Sentencing Partners - April 2014 (Part III)

Posted by Chris Morales on Fri, May 09, 2014 @ 10:10 AM

Sentencing Partners - April 2014

Determining the Sentence
(Chapter 5)

United States v. Sandoval
2014 WL 1258083 (7th Cir. 2014)
Defendant not truthful in safety-valveinterview; thus no reduction

The defendant, a Mexican citizen, illegally entered the United States numerous times between the mid-1990s and 2006. Each time he was caught and removed, but he would enter again. The last time was 2006. On March 30, 2009, the defendant met a man, Quinonez, at a truck stop in Monee, Illinois, where he was to purchase 20 kilograms of cocaine that he believed Quinonez had transported from Texas. During the meeting, the defendant gave Quinonez $500 for fuel expenses and said that he would pay $300,000 for the cocaine on the following day. Unbeknownst to the defendant, Quinonez had been arrested earlier that day and was cooperating with law enforcement. Thus, Quinonez was only carrying sham cocaine and the rendezvous as recorded by law enforcement. The defendant was arrested after he placed two duffle bags containing the sham cocaine in his vehicle and departed. Two weeks before trial, the defendant met with the prosecutor and law enforcement officers for a safetyvalve interview. At the interview, the defendant stated that he was in Chicago on the day of his arrest to visit a family friend and not to traffic in narcotics. He claimed that someone he knew only as “Black Diamond” contacted him and asked him to pick up the drugs from Quinonez and deliver them to someone else as a favor, and that he only learned that he was picking up cocaine when he met Quinonez. Shortly before his trial, the defendant pled guilty. As a factual basis for his plea, he stated: “I only knew that I was going to pick up drugs but I did not know what type of drugs it was. I also knew that I had to deliver it to someone else but I did not know who that other person was.” At sentencing, the district court refused to credit the defendant with a reduction under the “safety valve” provisions of §5C1.2 because he did not truthfully provide the government all information and evidence concerning the offense. The Seventh Circuit agreed, finding that the defendant provided the government with little helpful information. “More importantly, [he] made a number of implausible or false assertions,” such as he was sent to pick up twenty kilograms of cocaine by someone he did not know and was instructed to deliver it to someone he did not know. He also asserted that he was performing the pick-up merely as a “favor” for the person he did not know and claimed that he did not know that he was picking up cocaine until Quinonez told him so. Yet the recording of the meeting revealed that Quinonez never told the defendant that the duffle bags contained cocaine. “[T]he district court did not clearly err in finding that [the defendant] was not truthful in his statements to the government.” Consequently, the district court did not clearly err in refusing to apply the safety valve.

Probation/Supervised Release
(Chapter 7)

United States v. Poulin
2014 WL 866399 (7th Cir. 2014)
Court Failed to adequately explain reasons for imposing special conditions of supervised release

While living at his mother’s house, along with three minor children, one of which was his son, the defendant downloaded child pornography using a file-sharing program. After authorities seized his computers, the defendant was indicted on one count of receipt of child pornography, and one count of possession of child pornography. A license clinical psychologist was asked to evaluate the defendant’s competency to stand trial. The doctor filed two reports with the court addressing the defendant’s trial competency and his mental state at the time of the offense. After the court found the defendant competent to stand trial, he pled guilty to both counts without a plea agreement. The PSR calculated a sentencing range of 151 to 188 months, a supervised release range of five years to life (recommending life-time supervised release), and recommended several conditions for supervised release. The PSR was later supplemented by adding nine additional conditions. The district court adopted the factual findings in the PSR and sentenced the defendant to 115 months and a life of supervised release. On appeal, the defendant challenged the term of supervised release as well as two of the conditions: (1) the prohibition of unsupervised contact with minors, including his own son and family members; and (2) the prohibition on accessing and possessing adult pornography. The government conceded on both arguments and the Seventh Circuit agreed. “The district judge imposed the maximum term (life) but did not provide any reasons for why he felt a life term of supervised release was appropriate. Accordingly, we vacate the life term of supervised release without further discussion.” As for the two conditions, the court reversed, finding that “the record lacks the explanation necessary for us to review the validity of the challenged conditions.” See United States v. Shannon, --- F.3d ----, 2014 WL 607497 (7th Cir. 2014) (reversal proper where lifetime ban on adult pornography was involved). 


