 21, 1988
Ninth Circuit clarifies arson Guideline. The Ninth Circuit held that
the 7-level enhancement for arson during the commission of another
felony applies only to defendants convicted under 18 U.S.C. Section
844(h). The defendant pled guilty to an arson offense under 18 U.S.C.
Section 844(i). The district court increased the offense level
following Guideline Section 2K1.4(b)(4), which reads: "If the defendant
used fire . . . to commit another offense that is a felony under federal
law, or carried explosives during the commission of any offense that is
a felony under federal law (i.e., the defendant is convicted under 18
U.S.C. Section 844(h)), increase by 7 levels." The circuit court held
that the parenthetical clause, by using the term i.e., "strongly
indicates that the Sentencing Commission intended the guideline to apply
only where the defendant has violated Section 844(h)," and it was
therefore improper to increase the offense level for a violation of
Section 844(i).
U.S. v. King, No. CR88-1161 (9th Cir. July 1, 1988) (per curiam
opinion).
District court finds defendant's circumstances warrant downward
departure. A court in D. Minn. determined that a defendant's "unique,
unstable upbringing and childhood" and "unique and substantial family
ties and responsibilities," along with other factors, were "special
circumstances" that warranted, under 18 U.S.C. Section 3553(b), a
downward departure from the Guideline sentence. The Guideline range for
defendant's offense was 97-121 months. The court concluded that an
84-month sentence was sufficient, finding that "the 97-month minimum is
excessive and that the 84-month sentence is more appropriate in
achieving the four basic purposes (of the Sentencing Reform Act),
considering all factors and circumstances described herein."
The court also decided not to impose a fine because of the
defendant's inability to pay. Further, following Guideline Section
5E4.2(f), the court "considered all alternative sanctions in lieu of all
or a portion of the fine" and found that the "total 84-month sentence is
punitive" and that any alternative to a fine is unnecessary.
U.S. v. Haigler, No. 3-87 CRIM 135(2) (D. Minn. May 19, 1988)
(Statement of Reasons for Imposing Sentence, Alsop, C.J.).
Decisions upholding the Guidelines:
FIRST CIRCUIT:
U.S. v. Seluk, No. 88-107-K (D. Mass. July 5, 1988) (Keeton, J.)
(opinion upholding Guidelines against constitutional challenge).
FOURTH CIRCUIT:
U.S. v. Stokley, No. 2:87-00206 (S.D.W. Va. July 8, 1988)
(Copenhaver, J.) (memorandum opinion and order of "en banc" court
upholding Guidelines; court severed as unconstitutional provision
placing Sentencing Commission in judicial branch).
SIXTH CIRCUIT:
U.S. v. Landers, No. 88-20022-TU (W.D. Tenn. June 24, 1988) (Turner,
J.) (order upholding Guidelines against constitutional and statutory
challenges and finding designation of Sentencing Commission as judicial
agency may be severed from the statute).
Decisions invalidating the Guidelines:
FIFTH CIRCUIT:
U.S. v. Coburn, No. C-88-05 (S.D. Tex. July 13, 1988) (Head, J.)
(order invalidating provisions of Sentencing Reform Act, 18 U.S.C.
Section 3553(b) and the last sentence of Section 3553(e), that mandate
use of the Guidelines; court "will continue to adhere to all other
sentencing provisions" of the Act and will use the Guidelines "as a
product of generally persuasive force").
SIXTH CIRCUIT:
U.S. v. Williams, No. 3-88-00014 (M.D. Tenn. June 23) (per curiam)
(memorandum opinion of "en banc" court holding Guidelines
"unconstitutional and unenforceable on the ground that they were
promulgated by a body to which Congress, consistent with the
Constitution, could not delegate such a function"; certain provisions
of the Sentencing Reform Act -- including "real time" sentencing,
elimination of parole, and statement of reasons for imposing sentence --
remain valid and defendants will be sentenced accordingly).
U.S. v. Thomas, No. 87-20218 G (W.D. Tenn. June 7, 1988) (Gibbons,
J.) (order holding Guidelines invalid on separation of powers grounds
and that "there are no severable parts of the Act that may be given
effect"; court will announce two sentences -- one under prior law and
one under Guidelines -- and defendants will commence serving prior law
sentence with Guideline sentence to take effect if Act is ultimately
held constitutional).
EIGHTH CIRCUIT:
U.S. v. Serpa, No. CR87-L-44 (D. Neb. July 12, 1988) (per curiam)
(memorandum and order of "en banc" court holding Guidelines invalid on
separation of powers grounds, but severable; "defendants shall be
sentenced in accordance with the remaining provisions of the Sentencing
Reform Act and, where necessary, in reference to" prior law).
ELEVENTH CIRCUIT:
U.S. v. Kane, No. CR87-37R (N.D. Ga. June 28, 1988) (Murphy, J.)
(order holding Guidelines invalid on nondelegation and separation of
powers grounds, and imposing sentence as if crime committed prior to
November 1, 1987).
U.S. v. Bogle, No. 87-856-CR (S.D. Fla. June 30, 1988) (per curiam)
(order of "en banc" court, after prior ruling that Guidelines are
invalid, holding provisions of Sentencing Reform Act eliminating parole
are not severable from Guidelines and therefore shall not apply to
sentences imposed in this district, but that provision modifying
computation of "good time" credits is severable from Guidelines and
shall be applied).
VOLUME 1 NUMBER 11
JUNE 29, 1988
E.D. Ark. to use dual sentencing approach pending resolution of
Guidelines' constitutionality. A dual sentencing policy for E.D. Ark.
was announced in an opinion by one judge holding the Sentencing
Commission and Guidelines unconstitutional on improper delegation,
Article I presentment, separation of powers, and due process grounds.
In addition, the court found that the provisions of the Sentencing
Reform Act regarding "the detailed set of principles or sentencing
standards which narrow the judge's discretion" and "the requirement that
judges state their reasons for imposing particular sentences" are
severable and should remain in effect, but that the provisions for
appellate review of sentences and for "real time" sentencing should not
survive.
The court determined that because of the uncertainty over whether the
Guidelines will ultimately be upheld it would, "at the time of
sentencing, state and explain what its sentence would be assuming the
Guidelines are upheld. And it will also state and explain what its
sentence would be if the Guidelines are struck down as
unconstitutional." The sentence entered in judgment "will be the latter
only, because that will be the only lawful sentence under the opinion of
the Court. However, if the Court is reversed and the Guidelines upheld,
a new Judgment and Commitment will have to be entered, but this may be
done without any further sentencing hearing."
The court stated that all but one of the other judges of the district
agreed that the Guidelines are unconstitutional, that the two previously
mentioned provisions are severable, and that they will follow the dual
sentencing approach. The remaining judge is "not convinced that the
Guidelines are unconstitutional," but has agreed to employ the dual
sentencing approach.
U.S. v. Brittman, No. LR-CR-87-194 (E.D. Ark. May 27, 1988)
(memorandum opinion, Eisele, C.J.).
Decisions upholding the Guidelines:
SECOND CIRCUIT:
U.S. v. Etienne, No. 87 CR791 (E.D.N.Y. May 5, 1988) (Nickerson, J.)
(memorandum and order upholding Guidelines against constitutional
challenge).
THIRD CIRCUIT:
U.S. v. Hodge, No. 88-04 (D.V.I. May 31, 1988) (Christian, Sr. D.J.)
(order dismissing defendant's motion to declare the Guidelines invalid
because "(w)hether or not The Congress may properly legislate as it did,
and the constitutionality vel non of such legislation respecting Article
III courts, it is certainly within the constitutional powers of The
Congress to so provide as to the courts of its own creation, as is the
District Court of the Virgin Islands").
