Sentencing Commission Seeks Comment on Potential Reduction to Drug Trafficking Sentences - Part III

Posted by Chris Morales on Wed, Feb 05, 2014 @ 11:45 AM

Determining the Sentence
(Chapter 5)
United States v. Diaz
736 F.3d 1143 (8th Cir. 2013)
Defendant not entitled to safety valve

The defendant drove a semi-tractor containing ten kilograms of cocaine smuggled from Mexico,
from Houston, Texas to Alabama. After obtaining surveillance tapes showing him carrying a red suitcase from the truck to a hotel, plainclothes officers made contact with him and asked him to cooperate with their investigation. The defendant explained that he took a red suitcase into the hotel, and told officers which two rooms were occupied by co-defendants who had traveled to Alabama in separate vehicles, but he did not disclose what was in the suitcase, nor admit to any illegal activity. While the defendant, who was not detained, sat in a hidden police vehicle and waited, officers entered the hotel room of the co-defendants, confiscated the drugs and made arrests. Officers allowed the defendant to leave the hotel and return to Texas, advising that he might be rewarded if he cooperated further, but he
never discussed the activity further with officers. At his trial he testified that: 1) he was hired to transport pipe to Louisiana for $700, but when he went to pick up the load, he was told there was no trailer due to a change of plans; 2) he tried to get out of driving by saying his son was sick, but was told that he could not leave; 3) he drove all night and was constantly contacted by the others, and that he felt he would be harmed if he did not keep going. However, the codefendants testified that: the defendant was never
threatened, he knew what the red suitcase contained, he agreed to receive $10,000, $1000 for each kilogram. Telephone calls between co-defendants reflected that the defendant knew of the drugs. He was convicted of conspiracy to distribute and possess with intent to distribute cocaine, and appealed the sentencing court’s determination that he did not qualify for the safety valve under §5C1.2(a). The sentencing court found that he had not truthfully provided the government with all information and evidence he had concerning the offense. On appeal, the defendant did not separately provide his  knowledge of the offense to the government, but, in what the Eighth Circuit found to be a novel strategy, relied on his trial testimony alone in arguing for the safety valve reduction. On appeal, the Eighth Circuit found that he had not met his burden of proof because his testimony did not comply with the requirement to truthfully provide to the government all information and evidence he had concerning the offense. The court found that the evidence supported the district court’s finding that the defendant was not truthful in his testimony, as evidenced by the internal inconsistencies and the fact that his testimony defied a “common-sense analysis.”

Fair Sentencing Act
United States v. Black
737 F.3d 280 (4th Cir. 2013)
FSA did not apply retroactively

The defendant was sentenced in January 2007 to the statutory minimum of 120 months for conspiracy to traffic in more than 50 grams of crack cocaine. The Fair Sentencing Act (“FSA”), enacted in 2010, more than three years after the defendant was sentenced, reduced the statutory minimum sentence applicable to his circumstances from 120 months to 60 months. The defendant filed a motion under 18 U.S.C. §3582(c)(2) to modify his sentence, contending that the reduced minimum sentences should apply to him. The district court denied his motion, relying on United States v. Bullard, 645 F.3d 237 (4th Cir. 2011), which held that the FSA did not apply retroactively. On appeal, the defendant argued that the Supreme Court’s holding in Dorsey v. United States, - U.S. -, 132 S. Ct. 2321 (2012), implied that the FSA applied to him. In Dorsey, the Court concluded that a defendant who committed a crime before the effective date of the FSA, but was sentenced after the effective date, should have the benefit of the FSA. The defendant here argued that reasoning in Dorsey should apply to §3582(c)(2) proceedings. The Fourth Circuit found the defendant’s “logical development” to be “neat,” but found that it overlooked “legal realities.” “First, there is no language in the FSA explicitly providing or even suggesting that it be applied retroactively.
Second, Dorsey resolved a tension between 1 U.S.C. §109 and 18 U.S.C. §3553(a)(4) with reasoning that would not apply to a sentence-modification proceeding under §3582(c)(2). Third, without precedential support from Dorsey, [the defendant] is bound by our decision in Bullard, which held that the FSA is not retroactive. And fourth, a §3582(c)(2) proceeding is not a sentencing proceeding as addressed in Dorsey, and, moreover, the language of §3582(c)(2) itself limits its applicability to the situation where the defendant was sentenced based on a sentencing range that subsequently was reduced by the Sentencing Commission.” The judgment of the district court was affirmed.

