S e n t e n c i n g P a r t n e r s - F E B R U A R Y 2 0 1 5 - P a r t III

Posted by Chris Morales on Wed, Mar 18, 2015 @ 07:38 AM

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

Crime of Violence

United States v. Wray
2015 WL 328589 (10th Cir. 2015)
Prior Colorado conviction for sexual assault not a “crime of violence”

The defendant pled guilty to being a felon in possession of a firearm and was sentenced to 77 months. The base offense level was calculated to be 24, under §2K2.1(a)(2), based in part on the defendant’s prior conviction for “Sexual Assault- 10 Years Age Difference” under Colo. Rev. Stat. §18-3-402(1)(e). The issue on appeal was whether the prior conviction was a “crime ov violence” under §§2K2.1(a)(2) and 4B1.2. The government argued that the prior conviction (1) was a “forcible sex offense” under Application Note 1, or (2) came within the residual clause of §4B1.2(a)(2) (i.e., is one that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”). Using the categorical approach, the Tenth Circuit determined that the prior offense was not a “forcible sex offense” just because the victim was not capable of giving legal consent. “Accordingly, we conclude that the text and structure of the relevant Guidelines provisions do not require a per se rule that all violations of agebased sexual contact statutes are ‘forcible sex offenses’ under Application Note 1 to §4B1.2. Thus, Colo. Rev. Stat. §18-3-402(1)(e), which does not preclude the possibility of factual consent, is not categorically a forcible sex offense under §4B1.2.” As for the government’s second argument that the offense fell within the “residual clause,” the court explained that the threshold inquiry was “whether Colo. Rev. Stat. §18-3-402(1)(e) is a strict liability, negligence, or recklessness crime. If we find that it is, our task comes to an abrupt end - the prior conviction is outside the scope of the residual clause.” “The statute at issue here . . . is akin to the strict liability statute at issue in Begay” therefore, “because Colo. Rev. Stat. §18-3- 402(1)(e) is a strict liability offense, Begay instructs us that this is not the type of crime that Congress intended to cover.” The sentence was vacated and remanded.

United States v. Rodriguez
2015 WL 51264 (5th Cir. 2015)
Prior Texas conviction for stalking not “crime of violence” but error harmless

The defendant pled guilty to illegal reentry. He had previously been convicted of stalking, in
violation of Texas Penal Code §42.072. Based on this prior conviction, the PSR recommended a sixteen- level enhancement , under §2L1.2(b)(1)(A)(ii), because it was a “crime of violence” (COV). This resulted in a sentencing range of 57 to 71 months. At sentencing, the defendant argued that the conviction was not a COV because the statute did not have as a necessary element the use or threatened use of physical force. Without the enhancement, his sentencing range would have been 15 to 21 months. The district court concluded that the prior offense was a COV and imposed the enhancement. It also stated that it would impose the some sentence “no matter what system we use” based on the defendant’s prior history of alcohol abuse and violent behavior and two prior convictions for hit-and-run. On appeal, the defendant argued that his prior stalking conviction was not a COV. The Fifth Circuit explained that because stalking was not an enumerated offense, it could only qualify as a COV if it had “as an element the use, attempted use, or threatened use of physical force against the person of another.” Because the Texas stalking statute contained “disjunctive elements,” the court was allowed to “look beyond the statute to certain records made or used in adjudicating guilt to determine which subpart of the statute formed the basis of conviction.” Looking at the indictment, the court concluded that the Texas statute was not a “force offense” under §2L1.2. “The use, attempted use, or threatened use of physical force is not a required element of the statute under a plain reading of the text. The statute criminalizes behavior that another person fears is threatening bodily injury. But as this Court has consistently held, one can cause bodily injury without the use or attempted use of physical force.” See United States v. Andino- Ortega, 608 F.3d 305 (5th Cir. 2010); United States v. Villegas-Hernandez, 468 F.3d 874 (5th Cir. 2006). “It follows that the threat of bodily injury can occur even in the absence of a threat that the “Texas stalking statute, as narrowed by the indictment, was not for a COV under §2L1.2, the court concluded that the error was harmless. Because “the district court: (1) contemplated the correct Guideline range in its analysis and (2) stated that it would have imposed the same sentence even if that range applied, we cannot say that the district court’s miscalculation of [the defendant’s] Guidelines range caused him harm. The Guidelines error was therefore harmless.”


