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 II

Posted by Chris Morales on Wed, Nov 19, 2014 @ 01:30 PM

We would like to thank our friends Joaquin & Duncan,

L.L.C for sharing this information with us!


United States v. Husmann
2014 WL 4347186 (3rd Cir. 2014)
Placing child pornography materials in shared folder did not constitute “distribution”

The defendant was on supervised release for a child pornography conviction. After searching
his computers, agents found still images and a video of child pornography, as well as two filesharing programs. The agents reviewed a log file that revealed that the files had been placed in a shared folder allowing access by others, but they could not identify when the files were loaded to the shared folder or whether any of the files had been downloaded by another computer. At the close of the government’s case, the defendant moved for acquittal, which was denied. A jury found him guilty of three counts of distribution and one count of possession of child pornography. The PSR calculated a sentencing range of 262 to 327 months, which included all of the enhancements that regularly go with a child pornography case. The district courtdeclined to apply a two-level enhancement under §2G2.2(b)(6) – use of a computer – since virtually all child pornography offenders use computers, and applied a two-level enhancement for the number of images instead of four levels. This resulted in a sentencing range of range of 168 to 210 months, but the court departed upward and sentenced the defendant to 240 months. On appeal, the defendant argued that under §2252(a)(2), he was not guilty of distribution because the government provided no evidence that anyone accessed, viewed, or downloaded files from his shared folder, and that
placing images in a shared folder, without anything more, did not amount to distribution. The third Circuit explained that the term “distribute” as used in §2252(a)(2) “must reqire the transfer of possession of child pornography to another person.” Contrary to the government’s argument, the definition of “distribution” under §2G2.2(b)(3) “has no bearing on the meaning of the term in §2252,” citing United States v. Ramos, 695 F.3d 1035 (10t Cir. 2012). “Because distribute in §2252(a)(2) is narrower than the same term in §2G2.2(b (3), we decline to adopt the definition of distribution laid out in the Sentencing Guidelines.” “Because distribution requires a download or transfer of materials and because the government did not present evidence that [the defendant] distributed child pornography within the meaning of §2252(a)(2), the District Court erred in denying [his] motion for acquittal.” “We remand to the District Court for resentencing with respect to [the defendant’s] remaining conviction for possession of child pornography.”

United States v. Kleiner
2014 WL 4290395 (2nd Cir. 2014)
Use of another person’s name and address to create counterfeit driver’s license supported enhancement under §2B1.1(b)(11)(C)(i)

The defendant telephoned TD Bank and represented himself to be Richard J. Butler, an actual
customer of the bank. In that role, he advised a bank representative that he wished to schedule a cash withdrawal of $74,000 for the following day. A call from the bank’s security department to the real Richard Butler confirmed that he neither intended nor authorized any such withdrawal from his account, whereupon the bank reported these events to law enforcement authorities. The next day, the defendant was arrested when he provided a $74,000 withdrawal slip and a New Jersey driver’s license in the name of “Richard J. Butler, Jr.,” but bearing the defendant’s own photograph. Officers found two counterfeit credit cards in Richard Butler’s name, as well as a notebook containing Butler’s correct and full name, address, social security number, date of birth, phone numbers, bank account information, and family members’ names. The defendant pled to bank fraud. The PSR calculated a sentencing range of 24 to 30 months, which included a two-level increase for the “unauthorized . . . use of any means of identification unlawfully to produce or obtain any other means of identification” under §2B1.1(b)(11)(C)(i). On appeal, the defendant argued that the enhancement did not apply to his case because adding Richard Butler’s name to additional documents, here a counterfeit driver’s license and counterfeit credit cards, did not produce a “means of identification.” He further claimed that the guideline’s reference to “any other means of identification” indicated that there must be two separate and distinct means of identification and copying a name or identification number to a new document did not meet the enhancement’s definition. The appeals court found that both of the defendant’s arguments were foreclosed by United States v. Sash, 396 F.3d 515 (2nd Cir. 2005). In that case, the court applied the enhancement where Sash made and sold unauthorized duplicate police badges that bore “actual, unique numbers” assigned by the police department. The Sash Court held that the enhancement applied even though the badges contained no new identifying information beyond that which was on an authorized badge. “An unlawfully produced duplicate means of identification still subjects a defendant to the enhancement because there is no requirement that the source ID number and the produced ID [number] be different numbers.” See United States v. Melendrez, 389 F.3d 829 (9th Cir. 2004). The court concluded that “a driver’s license, and not simply the number it displays, is a ‘means of identification’” for purposes of the enhancement. The sentence was affirmed.

Sentence Adjustments
(Chapter 3)

United States v. Solomon
2014 WL 4494863 (3rd Cir. 2014)
Abuse of a position of trust enhancement did not apply for extortion under color of official right

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. After being approached by a confidential informant (CI), he agreed to supply security for vehicles carrying drugs. 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), and ultimately sentenced him to 135 months pursuant to §2D1.1, based on 15 kilos of cocaine he protected. The sentence included a twolevel enhancement under §3B1.3 for an abuse of trust. On appeal, the defendant argued that the enhancement could not apply to sentences originating under §2C1.1, including sentencing ultimately determined pursuant to a cross-reference, citing Application Note 6 to §2C1.1, which states: “Do not apply §3B1.3 (Abuse of Position of Trust or Use of Special Skill).” The Third Circuit explained that “this prohibition apparently accounts for the fact that §2C1.1 already provides a 2-level increase if the defendant was a public official and allows the court to apply an even higher offense level through the  §2C1.1(c)(1) cross-reference if that official solicited or received payments for the purpose of facilitating the commission of another offense.” Although the defendant received a higher offense level under the cross-reference, he was “still sentenced under §2C1.1, the Guideline governing his offense of conviction.” “We thus conclude that Application Note 6’s express prohibition on the abuse of trust enhancement applies to any sentence originating under §2C1.1, even those that ultimately apply the offense level for another Guideline pursuant to the crossreference.” Therefore, the district court erred in applying the abuse of trust enhancement.

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Tags: defendant, guilty, child pornography conviction, bank fraud, filesharing