FOURTH CIRCUIT:
U.S. v. Richardson, No. 88-8-01-CR-3 (E.D.N.C. May 13, 1988) (Boyle,
J.) (order upholding the Guidelines against constitutional and statutory
challenges).
Decisions invalidating the Guidelines:
SECOND CIRCUIT:
U.S. v. Mendez, No. 88 CR78 (S.D.N.Y. June 16, 1988) (Mukasey, J.)
(opinion rejecting statutory challenges but holding that Act violates
separation of powers and Guidelines are invalid).
FIFTH CIRCUIT:
U.S. v. Perez, No. A-87-CR-116(1) (W.D. Tex. May 23, 1988) (Nowlin,
J.) (order holding Sentencing Reform Act violates separation of powers
and presentment requirement of article I and Guidelines violate due
process, but finding that Guidelines are severable and other parts of
Sentencing Reform Act remain valid).
SEVENTH CIRCUIT:
U.S. v. Rosario, No. 87 CR968 (N.D. Ill. June 23, 1988) (Bua, J.)
(order holding the Guidelines invalid because structure of the
Sentencing Commission violates separation of powers).
EIGHTH CIRCUIT:
U.S. v. Terrill, No. 88-00013-06-CR-W (W.D. Mo. June 13, 1988)
(Oliver, Sr. D.J.) (memorandum and orders holding "Guidelines are not
constitutionally valid").
TENTH CIRCUIT:
U.S. v. Scott, No. 88-031-JB (D.N.M. June 3, 1988) (Burciaga, J.)
(memorandum opinion and order adopting reasoning of U.S. v. Arnold, 678
F. Supp. 1463 (S.D. Cal. 1988) and holding the Guidelines invalid
because composition and placement of the Sentencing Commission violate
separation of powers).
ELEVENTH CIRCUIT:
U.S. v. Bogle, No. 87-856-CR (S.D. Fla. June 15, 1988) (Marcus, J.)
("en banc" opinion holding, 12-4, that the Guidelines are invalid and
"will not be applied in this district" because placement and membership
of the Sentencing Commission violate separation of powers).
VOLUME 1 NUMBER 10
JUNE 15, 1988
Certiorari granted in Guidelines' constitutionality case. The
Supreme Court has granted the government's and defendant's petitions for
writs of certiorari before judgment in a case pending in the Eighth
Circuit (see GSU #9, 6/1/88). Oral argument will be held during the
October 1988 term.
U.S. v. Mistretta, 682 F. Supp. 1033 (W.D. Mo. 1988), cert. granted
(U.S. June 13, 1988) (Nos. 87-1904 and 87-7028).
Two courts hold President's power to remove Commissioners
unconstitutional but severable:
A court in N.D. Cal. held that the presidential removal power
provision of the Sentencing Reform Act, 28 U.S.C. Section 991(a), is
unconstitutional, but severed the provision from the remainder of the
statute and upheld the Act and the Sentencing Guidelines against
constitutional and statutory challenges. The court found that the
removal power provided even more opportunity for undue executive
influence and control than the removal power held unconstitutional in
Bowsher v. Synar, 106 S. Ct. 3181 (1986). "Bowsher controls this case,
and compels the conclusion that presidential removal power over members
of a judicial commission is unconstitutional," the court held. The
removal provision may be severed, however, because the remainder of the
statute will "'function in a manner consistent with the intent of
Congress.'" (Emphasis in original.)
U.S. v. Myers, No. CR87-0902 (N.D. Cal. Apr. 11, 1988) (order,
Henderson, J.).
A district court in E.D. Mich., also following Bowsher, held that the
removal power is "an unconstitutional assumption of power by the
executive" but may be severed from the rest of the Sentencing Reform
Act. The court rejected other constitutional and statutory challenges
in upholding the Guidelines.
U.S. v. Sparks, No. 88-CR-20019-BC (E.D. Mich. June 7, 1988)
(memorandum opinion and order, Churchill, J.).
Guidelines upheld as constitutional:
NINTH CIRCUIT
U.S. v. Amesquita-Padilla, No. CR87-264R (W.D. Wash. Apr. 20, 1988)
(Rothstein, C.J.) (opinion upholding Guidelines against constitutional
and statutory challenges).
Guidelines held unconstitutional:
SECOND CIRCUIT
U.S. v. Smith, No. 88 Cr. 49 (S.D.N.Y. May 31, 1988) (Stanton, J.)
(order indicating Guidelines will be used, if at all, only as
non-binding reference materials).
NINTH CIRCUIT
U.S. v. Harrington, No. CR-88-34-1 (E.D. Wash. Apr. 13, 1988)
(McNichols, J.) (memorandum decision holding Guidelines violate
separation of powers).
TENTH CIRCUIT
U.S. v. Rivas-Hernandez, No. CR-88-56-T (W.D. Okla. May 16, 1988)
(Thompson, C.J.) (order holding that placement of Commission in judicial
branch violates article III and separation of powers and that neither
designating language nor Guidelines are severable).
U.S. v. Bigger, No. 88-10-CR and U.S. v. Scott, No. 88-11-CR (E.D.
Okla. May 26, 1988) (Seay, J.) (orders adopting "the findings and
opinion" of Rivas-Hernandez).
Guidelines' Criminal Livelihood provision upheld. A district court
in W.D. Pa. held that the Criminal Livelihood provision of the
Sentencing Guidelines, Section 4B1.3, does not violate equal protection
or due process by discriminating against indigents, nor does it
unconstitutionally deprive the sentencing judge of discretion. The
defendants argued that an offender with no or few non-criminal sources
of income is more harshly treated under this section of the Guidelines
than one who engaged in the same criminal conduct but has other sources
of income. Thus, defendants claim, poverty functions as the sole
justification for a longer prison term. One defendant also argued that
this provision violates the statutory mandate of 28 U.S.C. Section
994(d), which commands the Sentencing Commission to "assure that the
guidelines and policy statements are entirely neutral as to the . . .
socioeconomic status of offenders."
The court found that the Criminal Livelihood provision does not
violate the mandate of 28 U.S.C. Section 994(d) because it is derived
directly from another subsection of the same statute, Section 994(i)(2),
which directs the Commission to "assure that the guidelines specify a
sentence to a substantial term of imprisonment for categories of
defendants in which the defendant committed the offense as part of a
pattern of criminal conduct from which he derived a substantial portion
of his income."
On the constitutional issues, the court noted that poverty "is not a
suspect classification," and laws that discriminate on this basis "are
not subject to strict scrutiny." Nevertheless, the Supreme Court "has
been more demanding of laws that disadvantage the indigent within the
criminal justice system," and thus judges "are commissioned to strike
down treatment of the indigent that is fundamentally unfair." The court
reasoned, however, that "viewed in the context of a pattern of
criminality, the lack of employment and of legitimately obtained
financial resources does indicate that the defendant is likely to commit
further crimes, and the deprivation of liberty may be based upon it."
Moreover, "indigency is not the sole justification for the harsh
treatment of offenders . . . under the guidelines. Rather, their
pattern of criminality, a pattern upon which they depend for their
livelihood, demonstrates a need for their incapacitation." Thus, "the
Criminal Livelihood provision furthers a legitimate governmental
purpose" -- incapacitating professional criminals -- and alternatives to
achieving this purpose are "inadequate."
The court also rejected the argument that the Criminal Livelihood
provision's restriction of judicial discretion violates due process.
