S e n t e n c i n g P a r t n e r s - June 2015 (Part II)

Posted by Chris Morales on Wed, Jul 01, 2015 @ 11:00 AM

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

Probation/Supervised Release
(Chapter 7)

United States v. Phillips
2015 WL 2079599 (8th Cir. 2015)
Banning from accessing computers the internet was unreasonable

In 2001, the defendant pled guilty to statutory rape. In 2012, he failed to register as a sex
offender and was sentenced to 24 months’ imprisonment and 10 years’ supervised release. In 2014, two months into his release, his supervision was revoked based on, among other things, unsupervised contact with minors. Photographs of his penis, along with numerous pornographic pictures of adult females were found on his phone. The court sentenced him to 24 months’ imprisonment and supervision for life. As a special release condition, the court stated that thedefendant from could not “possess or use . . . a computer, . . . gaming equipment, cellular devices, or any other device with access to any on line computer services, or subscribe to or use any Internet service, . . . without the written approval of the probation office.” The defendant appealed the special condition. The Eighth Circuit explained that “[u]nder §3583(d), a district court may impose special conditions of supervised release if the conditions are reasonably related to the sentencing factors set
forth in §3553(a), involve no greater deprivation of liberty than is reasonably necessary for the purposes set forth in §3553(a), and are consistent with any pertinent policy statements issued by the Commission.” Further, “the district court must make an individualized inquiry into the facts and circumstances underlying a case and make sufficient findings on the record so as to ensure that the special condition satisfies the statutory requirements.” Here, the district court banned the defendant from accessing the Internet without permission, apparently based on his possession of adult pornography. “A court exceeds its discretion under §3583(d) by banning Internet access for possessing adult pornography. The prior-approval provision does not save this ban, because [the defendant] only possessed adult pornography. On remand, lesser restrictions on [the defendant’s] Internet access may be consistent with §3583(d).”


United States v. Alphas
2015 WL 2124771 (1st Cir. 2015)
MVRA authorized restitution only in amount of victim’s actual loss

The defendant owned and operated The Alphas Company, a wholesale produce
distributor. He purchased large quantities of produce, and purchased insurance on the shipments. In or around March of 2007, he devised a scheme to submit fraudulent claims to his insurers seeking reimbursement for the value of allegedly lost, stolen, or damaged produce, together with disposal expenses, shipping fees, and the cost of procuring replacement stock. He supported his submissions with documents that had been fraudulently altered or, in some cases, completely fabricated. Four of the claims were never paid: three were withdrawn after suspicions surfaced, and another one was thwarted by early detection of the fraud. The other six claims were paid, but mostly in amounts less than their face value. In sum, the claims totaled over $490,000, yet the defendant received payments totaling only $178,568.41. The defendant pled guilty to a single count of  wire fraud, stipulating to a base offense level of 7. The PSR recommended that the defendant pay restitution of $178,568.41 (the aggregate amount actually paid out on the claims). The defendant objected, arguing that restitution should not include the portion of the claims that corresponded to legitimate losses. The district court adopted the PSR and ordered payment of restitution in the amount of $178,568.41. The First Circuit reversed the restitution amount, explaining that “the government must establish a but-for connection between the defendant’s fraud and the victim’s loss.” Here, the defendant argued that a portion of the claims were legitimate and should have been subtracted from the restitution amount. “[W]e think it evident that the district court erred in ordering restitution in the full amount paid to the appellant simply because the insurance policies included void-forfraud clauses. While such clauses may suffice toground claims for disgorgement in civil proceedings, an insurer’s recoverable loss for MVRA purposes is confined to the amount the insurer would not have paid but for the fraud. The district court must, therefore, reconsider its restitution order, taking into account the extent (if at all) to which the appellant’s claims encompassed legitimate losses.”

Miscellaneous Issues

United States v. Clay
2015 WL 3377840 (5th Cir. 2015)
Failure to recognize discretion to vary from guidelines constituted procedural error

The defendant pled guilty to possession with intent to distribute cocaine and was determined
to be a career offender under §4B1.1 based on his prior convictions. The recommended
guideline range was 151 to 188 months. Without career offender status, the guideline range was 30 to 37 months. At sentencing, the ` moved for a downward variance under 18 U.S.C. §3553(a) arguing that the facts of his prior convictions did not indicate that he was the serious repeat offender to whom the career-offender provision in §4B1.1 was intended to apply; thus making a sentence within the recommended guideline range greater than necessary. The sentencing court stated that it was “troubled” by the case, but that there was no “Fifth Circuit guidance” related to variances when dealing with the career-offender provision in §4B1.1, even stating that the defendant’s sentence probably “would have been different” if he had “Fifth Circuit authority” to vary downward. The defendant appealed, arguing that the sentence court erred procedurally in failing to recognize its discretion
to vary below the recommended guideline range. The Fifth Circuit determined that the proper
question was whether the court failed to “apply[ ] an individualized assessment using the factors set out in 18 U.S.C. §3553(a)” in determining the sentence. It noted that the sentencing court is to first review those factors, then consider the recommended guideline range. The Fifth Circuit held: “In short, a district court’s sentencing discretion is no more burdened when a defendant is characterized as a career offender under §4B1.1 than it would be in other sentencing decisions. Furthermore, it is not necessary to identify a court of appeals decision that has directly addressed the guidelines provision at issue as Booker provides that discretion across the board with the statutory sentencing factors serving as the guideposts.” The sentencing court treated the defendant’s guideline range as mandatory since it was predicated on the careeroffender guideline. However, this was procedural error and the sentencing court had discretion to impose a sentence outside the guideline range. Further, the error was not harmless, as was apparent from the sentencing court’s statements on the record as to being “troubled,” and wishing for Fifth Circuit “authority,” and “guidance.” The sentence was vacated and the case was remanded for resentencing, with instructions that the court also  allow the defendant to allocute at sentencing, which had not been allowed previously.