White v. United States
2014 WL 997560 (7th Cir. 2014)
Reduction based on amended Guideline did not reset limitations period/limit on second or successive motions to vacate

The defendant was convicted of distributing more than 50 grams of cocaine base and he was
sentenced to 360 months. His appeals and §2255 were rejected. After the adoption Amendment 750, which retroactively cut the offense levels for crackcocaine offenses, the defendant asked the judge to reduce the sentence under 18 U.S.C. §3582(c). The judge calculated the newly applicable range and in June 2012 reduced the sentence to 292 months. Nine months later the defendant filed a §2255 petition contending that his original sentence calculation was wrong because it should not have included an enhancement for manager/supervisor and that he should have received a reduction for acceptance of responsibility. The district court dismissed the petition as untimely and because it was an unauthorized “second or successive” petition. In his certificate of appealability, the defendant argued that his sentence reduction in 2012 restarted the one-year clock under §2255(f), and also reset to zero his count of collateral attacks, citing Magwood v. Patterson, 561 U.S. 320 (2010). The Seventh Circuit disagreed, noting that Magwood involved the reversal of an invalid (unconstitutional) sentence, followed by the  imposition of a new sentence, which reset the clock. Here, however, the procedure established by §3582(c) is not “resentencing.” It is a sentence reduction proceeding. In a sentence reduction under §3582(c), “the district judge need not (and usually does not) receive evidence or reopen any issue decided in the original sentencing. Nor does the judge hold a hearing at which the defendant is present and a new sentence is pronounced. Instead the judge takes as established the findings and calculations that led to the sentence and changes only the revised Guideline, leaving everything else the same.” Under Magwood, the clock is not reset “for purposes of §2244 and §2255, when a prisoner’s sentence is reduced as the result of a retroactive change to the Sentencing Guidelines.”

Miscellaneous Issues

United States v. Poulin
2014 WL 866399 (7th Cir. 2014)
Sentence procedurally unreasonable due to court’s failure to adequately consider mitigation argument

While living at his mother’s house, along with three minor children, one of which was his son, the defendant downloaded child pornography using a file-sharing program. After authorities seized his computers, the defendant was indicted on one count of receipt of child pornography, and one count of possession of child pornography. A licensed clinical psychologist was asked to evaluate the defendant’s competency to stand trial. The doctor filed two reports with the court addressing the defendant’s trial competency and his mental state at the time of the offense. After the court found the defendant competent to stand trial, he pled guilty to both counts without a plea agreement. The PSR calculated a sentencing range of 151 to 188 months. At sentencing, part of the argument advanced by defendant’s counsel was citing to a 2010 Commission survey demonstrating the majority of federal judges, roughly 70%, find the child pornography guidelines in a case like this to be extreme and unwarranted. When addressing this argument, the district court stated, “I don’t know the exact context, but this level of punishment for these images. I, frankly, don’t see the degree of disconnect that [defense counsel] does.” The district judge adopted the factual findings and guideline calculations of the PSR and then imposed concurrent 115-month prison terms. On appeal, the defendant claimed that the district court committed procedural error by failing to address his principal mitigating argument. The Seventh Circuit noted that “a sentencing judge’s failure to adequately explain his sentence is a procedural error that may require remand.” The court also explained that just because the defendant received a below-range sentence did “not mean the district judge adequately considered and took into account [the defendant’s] argument that the overall calculation was excessive here.” Further, the defendant’s argument was a valid one that should have been addressed and the judge should have “provided reasons explaining his acceptance or rejection of it. He did not do that here.” See United States v. Martin, 718 F.3d 684 (7th Cir. 2013). The court could not determine “whether proper consideration of it (or consideration at all) would have affected [the defendant’s] prison term. The procedural error was therefore not harmless and a remand for resentencing on the prison term is required.”

United States v. Woodard
2014 WL 840787 (7th Cir. 2014)
District court violated Ex Post Facto Clause

The defendant was the operator and managing director of a non-profit grant organization (“Gideon”) that provided educational and tutoring services to children of indigent families. In January 2006, the Department of Education stopped providing funding and services to Gideon. To make up for the loss of funding, the defendant enrolled Gideon as an authorized Indiana Medicaid provider that could provide outpatient mental health services. However, she provided no medical services and continued to operate it as an educational service provider, all-the-while fraudulently billing Medicaid for services never provided. In total, 2,437 false claims were submitted to Medicaid for $8.9 million worth of phony services to 378 patients. After going through three attorneys and several competency hearings, the defendant pled guilty to one count of health care fraud. The PSR calculated a sentencing range of 97 to 121 months. On October 5, 2012, the district court sentenced the defendant to 80 months, utilizing the 2011 version of the guidelines. The court relied on then-controlling Seventh Circuit case law that held the Ex Post Facto Clause did not prohibit sentencing a defendant under the version of the guidelines in effect at the time of sentencing. Had the court applied the guidelines in effect at the time of the offense, the range would have been between 51 and 63 months. On appeal, the defendant argued that the district court violated the Ex Post Facto Clause. Reviewing for plain error, the Seventh Circuit reversed, finding that the district court did not have the benefit of Peugh v. United States, --- U.S. -- --, 133 S. Ct. 2072 (2013), which held that the Ex Post Facto Clause was violated when a defendant was sentenced under guidelines that were promulgated after the commission of the crime when the use of those guidelines resulted in a higher sentencing range than the one calculated under the guidelines in effect at the time the offense was committed. “Although the district court correctly sentenced [the defendant] under then-controlling Seventh Circuit precedent, a subsequent change in the law mandates that [her] sentence be vacated and her case remanded for resentencing.”