Case law shows that "individualized sentencing is not a constitutional
imperative outside capital cases," and "federal courts have upheld
mandatory sentences that eliminate judicial discretion." Therefore, the
court held, "from Congress' power to eliminate entirely judicial
discretion in sentencing follows the power to limit discretion and
assign specific values to sentencing factors." The court also found that
the guidelines as a whole provide a sentencing judge with sufficient
discretion.
U.S. v. Kerr, No. 87-255 (W.D. Pa. June 3, 1988) (opinion, Diamond,
J.).
VOLUME 1 NUMBER 9
JUNE 1, 1988
U.S. seeks certiorari for expedited review of Guidelines'
constitutionality. The Solicitor General has filed a "petition for a
writ of certiorari before judgment" in an appeal of a Guidelines case
pending in the Eighth Circuit. The petition requests that arguments be
held in the first session of the October 1988 Term, and that if the
Court strikes down the Guidelines, "it should also reach the question of
the severability" of other provisions of the Sentencing Reform Act.
U.S. v. Mistretta, 682 F. Supp. 1033 (W.D. Mo. 1988), petition for
cert. filed (U.S. May 19, 1988) (No. 87-1904) (underlying case
summarized in GSU #5, U.S. v. Johnson).
Decisions holding Guidelines unconstitutional but staying orders
pending appellate review:
A district court in D.D.C. has held that the Sentencing Reform Act
unconstitutionally delegates legislative authority, finding that
"Congress has given to the Sentencing Commission a mandate of such
vagueness that it constitutes no real direction at all." This appears to
be the first Guidelines decision to find such an improper delegation.
The court also held that the Act violates separation of powers and due
process.
In rejecting the argument that the Commission should be assigned to
the executive branch, the court noted that such a move would, among
other things, subject the Commission to various laws applicable to
executive agencies. The court also noted that "a number of the
procedures prescribed by the Constitution or by the Federal Rules of
Criminal Procedure in implementation of due process standards are
infringed or largely rendered useless by the new Act," such as the
rights of allocution and to be present at sentencing.
Nonetheless, the court "stay(ed) the effect of its ruling until the
constitutionality of the Sentencing Act has been finally decided," and
will sentence defendants in accordance with the Act. U.S. v. Brodie,
No. 87-0492 (D.D.C. May 19, 1988) (opinion, Greene, J.).
U.S. v. Martinez-Ortega, No. 87-40023 (D. Idaho May 6, 1988)
(memorandum decision, Callister, J.) (Guidelines "constitutionally
flawed and must be struck down" on separation of powers and due process
grounds. Court stayed order and will sentence defendants under both
Guidelines and preexisting law.).
Guidelines unconstitutional but severable; repeal of Parole
Commission and amendment to rule 35 must also be severed. A district
court in D. Conn. has held "that the portion of the Sentencing (Reform)
Act which authorizes the Commission to promulgate the Guidelines . . .
contravenes the separation of powers doctrine. It follows . . . that
the Guidelines . . . are themselves null and void. Those portions of
the Sentencing Act that require courts to impose the Guidelines must
also fall as null and void," but are severable. Without implementation
of the Guidelines, the court found that to be "consistent with the
legislature's intent" the Parole Commission should remain operative and
thus its repeal must be severed, and that the amendment to rule 35 of
the Fed. R. Crim. P. should be nullified. U.S. v. Molina, No. N 88-17
(D. Conn. May 16, 1988) (memorandum of decision, Daly, C.J.).
Other recent cases holding Guidelines unconstitutional but severable:
U.S. v. Diaz, No. 87-00159 (S.D. Ala. May 11, 1988) (order, Howard,
J.) (Sentencing Reform Act violates separation of powers. Guidelines
invalid but other sections of Act making substantive changes in federal
criminal sentencing law "are severable and shall remain valid.").
U.S. v. Fonseca, No. 87-00159 (S.D. Ala. May 11, 1988) (order, Hand,
C.J.) (same).
U.S. v. DiBiase, No. N-88-4 (D. Conn. May 6, 1988) (opinion and
order, Cabranes, J.) (Act violates separation of powers and thus
Guidelines are "null and void." Provisions authorizing Commission and
requiring application of Guidelines are severable, but "remainder of the
Act is 'fully operative as law'" and defendant will be sentenced
accordingly.).
U.S. v. Harris, No. 88-CR-6-B (N.D. Okla. Apr. 29, 1988) (opinion, as
amended, Brett, J.) (Sections of Act authorizing Commission and
Guidelines violate separation of powers but are severable. Defendant,
if found guilty, would be sentenced accordingly.).
U.S. v. Nordall, No. CR87-067TB (W.D. Wash. April 21, 1988) (order
incorporating oral opinion, Bryan, J.) (Sections of Act that mandate use
of the Guidelines, 18 U.S.C. Section 3553(b) and the second sentence of
Section 3553(e), are unconstitutional. However, "the constitutionally
repugnant part of the guideline scheme is severable and can be cured by
the simple device of removing the offending mandatory application
language from the statute," allowing remainder of Act to stand. Court
will "consider" Guidelines in imposing sentence, but not treat them as
binding.).
Decisions holding Guidelines invalid and not severable:
Sitting en banc, the judges of N.D. Ala. concluded "that the
provisions of the (Sentencing Reform) Act creating and empowering the
(Sentencing) Commission impermissibly violate the principle of
separation of powers" and that "de facto validity" should not be given
to past acts of the Commission, such as the promulgation of the
Guidelines. The court held that the unconstitutional parts of the Act
should not be severed from the remaining provisions -- except for the
section effecting repeal of the Youth Corrections Act -- and that
"defendants hereafter . . . will be sentenced in this court without
regard to the mandates of the Act."
U.S. v. Allen, No. CR88-H-4-S (N.D. Ala. May 18, 1988) (opinion, per
curiam) (en banc).
U.S. v. Horton, No. 4-87-128 (D. Minn. May 20, 1988) (memorandum
opinion and order, Murphy, J.) (Act violates separation of powers
because of function, placement, and composition of Commission, and
Guidelines are therefore invalid. Unconstitutional provisions cannot be
severed, and defendant should be sentenced under preexisting law.).
U.S. v. Wilson, No. CR-88-67-W (W.D. Okla. Apr. 19, 1988) (order,
West, J.) (Act violates separation of powers and the "plain intent of
Congress" precludes severance of unconstitutional provisions.).
Recent decisions upholding the Guidelines:
Sitting en banc, the judges of D. Ariz. held, 5-1, that the
Guidelines do not violate separation of powers. The majority held that
placement of the Sentencing Commission in the judicial branch was proper
and the function of the judiciary was not impaired. The court found
that judges serve as individuals and the President's powers of
appointment and removal do not "control" the judiciary. Moreover, the
removal power is adequately circumscribed by the "good cause" standard
and would not affect a Commissioner's Article III status. The court
also rejected challenges to the Guidelines based on due process
concerns.
U.S. v. Macias-Pedroza, No. 88-13 (D. Ariz. April 18, 1988) (Bilby,
C.J.) (en banc).
U.S. v. Smith, No. 87-20219-4 (W.D. Tenn. May 20, 1988) (memorandum
decision, McRae, Sen. Dist. J.) (Act does not violate separation of
powers: Commission "is in fact in the executive branch; . . . work of
the Commission is a proper method of pursuing sentencing reform;"
presence of Article III judges on Commission "is sensible and not
unlawful'" Act's placement of Commission in judicial branch is "harmless
error" and "erroneous provision should be elided from the Act, thereby
salvaging the long sought after sentencing reforms.").
U.S. v. Childress, No. 87-263-N (M.D. Ala. May 16, 1988) (order,
Varner, J.) (Guidelines are "constitutionally permissible invasion of
the statutory power of trial courts to sentence convicted criminals
within the limits provided by statute either because: (1) the
guidelines are provided by a past act of the Commission and are,
therefore, a valid de facto action or (2) the statute creating the
Commission and the various results thereof are not constitutionally
unsound.").
