Sentencing Commission’s Report on Federal Child Pornography Offenses Part 2

Posted by Chris Morales on Mon, Apr 01, 2013 @ 03:52 PM

Offense Conduct
(Chapter 2) United States v. Love
706 F.3d 832 (7th Cir. 2013)
1.5 ounces of crack not included in drug quantity where no intent to deliver existed

Landen Cowart agreed to act as a confidential informant. On September 9, 2009, Cowart called the defendant and arranged to buy drugs from him, and ultimately purchased a little less than 8 grams of crack. Two days later, the defendant called Cowart and accused him of robbing one of the defendant’s crack houses, taking money and drugs. Cowart finally convinced the defendant that he was not responsible for the theft. On September 14, 2009,
Cowart arranged to purchase 1.5 ounces of crack from the defendant. Cowart met the defendant at a house and went inside. However, instead of sellingn drugs to Cowart, the defendant and two others began beating Cowart while interrogating him about the crack house robbery. FBI agents swarmed the house and arrested the defendant. A jury convicted the defendant of distribution and conspiracy to distribute crack cocaine. The PSR calculated a drug amount of 50.355 grams, resulting in a base offense level of 26. On appeal, the defendant argued that the 1.5 ounces should not have been included in the drug amount calculation. Reviewing for plain error, the Seventh Circuit agreed, explaining that “[i]n reverse sting operations like the one at issue here, the base amount generally includes the agreed-upon quantity of the controlled substance. So, for instance, if the defendant agreed to buy fifty grams of drugs from a government informant, then his base amount would be fifty grams. If, however, the defendant establishes that the defendant did not intend to provide or purchase, or was not reasonably capable of providing or purchasing, the agreed-upon quantity of the controlled substance, then the court shall exclude from the offense level determination the amount of controlled substance that the defendant establishes that the defendant did not intend to provide or purchase or was not reasonably capable of providing or purchasing. In other words, the agreedupon quantities must be the result of ‘true negotiation and not idle talk.’” In this case, the defendant offered to sell Cowart 1.5 ounces of crack on September 14, 2009, but it was undisputed that the defendant never actually intended to sell Cowart those drugs. Instead, he wanted to rob and beat Cowart to avenge the robbery of his crack house. Accordingly, those 1.5 ounces should not have been included in his sentencing calculation. “We have repeatedly held that a sentencing based on an incorrect Guidelines range constitutes plain error and warrants a remand for resentencing, unless we have reason to believe that the error in no way affected the district court’s selection of a particular sentence.” Excluding the 1.5 ounces would have reduced the total drug quantity from 50.355 grams to 7.83 grams and the base level from twenty-six to eighteen. The court found plain error and remanded for resentencing. “The Guidelines provide that a drug quantity should not be included in a sentencing calculation if the defendant did not intend to provide or purchase . . . the agreed-upon quantity of the controlled substance.” See §2D1.1 cmt. n. 5; United

States v. Davis, 478 F.3d 266 (5th Cir. 2007).
United States v. Wells 706 F.3d 908 (8th Cir. 2013)
Enhancement for creating substantial risk of harm to human life affirmed

After law enforcement officers received information that the defendant was manufacturing
methamphetamine at his home, they obtained pseudoephedrine purchase logs that showed that from January 2008 to May 2009, the defendant, his wife Tonya, and his adult daughter Mandy had purchased a large quantity of pseudoephedrine in suspicious patterns. As officers were executing an arrest warrant for the defendant at his house, they heard an explosion and saw a flash inside the residence. When they entered, they found the defendant in the kitchen, bent over the sink with the water running. A throw rug was on fire. The fire was extinguished and the defendant, who had suffered minor burns on his chest, was arrested. A search of the kitchen revealed a partially melted plastic soda bottle and a funnel, both of which are commonly used in the “shake and bake” method of manufacturing methamphetamine. The officers believed the defendant had dumped the contents of the soda bottle down the kitchen sink, resulting in the explosion. At trial, Mandy testified that Tonya and the defendant had asked her to buy pseudoephedrine pills. A jury found him guilty on eight drug-related charges. The PSR recommended a three level enhancement under §2D1.1(b)(13)(C)(ii) because the offense involved the manufacture of meth and created a substantial risk of harm to human life. The district court adopted the PSR and sentenced the defendant to 267 months. The Eighth Circuit affirmed, explaining that the enhancement does not automatically apply to every offense involving methamphetamine manufacture, but that a sentencing court is to consider several enumerated factors when determining whether the offense created a substantial risk of harm to human life or the environment. See Application Note 18(B). Those non-exclusive factors include: the quantity of chemicals found at  the laboratory, the manner in which the chemicals were stored and disposed of, the duration and extent of the manufacturing operation, the location of the laboratory (residential or remote), and the number of human lives placed at risk. The district court applied the enhancement based on the explosion, attribute to the defendant’s mishandling of the meth lab by disposing of it in a sink drain. Further, government witnesses testified about the risk of explosion involved with the shake and bake method and the defendant conducting his meth lab operation in a residential area, where the risk of harm was greater. “Given these circumstances, the evidence was sufficient to support the district court's application of the substantial-risk-of-harm enhancement.”

