S e n t e n c i n g P a r t n e r s - O c t o b e r - Part I

Posted by Chris Morales on Wed, Nov 12, 2014 @ 09:20 AM

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

Attorney General Holder Announces New Policy to Enhance Justice Department’s Commitment to Support Defendants’ Right to Counsel 

Attorney General Eric Holder, along with Deputy Attorney General James M. Cole, announced on October 14th that the Department of Justice will no longer ask criminal defendants who plead guilty to waive their right to bring future claims of ineffective assistance of counsel. According to the press release, “[t]he new policy bolsters the department’s commitment to ensuring that individuals are ably represented as they face criminal charges and marks the Attorney General’s latest step to reform the criminal justice system.”

“Everyone in this country who faces criminal legal action deserves the opportunity to make decisions with the assistance of effective legal counsel,” said Attorney General Holder. “Under this policy, no defendant will have to forego their right to able representation in the course of pleading guilty to a crime.” 

Deputy Attorney General Cole unveiled the new policy through a memorandum to all federal prosecutors and through a conference call today. Prior to today’s action, 35 of the department’s 94 U.S. Attorney’s Offices sought waivers of future claims that included claims of ineffective assistance of counsel. While the department believes such waivers are legal and ethical, the new policy will create a uniform policy for all U.S. Attorneys to follow. 

The memo directs federal prosecutors to no longer ask defendants to waive future claims of ineffective assistance of counsel in plea agreements. It also instructs prosecutors to decline to enforce waivers that have already been signed in cases where defense counsel provided ineffective assistance resulting in prejudice or where the defendant’s ineffective assistance claim raises a serious issue that a court should resolve.

The press release is available at:
http://www.justice.gov/opa/pr/attorney-general-holder-announcesnew-policy-enhance justice-departments-commitment-suppoet.

The memorandum is available at:

Case Summaries

Offense Conduct
(Chapter 2)

United States v. Serunjogi
2014 WL 4746688 (1st Cir. 2014)
Challenge to sentence not rendered moot by release from custody;
No downward adjustment because offense was not committed for profit or was not substantially completed

The defendant was a nurse by profession, but for his friend Samson, he was also a wedding planner. A native of Uganda, the defendant emigrated to the United States in 1999 and was issued an Exchange Visitor Visa. Samson was also a native of Uganda, but his permission to remain in the U.S. had expired. In 2008, the defendant arranged a marriage between Samson and the defendant’s ex-girlfriend (May), who was a drug addict. Samson paid the defendant, who in turn paid May $800 or $900. Samson and May never lived together as husband and wife, but May, at the defendant’s direction, signed immigration forms that would have allowed Samson to remain in the country and get his “green card.” After Samson and May attended an immigration interview, the officer suspected
that the marriage was fraudulent. When May learned she was being investigated, she cooperated with the government. The defendant was ultimately found guilty of conspiracy to defraud the government and sentenced to four months in prison and one year of supervised release, four months of which served in home confinement. The defendant appealed, arguing: 1) that the district court erred by not applying  §2L2.1(b)(1), which allows for a three-level deduction “[i]f the offense was committed other than for profit” and 2) that he was entitled to a three-level deduction under §2X1.1(b)(2) because he and Samson “failed to complete all the acts necessary for the successful completion of the substantive offense.” The government contended that the appeal was moot, because the defendant was released from custody in May 2014. The First Circuit found that the issue was not moot because the defendant was still serving four months of home confinement and faced a year of supervised release, which was “a restriction of his personal freedom.” As for the other arguments, the evidence showed that the defendant took money from Samson, paid May, and pocketed the rest. “Further, the court found that May profited by the offense and because the defendant aided and abetted the conduct, he was also responsible for the profit.” Finally, the court “found that the substantive offense, defrauding the government, was substantially completed because the marriage took place, the immigration interview was completed, and the defendant and Samson had sent in all of the paperwork they were using to try to establish the validity of the marriage. In short, there was nothing left to do but wait and hope that the immigration authorities would be duped.” Accordingly, the court determined that the defendant failed to meet his burden, and was not entitled to a decrease under §2X1.1.

United States v. Mathis
2014 WL 4724697 (11th Cir. 2014)
§2G2.1(b)(6) enhancement for use of computer applied to use of smartphone

The defendant, a registered sex offender, enticed a minor to engage in sexual activity in 2004. Seven years later, in 2011, he attempted to convince a minor to take sexually explicit pictures and send them to him via text message, and he actually succeeded in convincing a different minor to do so. Based on this conduct, a jury convicted him of several child exploitation offenses. The PSR calculated a sentencing range of 360 months to life. The calculation included a two-level enhancement under §2G2.1(b)(6) for use of a computer or interactive computer service to persuade, induce, entice, coerce, or facilitate the travel of a minor to engage in sexually explicit conduct, based on the defendant’s use of his smartphone to commit the offense. The district court adopted the PSR and imposed a sentence of 480 months. On appeal, the defendant argued that the enhancement did not apply to him because he simply sent text messages and requested pictures; therefore, he did not use “the computer components” of his smartphone in committing the offenses. He also argued that the enhancement applied only when a defendant used the Internet in the commission of the offense and not simply because a phone with Internet capabilities was used. The Eleventh Circuit disagreed, explaining that the word “computer” has “the meaning given that term in 18 U.S.C. §1030(e)(1), which is “broad and encompasses any device that uses a data processor.” See United States v. Kramer, 631 F.3d 900 (8th Cir. 2011). “Each time an electronic processor performs any task from powering on, to receiving keypad input, to displaying information it performs logical, arithmetic, or storage functions. These functions are the essence of its operation. Nothing in the statutory definition of a computer requires that the device have a connection to the Internet or Internet capabilities.” Consequently, the court held that “a defendant’s use of a cell phone to call and send text messages constitutes the use of a computer, as that term is defined in 18 U.S.C. §1030(e)(1), and warrants imposition of an enhancement under §2G2.1(b)(6).”