Court may consider relevant conduct not included in offense of
conviction. A C.D. Cal. court has rejected a defendant's claim that, in
considering relevant conduct for purposes of determining a Guideline
range, the court cannot consider facts outside those inherent in the
count of conviction or stipulated to in a plea agreement.
The defendant and two codefendants were charged in an eight-count
indictment, and defendant pled guilty to one count; the other counts
were dropped. The court found that defendant's offense of conviction
fell under Guideline Section 3D1.2(d), which requires grouping of
multiple counts. Offenses of this nature are governed by Guideline
Section 1B1.3(a)(2), which states that determination of the Guideline
range shall be based on "all such acts and omissions that were part of
the same course of conduct or common scheme or plan as the offense of
conviction." The Commentary to this section states that "multiple
convictions are not required."
Thus, in calculating the Guideline sentence, the court considered all
of defendant's conduct listed in the indictment. Defendant argued that
his plea bargain on one count should preclude consideration of conduct
relating to the other alleged offenses. The court found that the
Commentary "does not support this position," and held that "while the
(other) conduct . . . is not contained in the count of conviction, that
absence is not a bar to its consideration." The court also rejected
defendant's contention that using additional information in this manner
would destroy a defendant's incentive to plea bargain, finding that in
most cases the Guidelines leave courts "a considerable range of
discretion" to be lenient toward a cooperative defendant.
This case was decided prior to U.S. v. Lopez, No. CR88-050-R (C.D.
Cal. May 5, 1988) (en banc) (holding the Guidelines are unconstitutional
and will not be used in C.D. Cal.), which has not been given retroactive
effect.
U.S. v. Ruelas-Armenta, No. CR87-1027-PAR (C.D. Cal. May 2, 1988)
(memorandum of decision, Rymer, J.).
VOLUME 1 NUMBER 8
MAY 12, 1988
C.D. Cal. holds Guidelines unconstitutional. Sitting en banc, the
Central District of California ruled 14-10 "that the Sentencing Reform
Act of 1984 and Guidelines promulgated thereunder are unconstitutional
because they violate both the doctrine of separation of powers and
defendants' Fifth Amendment right of due process." The court authorized
the en banc proceeding to determine the issue of facial
constitutionality of the Act and the Guidelines in twenty-two cases
pending before individual judges. The majority opinion stated, and the
dissenting judges agreed, that the decision is binding upon all members
of the court until there is a contrary ruling from the Ninth Circuit or
the Supreme Court.
In its separation of powers analysis, the court largely followed the
reasoning of U.S. v. Arnold, 678 F. Supp. 1463 (S.D. Cal. 1988), and
U.S. v. Estrada, 680 F. Supp. 1312 (D. Minn. 1988). The court concluded
that "the Act violates the expansion of powers branch of the separation
of powers doctrine by placing the (Sentencing) Commission in the
judicial branch and by requiring service of three Article III judges on
the Commission," and that the "quantitative and qualitative impairment
of the judiciary by judges' service on the Commission" "violate(s) the
impairment branch of the doctrine of separation of powers." On the due
process issue, the court followed the reasoning of U.S. v. Frank, No.
87-226 (W.D. Pa. Mar. 30, 1988) and found "the Guidelines as formulated
are substantively invalid. Quite simply, the mechanical formulas and
resulting narrow ranges of sentences prescribed by the Guidelines
violate defendants' right to due process . . . by divesting the Court of
its traditional and fundamental function of exercising its discretion in
imposing individualized sentences according to the particular facts of
each case."
The dissenting judges reasoned that "(w)hether the Commission is
tagged with the 'judicial branch,' 'executive branch,' or 'independent
agency' label is an irrelevancy in determining whether its functions
impair or expand judicial powers," and concluded that "(s)ince
regulation or guideline writing does not involve the decision of cases
or controversies, nor does it impinge on the power of the judiciary to
decide the same, the mere creation of a Commission that creates
sentencing guidelines does not violate the separation of powers
doctrine." In addition, the presence of judges on the Commission is
acceptable, the dissenters concluded, because any "impairment" of the
judiciary is minor, and the required presence of three judges does not
impermissibly "expand() the powers of the judiciary into the area of law
making" because the judge-commissioners do not perform judicial work on
the Commission. The dissenters also determined that the Guidelines do
not violate substantive due process: "Congress can eliminate all
discretion in sentencing, or place all discretion in an executive
department body; a fortiori, it can specify the weight to be given the
various factors normally considered."
U.S. v. Lopez, No. CR88-050-R (C.D. Cal. May 5, 1988) (en banc)
(memorandum opinion and order, Hauk, Sr. Dist. Judge) (dissenting
memorandum, Hupp, J.).
Other recent decisions finding the Guidelines unconstitutional:
A district court in D. Colo. has held the Guidelines unconstitutional
on separation of powers and due process grounds, and ordered that the
defendant's sentence "be determined in accordance with pre-existing
law."
The court held that the membership of the Sentencing Commission and
its placement in the judicial branch violate separation of powers.
Placement of the Commission in the executive branch would not resolve
the problem: "The . . . Guidelines are designed to control the
discretion given to Article III judges by 18 U.S.C. Section 3553(a) in
sentencing particular defendants. If this statute explicitly placed the
Sentencing Commission in the Department of Justice, its
unconstitutionality would be manifest: the executive department
responsible for prosecution of crimes cannot control the exercise of
discretion in determining punishment granted to Article III judges by
Section 3553(a). Placement of the Commission anywhere in the executive
branch is likewise unconstitutional because the President is the chief
prosecutor."
On the due process issue the court noted that, under the Guidelines,
while a defendant may contest facts relevant to sentencing, once the
court resolves such a dispute the sentence is automatically fixed within
a very narrow range. The court reasoned that "Congress cannot combine a
grant of discretion to the courts with such restrictions that the
results of the adjudicative process are dictated. . . . This is not an
interference with judicial discretion, it is a denial of due process in
that the defendant has no opportunity to convince the sentencing judge
that there are circumstances which override these point allocations.
The question is whether Congress may substitute for constitutional
courts, holding the judicial power, an administrative agency of any
kind, independent or otherwise, to make determinations of the factual
components of the sentencing criteria established in Section 3553(a)."
U.S. v. Elliott, No. 87-CR-393 (D. Colo. Apr. 13, 1988) (memorandum
opinion and order, Matsch, J.).
A district court in N.D. Ga. has held that the placement and
membership of the Sentencing Commission violate the separation of powers
doctrine. The court declined to follow U.S. v. Estrada, 680 F. Supp.
1312 (D. Minn. 1988), which had severed the Guidelines and sentenced
pursuant to the surviving provisions of the Sentencing Reform Act. "In
this Court's view, severance of the guidelines and the portion of the
Act that creates the Commission effects such a radical change in the
legislation that it becomes an entirely new bill. This Court would
prefer to leave the task of rewriting the Act to Congress."
U.S. v. Russell, No. 88-cr-7-MHS (N.D. Ga. Apr. 29, 1988) (order,
Shoob, J.).
A district court in S.D.N.Y. has held the Guidelines unconstitutional
on separation of powers grounds, concluding: "Either because the
Sentencing Reform Act gives the President power to remove Article III
judges serving on a commission in the judicial branch, or because the
Sentencing Reform Act requires judges to perform non-judicial functions
not authorized by Article III of the Constitution, the United States
Sentencing Commission, and the Sentencing Guidelines it has promulgated,
are unconstitutional." The court also concluded that "because the
Guidelines are a central element of the sentencing reform which became
effective on November 1, 1987," defendant would, if necessary, be
sentenced in accordance with prior law.