United States v. Battle
706 F.3d 1313 (10th Cir. 2013)
Drug quantity calculations at sentence modification were unsupported by facts found at original sentencing

The defendant was convicted of conspiracy to possess with intent to distribute 50 grams or more of cocaine base. The amount of crack attributed to him at sentencing was “at least 1.5 kilograms,” which held the highest base offense level under the guidelines, life imprisonment. The district court agreed with the quantity of drugs attributable to the defendant as being more than 1.5 kilograms of crack, but reduced the total offense level from 44 to 42, and with a criminal history category of II, sentenced the defendant to 360 months. The district court noted that the PSR accurately calculated the amount of crack attributable to the defendant based on the evidence presented, which showed that the offense involved “well over 1.5 kilograms of crack. . . .” In December of 2011, the defendant filed an unopposed motion under 18 U.S.C. §3582(c)(2) requesting to reduce his sentence based on the retroactive amendment of the crack guidelines. See app. C, amends. 750 & 759. Under those amendments, 1.5 kilograms of crack resulted in an base offense level of 34 and a guideline range of 262 to 327 months. The district found that neither it nor the PSR had made an actual calculation of the quantity of drugs involved, only that it involved at least 1.5 kilograms of crack. The district court reviewed the PSR and amounts attributed to the co-defendants, and came up with a total of 3.4 kilograms of crack, which lead to an offense level of 36 and a guideline range of 324 to 405 months. The district court resentenced the defendant to 324 months, and the defendant appealed. On appeal, the Tenth Circuit held that the facts found by the district court at the original sentencing did not now support a finding of 3.4 kilograms of crack attributable to the defendant. While the district court’s finding of “at least 1.5 kilograms” did not bind it to a finding of exactly that amount in a subsequent proceeding, a supplemental drug calculation on §3582(c)(2) review should be based on the court’s previous findings, including relevant portions of the PSR that were adopted by the sentencing court originally. See United States v. Moore, 582 F.3d 641 (6th Cir. 2009); United States v. Woods, 581 F.3d 531 (7th Cir. 2009); United States v. Hernandez, 645 F.3d 709 (5th Cir. 2011). The court reversed the finding of 3.4 kilograms of crack, finding that the paragraphs of the PSR used by the district court in making the supplemental calculation caused improper double counting, and that the PSR supported a drug quantity between 1.8 and 3.4 kilograms. The court stated: “given the complete absence of evidence of drug quantity within that range, the district court was required to ‘err on the side of caution,’ and not rely on a ‘theoretical maximum amount’ of crack based involved. . . . On the record before us, we cannot properly attribute any quantity above 1.8 kilograms to [the defendant] under a preponderance of the evidence standard.”

Sentence Adjustments

(Chapter 3)

United States v. Macias-Farias
706 F.3d 775 (6th Cir. 2013)

