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Determining the Sentence
United States v. Conley
2015 WL 400556 (7th Cir. 2015)
Concurrent sentence was correctly imposed under §5G1.3
The defendant pled guilty to one count of bank robbery. While awaiting sentencing, he and his cellmate sawed through the bars in their cell window, removed a section of concrete from the wall surrounding it, fashioned a rope out of bed sheets, and scaled seventeen floors down the side of the building. The defendant was captured 17 days later. The initial PSR for the bank robbery conviction set an offense level at 32, based on the application of the career offender provision, with credit for acceptance of responsibility, resulting in a guidelines range of 168 to 210 months. An amended PSR recommended removing the reduction for acceptance and adding two levels for obstruction, based on the escape. This resulted in a sentencing range of 210 to 240 months (capped at the statutory maximum). The district court imposed a sentence of 240 months. The defendant pled guilty to the escape charge. The PSR calculated an final offense level of 14, resulting in a guidelines range of 37 to 41 months. A different judge sentenced the defendant to 41 months, to be served consecutively to the bank robbery sentence. On appeal, the defendant argued that under §5G1.3(b), the sentence for the escape should have been concurrent. The Seventh Circuit explained that if “a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction . . . and that was the basis for an increase in the offense level for the instant offense . . . the sentence for the instant offense . . . shall be imposed to run consecutively to the remainder of the undischarged term of imprisonment.” Further, both requirements must be met. See United States v. Rachuy, 743 F.3d 205 (7th Cir. 2014). Here, the defendant argued that the escape was relevant conduct to the bank robbery because he escaped while incarcerated for the bank robbery. “We disagree. The bank robbery conduct was completed before his escape conduct, as evidenced by the fact that [he] had already pled guilty to the bank robbery charge at the time of his escape. He therefore cannot establish the first requirement of Section 5G1.3(b).” Likewise, he could not meet the second requirement because the bank robbery did not serve as the basis for an increase in the offense level assigned to the escape. The fact that the bank robbery conviction was one of
several offenses that qualified him as a career offender and raised his offense level from 13 to 17 did not meet the second requirement. The plain language of §5B1.3(b) states that the increase must be the result of applying provisions under “Chapter Two (Offense Conduct) or Chapter Three (Adjustments).” Here, the increased “offense level was due to enhancements imposed under Chapter Four (Career Offenders and Criminal Livelihood), not Chapters Two and Three. By the plain language of the provision, then, his career offender enhancement cannot provide the basis for fulfilling subsection (b)’s increase requirement.”
United States v. Wilson
2015 WL 233247 (6th Cir. 2015)
Fair Sentencing Act should have been applied to supervised release term
The defendant pled guilty to various charges, including social security fraud (Count 3) and conspiracy to distribute at least fifty grams of cocaine base (Count 11). In the plea agreement, the defendant admitted that her offense involved less than 50 grams of crack cocaine, while the government expressed a belief that it could prove 1,643 grams. The PSR applied the 2010 Guidelines and calculated a sentencing range of 324 to 405 months. Sentencing was delayed until the end of 2012 while the defendant cooperated with the government. At sentencing, the district court granted the government’s motion for a downward departure for substantial assistance, reducing the sentencing range to 210 to 262 months. The district court varied downward and sentenced the defendant to 192 months, with concurrent supervised release terms of three years for Count 3 and five years for Count 11. On appeal, the defendant’s attorney filed an Anders brief, claiming there were no arguable appellate issues. The Sixth Circuit denied the motion to withdraw, finding that an arguable issue existed: “whether the district court committed plain error by failing to apply 21 U.S.C. §841(b)(1)(B), as amended by the FSA, when imposing a five-year term of supervised release for Count 11.” Reviewing for plain error, the court concluded that “the district court’s use of the pre-FSA statutory range for supervised release constitutes clear error,” based on Dorsey v. United States, --- U.S. ----, 132 S. Ct. 2321 (2012). “In 2012, the Supreme Court held in Dorsey that the FSA applies retroactively to those such as [the defendant] who committed their crimes before the FSA’s enactment but were sentenced afterwards. Thus, [the defendant], who did not admit to any specific quantity of cocaine base above fifty grams, should have been sentenced to supervised release for Count 11 pursuant to the revised version of §841(b)(1)(B). The district court did not do so, but expressly adopted the presentence report which cited the minimum term of supervised release for Count 11 as five years pursuant to the former version of §841(b)(1)(A).” The supervised release portion of the sentence was vacated and remanded. The conclusion to remand was in agreement with the two circuits that have considered this issue. See United States v. Hilson, 538 F. App’x 15, 18 (2d Cir. 2013); United States v. Ryals, 503 F. App’x 478, 481 (7th Cir. 2013).