U.S. v. Olivencia, No. 88-Cr-64 (S.D.N.Y. April 20, 1988) (opinion
and order, Leisure, J.)
A district court in W.D. Wis. has held that the placement and
membership of the Sentencing Commission violate separation of powers and
the Guidelines are therefore invalid.
U.S. v. Molander, No. 88-CR-2-S (W.D. Wis. Apr. 15, 1988) (order,
Shabaz, J.).
Guidelines upheld as constitutional. A district court in D. Mass.
has upheld the Guidelines against separation of powers, delegation
doctrine, and due process challenges. The court stated that it was "in
substantial agreement with the conclusions" in U.S. v. Ruiz-Villanueva,
680 F. Supp. 1411 (S.D. Cal. 1988) and U.S. v. Chambless, 680 F. Supp.
793 (E.D. La. 1988), but was writing "to press an analysis of the
separation of powers issue in terms of the challenge presented, namely,
the power of Congress to address comprehensively the growing and
intractable problem of unfair disparity in sentencing with legislation
compatible with constitutional principles."
The court held that placing the Commission in the judicial branch did
not unconstitutionally expand the powers of the judiciary. "Since early
on," the court wrote, "Article III courts have been authorized to
promulgate rules affecting their administration, procedures and
operations." The Sentencing Commission "fits within these standards. . .
. Assigning judges to promulgate rules, pursuant to Congress'
direction, to guide federal judges in their sentencing discretion does
not expand the judicial function. It recognizes the relationship
between the branches, the roles each play in the sentencing process and
the need for the participation of the judiciary to provide against the
domination of one branch over another."
Addressing the claim that the presence of Article III judges on the
Commission impairs the judiciary by "intermingl(ing) the judicial and
executive function," the court first noted that the judges "serve as
commissioners, not judges. . . . (W)here individual judges voluntarily
accept an extrajudicial appointment that serves a non-judicial purpose,
there is no conflict with the constitution." Furthermore, the
President's removal power "is irrelevant to the function of the
judiciary in performing its constitutionally mandated tasks of deciding
cases. The power of the President over the judge-commissioners extends
over them only in their role as commissioners; the President has no
power to affect them in their role as judges."
In rejecting the due process challenge, the court cited the
"established principle" that a defendant has a legitimate interest in
the nature of the sentencing procedure and the right to be sentenced on
the basis of accurate and reliable information. The court then found,
however, that "it does not follow that only with completely unfettered
judicial discretion in sentencing can the due process rights of a
criminal defendant be protected. This argument not only cuts too
broadly, it also ignores the fact that discretion is not destroyed by
the guidelines, it is merely channelled." (Emphasis in original.)
Moreover, under the Guidelines "a defendant maintains the right to
participate in all phases of the pre-judgment process," and thus "is
left with a meaningful opportunity to be heard."
The court also rejected the defendants' "core function" and improper
delegation arguments.
U.S. v. Alves, No. 88-11-MA (D. Mass. May 3, 1988) (memorandum and
order, Mazzone, J.).
VOLUME 1 NUMBER 7
APRIL 28, 1988
Sentencing Reform Act unconstitutional, but Guidelines will be used
pending final decision on Act's validity. The district court of
Maryland has held the Sentencing Reform Act of 1984 unconstitutional on
separation of powers and due process grounds, but stayed the effect of
its holding and will sentence defendants under the Guidelines pending a
final determination of the Act's constitutionality. This appears to be
the first instance of a court's finding the Act unconstitutional but
deciding to apply the Guidelines. Oral argument in the case was heard
by six judges of the court, and the opinion was signed by all judges
sitting in the district. This also appears to be the first decision
regarding the Act joined by all the judges of a district court.
The court began its separation of powers analysis by reasoning that
when Congress sets "a range of potential sentences, it has created a
sphere of discretionary power which is inherently judicial in nature.
The Sentencing Reform Act and the mandatory guidelines promulgated
thereunder so narrowly restrict the exercise of the courts' discretion
that they effectively negate it." Thus, the court held, "the effect of
the Act and the guidelines is to violate the separation of powers
doctrine by transferring judicial power from the federal courts, whose
independence of judgment is constitutionally secured, to the Sentencing
Commission, whose fealty to Congress and the President is statutorily
prescribed."
The court found that "(f)ormal placement of the Commission within the
judicial branch . . . cannot alone save its constitutionality. . . .
(T)he fact that at least one non-Article III Commissioner must concur in
the promulgation of the guidelines and the other actions of the
Commission" violates separation of powers. This conclusion contrasts
with that in U.S. v. Ruiz-Villanueva, 680 F. Supp. 1411 (S.D. Cal. 1988)
(see GSU no. 2, Mar. 2, 1988), where the court held the presence of
non-Article III members does not violate separation of powers because
Commissioners do not exercise Article III powers.
The court also noted that placing the Commission in the executive
branch, as urged by the Department of Justice, would not resolve the
separation of powers problem. There is "no theory under which the
executive branch has any proper role in the establishment of statutory
penalties or the imposition of individual sentences. The former is a
legislative function, the latter a judicial one and neither may be
performed by an executive agency." (Emphasis in original.)
The court found that a "related and equal concern" to separation of
powers was "a broader problem of due process -- a concern for the fair
treatment of each defendant." Without finding a constitutional right to
"individualized sentencing," the court stated that "a defendant being
deprived of his liberty pursuant to a statute which sets a sentencing
range is constitutionally entitled to an articulated exercise of
discretion by the judge before whom he appears rather than to the
mechanical application of formulae adopted by non-constitutional
commissioners invisible to him and to the general public." The due
process rights of "accountability, reason and a fair opportunity to be
heard . . . cannot be replaced by any administrative code, however
extensively considered or precisely drawn." Another court previously
found a similar due process problem. See U.S. v. Frank, No. 87-226
(W.D. Pa. Mar. 30, 1988) ("mechanical sentencing procedure" which
"severely restrict(s) a district court's ability to individualize a
defendant's sentence" violates due process) (see GSU no. 5, Apr. 7,
1988).
Despite holding the Sentencing Reform Act unconstitutional, the court
concluded it would, "out of respect for a Congressional enactment of
such magnitude, stay the effect of this holding until the
constitutionality of the Act has been finally decided. In the interim
we will sentence defendants committing offenses on or after November 1,
1987, under the Act."
U.S. v. Bolding, No. JFM-87-0540 (D. Md. Apr. 14, 1988) (opinion
signed by all sitting judges of the court).
VOLUME 1 NUMBER 6
APRIL 13, 1988
Guideline sentencing provisions unconstitutional but severable. A
district court in D. Minn. has held the Sentencing Guidelines
unconstitutional on separation of powers grounds, but has determined
that the Guidelines provisions are severable from the remainder of the
Sentencing Reform Act and that other sections of the Act governing
sentencing should be followed.
The court found the guideline sentencing provisions of the Act
unconstitutional "both because they impermissibly grant substantive
legislative power to the judicial branch . . . and because they require
federal judges to perform duties which would substantially impair the
ability of the judiciary to function in an impartial manner." Through
the Sentencing Commission, "the judicial branch is directly given the
authority to legislate. A review of the Sentencing Reform Act reveals
Congress intended the Commission, in formulating the guidelines, to
proceed in a non-judicial manner in performing what has historically
been considered a uniquely legislative function -- prescribing the
punishment for crime." Furthermore, while the judicial branch may be
granted non-judicial powers within the "carefully limited exception
allowing the judiciary to exercise certain delegated authority to
fashion rules of practice and procedure in the federal courts," the
Guidelines are not limited to procedural rulemaking but constitute "an
invalid exercise of substantive legislative power."
