Sentencing Commission Issues Long-Awaited Report on the Continuing Impact of United States v. Booker on Federal Sentencing Part 3

Posted by Chris Morales on Fri, Mar 08, 2013 @ 04:34 PM

Sentencing Commission Issues Long-Awaited Report on the Continuing Impact of United States v. Booker on Federal Sentencing Part 3

Sentence Adjustments (Chapter 3)
United States v. Tasaki 2013 WL 69356 (6th Cir. 2013)

Reaching for gun, discarding it in residential area warranted §3C1.2 enhancement Police officers attempted to stop a speeding vehicle, but it continued to drive for approximately a half mile before coming to a stop. Immediately upon stopping, the defendant jumped from the vehicle and ran away. The officers pursuing the defendant saw him reach into his pocket, retrieve a firearm, and discard it, along with an empty thirtyround magazine. The officers caught the defendant shortly thereafter and found an additional sixteenround magazine in his pocket. The gun was recovered and found loaded with sixteen rounds. The defendant pled guilty, without a plea agreement, to a single count of felon in possession of a firearm. The PSR recommended application of a two-level enhancement for reckless endangerment during flight, §3C1.2, to which the defendant objected. The district court applied the enhancement because: 1) the defendant reached for a gun while he was running away from police, thus creating the risk that the pursuing officers would perceive a threat and discharge their own weapons; and 2) he discarded a loaded firearm in a residential area, thus creating a risk of serious injury to other individuals in the area. The enhancement resulted in a sentencing range of 100 to 120 months and the court imposed a sentence of 100 months. On appeal, the defendant, relying on United States v. Cespedes, 663 F.3d 685 (3rd Cir. 2011), claimed that the enhancement did not apply because he did not point his gun at the police, and that the government did not present evidence showing that there were other persons around when he discarded his weapon. The government responded by citing United States v. May, 430 F. App’x 520 (6th Cir. 2011), where the Sixth Circuit upheld the district court’s application of the enhancement for reckless endangerment. The appeals court acknowledged that the defendant did not point his gun at the police or discard the weapon in the presence of children or  other individuals, but the defendant’s reaching for the gun while the police pursued him and discardingit in a residential neighborhood “created a substantial risk of serious bodily injury to the officer, and anyone potentially present or finding the firearm.” The sentence was affirmed.

United States v. Ndirobe 2013 WL 45882 (7th Cir. 2013) Five-year flight from arrest was obstruction of justice under §3C1.1(1)

In September 2006 the defendant, a Nigerian living in Chicago, learned that police were at the
home of a co-conspirator. He called his own home and heard strange voices, then called his drug supplier to warn him that the police were closing in on the drug ring. He then made arrangements to acquire a passport (under an alias) and a plane ticket from New York to Nigeria, and later to Amsterdam, where he lived for several years. After being arrested, he was extradited to the United States. He had evaded arrest for five years. Upon returning to the United States he pled guilty to a heroin offense and was sentenced to 116 months, which included a two-level enhancement for obstruction of justice. On appeal, the Seventh Circuit explained that §3C1.1(1) adds two offense levels if “the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction.” However, the application notes contain a nonexclusive list of acts of obstruction, as well as a list of conduct that does not warrant the enhancement, including “providing a false name or identification document at arrest” (unless it caused “a significant hindrance to the investigation or prosecution”) and “avoiding or fleeing from arrest” (unless the flight caused “reckless endangerment”). Based on this language, the defendant argued that the enhancement did not apply to him because he had no duty to surrender, thus his leaving the country was not obstruction. The court conceded that the defendant had no duty to surrender, but “he did a lot more than just not drive to the nearest police station and give himself up. There’s a difference between not making it easier for the  police to arrest you and making it much harder for them to do so.” Relying on United States v. Arceo, 535 F.3d 679 (7th Cir. 2008), the court affirmed thesentencing holding: “Flight from arrest isobstruction of justice within the meaning of theguideline . . . if it is likely to burden a criminalinvestigation or prosecution significantly likely to make the investigation or prosecution significantly more costly or less effective than it would otherwise have been, a criterion easily satisfied in this case.” The court added that warning his co-conspirator that the police were closing in “might well be thought an implied instruction to destroy the drugs in order to eliminate a potent form of evidence in a drug prosecution. That would be an independent act of obstruction of justice, either attempted or completed, depending on whether the supplier heeded the warning and destroyed the drugs.”