United States v. Ezell
2015 WL 294306 (9th Cir. 2015)
Descamps did not announce a new rule of constitutional law

The defendant was convicted in 2008 of being a felon in possession of a firearm and for possession with intent to distribute cocaine. He was sentenced to 262 months under the ACCA, based in part, on two prior Washington state burglary convictions. The district court, in keeping with then-Ninth Circuit precedent, applied the modified categorical approach when determining that both burglaries qualified as violent felonies. After exhausting his direct appeals and post-conviction options, he filed a successive 2255 petition based on the Supreme Court’s decision in Descamps v. United States, 133 S. Ct. 2276 (2013), where the Court held that the modified categorical approach applies only to statutes that are divisible. He argued that Descamps was a “new rule of constitutional law” under which the court could abrogate his 262- month sentence. The Ninth Circuit explained that a federal prisoner may not file a second or successive §2255 petition unless he makes a prima facie showing that the petition is based on: (1) “a new rule,” (2) “of constitutional law,” (3) “made retroactive to cases on collateral review by the Supreme Court,” (4) “that was previously unavailable.” The court found that the defendant’s motion failed on the first two prongs because “Descamps did not announce a new rule, and even if it did, Descamps is not a constitutional case.” A new rule is a rule that “breaks new ground,” “imposes a new obligation on the States or the Federal Government,” or is otherwise “not dictated by precedent existing at the time the defendant’s conviction became  final.” A case also announces a new rule if it “expressly overrules a prior decision.” Contrary to the defendant’s position, “Descamps did not impose a new obligation nor did it break new ground. Rather, as both the Supreme Court and we have recognized, Descamps clarified application of the modified categorical approach in light of existing precedent.” Further, the rule announced in Descamps was not constitutional. “Descamps is a statutory interpretation case: It clarifies when certain crimes qualify as violent felonies under the ACCA, a congressional enactment.” “Under the statute, it is the ‘new rule’ itself that must be one ‘of constitutional law,’ not the effect of failing to apply that rule to successive petitions.” In sum, Descamps did not announce a new rule, and even if it did, that rule was not constitutional.

United States v. Butterworth
2014 WL 7463311 (1st Cir. 2015)
Alleyne did not apply retroactively to sentences challenged on initial petition for collateral review

A search of the defendant’s apartment uncovered bags of marijuana, a scale, and 5.04 grams of cocaine. The defendant was found guilty of two drug trafficking counts: conspiracy to distribute and to possess five grams or more of cocaine base (count 1), and aiding and abetting the possession of five grams or more of cocaine base with intent to distribute (count 2). The government asked the judge to find the defendant responsible for fifty grams or more of cocaine base, not just the 5.04 grams that the agents seized. The district court granted the request, basing its decision on witness testimony that the defendant bragged he was earning $1,200 per night and that he had been selling crack cocaine for at least two weeks before his arrest. This drug quantity increased the mandatory minimum sentence from ten to twenty years. The defendant was sentenced to the twenty year minimum on each count, to run concurrently. On direct appeal, the defendant argued, in anticipation of the Supreme Court’s position eventually adopted by the Court in Alleyne, that a jury must find beyond a reasonable doubt any fact leading to the imposition of a higher mandatory minimum sentence. This argument was rejected based on controlling law at the time. Six years later, the Supreme Court held that “[a]ny fact that, by law, increases the penalty for a crime is an element that must be submitted to the jury and found beyond a reasonable doubt.” The defendant moved to vacate his sentence under §2255. The district court denied the motion, but issued a certificate of appealability to decide whether Alleyne was retroactively applicable. The First Circuit acknowledged that had the defendant been sentenced today, the procedure used at his original sentencing would have violated Alleyne. “Today, the jury, not the judge, would have to determine drug quantity if that quantity were to increase the mandatory minimum sentence.” The court first addressed the threshold question of whether section 2255(f)(3) permitted courts of appeal to make a retroactivity determination on an initial petition for collateral review. Citing Ashley v. United States, 266 F.3d 671 (7th Cir. 2001), the court concluded that “[d]istrict and appellate courts, no less than the Supreme Court, may issue opinions on initial petitions for collateral review holding in the first instance that a new rule is retroactive in the absence of a specific finding to that effect by the Supreme Court.” Looking at the merits of the defendant’s argument, the court first held that Alleyne triggered a new one-year limitations period for cases on collateral review because it was announced “a new rule.” See United States v.  Reyes, 755 F.3d 210, 212 (3d Cir. 2014); In re Payne, 733 F.3d 1027 (10th Cir. 2013); Simpson v. United States, 721 F.3d 875 (7th Cir. 2013). However, the court found that the defendant’s claim failed under §2255(f)(3), in that it was not a “newly recognized” right. The decision in Sepulveda v. United States, 330 F.3d 55 (1st Cir. 2003) (Apprendi could not be applied retroactively), “dictates our decision here, and we now reach the same conclusion about retroactivity for Alleyne as we did for Apprendi. “Like Apprendi . . ., Alleyne ‘did not cut a new rule from whole cloth,’ but rather ‘clarified and extended the scope of two well-settled principles of criminal procedure: the defendant’s right to a jury trial and the government’s burden of proof beyond a reasonable doubt.’ We therefore conclude that the rule announced in Alleyne is not retroactively applicable to sentences on collateral review on an initial habeas petition.”