Characterizing the Commission as part of another branch would not
save it, the court found, because judges may not perform non-judicial
functions in either their judicial or individual capacities. Moreover,
even if they could, the service of Article III judges on the Commission
"seriously threatens the impartiality of the judicial branch because it
could impermissibly bias, not only a judge who served on the Commission,
but also other federal judges," thereby substantially impairing the
function of the judiciary.
The court held, however, that the Guidelines are "severable from
other sections of the Sentencing Reform Act and important sections
remain valid." The court reasoned that "(t)he question of severing an
unconstitutional provision turns largely on legislative intent, with a
presumption favoring severability," and that by preserving the remainder
of the Act "important purposes and goals relating to sentencing reform
which Congress intended to advance will remain in effect." Accordingly,
the court concluded it must follow the detailed sentencing standards and
principles set forth in the Act, "must impose a 'real time sentence' and
must state its reasons for imposing that sentence. Moreover, provisions
of the Act providing for appellate review remain applicable."
This is the first decision reported in Guideline Sentencing Update in
which the court severed the Guidelines and applied other sections of the
Act in sentencing. Other judges who found the Guidelines invalid and
have dealt with the issue of which sentencing law to apply have stated
they would sentence defendants as if their conduct occurred prior to the
effective date of the Guidelines. See, e.g., U.S. v. Arnold, 678 F.
Supp. 1463 (S.D. Cal. 1988); U.S. v. Tolbert, No. 87-10091-01 (D. Kan.
Apr. 8, 1988) (summarized below).
U.S. v. Estrada, No. CR5-87-22 (D. Minn. Mar. 31, 1988) (memorandum
opinion and order) (Heaney, J., sitting by designation).
Guidelines invalid on separation of powers grounds. A district court
in D. Kan. has held the Guidelines invalid because they "were
promulgated by a constitutionally flawed commission." Placement of the
Commission in the judicial branch violates separation of powers "because
it gives the judiciary substantive rulemaking ability beyond its limited
authority to determine 'cases' and 'controversies'" and to formulate
procedural rules. Furthermore, the Sentencing Reform Act "improperly
gives the President removal power over the commissioners in violation of
the principles enunciated in" Bowsher v. Synar, 478 U.S. 714 (1986).
The court also "decline(d) to rewrite the Sentencing Reform Act in
order to place the commission within the executive branch." Congress
clearly intended the Commission to be in the judicial branch, the court
found, and placing it in another branch would still present separation
of powers problems because of the composition of the Commission. The
mandatory participation of three judges "threatens the impartiality of
judges on the commission as well as other federal judges," and thus
"potentially impairs the proper functioning of the judiciary." Moreover,
"service by any Article III judge on any commission, whose duty it is to
legislate, offends Article III of the Constitution." (Emphasis in
original.)
The court stated that defendant will be sentenced as if his criminal
conduct occurred prior to the effective date of the Guidelines.
U.S. v. Tolbert, No. 87-10091-01 (D. Kan. Apr. 8, 1988) (memorandum
and decision) (Kelly, J.).
VOLUME 1 NUMBER 5
APRIL 7, 1988
Constitutionality of Commission upheld; another judge in the
district disagrees, finds Guidelines legislatively invalid. A district
judge in W.D. Mo. has held that "the Guidelines are not subject to valid
challenge based on claims that (1) the Sentencing Commission lacks
constitutional status or (2) there has been an unconstitutional
delegation of legislative power." The opinion noted that three other
judges of the district agreed with this conclusion. One other judge
issued a written opinion dissenting from the conclusion, finding the
manner in which Congress delegated power to the Commission to formulate
the Guidelines violated the constitutional requirements of majority
passage and presentment. Arguments were heard by seven judges of the
district who are responsible for the processing of criminal cases.
The court declined to hold that Congress could not lawfully delegate
the power to create the Guidelines, and noted that no other court has
accepted a non-delegation challenge. In assessing the constitutional
status of the Commission, the court concluded that while "the work of
the Commission in carrying out the Congressional mandate can more
conventionally be described as executive rather than judicial,"
voluntary service by judges in the executive branch is not
unconstitutional and that characterizing the Commission as an executive
agency "avoids any problem that would otherwise exist relating to the
Presidential power of removal."
The judge also commented that there "are strong policy arguments and
possibly constitutional arguments against" using preponderance of the
evidence as the standard of proof for resolving contested facts in
sentencing, and stated that he expects to continue using the clear and
convincing evidence standard.
The dissenting judge found the Guidelines "should properly be
categorized as 'legislation' rather than validly promulgated
administrative rules." As such, the Guidelines are "constitutionally
infirm" because they were not, as required by Article I, Sections 1 and
7 of the Constitution, passed by a majority of both houses of Congress
and presented to the President. Moreover, Congress cannot delegate to
an independent agency or commission the power to "'regulate' federal
judges by enacting binding sentencing guidelines which restrict the
sentencing discretion of Article III judges and which have the force and
effect of law." Such a restriction could only be enacted through
legislation.
U.S. v. Johnson, No. 87-00276-01 (W.D. Mo. Apr. 1, 1988) (memorandum
and order); U.S. v. Johnson, No. 87-00276-01 (W.D. Mo. Apr. 5, 1988)
(Wright, C.J., dissenting from result).
Guidelines held unconstitutional on due process, separation of powers
grounds. A district court in W.D. Pa. has held that the Sentencing
Guidelines violate the due process clause of the fifth amendment by
mandating a procedure that unduly limits a defendant's right to present
relevant evidence for a sentencing court's consideration. The court
also held that the Sentencing Reform Act of 1984 violates the separation
of powers doctrine.
Defendant contended that the guideline sentencing procedure would
prevent the district court from according proper weight at sentencing to
the individual circumstances of his case. The court agreed, finding
that the "mechanical sentencing procedure" in the Guidelines "severely
restrict(s) a district court's ability to individualize a defendant's
sentence." Once the facts are found, the court noted, "the guidelines
establish the sentencing range, not the judge." The court then found
that the defendant has a due process right to "affect a court's
assessment of a proper sentence," and that this right involves not just
the "determination of the existence of facts," but also the opportunity
to influence "the weighing of facts as a whole to determine the
appropriate sentence."
In determining what process was due the defendant, and whether the
guideline procedures satisfied this right, the court applied the
four-factor balancing test of Mathews v. Eldridge, 424 U.S. 319, 335
(1976). The court found that all four factors favored defendant, and
held that the "guideline procedures applicable here do not adequately
protect the due process right of defendant to present evidence and to
challenge the basis of his sentence before a court which has the
authority to weigh the evidence and determine an appropriate sentence."
On the separation of powers claim, the court adopted the reasoning of
U.S. v. Arnold, 678 F. Supp. 1463 (S.D. Cal. 1988) (see GSU no. 1, Feb.
26, 1988), finding that the location of the Commission in the judicial
branch is unconstitutional because the Commission's powers and duties
are primarily executive. Moreover, even if the language placing the
Commission in the judicial branch could be severed from the remainder of
the Act, the mandatory service of three judges on the Commission
"renders unconstitutional the Sentencing Reform Act of 1984 and the work
product of the Commission, namely, the Sentencing Guidelines."
U.S. v. Frank, No. 87-226 (W.D. Pa. Mar. 30, 1988) (opinion and
order).
