Sentencing Partners - May 2014 (Part II)

Posted by Chris Morales on Mon, Jun 02, 2014 @ 01:15 PM

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S e n t e n c i n g P a r t n e r s

May 2014

Criminal History
(Chapter 4)

United States v. Stokes
2014 WL 1673132 (8th Cir. 2014)
Relying on erroneous conclusion to deny variance was procedurally unreasonable

Since 2002, the defendant had multiple criminal convictions, including four misdemeanor marijuana possession offenses, plus a 2006 conviction for delivering less than 50 grams of cocaine, and a 2009 conviction for third-degree fleeing and eluding police. The defendant pled guilty to possession with intent to distribute at least 28 grams of a mixture and substance containing cocaine base. The district court declared the defendant to be a career offender under §4B 1.1(a), finding that both the 2006 cocainedistribution conviction and the 2009 eluding conviction represented predicate offenses for career offender status. The defendant moved for a downward departure, contending that category VI overstated his criminal history, and the district court agreed, departing downward to category V, resulting in a sentencing range of 168 to 210 months. During the sentencing hearing, the government suggested that the defendant had “been involved in the drug game for probably the last ten years,” and that his spotty employment history was “based probably largely on his involvement in drug distributing.” The district court expressed concern about the defendant’s drug history and lack of employment, eventually stating “[t]he fact that you’re not working for the last ten years tells me you were making your money selling drugs, probably, because otherwise you wouldn’t have survived the last ten years.” Based on this conclusion, the district court denied the defendant’s request for a variance and sentenced him to 168 months. On appeal, the defendant contended that the district court procedurally erred by basing his sentence, in part, on conjecture that he has been selling drugs for ten years. Under plain error review, the Eighth Circuit reversed, finding that the district court’s conclusions about the defendant’s activities over the past ten years lacked any factual support in the record. While the district court may accept any undisputed fact in a PSR, in this case the PSR “contained no factual allegation that [the defendant] sold drugs for ten years. Rather, both the court and the government stated opinions that [he] was ‘probably’ selling drugs over the last decade based almost entirely on his lack of employment. Long-term unemployment might be consistent with drug sales, but it certainly does not establish such. On this record, we have a firm conviction that a mistake has been made. [The defendant] admitted to long-term abuse of marijuana. But drug abuse is not enough to infer that the user was also selling drugs certainly not that he was doing so as a sole means of survival. Nor are we willing to agree that one drug delivery conviction six-and-a-half years ago supports the inference of a decade-long drug distribution career. The district court’s conclusion that [the defendant] had sold drugs for ten years is clearly erroneous because the record facts simply do not support it.”

United States v. Santiago-Burgos
2014 WL 1613707 (1st Cir. 2014)
Prior conviction was overt act within conspiracy under §4A1.2

The defendant, along with dozens of other people, was indicted on multiple drug conspiracy
counts. In 2006, while the drug conspiracy was active, the defendant was sentenced to a short prison term and three years of supervised release for assaulting a Drug Enforcement Agency informant. The supervised release was eventually revoked as a result of the current charges. In April 2011, the defendant pled guilty to one count of conspiracy to possess with intent to distribute more than five kilograms of cocaine, fifty grams of cocaine base,
one kilogram of heroin, 100 kilograms of marijuana, and/or Oxycodone and Xanax, all within 1000 feet of a school or public housing complex. The PSR assigned two criminal history points for the 2006 informant assault conviction, under §4A1.1(b), and assigned two additional points because the instant offense was committed, in part, while the defendant was under a term of supervised release for the informant assault conviction, pursuant to §4A1.1(d). The district court sustained the defendant’s objection to the two criminal history points based on the
informant assault, finding that the basis that the assault was an overt act within the conspiracy. However, the district court sided with the government and imposed the two points related to the commission of the instant offense while on supervised release. The district court imposed a sentence of 97 months and ordered it to run consecutively to the thirteen-month sentence he received on the informant assault case after his
supervised release was revoked. On appeal, the government conceded that the district court committed error in calculating the criminal history. “The same rationale that the district court employed to deduct two criminal history points under section 4A1.1(b) that the assault was an overt act within the conspiracy to which [the defendant] was pleading guilty should apply to the two points assessed under section 4A1.1(d). We accept this concession and say no more about the issue.” The sentence was reversed and remanded.