United States v. Bailey
2015 WL 366204 (7th Cir. 2015)
Defendant was entitled to new sentencing hearing

The defendant pled guilty in 2011, under Rule 11(c)(1)(C), to distributing crack cocaine, agreeing to a sentence of 240 months. The agreement, however, allowed him to seek to modify his sentence if Congress or the Supreme Court later determined that the Fair Sentencing Act (“FSA”) should apply to cases like his. After the Supreme Court then decided Dorsey v. United States, --- U.S. ----, 132 S. Ct. 2321 (2012) (FSA should apply to cases where crimes were committed before the FSA took effect but sentence was imposed after it took effect), the defendant filed a pro se motion asking for a reduced sentence. The district court denied relief using a form order designed for motions under 18 U.S.C. §3582(c)(2), which authorizes reductions of sentences when the Sentencing Commission has retroactively amended a relevant sentencing guideline. The defendant appealed. The Seventh Circuit first determined that neither 18 U.S.C. §3582(c)(1)(B) nor (c)(2) applied, noting that under (c)(2), the defendant’s sentencing range was never retroactively “lowered by the Sentencing Commission,” in the terms of the FSA. He also could not obtain relief under §3582(c)(1)(B), because the phrase “expressly permitted by statute” in (c)(1)(B), disallows sentence modifications unless resentencing has been ordered after a successful direct appeal under 18 U.S.C. §3742(f), (g), or a collateral attack under 28 U.S.C. §2255. Instead, the court determined that the defendant’s claim “is best understood as a petition for relief under 28 U.S.C. §2255 for a sentence that was imposed contrary to law.” Here, the parties negotiated a sentence under the impression that he was subject to a mandatory minimum of 20 years because he committed the crimes before the FSA’s enactment. “It is now clear that he was subject to a mandatory minimum sentence of only 10 years. Without consideration of any statutory minimum, [his] guideline range when he was sentenced would have been 85 to 104 months.” Accordingly, the court construed the motion as a petition for collateral relief under §2255. The defendant was entitled to a new sentencing hearing where the district court could consider all of the sentencing factors, including the defendant’s criminal history and his disciplinary problems in prison.

Miscellaneous Issues

United States v. Coppenger
2015 WL 72833 (6th Cir. 2015)
Defendant was prejudiced by upward variance based on co-conspirators’ PSRs

In 2005, the defendant was involved in a mortgage fraud scheme to profit from buying and
selling millions of dollars’ worth of real estate by submitting false information to lenders. He contracted to purchase two parcels of property, then conspired with three mortgage officers and thirty-three “straw buyers.” The straw buyers applied for mortgages on lots within one of the parcels; falsely claimed they intended to use the lots as their secondary residences; falsely claimed that down payments were made; falsely claimed that they would be personally responsible for making mortgage payments; received approval for the mortgages; and delivered mortgage proceeds to the defendant. The mortgage officers worked with the defendant to make mortgage payments on behalf of the straw buyers, and to provide the straw buyers with either upfront cash payments or the promise of a future benefit, such as sharing in the profits from the ultimate sales of the properties. After the defendant stopped making mortgage payments for the straw buyers, the loans went into default, resulting in a loss of more than $32 million. The government charged thirty-five coconspirators with felony conspiracy. All pled guilty and most avoided prison time, but all were required to pay fines. The defendant pled guilty to conspiracy to commit bank fraud and conspiracy to defraud the United States of income taxes. The government requested a downward departure based on the defendant’s substantial assistance. The parties agreed that he should be sentenced within a guidelines range of 78 to 97 months. However, without prior notice, the district court relied on confidential, undisclosed information from co-conspirators’ PRSs to vary upward to a sentence of 120 months. Reviewing for plain error, the Sixth Circuit reversed the sentence, explaining that while Rule 32(i)(1)(B) “does not impose a categorical requirement of prior notice of the court’s intent to vary based on information not contained in the presentence report . . . . the rule clearly requires the sentencing court to use a procedure that affords the defendant a reasonable opportunity to respond. Indeed, a procedure that affords the defendant a reasonable opportunity to respond is one that precludes the possibility of prejudicial surprise.” “Here the district court’s sua sponte reliance on extraneous information both surprised and prejudiced [the defendant] and denied him a meaningful opportunity to respond, in violation of Rule 32(i)(1)(B).” Further, the district court “placed heavy, if not exclusive, reliance on” the harm the scheme had caused the straw buyers based on information contained in the straw buyers’ PSRs. Because neither the defendant nor his attorney were ever offered a written summary or access to the PSRs, they “clearly could not know the specific facts detailed in the presentence reports on which the court so heavily relied. Nor could [they] anticipate the weight the court ultimately assigned to these considerations.” The district court’s error was plain and was not harmless; therefore, the sentence was vacated and remanded. Finally, the court noted: “We do not suggest the resentencing must be accomplished without reliance on information contained in the co-conspirators’ presentence reports. We note that if confidential information cannot be disclosed to [the defendant] personally, it may suffice for the court to provide [him] with a written summary of the information it intends to  rely on while granting his attorney access to the presentence reports. These measures would allow counsel to both verify the accuracy of the summary and prepare any appropriate rebuttal.”