United States v. Andres 2013 WL 49481 (5th Cir. 2013) §3B1.4 enhancement for using a minor to commit a crime was warranted

U.S. Immigration and Customs Enforcement, in conjunction with the DEA, conducted an
investigation into a drug trafficking organization in Laredo, Texas. While conducting surveillance, agents saw a member of the organization park a red pickup truck and a car-carrier trailer in front of a Holiday Inn. The agents suspected that the truckcontained approximately 20 kilograms of cocaine hidden in a secret compartment. Later the agents watched as the defendant got in the truck and drove away. Riding with the defendant in the truck were a female passenger (Gutierrez) and Gutierrez’s minor daughter. The agents stopped the truck near Chicago for an alleged traffic violation and, after being given consent to search, found over 20 kilos hidden in it. The defendant waived his right to jury trial and consented to a bench trial based on stipulated facts. The district court found him guilty of conspiracy to possess with intent to distribute more than five kilograms of cocaine. The PSR recommended a two-level enhancement pursuant to §3B1.4, “Using a Minor to Commit a Crime,” because the defendant and Gutierrez had brought Gutierrez’s four-year-old daughter “to make the  appearance of a family who was traveling and thus to avoid the detection of the narcotics that were being concealed in the vehicle.” The district court overruled the defendant’s objection and imposed a sentence of 135 months. On appeal, the defendant argued that the enhancement did not apply because the child was already in the vehicle when he received it, thus he did not take any affirmative action to involve her in the offense. The Fifth Circuit acknowledged that the mere presence of a minor at the scene of a crime was insufficient tosupport an enhancement based on §3B1.4; a defendant must “take some affirmative action to involve the minor in the offense.” However, “[e]ven assuming that Gutierrez’s daughter was already in the truck when [the defendant] received it, the district court did not err in concluding that [his] choosing to drive a truck containing over twenty kilograms of cocaine and a four-year-old girl from Laredo to Chicago constitutes an ‘affirmative act’ involving a minor in the offense. Accordingly, the district court did not err in applying the §3B1.4 enhancement.”

Probation/Supervised Release (Chapter 7)
United States v. Fraga 2013 WL 127840 (5th Cir. 2013) Automatically imposing lifetime supervised release affected substantial rights

On January 4, 1994, the defendant was convicted of sexual assault in Wisconsin, sentenced to three years of probation, and was required to register as a sex offender until March 14, 2016. In June 2011, the defendant was found living in Texas. He was charged with one count of failing to register as a sex offender and he pled guilty. The PSR calculated a base level of 14, reduced by two levels for acceptance of responsibility, resulting in a total offense level of 12, with a criminal history category of II, which resulted in a sentencing range of 12 to 18 months and a supervised release term of five years to life. The PSR also included details of the defendant’s criminal history, which, in addition to the 1994 Wisconsin conviction, included nine prior  convictions ranging from battery, disorderly conduct (on four occasions), burglary and theft, operating a vehicle without carrying a license, and operating a vehicle under the influence. Two of those disorderly conduct violations involved assaults on women. Because of the age of the offenses, many of them were not counted in the criminal history calculation. The PSR ultimately recommended an upward variance to a sentence of 27 months and a lifetime term of supervised release, a recommendation the district court adopted. When explaining the reasons for the sentence, the judge stated that she “usually” gave “life supervised release in these situations.” The Fifth Circuit reversed the supervised release portion of the sentence as unreasonable, citing United States v. Alvarado, 691 F.3d 592 (5th Cir. 2012), where the district court’s automatic lifetime sentence of supervised release, without any analysis of the circumstances of the crimes, was unreasonable. In the present case, “at the time she imposed thesentence, the sentencing judge did not give reasons for her decision to impose a lifetime term of supervised release. As such, in light of Alvarado, we must vacate the order regarding the lifetime term of supervised release and remand the case for further proceedings on that issue.”

