Sentencing Commission’s Report on Federal Child Pornography Offenses Part 3

Posted by Chris Morales on Wed, Apr 03, 2013 @ 02:29 PM

Criminal History
(Chapter 4) United States v. Ramirez
2013 WL 703792 (1st Cir. 2013)
Definition of “burglary of a dwelling” must be that used in §4B1.2; Florida burglary of a dwelling qualified as crime of violence

The defendant and his co-conspirators sold crack cocaine to a cooperating witness. His PSR
calculated a sentencing range of 188 to 235 months after finding that he qualified as a career offender under §4B1.1, based on two prior convictions: a 1993 Massachusetts conviction for manufacturing, distributing, or dispensing a Class A substance in a drug-free school zone, and a 1997 Florida conviction for burglary of a dwelling. The district court adopted the PSR and imposed a non-guideline sentence of m126 months. On appeal, the defendant contended that the Florida conviction was not a “crime of violence.” The First Circuit partially agreed, finding that because the Florida statute had no element related to the threat or use of physical force, it did not qualify as a crime of violence under §4B1.2(a)(1). Regarding whether the Florida conviction fell under the enumerated “burglary of a dwelling” offense as set out in §4B1.2(a)(2), the defendant argued that it did not because Florida’s definition of burglary of a dwelling was broader than “generic burglary” as defined by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990). The court disagreed that Taylor’s strict definition of “generic burglary” automatically dictates the Guidelines’ definition of “burglary of a dwelling”  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.”

Probation/Supervised Release
(Chapter 7)
United States v. Hawkins
706 F.3d 820 (7th Cir. 2013) Defendant was not entitled to §2255 relief

In May 2003, the defendant, who had a long history of violent crimes, gun offenses, escapes, drug use, and violations of supervised release, assaulted two U.S. marshals with a deadly weapon. The marshals had been trying to arrest him for failing to attend a court hearing on his latest violation of supervised release. He pled guilty to having committed a violent assault, with a weapon, that had  inflicted bodily injury on one of the marshals. Because of his prior convictions, including two “walk-away” escapes, he was found to be a career offender under §4B1.1(a), with a sentencing range of 151 to 188 months (with a statutory maximum of 20 years). Without the career offender enhancement, his sentencing range was either 15 to 21 months or possibly 24 to 30 months. The defendant’s appeal was pending when the Supreme Court decided Booker and was remanded. The district court imposed the same sentence. Three years later, after the defendant’s sentence had become final, the Supreme Court held that an “escape” that takes the form of a failure to report is not a “violent felony” within the meaning of the ACCA. See United States v. Chambers, 555 U.S. 122 (2009). The defendant filed a §2255 arguing that under Chambers and Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011) (sentence that violated career offender guideline could be successfully attacked in postconviction proceeding even though sentence was shorter than statutory maximum), he should not have been sentenced as a career offender. The district court denied the petition and the defendant appealed. In denying the appeal, the Seventh Circuit distinguished the defendant’s case from Narvaez by holding that Narvaez had been sentenced when the guidelines were mandatory and that it was possible that the sentence exceeded the maximum authorized by law. In the present case, although the district judge made a mistake in sentencing the defendant as a career offender based on the walk-away escapes, under the advisory guidelines the judge might have given a lower sentence had Chambers been decided earlier, “[b]ut he would not have been required to do so and we don’t think that a sentence that is well below the ceiling imposed by Congress whether directly or by delegation to the Sentencing Commission should, as [the defendant] argues, be considered a ‘miscarriage of justice’ that can be collaterally attacked, just because the judge committed a mistake en route to imposing it. That’s the balance the cases strike between the interest in finality and the injustice of a possibly mistaken sentence.” To complete this convoluted logic in order to deny the defendant relief, the court noted that even if his sentence resulted in, as the defendant  claimed, a miscarriage of justice, any remand would result only in the district court reconsidering the sentence and not a nullification of the sentence. “If we ordered resentencing, the judge could reimpose the identical sentence. The defendant’s criminal record would justify the judge’s doing that” and based on the criminal record, “[i]t would be no surprise if a sentencing judge, asked to choose between 21 (or 30) and 151 months, chose the latter.” Judge Rovner dissented, believing that the premise of Narvaez was that the defendant had “an absolute right not to stand before the court as a career offender when the law does not impose that label on him. However, “[d]espite the remarkable correlation between the facts and legal posture in Narvaez and this case, the majority gives Narvaez short shrift. It does so, it says, because Narvaez was sentenced before the Supreme Court decided United States v. Booker, when the Guidelines were mandatory and thus the judge was bound by the determination to impose a particular sentence. The majority, I fear, hangs its precedent-distinguishing hat on an illusory distinction.”