United States v. Mercedes de la Cruz
2015 WL 3378255 (1st Cir. 2015)
Finding defendant untruthful at sentencing hearing allocution was erroneous;

Trial counsel ineffective for not filing motion to suppress The defendant was found guilty of conspiracy to possess with intent to distribute cocaine and possession with intent to distribute cocaine. At the sentencing hearing, the defendant contended that he should be considered a minor participant in the offense, that he instead was “merely a workman.” During his allocution, the defendant, through broken English, attempted to explain his role in the offense that ultimately amounted to statements that partially contradicted what the police had claimed took place. The district court granted a minor participation reduction, but then found that the defendant had been untruthful in his allocution and imposed a sentence of 136 months, which fell in the middle of the sentencing range. The First Circuit reversed the sentence, finding that “there is a probability the district court misunderstood the colloquy and so committed sentencing error.” The district court’s finding that the defendant denied his involvement in the offense was not supported by the record. “Any perceived inaccuracies in [the defendant’s] allocution were likely a result of the language barrier, not dishonesty.” In a non-sentencing related portion of the decision, and in a rare direct-appeal finding, the
court held that trial counsel was ineffective for not filing a motion to suppress statements the defendant made when he was arrested, but not Mirandized.

United States v. Boultinghouse
2015 WL 1963526 (7th Cir. 2015)
Failure to discuss statutory sentencing factors was procedural error

In 2006, the defendant pled guilty to two counts of unlawfully possessing a firearm in
interstate commerce after previously having been convicted of a felony offense. He was sentenced to 77 months. In October 2011, the defendant had completed his sentence and started his threeyear term of supervised release. A motion to revoke was filed after he failed multiple drug tests and was arrested for misdemeanor disorderly conduct and intimidation, charges he neglected to report to his probation officer. Representing himself at his revocation hearing, the defendant denied all the allegations. After finding the allegations to be true, the court determined that the sentencing range was 21 to 27 months, capped at a maximum of 24 months. After noting these points, the court revoked the defendant’s release and, without explanation as to the penalty it chose, ordered him to serve the maximum of 24 months. On appeal, the defendant challenged the the 24-month sentence, contending that because the court did not articulate a rationale for the sentence, procedural error was committed. The Seventh Circuit agreed, noting that when a defendant’s supervised release is revoked, the district court “must consider both the Guidelines policy statements that prescribe the penalties for supervised release violations, as well as the statutory sentencing factors set forth in 18 U.S.C. §3553(a), as applicable to revocations of supervised release; and he must also ‘say something that enables the appellate court to infer that he considered both sources of guidance.’ Otherwise, competent appellate review is impossible.” Here, although the district court took into account the guidelines policy statements, “[t]he court did not, however, mention the applicable section 3553(a) sentencing factors; and because the court did not give reasons for the sentence it imposed, we cannot be sure that the court considered these factors. The sentence was within the advisory Guidelines range, and as such it required only a concise explanation by the court. But there is a distinction between a minimal explanation and no explanation at all.” “The absence of a stated rationale for the 24-month sentence that the court imposed upon revoking [the defendant’s] supervised release amounted to procedural error which requires resentencing. The decision to revoke [the] supervised release is therefore affirmed; the sentence is vacated and the matter is remanded for resentencing.”

Cases In This Issue

United States v. Alphas, 2015 WL 2124771 (1st Cir. 2015)
United States v. Bercian-Flores, 2015 WL 2239325 (4th Cir. 2015)
United States v. Boultinghouse, 2015 WL 1963526 (7th Cir. 2015)
United States v. Clay, 2015 WL 3377840 (5th Cir. 2015)
United States v. Downs, 2015 WL 2058735 (7th Cir. 2015)
United States v. Maisonet-Gonzalez, 785 F.3d 757 (1st Cir. 2015)
United States v. Mathews, 784 F.3d 1232 (8th Cir. 2015)
United States v. Mercedes de la Cruz, 2015 WL 3378255 (1st Cir. 2015)
United States v. Phillips, 2015 WL 2079599 (8th Cir. 2015)

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Tags: defendant, fraud, imprisonment, plead guilty, sex offender, restitution, probation, sentencing