United States v. Barbour
2014 WL 1499829 (6th Cir. 2014)

Government failed to show prior offenses were committed on different occasions
The defendant pled guilty to possessing ammunition as a convicted felon after admitting that he had three prior convictions for aggravated robbery. The PSR concluded that the defendant was an armed career criminal based, in part, on a prior armed robbery committed by the defendant and three accomplices. The robbery occurred at a Gas-N-Go Market, where the four robbed a motorist in front of the store, then went inside the store and robbed it.
The defendant objected to the ACC designation, arguing that there was no evidence showing that the robbery of the motorist and the robbery of the store occurred on different occasions. The record of the robbery did not make clear whether the robbery of the motorist concluded before the robbery of the store began. Despite this, the district court adopted the PSR and imposed a sentence of 188 months. The Sixth Circuit reversed, explaining that for the ACC enhancement to apply, the defendant must have had three previous convictions for “a violent felony or a serious drug offense, or both, committed on occasions different from one another.” Further, the court noted that the statute did not define what it meant for offenses to be “committed on occasions different from one another,” but under United States v. Hughes, 924 F.2d 1354 (6th Cir. 1991), the court had defined a “criminal episode as an incident that is part of a series, but forms a separate unit within the whole. Although related to the entire course of events, an episode is a punctuated occurrence with a limited duration.” Here, the district court concluded that the defendant completed the first robbery outside the convenience store, and “then entered the convenience store and robbed the convenience store.” However, “[t]he record does not provide any evidence as to whether the robbery outside the store concluded before the robbery inside the store began. Nothing in the record refutes [the defendant’s] argument that the threat to the motorist could have continued beyond the point where the robbery of the store clerk began. Because there was no evidence before the district court from which it could reasonably conclude that the robbery of the motorist ended before the robbery of the store began, such a conclusion is clearly erroneous.”

Habeas/Post-Conviction

United States v. Whiteside
2014 WL 1364019 (4th Cir. 2014)
Equitable tolling applied; erroneous application of career offender amounted to fundamental miscarriage of justice

In July 2009, the defendant was indicted on charges of possession with intent to distribute at least 50 grams of crack cocaine. The government filed an Information pursuant to 21 U.S.C. §851 notifying him that it intended to seek an enhanced penalty based on a 2002 North Carolina felony drug conviction. The defendant pled guilty, acknowledging the possibility that he might be designated a career offender under §4B1.1. The PSR determined that a 1999 North Carolina conviction for felony possession with intent to sell and deliver cocaine, along with the 2002 drug conviction, qualified the defendant for the career offender designation under §4B1.1.2 The enhancement resulted in a sentencing range of 262 to 327 months, with a mandatory minimum term of imprisonment of twenty years. The government moved for a departure under §5K1.1, recommending a sentence within a range of 210 to 262 months. The district court granted the motion and, on July 9, 2010, sentenced the defendant to 210 months. On August 17, 2011, the Fourth Circuit issued its en banc decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), overruling circuit precedent and held that a North Carolina conviction is a crime punishable by a term of imprisonment exceeding one year only when the defendant’s particular criminal history and the nature of his offense so warranted. Had the defendant been sentencing after Simmons, he would not have been subject to either the career offender enhancement or the twenty-year statutory minimum penalty, and would have faced a sentencing range of 140 to 175 months. The defendant filed a petition under §2255 on May 18, 2012, within one year of Simmons, but nearly two years after his conviction became final. The district court dismissed the petition as untimely. The Fourth Circuit reversed, first holding that the defendant had not waived his right to challenge his sentence. The court then held that equitable tolling of the one-year limitations period applied because the defendant diligently pursued his rights (by filing the 2255 petition) and prior circuit precedent was an “extraordinary circumstance” that prevented him from filing timely. Finally, the court found that “the erroneous application of the career offender enhancement worked a gross miscarriage of justice” that was “cognizable on collateral review.” Contrary to the government’s argument, the fact that the defendant had received a sentence below the statutory minimum did not “mitigate the mistake. . . . this fact alone does not make a sentence ‘lawful.’” “[W]e we hold that equitable tolling applies to [the defendant’s] claim. We also hold that erroneous application of the career offender enhancement amounts to a fundamental miscarriage of justice that can be corrected on collateral review. We grant a certificate of appealability, vacate [the] sentence, and remand the case for resentencing.”

Restitution

United States v. Kumar
2014 WL 1586427 (6th Cir. 2014)

Restitution not limited to direct costs; restitution to Canadian Armed Forces was warranted