United States v. Blewett
2013 WL 6231727 (6th Cir. 2013)
FSA does not apply retroactively

The Fair Sentencing Act of 2010 (“FSA”) increased the amount of crack cocaine needed to activate the same mandatory minimums. It now takes 28 grams to trigger the 5-year penalty and 280 grams to trigger the 10-year penalty. Through these changes, the FSA significantly reduced, but did not eliminate, a sentencing disparity between offenses involving crack and powder cocaine. What used to be a 100:1 ratio between the amount of powder and crack needed to trigger the mandatory minimums has become an 18:1 ratio. At issue in this case was whether the changes created by the FSA applied to defendants sentenced five years before the new law took effect. “Consistent with a 142-year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. §109, consistent with the views of all nine Justices and all of the litigants in Dorsey v. United States, - U.S. -, -, 132 S. Ct. 2321, 2332 (2012), consistent with the decisions of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.” There were three, separate dissenting opinion written by Judge Clay, Judge Rogers, and Judge White. Judge Clay summarized the issue as follows: “The Fair Sentencing Act (‘FSA’) was passed by Congress in 2010 to reinstill some semblance of fairness and equality to a system plagued by inequality and injustice. Under the majority’s interpretation of this statute, however, thousands of individuals, predominately African Americans from low-income communities . . . are foreclosed from obtaining the benefits of the FSA. Instead, the majority reads the FSA to further the injustice that has existed in the crack cocaine sentencing system for over twenty years. Under this reading, individuals like the Blewetts will continue to be incarcerated in a disproportionate, unjustified manner, in violation of their rights under the Equal Protection Clause. Because I disagree with the majority’s characterization of the FSA’s retroactivityand believe this Court’s opinion furthers the injustice that has resulted from such an unequal sentencing regime, I respectfully dissent.”

United States v. Anderson
2013 WL 6670793 (9th Cir. 2013)
District court improperly calculated amount of restitution

The defendant, a Las Vegas cab driver, dabbled in photography and electronics repair. At some point, he started selling Adobe computer software online, but the discs he was selling were counterfeited that he copied himself, which included documents that claimed the discs were “OEM” (meaning “original equipment manufacturer”) products. Evidence showed that he made approximately 350 total software sales, totaling $70,551. The defendant was charged with, and found guilty of, copyright infringement. The district court found that Adobe was the victim and calculated restitution by multiplying the number of copies the defendant sold, times Adobe’s retail price. The defendant was sentenced to 24 months and ordered to pay $247,144 in restitution. On appeal, the defendant argued that the district court should have: (a) used the price he charged his customers because they were the real victims and Adobe’s loss was speculative; (b) used Adobe’s lost profits instead of its retail price because lost profit is a more accurate measure of actual loss; and (c) discounted the amount of restitution by the number of returns. The Ninth Circuit first noted that under the Mandator 

Victims Restitution Act (“MVRA”), 18 U.S.C. §3663A, any award was limited to the victim’s
actual losses and “the district court may not order restitution to reflect Defendants’ ill-gotten gains.” Citing United States v. Chalupnik, 514 F.3d 748 (8th Cir. 2008) and United States v. Fair, 699 F.3d 508 (D.C. Cir. 2012), the court held that “restitution in a criminal copyright case must reflect the victim’s actual losses, not the defendant’s gain. In most cases, that will consist of the copyright owner’s lost profits on sales that would have taken place if not for the infringing conduct. Moreover, the fact that a consumer purchased an infringing copy at a greatly reduced price is not sufficient, alone, to establish that the consumer would have purchased an authentic copy at full price.” Here, the district court properly concluded that Adobe was the primary victim and to the extent that the defendant’s “conduct directly caused his customers to suffer actual, quantifiable losses, they may also be victims under the MVRA.” However, the district court erred by appearing to rely on the loss amount to reach a restitution amount and also erred by rejecting suggestions that restitution should reflect discounts for any returned products. “The district court also erred in using the full retail price as opposed to lost profits to calculate the actual loss. Moreover, the district court did not consider whether purchasers of [the] discounted software would have, in fact, purchased full price authentic software if [the defendant] software had not been available. These are clear and obvious errors because they are inconsistent with the statutory requirements. The errors affected substantial rights and the fundamental fairness of the proceeding given that they may have vastly inflated the restitution in excess of Adobe’s actual losses.” The case was remanded for a recalculation of restitution, with the instruction that “[a]ny restitution awarded to Adobe for lost sales may only reflect Adobe’s lost profits 