Restitution
United States v. Gamble
2013 WL 692512 (6th Cir. 2013)
Failure to show proximate cause between victim’s losses and defendants’ offenses

In unrelated child pornography convictions, both Gamble and Crawford were ordered by their
respective district courts to pay over $1,000,000 in restitution to “Vicky,” the pseudonym of one of the individuals depicted in the images they possessed or received. Restitution was ordered jointly and severally under 18 U.S.C. §2259, which makes restitution mandatory for “the full amount of the victim’s losses” in child exploitation cases. “In order for restitution to be granted under 18 U.S.C. §2259, the government must show that the costs incurred by the victim were proximately caused by the defendant’s offense. This conclusion is  supported both by our precedent and by an independent reading of the statute.” However, the district courts did not require a showing of proximate cause between the losses and the defendants’ offenses. Because the Sixth Circuit required such a showing, the cases were remanded so that this analysis could take place. See United States v. Evers, 669 F.3d 645 (6th Cir. 2012). On remand, “the district court must reconsider the extent to which the defendants must pay restitution where they share responsibility for Vicky’s injuries with hundreds of other child pornography viewers.”

United States v. May
706 F.3d 1209 (9th Cir. 2013)
Restitution for Postal Service’s expenses improper

The defendants stole mail during the busy holiday season in December 2010 by driving through
neighborhoods searching for packages on porches, doorways and community mailboxes. A witness phoned police on Christmas Eve, and the defendants were arrested after being located in their vehicle at their apartment. A search of the apartment led to evidence of stolen property, including children’s toys, airline uniforms, medications, and items in priority mail boxes with missing address labels. Both defendants pled guilty to receipt of stolen mail and mail theft and admitted to stealing mail on four occasions. The PSR recommended restitution of $69,753 to the United States Postal Service as expenses incurred to prevent additional mail thefts. At sentencing the acting manager of the Post Office testified to a “tidal wave” of customer complaints about undelivered packages from December 13 to 19, and as a result, the local Postmaster changed the policy for parcel deliveries, requiring delivery only to customers who were home, and all undelivered parcels to be returned to the post office for pick up. This change caused less than 10% of parcels to be delivered, and the post office had to extend business hours and increase personnel to handle the customer parcel pick-up. The district court included this amount in the loss and also ordered restitution in this
amount. The defendants appealed, arguing that the  restitution was based on consequential damages not permitted in the Mandatory Victims Restitution Act, and that it was unlawful, as the expenses were not the result of the underlying offense conduct. The court of appeals agreed that the restitution was unwarranted as the expenses did not flow from the specific conduct that formed the basis of the offense of conviction. The only mail theft charged against the defendants occurred on December 24, 2010, and such did not cause the post office to change delivery procedures four days earlier. While the government argued that the indictment charged that the defendants possessed stolen mail before December 20, 2010, the court found that the post office changed its procedures based on mail theft, not unlawful possession of mail. As a result, the portion of the restitution order for the post office’s expenses of $69,753 was vacated.

Ineffective Assistance of Counsel
United States v. Bell 2013 WL 765055 (D.C. Cir. 2013)
Trial counsel ineffective by inadequately
explaining benefits of safety valve

The defendant was found guilty by a jury of conspiring to possess and distribute one kilogram or more of PCP. Prior to sentencing, the defendant did not cooperate with the government, refused to discuss with the probation officer even innocent issues such as his education or employment, insisted that he was innocent, and denied to the court any knowledge of his co-conspirators. At sentencing, the district court referred to the safety valve and the fact that the defendant was not eligible. In response, the defendant asserted that he had heard of the safety valve from fellow prisoners, but that his trial counsel had not discussed it with him. His trial counsel then told the court that he had advised the defendant that “it was more likely than not that . . . talking to people about . . . background matters would be beneficial.” The district court found that the defendant did not qualify for the safety valve, and the accompanying two-level reduction under §2D1.1(b)(16) and imposed a sentence of 235 months, the bottom of the sentencing range. Had the defendant qualified for the safety valve and the §2D1.1(b)(16) reduction, his range would have fallen to 188 to 235 months. On appeal, the defendant argued that his trial counsel was ineffective by not adequately informing him of the benefits of debriefing with the government and for not moving for a continuance of sentencing so that he could attempt to qualify. The D.C. Circuit agreed, explaining that where a defendant raises a “colorable and previously unexplored” ineffective assistance claim on appeal, the matter should be remanded unless the “record alone conclusively shows that the defendant either is or is not entitled to relief.” United States v. Rashad, 331 F.3d 908 (D.C. Cir. 2003). In this case, the court remanded for a hearing because “the record evidence suggests a serious possibility that counsel was ineffective, with prejudice to [the defendant]. Exploration of the issue in district court can resolve the uncertainty.” Although the matter was remanded, that did not mean the defendant was entitled to a hearing. Instead, “a remand will be ordered for whatever proceedings are necessary to determine whether the defendant was denied his constitutional right to effective assistance of counsel, which may in some circumstances include an evidentiary hearing, but in other cases will not.”