United States v. Montes-Ruiz
2014 WL 1099504 (9th Cir. 2014)
Sentence imposed to run consecutively to anticipated, but not-yet-imposed federal sentence not authorized

In 2007, the defendant pled guilty to attempted entry after a prior deportation. His fast-track plea agreement limited supervised release to “not more than three years.” The court imposed a sentence of 21 months and imposed two special conditions of release: (1) not to violate federal, state, or local law, and (2) not reenter the United States illegally. October 17, 2008, the defendant was released from custody and deported to Mexico. Four months later, in February, 2009, he attempted to reenter, presenting false entry documents. Two persons were concealed in the trunk of his vehicle. The court revoked his supervised release based on this reentry violation and sentenced him to 18 months. He was released from custody for this conviction and removed to Mexico on March 6, 2012. Two weeks later, the defendant attempted to enter the U.S., again presenting false documents, and again with multiple individuals concealed in the trunk of his vehicle. This attempted reentry resulted in two parallel proceedings: (1) prosecution for a substantive violation of attempted reentry after a prior deportation; and (2) revocation of supervised release for violation of the release. The illegal reentry and revocation cases proceeded before two different district court judges. Judge Burns presided over the revocation proceeding and found the defendant in violation of the condition that he not commit a crime. At that time, the defendant had pled guilty to the substantive violation, but was awaiting sentencing, so the sentencing was continued. At the continued sentencing hearing, the defendant still had not been sentenced for the substantive conviction. Because the defendant wanted to proceed, Judge Burns inquired about the government’s sentencing recommendation in the case pending before Judge Lorenz, and was told that the government would be recommending 24-month sentence. Over the defendant’s objection, Judge Burns imposed a sentence of 24 months in custody, to be served consecutively to the anticipated sentence to be imposed by Judge Lorenz for the substantive offense. Subsequently, the defendant was sentenced to 18 months to run consecutively to the sentence imposed by Judge Burns. On appeal, the Ninth Circuit reversed, explaining that because the defendant’s substance offense of violating 8 U.S.C. §1326 was a Class C felony, thus he was subject to a maximum penalty of 24 months for any revocation of his supervised release. The court held: “This appeal presents a live case or controversy regarding the district court’s authority to impose a sentence to run consecutively to an anticipated sentence to be imposed by a different district court judge. We conclude that 18 U.S.C. §3584 prohibits a federal sentencing court from proceeding in that manner. Although the sentence imposed was correctly calculated, and [the defendant] was properly advised of his potential sentence, we vacate and remand for resentencing as contemplated by the district court judge in the event his interpretation of §3584 was not validated on appeal.”

Cases In This Issue

Paroline v. United States, 2014 WL 1612426 (2014)

United States v. Evans, 2014 WL 929164 (10th Cir. 2014)

United States v. Foulks, 2014 WL 943454 (5th Cir. 2014)

United States v. Montes-Ruiz, 2014 WL 1099504 (9th Cir. 2014)

United States v. Morris, 2014 WL 975146 (9th Cir. 2014)

United States v. Ortiz-Vega, 2014 WL 943247 (3rd Cir. 2014

United States v. Pepper, 2014 WL 1063313 (8th Cir. 2014)

United States v. Poulin, 2014 WL 866399 (7th Cir. 2014)

United States v. Reichert, 2014 WL 1259610 (6th Cir. 2014)

United States v. Salgado, 2014 WL 988537 (11th Cir. 2014)

United States v. Sandoval, 2014 WL 1258083 (7th Cir. 2014)

United States v. Vargem, 2014 WL 1266298 (9th Cir. 2014)

United States v. Woodard, 2014 WL 840787 (7th Cir. 2014)

White v. United States, 2014 WL 997560 (7th Cir. 2014)

Announcing New Clemency Initiative, Deputy Attorney General James M. Cole Details Broad New Criteria for Applicants

As part of the Justice Department’s new clemency initiative, Deputy Attorney General James M. Cole announced six criteria the department will consider when reviewing and expediting clemency applications from federal inmates.