Fair Sentencing Act United States v. Pleasant
2013 WL 11892 (9th Cir. 2013) Sentence reduction unavailable under FSA

The defendant pled guilty pursuant to a Rule 11(c)(1)(C)1 plea agreement and, in doing so,
admitted that he had possessed over twelve grams of crack cocaine. The plea agreement recognized that he qualified as a career offender under §4B1.1, but provided that his sentence should be at the low end of the guidelines for crack-cocaine offenses; i.e., §2D1.1(c). The district court accepted the plea agreement, granted a variance from the Career Offender guidelines, and imposed a sentence of 77 months. On November 1, 2010, the Sentencing Commission issued Amendment 748, which revised penalties for crack cocaine offenses. The  Commission then issued Amendment 750, which made the Amendment 748 changes permanent. Finally, the Commission issued Amendment 759, which: (1) made the Amendment 750 changes retroactive; and (2) modified §1B1.10, which governs when a sentence may be reduced by reason of a retroactive guideline amendment. In light of these amendments, the defendant filed for a reduction of sentence under 18 U.S.C. §3582(c)(2). The government argued that he was not entitled to a reduction because his applicable guidelines were the Career Offender guidelines, which had not been amended. The district court granted the motion, holding that under Freeman v. United States, --- U.S. ----, 131 S. Ct. 2685 (2011), the original sentence was “based on” the crack-cocaine guidelines, and imposed a new sentence of 60 months. The government appealed. The Ninth Circuit explained that under Freeman, the defendant’s sentence was clearly based on the crack-cocaine guidelines because the plea agreement expressly relied on §2D1.1(c). However, to meet the requirements of §3585(c)(2), the sentence reduction also had to be consistent with §1B1.10(a)(1), which allows a reduction only if “the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines . . . .” The government contended that the applicable guidelines were the Career Offender guidelines, while the defendant argued that, under Freeman, the applicable guideline was §2D1.1. Based on §1B1.10, Application Note 1(A), the court reversed, holding that the applicable guideline range was the Career Offender range because “§3582(c)(2) is triggered only by an amendment . . . that lowers the applicable guideline range; i.e., the guideline range that corresponds to the offense level and criminal history category determined . . . determined before consideration of any departure provision in the Guidelines Manual or any variance.” Consequently, “§1B1.10 mandates that the Career Offender guidelines were [the defendant’s] ‘applicable guidelines’; thus, the district court did not have jurisdiction either to hear [his] §3582(c) motion or to act sua sponte.” 

United States v. Grant 2013 WL 149799 (8th Cir. 2013)