United States v. Morris
2015 WL 51638 (7th Cir. 2015)
Sentencing court was required to specifically address mitigation arguments

The defendant was with a friend when that friend sold crack cocaine to another man. Not knowing that the buyer was a confidential informant, the defendant called the man and offered to sell him crack cocaine. After the defendant delivered small amounts of crack on two occasions, the informant requested a larger amount. The defendant delivered 45 grams of a counterfeit substance that contained no crack cocaine. He was arrested and pled guilty. The PSR calculated a guidelines range of 57 to 71 months, using the actual drugs delivered, plus the counterfeit drugs, citing Application Note 4 of §2D1.1 (counterfeit substances are treated the same as controlled substances when calculating the guidelines range) and held the defendant accountable for 55.735 grams of crack cocaine. The defendant filed a sentencing memorandum urging the district court to apply a 1:1 crack-topowder cocaine ratio, which would result in a sentencing range of 21 to 27 months. He also noted that, if the court removed the counterfeit drugs, his range would be 15 to 21 months. Because the district court had previously sentenced the defendant at a probation revocation hearing, it was well aware of his life story – his difficult family history, his attempts at rehabilitation, his failures at avoiding a return to crime, his attempts at employment and education, and other factors relevant under section 3553(a). However, the court did not remark on the defendant’s principal arguments that the weight of the counterfeit substance, combined with the crack/powder disparity, unfairly drove his sentencing range significantly higher. The court ultimately decided on a below-guidelines sentence of 48 months. On appeal, the defendant contended that the district court committed procedural error when it failed to address his principal arguments in mitigation. The Seventh Circuit agreed, explaining “[w]hen a court gives little or no attention to the defendant’s principal argument when that argument was not so weak as not to merit discussion, we cannot have confidence that the judge adequately considered the section 3553(a) factors.” The court also noted that it had previously held that a defendant’s argument for a reduced ratio between crack and powder cocaine offenses is “not so weak as to not merit discussion.” The fact that the defendant received a belowguideline sentence made no difference. “Although it is true that the court granted [the defendant] a below-guidelines sentence, it is impossible to discern from this record whether the court credited [his] principal arguments in fashioning that sentence and so we must remand.”

Cases In This Issue

United States v. Bailey, 2015 WL 366204 (7th Cir. 2015)
United States v. Banks, 2015 WL 122019 (2nd Cir. 2015)
United States v. Butterworth, 2014 WL 7463311 (1st Cir. 2015)
United States v. Conley, 2015 WL 400556 (7th Cir. 2015)
United States v. Coppenger, 2015 WL 72833 (6th Cir. 2015)
United States v. Ezell, 2015 WL 294306 (9th Cir. 2015)
United States v. Fernandez, 2015 WL 178999 (5th Cir. 2015)
United States v. Kimber, 2015 WL 394199 (2nd Cir. 2015)
United States v. Matta, 2015 WL 304209 (2nd Cir. 2015)
United States v. Morris, 2015 WL 51638 (7th Cir. 2015)
United States v. Rodriguez, 2015 WL 51264 (5th Cir. 2015)
United States v. Sweet, 2015 WL 234760 (6th Cir. 2015)
United States v. Torres-Perez, 2015 WL 394105 (5th Cir. 2015)
United States v. Valencia, 2015 WL 307098 (10th Cir. 2015)
United States v. Wilson, 2015 WL 233247 (6th Cir. 2015)
United States v. Wray, 2015 WL 328589 (10th Cir. 2015)

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Tags: conviction, sexual assault, sentenced, pled guilty, firearm, crime of violence