Sentencing Commission Issues Long-Awaited Report on the Continuing Impact of United States v. Booker on Federal Sentencing Part 1

Posted by Chris Morales on Mon, Mar 04, 2013 @ 04:14 PM

Sentencing Commission Issues Long-Awaited Report on the Continuing Impact of United States v. Booker on Federal Sentencing

The Commission issued its multi-part report on the impact of Booker. Part A contains the “Executive Summary” and weighs in at 115 pages. Other parts contain: B) case law; C)analysis of various offenses such as drug, trafficking, immigration, child pornography, and career offenders; D) analysis of below guideline sentences; E) demographic differences in sentences; and F) sentencing reform. Below is the summary of recommendations:

The Commission continues to believe that a strong and effective guidelines system best achieves the purposes of the SRA. Consistent with its October 12, 2011 testimony before the Subcommittee on Crime, Terrorism, and Homeland Security of the House Committee on the Judiciary, the Commission believes that Congress should consider the following recommendations to strengthen the guidelines system, provide more effective substantive appellate review, and generally promote the goals of the SRA:
} Develop more robust substantive appellate review by requiring a presumption of reasonableness on appellate review of within range sentences, greater justification for sentences further outside the guideline range, and heightened review of sentences based on policy disagreementswith the guidelines;
} Reconcile the statutes that restrict the Commission’s consideration of certain offender characteristics when promulgating guidelines that meet the purposes of sentencing, with statutory interpretations that require courts to consider more expansively those same offender characteristics at sentencing;
} Codify the three-step sentencing process, as incorporated in the guidelines and consistent with the process the Supreme Court established in Gall, which requires courts to determine properly the applicable guideline range (see § 3553(a)(4)), consider guideline departures and policy statements (see § 3553(a)(5)), and then consider the remaining section 3553(a) factors taken as a whole in determining the sentence to be imposed, including whether a variance is warranted; and

} Resolve the uncertainty about the weight to be given to the federal sentencing guidelines by requiring courts to give substantial weight to the guidelines at sentencing.

The Commission believes these proposals, if adopted, would promote the purposes of the SRA, while respecting the defendant’s Sixth Amendment rights. As envisioned by the SRA, the Commission will continue to refine the guidelines in response to feedback and information it receives from the criminal justice community and data it collects from sentencing documents.
The Commission also understands that more substantial reforms may be necessary in the future should these reforms fail to reduce existing unwarranted disparities.

General Information
(Chapter 1)
United States v. Smith
2013 WL 285548 (10th Cir. 2013)

Loss on property not listed in indictment could be included as relevant conduct. The defendant was a real estate investor who conspired to defraud mortgage lenders by setting up sales to straw buyers at inflated prices, with the excess loan proceeds being distributed to thedefendant and others. The indictment alleged the sales of two houses as overt acts. Both houses were purchased at inflated prices, with the defendant receiving an “extraordinarily high” combined commission and bonus, and then splitting the money with the buyer. Both houses were sold at a substantial loss after foreclosure. A jury found the defendant guilty of conspiracy to commit wire fraud in regard to real estate mortgages, but could not
reach a verdict on the other four counts (wire fraud and money laundering). These counts were ultimately dismissed without prejudice. The district court included in its loss calculation the purchase of a third house that the defendant’s wife bought at an inflated price. The primary difference between this transaction and the other two was that, instead of the defendant receiving cash at closing, he received $60,800 in “purported rent” from the builder, who lived in the house for several months after is was purchased. The mortgage paperwork for the third home contained falsified bank records supporting inflated income figures for the wife, and the same appraiser provided a fraudulent appraisal. Using all three properties, the district court calculated a total loss amount of $369,455 by subtracting the sales price at foreclosure from the outstanding principal amount. This resulted in a sentencing range of 37 to 46 months. The court sentenced the defendant 40 months. The defendant argued on appeal that the transaction for third house differed from the other  two: it was his private residence and there was nothing illegal about the rental agreement; thus it was not relevant conduct. “We conclude that the district court did not err in considering the sale of this house as relevant conduct.” Though there were some dissimilarities, the sale of third property “still involved a common purpose, common accomplices, and, at least in some aspects, a similar modus operandi.” In all three transactions the defendant defrauded lenders into providing excessive loans based on inflated prices and false loan applications. Further, the third transaction “occurred in temporal proximity to the other two offenses, falling in between the two sales mentioned in the indictment. The fact that the defendant did not involve his indicted co-conspirators in this sale does not remove it from the realm of relevant conduct. Nor are all of the other common factors between the transactions mooted simply because Defendant recovered the artificially inflated loan proceeds via a sham rental scheme rather than sham realtor bonuses.” The sale of the third property “was properly counted as relevant conduct.”

Published By Joaquin & Duncan, L.L.C.;
A Law Firm of Federal Sentencing Attorneys 

We would like to thank our friends Joaquin & Duncan, L.L.C for sharing this information with us. 

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