Court failed to identify particular portion of defendant’s testimony that was perjurious DEA agents stopped a truck loaded with approximately 1,600 pounds of marijuana and had  the driver make a controlled delivery. The defendant was arrested and charged with conspiring to possess with intent to distribute more than 1,000 kilograms of marijuana and with aiding and abetting possession with the intent to distribute more than 1,000 kilograms of marijuana. At trial, the defendant testified on his own behalf and identified a cooperating witness (“CW”) as his brother-in-law and claimed that the CW was involved in drugtrafficking, but he denied that he himself was involved in the sale or possession of drugs. He further testified that the CW would contact him after the drugs had been unloaded from the trucks to seemif the defendant was interested in selling any of the non-drug products that the trucks also transported, such as fruit and vegetables and toys. The jury apparently did not believe his testimony and found him guilty on both counts. The PSR recommended a two-level enhancement for obstruction of justice, under §3C1.1, stating that “the defendant gave false testimony at trial.” The district court adopted the PSR, including the obstruction enhancement, finding that the defendant presented the jury with “an obvious lie, a big lie, . . . one that’s completely unbelievable” and sentenced the defendant to 320 months. On appeal, he claimed that the district court failed to make necessary findings before imposing the obstruction enhancement. The Sixth Circuit agreed, explaining that “a district court must complete two tasks when applying the §3C1.1 enhancement in cases involving perjured testimony by the defendant. First, [the district court] must identify those particular portions of the defendant’s testimony that it considers to be perjurious, and second, it must either make specific findings for each element of perjury or at least make a finding that encompasses all of the factual predicates for a finding of perjury. In turn, the offense of perjury requires the establishment of three elements: that the defendant made (1) a false statement under oath (2) concerning a material matter (3) with the willful intent to provide false testimony.” Although the district court concluded that the defendant had perjured himself at trial, it did not identify any specific portion of the defendant’s testimony that it found to constitute perjury. Further, “the government did not submit a detailed sentencing  because “Taylor involved a question of congressional intent, not the Commission’s intent, and did not mandate the Commission restrict the definition of ‘burglary of a dwelling,’ based on Taylor’s definition of ‘generic burglary’ under the ACCA.” Consequently, the court held that “burglary of a dwelling” must be defined as the term is used in the guidelines. Using that definition, the court found that “[g]iven the overbreadth of Florida’s definition of ‘dwelling,’ we cannot say burglary of a dwelling under Florida law is categorically the equivalent to the enumerated burglary of a dwelling offense under the Guidelines. Thus, [the defendant’s] Florida burglary conviction does not constitute a crime of violence under the enumerated offenses clause of §4B1.2(a)(2). However, under the “residual clause” of §4B1.2(a)(2), the court found that “burglary of a dwelling under Florida law is similar in kind and in risk to the enumerated burglary of a dwelling offense to qualify as a crime of violence under the Guidelines’ residual clause. We therefore find no error in the district court’s application of the career offender enhancement.” Plea Agreements (§ 6B)


United States v. Godoy
706 F.3d 493 (D.C. Cir. 2013)

Judge’s comments at sentencing superceded appeal waiver in plea agreement Over the course of four years, the defendant committed multiple acts of identity theft. He
acquired birth dates, social security numbers, and the like from strangers, acquaintances, and even family members, and used the information to drain bank accounts, buy cell phones on others’ credit, and had Costco ship him a fifty-inch plasma screen TV. After being caught, he quickly pled guilty to mail fraud. The plea agreement contained a waiver of the defendant’s right to appeal. At sentencing, the district court imposed a sentence of 60 months and included an order that the defendant enroll in the BOP inmate financial responsibility program. The defendant appealed and the government argued that the plea agreement waived the defendant’s right to appeal. The D.C. Circuit noted that the plea  agreement expressly waived the right to appeal the “sentence or the manner in which it was determined pursuant to 18 U.S.C. §3742, except to the extent that the Court sentences [him] to a period of imprisonment longer than the statutory maximum.” The court also noted that the offense of conviction had a 20-year statutory maximum. However, in the colloquy during the plea hearing, the district court mischaracterized the meaning of the waiver in a fundamental way by stating: “[Y]ou have given up your right to appeal except should you come to believe after consulting with counsel that the Court has done something illegal, such as imposing a period of imprisonment longer than the statutory maximum.” Taken for its plain meaning – which is how criminal defendants should be entitled to take the statements of district court judges – the court’s explanation allows [the defendant] to appeal any illegal sentence.” Although the government could have objected to the mischaracterization, it did not. “Given the district court judge’s clear statements at sentencing, the defendant’s assertion of understanding, and the prosecution’s failure to object, we hold that in these circumstances, the district court’s oral pronouncement controls.” See United States v. Buchanan, 59 F.3d 914 (9th Cir. 1995). “Because the district court’s oral pronouncement controls, [the defendants] appeal is not barred.”

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.