Structure of Commission violates separation of powers. A district
court in D. Colo. has held the Sentencing Guidelines invalid because the
structure of the Sentencing Commission "mandates the constant
involvement of Article III judges in an ongoing and continuous executive
process" in violation of separation of powers. The court examined at
length the separation of powers principle, the distribution of the
sentencing power among the three branches of government, and the
Commission's composition and functions. The court reasoned that by
requiring judicial membership on a commission that "is clearly executive
in nature," the Sentencing Reform Act of 1984 "radically undermines the
concept of an impartial judiciary, free from executive or legislative
interference." The collaboration between the judiciary and the other
branches of government the Act creates not only serves to tarnish the
reputation of the judiciary as independent of and completely divorced
from those other arms of government, but also in fact compromises its
very independence." The court also considered and rejected a challenge
to the Guidelines on delegation of powers grounds and added some
"observations" on "a number of further problems with this Act which must
be highlighted, but which have not been raised by defendant."
U.S. v. Smith, No. 87-CR-374 (D. Colo. Mar. 25, 1988) (memorandum
opinion and order).
VOLUME 1 NUMBER 4
MARCH 29, 1988
Placement of Sentencing Commission in judicial branch held severable
from Sentencing Reform Act as Guidelines upheld against constitutional
and statutory challenge. A district court in N.D. Ga. has upheld the
constitutionality of the Sentencing Guidelines, holding that although
the Sentencing Reform Act (SRA) establishes the Sentencing Commission as
a judicial agency in violation of the separation of powers doctrine, the
designation provision is severable from the Act. The court found that
the President's power to remove Commissioners under the Act "establishes
the Commission as an executive agency." Nonetheless, the court concluded
that the remainder of the Act would be valid if it would continue to
function in a manner consistent with congressional intent after the
invalid designation provision was stricken. Finding that "(t)he
legislative history of the SRA makes it plain that Congress was more
concerned with sentence reform than with 'judicial' placement of the
Commission," the court held that although "the Commission is
impermissibly designated a judicial agency . . . this designation is
severable from the Act."
The court also rejected defendants' contention that judicial
membership on the Commission violated separation of powers: "(I)t is
well-settled that Article III judges may, and do in certain instances,
engage in non- (quasi-) judicial service." The court distinguished In re
Application of the President's Comm'n on Organized Crime (Scaduto), 763
F.2d 1191 (11th Cir. 1985), noting that the judicial members of the
organized crime commission "were de facto required to adopt a
pro-Government stance." In this case, however, "there is no equivalent
danger that the judicial members of the Commission will adopt a partisan
outlook on sentencing."
As to defendants' claims that Congress can never delegate the task of
fixing criminal sanctions and that even if it could the delegation in
this case was without sufficient guidance, the court held that "the
delegation of power to the Commission is constitutionally valid." The
court also rejected various statutory challenges to the Guidelines.
U.S. v. Erves, No. CR87-478A (N.D. Ga. Mar. 22, 1988) (order denying
motion to preclude application of Sentencing Guidelines).
VOLUME 1 NUMBER 3
MARCH 16, 1988
Guidelines upheld against constitutional, statutory challenge. A
district court in E.D. La. has upheld the validity of the Sentencing
Guidelines, holding that the statute creating the U.S. Sentencing
Commission is constitutional, and that the Guidelines were adopted in
accordance with the statutory mandate.
CONSTITUTIONALITY: Defendants attacked the constitutionality of the
Sentencing Reform Act of 1984 on three grounds: Congress unlawfully
delegated its authority to fix criminal penalties; the presence of
judges on the Commission violates the separation of powers doctrine;
and the President's power to remove Commissioners constitutes an
impermissible control by the executive over the judiciary. In rejecting
the delegation doctrine argument the court found that "the Act provides
ample detail to confine the authority delegated to the Commission," and
this was not a case that compelled revival of the delegation doctrine,
"which has remained dormant since 1935." The presence of judges on the
Commission does not violate separation of powers because constitutional
history and prior case law demonstrate that "individual judges may
exercise extra-judicial power while courts may not." In addition, the
service of judges on the Commission does not impermissibly impair the
functioning of the judiciary: the Commission is not involved in
criminal investigation or enforcement and thus "there is no risk of
partiality" on the part of judge-Commissioners; any lack of
impartiality could be resolved through recusal; such recusal would not
interfere with the work of the courts; and the service of judges on the
Commission will not adversely affect the impartiality of the federal
judiciary in construing or applying the Guidelines.
The President's power to remove Commission members does not
constitute "prosecutorial control over the adjudicator" in violation of
due process, the court held. The Commission's work "is executive in
nature, rather than judicial," and sentencing is not strictly a judicial
function. (Emphasis in original.) Nor does the removal power violate
separation of powers: In assessing its constitutionality, "we look to
the functions performed by the Commission. While the Commission is
situated in the judicial branch, the duties imposed on the Commission
are . . . executive in nature. Hence the removal power is properly
vested in the Chief Executive."
STATUTORY CHALLENGES: The court found the Guidelines are not
contrary to the enabling statute, and submissions to Congress by the
Commission and the GAO were sufficient under the statute to trigger the
November 1, 1987 effective date.
STANDING: The government contended that defendants lacked standing
unless the court determined initially that defendants would have
received a heavier sentence under the new sentencing law than before.
The court rejected this argument, finding that even if the Guideline
sentences would not be longer, defendants had a "personal stake" because
the actual time served under the Guidelines would likely be greater
because of the abolition of parole. Moreover, under the new sentencing
law each defendant "faces a period of supervised release to which he
would not otherwise be subject."
U.S. v. Chambless, No. 87-609 (E.D. La. March 9, 1988) (reasons for
judgment).
Trial courts lack authority to apply Sentencing Guidelines to
offenses committed before November 1, 1987. A district court has denied
a defendant's request to be sentenced under the Sentencing Guidelines
for a crime committed before the Guidelines' effective date. Defendant
asked to be sentenced under the Guidelines if the judge intended to
impose a term of incarceration that exceeded the Guideline calculation
that had been prepared in his case for information and training purposes
by the probation department. The court denied his request, stating that
courts have "no inherent power to impose a sentence, absent legislative
authority," and by statute the Guidelines do not apply to offenses
committed before November 1, 1987. Therefore, "this court is without
power to sentence (defendant) under the Guidelines, even if it were so
to desire." The court also observed that the sentencing legislation and
the Guidelines together comprise "a new system of sentencing," and
therefore "it would be impossible to impose the guideline range sentence
. . . without applying the rest of the provisions of the new sentencing
system." (Emphasis in original.)
U.S. v. Kelly, No. 87-571 (S.D.N.Y. Feb. 25, 1988) (order). Cf. U.S.
v. Rewald, 835 F.2d 215, 216 (9th Cir. 1988) (provisions of Sentencing
Reform Act of 1984 do not apply to defendant sentenced prior to
effective date of Act); U.S. v. Deckard, 675 F. Supp. 1127, 1128-29
(N.D. Ill. 1987) (Sentencing Reform Act of 1984 may not be used to seek
modification of sentence imposed prior to effective date of the Act).
VOLUME 1 NUMBER 2
MARCH 2, 1988
Constitutionality of Sentencing Guidelines upheld. A district court
decision in the Southern District of California has upheld the
Sentencing Guidelines against a constitutional challenge on
nondelegation doctrine and separation of powers grounds. This decision
is contrary to earlier rulings in the same district holding the
Guidelines invalid because the Sentencing Reform Act of 1984 violates
separation of powers. See U.S. v. Arnold, No. 87-1279-B (S.D. Cal. Feb.
18, 1988) (order granting motion to invalidate Guidelines); U.S. v.
Manley, No. 87-1290-R (S.D. Cal. Feb. 18, 1988) (order adopting
reasoning in Arnold).