The defendant, a licensed pilot, was a nineteenyear- old student enrolled in the Aviation Technology Program at Bowling Green State University. He was given the assignment of flying alone at night to an airport in Cleveland, then return that same night. The flight plan required him to fly over a portion of Lake Erie. On the return flight, the defendant saw what he thought was a flare rising from a boat on the lake below. When he reported this sighting, he was instructed to fly lower for a closer look. As he did so, he could not see a boat, but, fearful of sounding stupid and hurting his chances of one day becoming a Coast Guard pilot, he reported that he saw additional flares going up, and described a 25-foot fishing vessel with four people aboard wearing life jackets with strobe lights activated. His report prompted a massive search and rescue mission by the U.S. Coast Guard, with help from the Canadian Armed Forces. The search lasted 21 hours and involved four vessels and two aircraft, including a Canadian CC130 Hercules airplane with a crew of seven. Over a month later, the defendant admitted to a Coast Guard investigator that his report had been false. He pled guilty to one charge of making a false distress call, in violation of 14 U.S.C. §88(c)(1). At sentencing, the government offered evidence showing the hourly costs of using various Coast Guard assets and personnel, which included overhead, management and supervisory costs, etc. The district court imposed a three-month prison sentence, with three years of supervised release. The district court also ordered the defendant to pay restitution to the Coast Guard, under §88(c)(3), in the amount of $277,257.70, as well as $211,750.00 to the Canadian Armed Forces, as a condition of his supervised release. On appeal the defendant argued that the “all costs incurred as a result” language in §88(c)(3) limited restitution to actual losses proximately caused by his false report and that his actions did not increase the costs incurred; i.e. the Coast Guard would have incurred the fixed expenses regardless of his false report. The Sixth Circuit disagreed, holding that §88(c) did not limit the recoverable costs to increased costs. “Section 88(c) renders [the defendant] liable for all costs associated with resources mobilized as a result of his false report. We therefore find no error in the district court’s ruling that [he] is liable under §88(c) for the full cost of the service rendered by the Coast Guard, $277,257.70.” The defendant also argued that the district court erred in ordering restitution to the Canadian Armed Forces as a condition of his supervised release. He claimed that the specific language of §88(c) addressing liability for associated costs controlled over the more general provision of 18 U.S.C. §3583(d). “One of the most basic canons of statutory interpretation is that a more specific provision takes precedence over a more general one,” but canons apply only “where there is an apparent conflict between laws, or some other ambiguity that requires the court to go beyond the plain meaning of a statute’s text to discern legislative purpose.” The court found that there was neither conflict nor ambiguity in the language of these statutes. “[T]here being no conflict between the two statutes and no material ambiguity in their language, there is no reason why the two statutes cannot be deemed to coexist and co-operate. There is no support for the notion that §88(c) reflects a congressional purpose to exclude victims other than the Coast Guard from recovery of losses caused by a false report. We find no error in the district court’s determination that it had authority under §3583(d) to order [the defendant] to pay restitution to the Canadian Armed Forces.” 

Miscellaneous Issues

United States v. Wiseman
2014 WL 1599461 (10th Cir. 2014)

No error in failing to consider disparity between state and federal sentences

The defendant pled guilty to one count of conspiracy to distribute oxycodone. The PSR found
her responsible for 1,080 pills and recommended a sentencing range of 57 to 71 months. The defendant filed a motion for a downward variance, asking the district court to apply §3553(a)(6) to consider the sentencing disparity between her guideline range and similarly situated state court defendants in Utah. She pointed out that a similarly situated defendant in state
court would face a lower sentence. The district court declined to depart based on that factor, but did vary to a sentence of 48 months. On appeal, the defendant argued that comparing a possible state sentence to the federal sentence was a permissible consideration under 18 U.S.C. §3553(a)(6). The Tenth Circuit affirmed the sentence, explaining that the language of §3553(a)(6) “does not mean that a sentence calculated under the Guidelines is unreasonable simply because it is harsher than a state-court sentence would be for a comparable crime.” “The sole concern of section 3553(a)(6) is with sentencing disparities among federal defendants . . . . The Guidelines [seek] to avoid only the unwarranted disparities that exist [ ] in the federal criminal justice system, that system for which the Guidelines are governing law.” United States v. Branson, 463 F.3d 1110 (10th Cir. 2006). The district court did consider §3553(a)(6), but it “correctly understood its authority because §3553(a)(6) applies only when addressing sentencing disparities among and between federal defendants sentenced under the federal sentencing guideline regime. For the district court’s ruling to be an error, state-federal disparities would have to be relevant under §3553(a)(6), but they are not. It cannot therefore be procedural error for the district court to fail to consider an issue irrelevant to that factor.”

Cases In This Issue
United States v. Almeida, 2014 WL 1328299 (1st Cir. 2014)
United States v. Barbour, 2014 WL 1499829 (6th Cir. 2014)
United States v. Castro-Perez, 2014 WL 1646944 (10th Cir.2014)
United States v. Dominguez-Maroyoqui, 2014 WL 1344472 (9th Cir. 2014)
United States v. Kamper, 2014 WL 1378192 (6th Cir. 2014)
United States v. Kilgore, 2014 WL 1424474 (6th Cir. 2014)
United States v. Kumar, 2014 WL 1586427 (6th Cir. 2014)
United States v. Maguire, 2014 WL 1356031 (1st Cir. 2014)
United States v. Santiago-Burgos, 2014 WL 1613707 (1st Cir. 2014)
United States v. Stokes, 2014 WL 1673132 (8th Cir. 2014)
United States v. Taylor, 2014 WL 1509027 (9th Cir. 2014)
United States v. Whiteside, 2014 WL 1364019 (4th Cir. 2014)
United States v. Wiseman, 2014 WL 1599461 (10th Cir. 2014)

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