Under the new initiative, the department will prioritize clemency applications from inmates who meet all of the following factors:
- They are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today;
- They are non-violent, low-level offenders without significant ties to large scale criminal
organizations, gangs or cartels;
- They have served at least 10 years of their prison sentence;
- They do not have a significant criminal history;
-They have demonstrated good conduct in prison; and
- They have no history of violence prior to or during their current term of imprisonment.

“For our criminal justice system to be effective, it needs to not only be fair; but it also must be perceived as being fair,” said Deputy Attorney General Cole. “Older, stringent punishments that are out of line with sentences imposed under today’s laws erode people’s confidence in our criminal justice system, and I am confident that this initiative will go far to promote the most fundamental of American ideals – equal justice under law.”

In December 2013, President Obama commuted the sentences of eight individuals who were sentenced under an outdated regime—many of whom would have already paid their debt to society if they had been sentenced under current law. Since that time, President Obama has said he wants to consider more applications for clemency from inmates who are similarly situated.

The Department of Justice, which assists the president in the exercise of executive clemency by reviewing petitions for clemency for federal offenses and making recommendations, is committed to carrying out this important mission and has pledged to provide the necessary resources to fulfill this goal expeditiously. Outside of this initiative, any inmate can apply for commutation under the standard principles for which executive clemency has been granted historically.

This initiative applies to a limited category of petitioners whose clemency applications may be especially meritorious. Deputy Attorney General Cole also announced Deborah Leff , Acting Senior Counselor for Access to Justice, as the new head of the Office of the Pardon Attorney. Ronald Rodgers, who previously held the position, will assist Leff during a transition period and will then take on another role at the department to be announced at a later date.

“Over the past several years, Ron has performed admirably in what is a very tough job. He has
demonstrated dedication and integrity in his work on pardons and commutations,” Cole said.
Deputy Attorney General Cole added that Acting Senior Counselor Leff’s work with the department’s

Access to Justice program makes her uniquely qualified to step into the pardon attorney’s role.
“Deborah has committed her career to the very basis of this initiative - achieving equal justice under law,” said Deputy Attorney General Cole. “As Acting Senior Counselor for Access to Justice, her fundamental mission has been to help the justice system deliver outcomes that are fair and accessible to all.”

To facilitate the thorough and rapid review of the new clemency applications this initiative will likely spur, Deputy Attorney General Cole announced that he issued a department-wide call for attorneys willing to help review new petitions. These attorneys will help assess the petitions to determine which fall within the six stringent standards and merit further consideration. Department lawyers will be temporarily assigned to the Pardon Attorney’s Office. The Bureau of Prisons (BOP) will notify inmates in the coming days about this initiative and the availability of pro bono lawyers from the newly formed Clemency Project 2014. The Clemency Project 2014, which is made up of independent, outside groups as well as federal public defenders, was organized in response to Deputy Attorney General Cole’s Jan. 30, 2014, speech at the New York State Bar Association in which he called for assistance in identifying appropriate clemency petitions under this initiative.

In addition to notifying inmates of this initiative, BOP will provide interested inmates with an electronic survey that will help both pro bono lawyers and Justice Department lawyers to screen the petitions for the Office of the Pardon Attorney to quickly identify whether inmates meet the criteria for the program. BOP case managers will continue to provide inmates assistance with submitting the appropriate paperwork for clemency applications.

Deputy Attorney General Cole sent a letter to all of the 93 U.S. attorneys asking for their assistance in identifying meritorious candidates and notifying them that the Pardon Attorney’s Office will be soliciting their views on petitions that appear to meet the criteria after an initial screening by the lawyers in the Office of the Pardon Attorney.

The new clemency initiative is an outgrowth of Attorney General Holder’s “Smart on Crime” initiative, which is intended to strengthen the criminal justice system, promote public safety and deliver on the promise of equal justice under law.

The Deputy Attorney General’s Office oversees the Office of the Pardon Attorney. The department assists the president in the exercise of executive clemency. Under the Constitution, the president’s clemency power extends only to federal criminal offenses. All requests for executive clemency for federal offenses are directed to the pardon attorney for investigation and review. Petitions are then sent to the Deputy

Attorney General for review and recommendation to the president.

A Law Firm of Federal Sentencing Attorneys 

Website for more information:

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

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