Defendants argued that the Guidelines violate the nondelegation
doctrine because Article I prohibits Congress from delegating the task
of fixing penalties for federal crimes, a "core function" of the
legislature, and, alternatively, that if Congress could delegate this
power the delegation was overbroad. Rejecting both arguments, the court
"decline(d) to find that some 'core functions' are by nature
nondelegable," and even if they were "it is impossible for the court to
conclude that sentencing is strictly a legislative 'core function'"
because federal sentencing duties "traditionally have been distributed
throughout all three branches of government." Moreover, Congress met the
standard for a proper delegation by "set(ting) out intelligible
standards and statements of purpose" to guide the Commission.
For purposes of its separation of powers inquiry, the court concluded
that "the Commission is properly regarded as an independent commission
within the judiciary," finding that "Congress expressly created an
'independent commission' -- a body that . . . would assist in the
primarily judicial task of sentencing without itself exercising the
judicial power." This does not exceed the scope of the judicial power,
the court found, because "it is well settled that Congress may authorize
judges to perform tasks that aid in the performance of their judicial
functions."
The court found that "the Act does not impair the functioning of the
judiciary," because the "(p)lacement of judges on the Commission . . .
does not compromise judicial independence or impartiality."
Additionally, "the displacement of the three judges from their
adjudicative capacities" to serve on the Commission "is not a sufficient
intrusion upon the judiciary as a whole to warrant finding a functional
impairment." Judge-Commissioners who return to the bench may avoid
"(a)ny apparent residual prejudice or impartiality . . . through recusal
and reassignment of cases."
The court rejected the argument that powers granted to the President
by the Act give "the executive branch an unconstitutional measure of
control over the Commission." The Act "spread(s) the selection power
among all three branches of government," the court found, thereby
guarding against "executive dominance." Moreover, "the power of the
President to remove members of the Commission does not infringe upon an
exclusively judicial function" because the Commission "performs a
sentencing function which has never been regarded as exclusively
judicial," and though the Commission is in the Judicial Branch, it "is
not an exclusively judicial entity."
Finally, the court held that the presence of non-Article III members
on the Commission does not violate separation of powers because "members
of the Commission . . . do not decide cases or controversies and
therefore do not partake of the Article III power." (Emphasis in
original.)
U.S. v. Ruiz-Villanueva, No. 87-1296-E (S.D. Cal. Feb. 29, 1988)
(memorandum decision and order).
VOLUME 1 NUMBER 1
FEBRUARY 26, 1988
Sentencing Guidelines held invalid on separation of powers grounds.
A district court has held the Sentencing Guidelines invalid because the
Sentencing Reform Act of 1984 violates the separation of powers doctrine
by locating the Sentencing Commission in the Judicial Branch and
mandating the service of at least three article III judges. The court
found the Commission's duties and powers are executive, not judicial, in
nature. Moreover, even if the Commission were removed from the Judicial
Branch, the mandatory participation of judges on the Commission "impairs
their ability to perform their article III duties" and threatens the
"actual and apparent impartiality and independence" of the Judicial
Branch by excessively mixing the judicial and executive functions.
Because "it is impossible to exclude from prior actions of the
Commission the influence of the three judge-Commissioners," the court
held, the Guidelines are invalid. Defendants had also argued that the
Act constituted an excessive delegation of legislative power. The court
rejected this contention, finding that "(t)he Act provides ample
statements of policy and specific rules to guide the Commission's
exercise of the delegated authority."
The decision was on a pretrial motion after the two defendants had
pled not guilty. Even though "(t)he Guidelines may never be invoked in
this case," the court held the matter ripe for decision because the need
for a determination was substantial and the issues were purely legal and
thus fit for judicial action.
U.S. v. Arnold, No. 87-1279-B, slip op. (S.D. Cal. Feb. 18, 1988).
The motion in Arnold was argued before several other judges in the
district, sitting in their individual capacities, who had similar issues
pending in cases before them. An order has been issued in one of those
cases, adopting the reasoning of Arnold.
U.S. v. Manley, No. 87-1290-R, slip. op. (S.D. Cal. Feb. 18, 1988).
Defenders lack standing to challenge Guidelines' constitutionality.
A district court has dismissed for lack of standing a declaratory
judgment action brought by two public defender organizations challenging
the constitutionality of the Sentencing Guidelines on non-delegation
doctrine and separation of powers grounds. The court held the asserted
grounds for standing, increased workload and potential ethical problems,
were insufficient. Any workload effects were no greater than those
caused to other groups of lawyers by other legislative changes, and the
potential ethical problems were neither certain nor insoluble. The
court noted "that a prompt resolution" of the issues raised by
plaintiffs "is crucial," but determined "it is neither appropriate nor .
. . expedient . . . to stretch traditional standing principles to
accommodate this particular case."
Federal Defenders of San Diego v. U.S. Sentencing Commission, No.
87-3181, slip op. (D.D.C. Feb. 22, 1988).
Current
Sentencing
Offense DOJ Proposal Guidelines
Unlawful Possession of
firearm by:
(1) felon with at least 2 prior 30 (up to 26
felony convictions of either a statutory
crime of violence or a controlled maximum)
substance offense and the offense
involved a firearm listed in
Section 5845(a) (machine gun,
sawed-off shotgun)
(2) felon with at least 2 prior 28 24
felony convictions of either a
crime of violence or a controlled
substance offense
(3) felon with at least one prior 26 22
felony conviction of either a
crime of violence or a controlled
substance offense, and the
offense involved a firearm listed
in Section 5845(a) (machine
gun or sawed off shotgun)
(4) felon with at least one prior 24 20
felony conviction of either a
crime of violence or a controlled
substance offense
or is a prohibited person (e.g., 24 20
fugitive) and the offense
involved a firearm listed in
Section 5845(a) (e.g., machine
gun or sawed off shotgun)
(5) if the offense involved a 22 18
machine gun or sawed off shotgun
(6) if the defendant is a 18 14
prohibited person (e.g.,
fugitive)
Proposed Proposed
Current Guidelines Upward Departure Result
1-time felon =20 No Change 20
1-time felon
+ machine gun =22 No Change 22
1-time felon
+ semi =20 +2 levels 22
1-time felon
+ gang =20 +2 levels 22
1-time felon
+ gang
+ semi =20 +4 levels 24
1-time felon
+ gang
+ semi
+ other
aggravating
circumstances =20 +6 levels 26
1-time felon
+ gang
+ machine gun =22 +2 levels 24
1-time felon
+ gang
+ machine gun
+ aggravating
circumstances =22 +4 levels 26
2-time felon =24 No change 24
2-time felon
+ machine gun =26 No change 26
2-time felon
+ semi =24 +2 levels 24
2-time felon
+ gang =24 +2 levels 24
2-time felon
+ gang
+ semi =24 +4 levels 28
2-time felon
+ gang
+ semi
+ other
aggravating
circumstances =24 +6 levels 30
2-time felon
+ gang
+ machine gun =26 +2 levels 28
1-time felon
+ gang
+ machine gun
+ aggravating
circumstances =26 +4 levels 30
Category: I II V VI
Priors: (0 or 1) (2 or 3) (10-12) (13 or
more)
Offense
Level
20 33-41 37-46 63-78 70-87
21 37-46 41-51 70-87 77-96
22 41-51 46-57 77-96 84-105
23 46-57 51-63 84-105 92-115
24 51-63 57-71 92-115 100-125
25 57-71 63-78 100-125 110-137
26 63-78 70-87 110-137 120-150
27 70-87 78-97 120-150 130-162
28 78-97 87-108 130-162 140-175