Remand based on district court’s failure to provide justification for amended sentence
The defendant was convicted of one count of conspiracy to distribute and possess with intent to distribute at least 30 but less than 50 grams of crack cocaine and was sentenced to 170 months, the middle of the range of 151 to 188 months. In 2008, he moved for a sentence reduction pursuant to Amendment 706 of the crack-cocaine guidelines and 18 U.S.C. §3582(c)(2). Amendment 706, which was made retroactive, allows for a sentence reduction if the term of imprisonment was based on a sentencing range that was subsequently lowered. After an evidentiary hearing, the district court granted the motion and reduced the defendant’s sentence to 130 months, the bottom of the amended guideline range, based in part on the defendant’s post-conviction rehabilitation. Subsequently, Congress passed the Fair Sentencing Act (FSA), which amended the crack-cocaine guidelines yet again. The defendant sent a letter to the court asking for a reduction under the FSA, and the court docketed the letter as a pro se motion. Under the FSA, the newly amended guidelines range became 110 to 137 months. Without holding a hearing, the district court imposed a new sentence of 123 month. The new sentencing order did not discuss any events that had transpired after the 2009 evidentiary hearing that would justify a sentence at the middle (as opposed to the bottom) of the amended guidelines range. The defendant appealed, arguing that the district court erred in placing his secondnamended sentence at the middle of the revised range without explanation, rather than at the bottom. Applying United States v. Burrell, 622 F.3d 961 (8th Cir. 2010), the appeals court vacated the judgment and remanded “because the district court provided no justification for its newly amended sentence, which places [the defendant] in the middle of the amended Guidelines range. [The defendant’s] first amended sentence was at the bottom of the amended Guidelines range but his second amended sentence is at the middle of the newly applicable range. The new sentence might be appropriate but no reason for the discrepancy is obvious. On this record, we cannot merely presume that the district court’s reasons for setting the first amended sentence at the bottom of the amended Guidelines range apply with equal force to the second amended sentence at the middle of the newly applicable Guidelines range.”

United States v. Graham 2013 WL 150253 (10th Cir. 2013) Defendant not entitled to sentence reduction 

The defendant was previously convicted of distributing crack cocaine and sentenced under a Fed. R. Crim. P. 11(c)(1)(C) plea agreement to 25 years. Proceeding pro se, he contended his sentence should be reduced in light of the Fair Sentencing Act (FSA) and Amendment 750 to the guidelines, which retroactively implemented the FSA. The district court denied the motion based on Freeman v. United States, ---- U.S. ----, 131 S. Ct. 2685 (2011), reasoning that the sentence had been determined by the defendant’s plea agreement rather than by reference to the guidelines. The defendant appealed. The Tenth Circuit explained that in Freeman, a plurality of the Court held that “when the Rule 11(c)(1)(C) plea is based on a Guideline sentencing range that is retroactively amended, the defendant is entitled to the amendment. But, when the plea deal does not ‘use’ or ‘employ’ a Guideline sentencing range, the defendant is not entitled to the benefit of the amendment.” In this case, the defendant’s sentence was not based on any guideline range, but was instead based on a stipulated sentence of 25 years; therefore, “his sentence was not based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” Further, “[t]o the extent [the defendant] contends his sentence is untenable in light of the more lenient crack cocaine sentencing regime the FSA enacted, the district court properly declined to consider the contention in the context of his §3582(c) motion. Section 3582(c) does not empower district courts to modify sentences to conform to amendments to the statutes under which defendants were convicted.”

United States v. Suggs
2013 WL 173969 (7th Cir. 2013)