Miscellaneous Issues
United States v. Deen 706 F.3d 760 (6th Cir. 2013)
Court may not use rehabilitative goals to
lengthen defendant’s sentence following revocation of supervised release

In 2008, the defendant was convicted of distributing five grams or more of cocaine base and
sentenced to 66 months, to be followed by four years of supervised release. He began his supervised release term in March 2011. Five months later, his probation officer recommended revocation based on two domestic violence incidents, alcohol use, and failure to report to the probation office and to attend  behavioral therapy. The defendant pled guilty to the charges. The guideline range was calculated at 4 to 10 months, but the probation officer suggested a two-year sentence and the government agreed, pushing for “a significant term of imprisonment where [the defendant] hopefully can get some treatment for alcohol abuse, and perhaps counseling in terms of anger management [that] would be very helpful for [him].” The district court imposed a sentence of 24 months, stating that the above-range sentence was necessary to “give the Bureau of Prisons another chance to do some in-depth rehabilitation.” On appeal, and after reviewing the Supreme Court’s decision in Tapia v. United States, --- U.S. ----, 131 S. Ct. 2382 (2011), the appeals court concluded: “The issue in this case is whether it is proper for a court to use rehabilitative goals as the basis of its decision to impose or lengthen a defendant’s prison sentence following the revocation of his supervised release. Today, we resolve the propriety of [the defendant’s] sentence. The record in this case permits no conclusion but that the length of his prison sentence was fixed to promote his rehabilitation. This is inappropriate in light of the Sentencing Reform Act and governing Supreme Court authority. As a result, we VACATE [the] sentence and REMAND to the district court for resentencing.”

United States v. Godoy
706 F.3d 493 (D.C. Cir. 2013)
Defendant could not be required to enroll in BOP inmate financial responsibility program

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. At sentencing, the district court imposed a sentence of 60 months and ordered the defendant to enroll in the BOP inmate financial responsibility program (“IFRP”). On appeal, the defendant  challenged the requirement that he enroll in the IFRP. The government conceded at oral argument that the defendant could not be ordered to enroll in the program. Consequently, the appeals court modified the “sentence to reflect the fact that enrollment is voluntary.” See United States v. Boyd, 608 F.3d 331 (7th Cir. 2010) (modifying sentence to clarify that enrollment in IFRP is voluntary and affirming as modified). The sentence was affirmed as modified.

United States v. Patrick
707 F.3d 815 (7th Cir. 2013)
Request for leniency based on cooperation was not frivolous

For several years, the defendant made his living as a pimp, trafficking both minors and adult women. His career ended when he was arrested in connection with the shooting death of another pimp. The defendant pled guilty to state homicide charges, then pled guilty to four federal counts of sex trafficking. In the state homicide proceeding, the defendant provided information about an unresolved kidnapping and testified against another defendant charged with prostitution-related crimes. The state’s attorney wrote a letter to the AUSA acknowledging that the defendant’s cooperation was “meaningful and significant,” and stating that his testimony “was probative and most probably relied upon by the jury.” The defendant also cooperated in the federal case. The PSR calculated a sentencing range of 360 months to life. Based on the letter from the state’s attorney and the defendant’s “enlightening” regarding the evils of prostitution, the government moved for a reduced sentence of 300 months and asked that it run concurrently with the state sentence. At sentencing, the district judge acknowledged the defendant’s cooperation and the government’s recommendation for concurrent sentences, but stated that he was having difficulty finding anything positive about the defendant and sentenced him to  the district court failed to consider his most significant argument for leniency, that being his cooperation. The Seventh Circuit agreed, noting that cooperation is “a ground of recognized legal merit” for a reduced sentence. Further, the defendant’s leniency argument was not frivolous, “given the fact that [he] was urging precisely the sentence that the government has recommended.” The appeals court explained that from the record it was unable to determine whether the district court appreciated the severity of the consecutive sentence it imposed, which amounted to a life sentence. “Because a sentence of death in prison is notably harsher than a sentence that stops even a short period before, we have stated that death in prison is not to be ordered lightly, and the probability that a convict will not live out his sentence should certainly give pause to a sentencing court.” The case was remanded with “no prediction on the question whether this will change the result for [the defendant].”