Post Conviction
Bryant v. Warden, FCC Coleman
738 F.3d 1253 (11th Cir. 2013)
Relief granted under §2241 habeas petition for sentence that exceeded statutory maximum penalty

Editor’s Note: This decision is long, in-depth, and has numerous twists and turns. Attempting to summarize the decision in detail would take several pages and a considerable amount of time. Included here is most of the first three paragraphs of the decision because it does a more-than-adequate job of summarizing the issues. However, reading the entire decision is well worth the time. Of particular interest is the section on “procedural default.” Finally, we sent an e-mail to Bryant’s attorney and asked about whether the government was going to file motion for en banc review or an appeal. He replied that the government was “not going to take any further action in this case.” Petitioner appealed the district court’s dismissal of his 28 U.S.C. §2241 habeas petition, brought pursuant to the “savings clause” in 28 U.S.C. §2255(e). The issue was whether the savings clause in §2255(e) permits a federal prisoner to bring a §2241 petition when he has established that his current 235-month sentence for an 18 U.S.C. §922(g) conviction exceeds the 10-year statutory maximum penalty under 18 U.S.C. §924(a). When a conviction has become final, a federal prisoner usually may challenge the legality of his detention only through a §2255 motion. However, the savings clause in §2255(e) permits the prisoner to file a §2241 habeas petition when a §2255 motion was “inadequate or ineffective to test the legality of his detention.” After review we conclude Bryant has satisfied the savings clause’s requirements in §2255(e). Bryant has proven that his prior §2255 motion was “inadequate or ineffective to test the legality of his detention” and that his §2241 petition can now proceed under §2255(e) because: (1) from the time of his initial sentencing in 2002 throughout his first §2255 proceeding in 2005, our Circuit’s binding  precedent in United States v. Hall, 77 F.3d 398, 401- 02 (11th Cir. 1996), held that a concealed-firearm offense under Fla. Stat. §790.01 was a “violent felony” under §924(e) and squarely foreclosed Bryant’s claim that he was erroneously sentenced above the 10-year statutory maximum penalty in §924(a); (2) subsequent to Bryant’s first §2255 proceeding, the Supreme Court’s decision in Begay v. United States, 553 U.S. 137 (2008), set forth a new standard to evaluate which crimes constitute violent felonies under §924(e), and Begay, as interpreted by United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008), and United States v. Canty, 570 F.3d 1251, 1255 (11th Cir. 2009), overturned our Circuit precedent in Hall; (3) Begay’s new rule is substantive and applies retroactively to Bryant’s §924(e) claim on collateral review; (4) as a result of pure §924(e)-Begay error and retroactive application of Begay, Bryant’s 235-month sentence exceeds the 10-year statutory maximum authorized by Congress in §924(a); and (5) the savings clause in §2255(e) reaches his claim of illegal detention above the statutory maximum penalty. Accordingly, we vacate the district court’s dismissal of Bryant’s §2241 petition and remand with instructions set forth herein.”

Cases In This Issue
Bryant v. Warden, FCC Coleman, 738 F.3d 1253 (11th Cir. 2013)
United States v. Anderson, 2013 WL 6670793 (9th Cir. 2013)
United States v. Black, 737 F.3d 280 (4th Cir. 2013)
United States v. Blewett, 2013 WL 6231727 (6th Cir. 2013)
United States v. Castaneda, 2013 WL 6672994 (5th Cir. 2013)
United States v. Diaz, 736 F.3d 1143 (8th Cir. 2013)
United States v. Doss, 2013 WL 6698046 (7th Cir. 2013)
United States v. Mathis, 738 F.3d 719 (6th Cir. 2013)
United States v. Perez-Perez, 737 F.3d 950 (4th Cir. 2013)
United States v. Roybal, 737 F.3d 621 (9th Cir. 2013)
United States v. Rushton, 738 F.3d 854 (7th Cir. 2013)
United States v. Seidling, 737 F.3d 1155 (7th Cir. 2013)
United States v. White, 2013 WL 6512922 (7th Cir. 2013)

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