Second-in-time §2255 barred when defendant was resentenced and challenged only underlying conviction In 2001, the defendant was convicted of conspiracy to possess cocaine with the intent to distribute and was sentenced to 300 months. He challenged his conviction and sentence on nine grounds under 28 U.S.C. §2255 and succeeded on the ground that he received ineffective assistance of counsel regarding his sentencing guideline calculations. After a remand, the district court recalculated and imposed a new sentence of 240 months. After his resentencing, which occurred in 2009, eight years after his trial, the defendant learned that a key witness against him had recanted his testimony and that his first statement to law enforcement did not implicate the defendant, resulting in a possible violation of Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). Believing that this new evidence showed his innocence, the defendant requested permission from the Seventh Circuit to file a second challenge to his conviction under 28 U.S.C. §2255(h), which was denied. The defendant then filed a new motion under §2255 in the district court challenging his conviction based on the new evidence, arguing that the motion was not a “second or successive” because his resentencing imposed a new judgment such that his new motion under section 2255 should not be barred. The district court dismissed the motion based on Dahler v. United States, 259 F.3d 763 (7th Cir. 2001), and the defendant appealed. The issue on appeal was whether the motion filed after resentencing was “second or successive” within the meaning of section 2255. The appeals court noted that it had held that such motions after resentencing are not second or successive when they allege errors made during the resentencing, but they are second or successive when they challenge the underlying conviction. However, in Magwood v. Patterson, 561 U.S. ----, 130 S. Ct. 2788 (2010), the Supreme Court held that a second challenge to a sentence under 28 U.S.C. §2254 was not barred as “second or successive” when it (a) came after the petitioner had been resentenced because of a successful, initial section 2254 petition and (b) asserted a claim based only on the resentencing. Concluding that the Court in Magwood “took pains to limit its holding,” the appeals court found that Magwood did not apply under the facts of this case and “did not disturb our circuit’s precedent, Dahler, which applies to [the defendant’s] motion and required the district court to dismiss it as second or successive.” “Because the question before us is settled in our circuit and the Supreme Court considered the question but expressly declined to answer it, we follow our circuit’s precedents and hold that [the defendant’s] motion is second or successive. Even if the Court’s reasoning in Magwood could extend to the facts here, we believe it would be premature to depart from our precedent where the Court has not asked us to. Because the [defendant’s] new motion challenges his underlying conviction, not his resentencing, the motion is successive to his first motion.” Judge Sykes filed a dissenting opinion, which states in part: “[The defendant] won a new sentencing hearing on his first §2255 petition and after resentencing timely filed a §2255 petition attacking the new judgment and raising a claim under Brady and Giglio. Applying Magwood, the second petition is [the defendant’s] first collateral challenge to the new judgment, not a second or successive collateral challenge to the original judgment. The government concedes that if the present petition is not properly classified as second or successive under §2244(b), then [the defendant] has presented enough in his petition to require an evidentiary hearing. I would reverse and remand for further proceedings.” Circuit Split The Seventh Circuit’s decision created a circuit split: “We recognize that our reading of Magwood differs from the approach taken by other circuits. See, e.g., Wentzell v. Neven, 674 F.3d 1124 (9th Cir. 2012); Johnson v. United States; 623 F.3d 41 (2nd Cir. 2010). Those circuits found Magwood’s teaching sufficiently clear to extend it to the  circumstances before them. Here, however, where we have clear circuit precedent directing us otherwise, we do not find Magwood’s guidance to be clear enough to depart from our precedent.” Crime of Violence

United States v. Resendiz-Moreno
2013 WL 173425 (5th Cir. 2013)

Prior Georgia conviction for cruelty to children was not crime of violence In 2011, the defendant pled guilty to one charge of illegal reentry into the United States. The district court calculated a total offense level of 21, which included a 16-level upward adjustment pursuant to §2L1.2(b)(1)(A)(ii), based upon a finding that the defendant’s prior Georgia conviction, under §16-5- 70(b) for first-degree cruelty to children, constituted a crime of violence. The Fifth Circuit reversed, holding that under the categorical approach, the conviction was not a crime of violence because the statute’s language made it “clear that ‘the use, attempted use, or threatened use of physical force’ is not necessary to commit the Georgia crime.” “Specifically, a person can commit first-degree child cruelty and maliciously inflict excessive pain upon a child by depriving the child of medicine or by some other act of omission that does not involve the use of physical force. Indeed, Georgia courts have repeatedly recognized such forms of cruelty as violations of this very statute.” The government asserted that §16-5-70 was a disjunctive statute which permitted the use of the modified categorical
approach, thus allowing “a limited inquiry into the charging documents to determine which statutory variant of the crime was committed.” The court disagreed, noting that “even if we were to read §16- 5-70(b) as disjunctive in that sense, a person can still violate the statute by inflicting physical or mental pain without the use of physical force. Because §16-5-70(b) does not describe an offense disjunctively or otherwise which requires the use of physical force, there is no basis for inquiring into the charging documents.” Finally, the court pointed out that the Georgia statute “is indistinguishable in this respect from the Texas statute we considered in Calderon-Pena” 383 F.3d 254 (5th Cir. 2004) (en banc). “We are thus precluded from considering the facts alleged in the charging documents to determine whether [the defendant] actually used force and committed a crime of violence. Any sentencing enhancement relying on such an inquiryis improper.”