United States v. Fernandez
2015 WL 178999 (5th Cir. 2015)
Special condition of supervised release reversed
In 2005, a Texas state court convicted the defendant of first-degree sexual assault of a child. He was sentenced to four years and required by Texas law to register as a sex offender for life. Upon his release from prison in Texas in 2009, he moved to Louisiana, but failed to register in Louisiana as a sex offender. In 2013, he was arrested in Louisiana, after threatening an individual with a knife. It was discovered that he had not registered as a sex offender. Other than the 2005 Texas conviction, the criminal history in the PSR did not contain any other offenses that involved either a sexual offense or an offense involving computer use. He pled guilty to failing to register as a convicted sex offender and was sentenced to 21 months. As a special condition of his supervised release, the district court imposed a life-term requirement that he, inter alia, install and maintain, at his cost, “filtering software on any computer he possesses or uses which will monitor/block access to sexually oriented websites.” On appeal, the defendant challenged the provision, asserting that it was unrelated to his failure-toregister or sexual-assault offenses. The Fifth Circuit reversed the special condition, noting that “supervised-release conditions must be ‘reasonably related’ to the following factors: the nature and circumstances of the offense; affording adequate deterrence to criminal conduct; the protection of the public from further crimes by defendant; and providing defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. In addition, special conditions must: ‘involve [ ] no greater deprivation of liberty than is reasonably necessary’ to serve the purposes of §3553(a)(2).” In light of these factors and the facts in this case, “the district court abused its discretion in imposing the software-installation special condition provision at issue, when, inter alia, neither his failure-to-register offense nor his criminal history has any connection to computer use or the Internet. The special condition imposed in this instance is related neither to the nature and circumstances of [the defendant’s] offense (failing to register as a sex offender) nor his criminal history and characteristics.”
United States v. Matta
2015 WL 304209 (2nd Cir. 2015)
District court erred in delegating sentencing authority to Probation Department
In 2007, the defendant pled guilty to being a felon in possession of a firearm and was sentenced to 36 months and three years of supervised release. In August 2012, he was released and began his term of supervised release. Within two months of the release, the Probation Department issued a violation of supervised release report charging the defendant with assaulting (“Charge One”) and menacing (“Charge Two”) the mother of his child by punching her repeatedly in the face. Three other reports followed, charging him with using cocaine (“Charge Three”), failing to reside in and abide by the rules of a residential reentry center for a period of 120 days (“Charge Four”), jumping over a subway turnstile without permission (“Charge Five”), leaving a drug treatment program early without permission (“Charge Six”), and failing to report to the Probation Department (“Charge Seven”). In August 2013, the District Court found the defendant guilty of Charges One through Three and revoked his supervised release. In October 2013, the defendant pled guilty to Charges Four through Seven. After determining a sentencing range of 8 to 14 months, the district court varied upward to 24 months, to be followed by 12 months of supervised release, including four months in a residential reentry center. The court also required the defendant to participate in a drug treatment or detoxification program as a special condition of supervised release, leaving it “to the discretion of Probation” to decide whether an inpatient or outpatient program was “most appropriate.” On appeal, the defendant argued that the district court impermissibly delegated its sentencing authority by allowing the Probation Department to determine whether he should undergo inpatient or outpatient drug treatment. The Second Circuit agreed, explaining that “[t]he power to impose special conditions of supervised release, including participation in a substance abuse program, is vested exclusively in the district court. It is true that a district court may delegate to a probation officer decision-making authority over certain minor details of supervised release-for example, the selection of a therapy provider or treatment schedule. But a district court may not delegate to the Probation Department decision-making authority which would make a defendant’s liberty itself contingent on a probation officer’s exercise of discretion.” Further, the court noted that “inpatient drug treatment programs are sufficiently more restrictive than outpatient programs that the difference between the two programs might be said to be the difference between liberty and the loss of liberty.” “In light of this difference [between inpatient and outpatient treatment], . . . granting the probation officer the discretion to decide whether such conditions will be imposed is tantamount to allowing him to decide the nature or extent of the defendant’s punishment, and that any condition that affects a significant liberty interest, such as one requiring the defendant to participate in residential treatment . . . must be imposed by the district court and supported by particularized findings that it does not constitute a greater deprivation of liberty than reasonably necessary to accomplish the goals of sentencing.” See United States v. Mike, 632 F.3d 686 (10th Cir. 2011); United States v. Esparza, 552 F.3d 1088 (9th Cir. 2009). The court vacated that portion of the sentence and remanded to the district court to determine for itself whether such treatment, if still necessary, should be on an inpatient or outpatient basis.
United States v. Valencia
2015 WL 307098 (10th Cir. 2015)
24-month prison sentence for rehabilitative purposes was reversible error
The defendant pled guilty to one count of armed bank robbery and one count of carrying and use of a firearm during a crime of violence. He was sentenced to 211 months. In June 2013, the defendant completed his term of imprisonment and began his term of supervised release. During the first two weeks of his supervised release, the defendant submitted two urine samples that tested positive for the presence of illegal drugs. That prompted his probation officer to file a petition for revocation of supervised release, and the defendant was arrested. He admitted to smoking marijuana and using cocaine. The district court calculated a sentencing range of 8 to 14 months. Because he between his arrest and the sentencing hearing, the defendant asked for time served. The probation officer, however, recommended that the district court sentence the defendant to a 24-month term of imprisonment so that the defendant could get “additional treatment and care.” The district court imposed a sentence of 24 months, followed by a 36- month term of supervised release. On appeal, the defendant challenged the sentence, arguing that the only conceivable reason for the upward variance was so he could receive rehabilitative treatment, which was not permissible. The government conceded the error. Because the district court did not offer any explanation for the upward variance, other than the statement made by the probation officer, “we are left to conclude that the district court effectively adopted the probation officer’s recommendation and supporting rationale. And, because it is improper for a district court to impose or lengthen a prison term in order to promote a criminal defendant’s rehabilitation, we agree with the parties that the proper course in this case is to remand this case to the district court with directions to vacate [the] sentence and resentence him.”