United States v. Snelling
2014 WL 4662504 (6th Cir. 2014)
District court required to reduce loss figure by value of payments made to fraud victims

The defendant participated in defrauding investors by soliciting funds for two fictitious financial companies that turned out to be a Ponzi scheme. To cover their tracks, the defendant and his co-defendants issued false quarterly statements by mail and, when confronting their investors’ suspicions, produced false trading-account records. They also provided false documents to a federal grand jury showing a balance of $8.5 million in the accounts when, in fact, there was $995.88. The defendant pled guilty to conspiracy to commit mail and wire fraud; obstruction of justice; and tax evasion. The PSR calculated a total loss figure of over $7,000,000, resulting in an offense-level enhancement of 20 level under §2B1.1(b)(1)(K), with a sentencing range of 121 to 151 months. The defendant objected to the loss amount, arguing that it should be less than $7,000,000 because the PSR did not account for the amounts returned to investors during the fraud. This would have resulted in a sentencing range of 97 to 121 months. The district court rejected the defendant’s argument and imposed a sentence of 131 months. The defendant raised the same argument on appeal and the Sixth Circuit agreed. Citing Application Notes 3(E) and 3(F) to §2B1.1, the court found that the loss amount should have been reduced by the amount paid to the investors, limited to the amount the investor originally invested. “The fact that the Application Notes limit deductions from loss figures to no more than the sums originally invested implies, quite strongly, that the loss figures are to be reduced in the first place.” Accordingly, the district court erred when it declined to reduce the loss figure by the value of the payments made by the defendant to his investor victims in perpetuating his Ponzi scheme.

United States v. Solomon
2014 WL 4494863 (3rd Cir. 2014)
Cross-reference under §2C1.1(c)(1) applied

In 2009, the defendant became the police chief of a small town in Pennsylvania, after a decade as a part-time officer. He was paid a set annual salary and was unable to moonlight because he had to be available around the clock. At about the same time, he and his wife divorced. His behavior after his divorce attracted the attention of federal authorities and caused them to engage a confidential informant (CI) to approach the defendant to discuss providing security services involving the defendant following a vehicle and ensuring that nothing happened to it. He was to be paid $1,000. Later, the defendant met with the CI and an undercover FBI agent posing as a drug trafficker. At the meeting, the defendant agreed to provide protection for a multi-kilogram cocaine shipment, and also agreed to wear his police uniform and sit in his police car while doing so. He was paid $1,000 as a “good faith” payment in advance of the shipment. After the staged deal took place, the defendant was paid $1,500. Two months later, he agreed to provide protection for a 10-kilogram cocaine shipment. After being paid $5,000, the defendant was arrested. He pled guilty to three counts of extortion under color of official right. The PSR initially calculated the sentencing range under the cross-reference contained in §2C1.1(c)(1), which states: “If the offense was committed for the purpose of facilitating the commission of another criminal offense, apply the offense guideline applicable to a conspiracy to commit that other offense, if the resulting offense level is greater than that determined above.” The PSR determined that the defendant accepted payments “for the purpose of facilitating cocaine trafficking” and calculated the sentencing range under §2D1.1, based on 15 kilos of cocaine. This resulted in a sentencing range of 108 to 135 months. Without the cross-reference, the range would have been 30 to 37 months. The district court sentence the defendant to 135 months. On appeal, the defendant argued that the cross-reference did not apply to him because the drug deals were staged; therefore, he could not be charged with intent to distribute a controlled substance. The Third Circuit held that the defendant’s “arguments on this issue fail because they run contrary to the clear language of the Guidelines.” Under the plain language of §2C1.1 and its commentary, there was no requirement “that the defendant could have
been charged with ‘another criminal offense’ – only that the purpose of the bribe or extortion was to facilitate the commission of another crime. This critical distinction refutes [the defendant’s] argument. The Government does not contend, nor do the Guidelines require, that [the defendant] actually facilitated another criminal offense. Rather, he pled guilty to receiving illegal payments and taking actions that he thought were furthering cocaine trafficking. This doubly corrupt purpose as opposed to, for instance, a public official accepting payments in exchange for taking an otherwise legal action explains why the Guidelines provide for increased punishment of defendants covered by the cross-reference.” Accordingly, the cross-reference applied to the defendant’s conduct. See also, United States v. Ruiz, 621 F.3d 390 (5th Cir. 2010); United States v. Brannen, 145 F.3d 1326 (4th Cir. 1998); United States v. Shenberg, 89 F.3d 1461 (11th Cir. 1996).

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Tags: extortion, sentencing partners, drugs, criminal guidelines