Miscellaneous Issues
United States v. Tavares 2013 WL 151194 (1st Cir. 2013)

Failure to conclusively determine sentencing range was harmless; Use of state conviction subsequently vacated was harmless; Prostitutes granted immunity were “participants” for §3B1.1(c) enhancement The defendant and a co-defendant (Jones) were indicted for various offenses involving the transportation and trafficking of individuals for prostitution. The defendant was individually charged with two counts of sex trafficking of children. At trial, the government established that the two men were pimps who, over several years, prostituted young women, including high-schoolage girls. The government presented testimony from five women who had worked as prostitutes for the defendant and Jones. Four of the five worked as prostitutes when they were under eighteen. Testimony also showed that the defendant had a prostitute collect money from his other prostitutes, drive around his other prostitutes and inform him when a prostitute had misbehaved. All five women were granted immunity prior to their testimony. The PSR calculated a sentencing range of 235 to 293 months, with a criminal history category (CHC) of VI. The defendant argued that the correct CHC was V, with a sentencing range of 210 to 262 months. The district court never determined which category was correct and never chose between the government’s proposed sentencing range and the defendant’s. Instead, the judge stated: “[E]ssentially I will sentence in a way that it will make [the guidelines sentencing range calculation] not matter.” After considering both potential  ranges, the district court departed upward to a sentence of 300 months, which included a two-level “organizer-leader” enhancement under §3B1.1(c). The defendant raised two issues on appeal: 1) procedural error because the district court never conclusively determined his sentencing range; and 2) “organizer-leader” enhancement was improper because the prostitutes could not be “participants” because they were granted immunity. Regarding the first argument, the First Circuit held that the district court committed “a significant procedural error” when it failed to calculate the defendant’s sentencing range before exercising its discretion. “Under the particular circumstances of this case, however, we are convinced that the district court’s failure to calculate definitively the operative guidelines sentencing range was harmless. The . .. district court understood the position of the parties on the applicable guidelines range [and] . . . understood that the only point of disagreement between the parties was the applicable criminal history category. The district court determined that a sentence within the guidelines range as calculated by either party was not an appropriate sentence.” Therefore, regardless of whether the sentencing range was the one proposed by the government or the defendant’s proposal, “the district court was of the view that a sentence of 300 months was warranted.” Because the district court would have imposed the same sentence even without the error, it was harmless. While the appeal was pending, one of the defendant’s prior state convictions, which was given a score of three in the PSR, was reversed and its verdict set aside. Had this conviction not been counted, the defendant’s CHC would have been V. The defendant contended that including the sincevacated state conviction required resentencing. The court disagreed, holding that the defendant’s “sentence was not imposed as a result of his guidelines sentencing range calculation; his criminal history category did not affect the district court’s sentencing. Because failing to determine [the defendant’s] guidelines sentencing range is harmless error, any error in calculating the guidelines sentencing range, such as improperly including a prior conviction, is harmless.” Finally, the defendant argued that the prostitutes he employed could not be “participants” within the  meaning of §3B1.1(c) because they received immunity from prosecution. Their immunity, he argued prevented them from being criminally responsible for the offenses of conviction. Acknowledging that the issue was one of first impression in the First Circuit, the court noted that under §3B1.1(c), a defendant must exercise leadership over fewer than five participants, and a “participant is a person who is criminally responsible for the commission of the offense, but need not have been convicted.” Citing United States v. Anderson, 580 F.3d 639 (7th Cir. 2009) and United States v. Jackson, 95 F.3d 500 (7th Cir. 1996), the court concluded that a grant of immunity did not preclude a designation as a “participant.” “The Guidelines’ commentary notes that a ‘participant’ need not be convicted of the offense. That a participant can be unindicted is clear from the plain language of the Guideline.” Therefore, “a ‘participant’ can be an immunized witness against the defendant. The district court did not err in imposing an ‘organizer or leader’ enhancement.”

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