United States v. Rich
2013 WL 491548 (10th Cir. 2013)
Order to “dismiss” juvenile case did not render it a nullity for ACCA enhancement;
using 20-year-old delinquency adjudication did not violate substantive due process

The defendant pled guilty to one count of felon in possession of a firearm and ammunition. Because he had been convicted of three predicate offenses, the PSR recommended enhanced punishment under the Armed Career Criminal Act (ACCA). One of the prior convictions was a juvenile adjudication for robbery with a dangerous weapon in September 1991. At sentencing, the defendant contended that his juvenile adjudication no longer qualified as a conviction for purposes of the ACCA because the Oklahoma court entered an order “dismissing” the case, which rendered the finding that he committed the offense a nullity. He also argued that the use of this twenty-year-old crime committed when he was 14 years old violated his constitutional right to substantive due process. The district court rejected the first argument, holding that the dismissal merely meant that the state court terminated its jurisdiction 360 months, to run consecutive to the state case. At no point did the judge explain why he had chosen not to follow the government’s recommendation or why, apparently, he gave such little weight to the cooperation. On appeal, the defendant argued that While the district court expressed sympathy for the second argument, it held that it was constrained by circuit precedent and imposed the mandatory minimum sentence of 180 months. The defendant appealed and raised the same two arguments. As for the first argument, the Tenth Circuit did not agree. “While this case was pending on appeal, we rejected a similar argument made by the defendant in United States v. Washington, No. 11-6339, --- F.3d ---- (10th Cir. 2012), holding that under Oklahoma’s use of the word ‘dismiss’ in its statutory scheme and caselaw, we were not persuaded that, in the absence of evidence to the contrary, the decision of an Oklahoma court to ‘dismiss’ a juvenile case after adjudication meant anything more than the court was terminating its jurisdiction. Thus, we held ‘dismissal of Defendant’s juvenile adjudication following his five-month term of probation did not constitute expungement or setting aside of the conviction for ACCA purposes.’ Even if Washington were not binding on this panel, we find its reasoning persuasive. As [the defendant] presents no convincing evidence that ‘dismissal’ meant something different in his case, we must reject this argument.” Regarding the second argument, the appeals court explained that substantive due process protects individuals from government conduct that “shocks the conscience or interferes with rights implicit in the concept of ordered liberty.” As is pertinent to this case, “[d]ue process requires only that a sentencing scheme be rational.” The court rejected the argument, holding that “we cannot say Congress’s decision to allow the use of these older convictions shocks the conscience.” While recognizing recent Supreme Court decisions dealing with juvenile offenses and sentencing under the Eighth Amendment, the sentence in the present case was not a death penalty or life without parole. Further, the present sentence was distinguishable in that the offenses considered by the Supreme Court were committed by juveniles, where the defendant in this case was an adult when he committed the offense, as well as two of the three predicate offenses. “Regardless of the inability of minors to fully understand the consequences of their actions, adults facing enhanced sentences based, only in part, on acts committed as juveniles have had the opportunity to better understand those consequences but have chosen instead to continue to offend. Therefore, we also reject [the defendant’s] substantive due process claim.”

Cases In This Issue


Henderson v. United States, --- U.S. ----, 133 S. Ct. 1121 (2013)
Johnson v. Williams, 133 --- U.S. ----, S. Ct. 1088 (2013)
United States v. Battle, 706 F.3d 1313 (10th Cir. 2013)
United States v. Bell, 2013 WL 765055 (D.C. Cir. 2013)
United States v. Deen, 706 F.3d 760 (6th Cir. 2013)
United States v. Gamble, 2013 WL 692512 (6th Cir. 2013)
United States v. Godoy, 706 F.3d 493 (D.C. Cir. 2013)
United States v. Hawkins, 706 F.3d 820 (7th Cir. 2013)
United States v. Love, 706 F.3d 832(7th Cir. 2013)
United States v. Macias-Farias, 706 F.3d 775(6th Cir.2013)
United States v. May, 706 F.3d 1209 (9th Cir. 2013)
United States v. Patrick, 707 F.3d 815(7th Cir. 2013)
United States v. Ramirez, 2013 WL 703792 (1st Cir. 2013)
United States v. Rich, 2013 WL 491548 (10th Cir. 2013)
United States v. Wells, 706 F.3d 908 (8th Cir. 2013)

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