Sentencing Partners - September 2015 (Part II)

Posted by Chris Morales on Wed, Sep 30, 2015 @ 09:35 AM

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

Published By Joaquin & Duncan, L.L.C.;
A Law Firm of Federal Sentencing Attorneys

S e n t e n c i n g  P a r t n e r s

September 2015

Sentence Adjustments

(Chapter 3)

United States v. Kupper
2015 WL 4926885 (10th Cir. 2015)
Obstruction enhancement reversed

The defendant and his wife conspired to enable Dr. Armando Gutierrez (a media
consultant) to increase his compensation under a State contract without any additional work. In exchange for the increase, Dr. Gutierrez allegedly gave kickbacks to the defendant
through the defendant’s consulting company. The government alleged that Dr. Gutierrez had
disguised the kickbacks as payments for the defendant’s work on a separate media campaign involving voter awareness. A jury found the defendant guilty of stealing and participating in a conspiracy to steal federal government property. He was found guilty of tax evasion in a separate trial. The district court imposed an enhancement for obstruction of justice, under §3C1.1, on the ground that the defendant failed to reveal his under-reporting of income. On appeal, the parties agreed that the enhancement constituted error. “We too agree, for we have held that enhancement for obstruction of justice is improper based on a defendant’s failure to disclose his own crime. Thus, the enhancement for obstruction of justice constitutes reversible error.”


United States v. Paz-Alvarez
2015 WL 4978733 (1st Cir. 2015)
Defendant used “special skill” to construct secret compartments in boats for smuggling

In 2009, the defendant was hired by drug smugglers to construct secret compartments on
two drug-smuggling boats. Within a month, law enforcement officials detected controlled
substances onboard one of the boats and it was seized. The second boat was seized after it encountered mechanical trouble and stalled in the water, loaded with 150 kilos of cocaine. Although the agents had extensive experience in searching for drugs hidden on boats, they struggled to find the sophisticated compartments that the defendant had constructed. A jury found the defendant guilty of conspiracy and controlled substance charges, finding that “more than 5kg of cocaine” were involved. The defendant’s sentencing range was 292 to 365 months, which included a twolevel enhancement under §3B1.3 because the defendant used a special skill in constructing the hidden compartments. On appeal, the defendant contended that he was “hired to put covers on already existing cavities,” and that the skills required to did that do not meet the meaning of a “special skill.” The First Circuit explained that the guidelines define a “special skill” as “a skill not possessed by members of the general public and usually requiring substantial education, training or licensing.” The court found that the defendant was being  too modest about his work. The compartments “were sophisticated compartments whose construction required more than a layperson’s capabilities in carpentry, circuitry, and hydraulics.” For instance, the defendant had replaced a wooden table (a piece of wood covering an open space) with a different, pistonoperated table powered by a car battery, which was wired to certain screws to complete the circuit. To access the compartment, a person would have to know which screws to touch with which cables to open or close it. Based on the evidence, “the district court did not clearly err in determining that a member of the general public would lack the skills necessary to create such a mechanism.”

Criminal History

(Chapter 4)

United States v. Powell
2015 WL 4926202 (6th Cir. 2015)
Defendant was not a career criminal

In April 2013, the defendant was one of several individuals named in a 93-count indictment based on a conspiracy to distribute drugs and firearms. He pled guilty to only two of the multiple charges: conspiring to possess with the intent to distribute heroin and crack cocaine; and being an unlicensed firearm dealer. At sentencing, the court determined that the defendant was a career offender, automatically placing him in criminal-history category VI. The district court based the career offender designation on two crimes of violence – a pair of assault convictions from 2001. In February of 2001, while in court on an unrelated charge, the defendant was served with a summons and given notice of an aggravated-assault charge against him. Approximately two months later, he was arrested for a second felony assault on a police officer. He was subsequently sentenced for both crimes on the same day. The district court in the present case concluded that the service of a summons regarding the first offense prior to the commission of the second offense was sufficient to treat the offenses separately for sentencing purposes. On appeal, the defendant argued that an intervening summons was not the equivalent of an intervening arrest for purposes of §4A1.2(a)(2), and because the two sentences must be counted together, he was improperly designated as a career offender. The Sixth Circuit agreed, holding that interpreting “arrest” to “include a citation (or summons) flies in the face of common understanding and stretches the word’s meaning too far. Indeed, in other contexts, such as Fourth Amendment seizures, courts distinguish summonses from arrests. Although arrests constitute seizures, summonses according to every circuit court that has considered the issue do not.” The district court erred in finding the defendant was a career offender. In addition, because he was denied the two-level reduction in the drug table based on the erroneous career-offender classification, the matter was reversed and remanded for resentencing. Circuit Split Two circuits have squarely addressed this issue and they reached opposite conclusions. Compare United States v. Morgan, 354 F.3d 621 (7th Cir. 2003) (two prior traffic violations were separated by an intervening citation but not an intervening arrest still amounted to two, separate offenses), with United States v. Leal- Felix, 665 F.3d 1037 (9th Cir. 2011) (en banc) (district court calculated criminal history points by counting two prior offenses separated by an intervening citation (but not an arrest) as separate offenses despite sentences being imposed on same day. Ninth Circuit reversed, holding “intervening arrest” included “formal” arrests, but not mere citations).

Probation/Supervised Release

(Chapter 7)

United States v. Purham
2015 WL 4639259 (7th Cir. 2015)
Conditions of supervised release were impermissibly vague

The defendant pled guilty to conspiracy to distribute 280 grams or more of crack cocaine. He was sentenced to 360 months. The sentence was reversed on appeal and remanded because the district court impermissibly counted some drug activity as relevant conduct. The district court imposed a sentence of 324 months and supervised release of 120 months. The court imposed two special conditions that the defendant challenged on appeal: 1) if the defendant was “unemployed after the first 60 days of supervision, or if unemployed for 60 days after termination or layoff from employment, you shall perform at least 20 hours of community service work per week at the direction of Probation until gainfully employed;” and 2) that the defendant was “not associate with any member of any street gang.” Regarding the first condition, the Seventh Circuit reversed, explaining that it set no limit on the amount of community service that the defendant could be ordered to do, and the district court failed to mention the application note to §5F1.3, which prohibits community service in excess of 400 hours. The court reversed the second condition was also vacated because it was too vague. “We remain unsure, then, whether an accidental or chance meeting with a street-gang member would violate this condition. Clarification must be provided to determine what ‘association’ means.” The case required “a limited remand for reconsideration of the above terms of supervised release.”

United States v. Taylor
2015 WL 4653148 (7th Cir. 2016)
Special condition regarding viewing adult pornography not warranted; condition barring all direct contact with minors was overbroad

The defendant entered an online chat room and began a conversation with an individual he
believed to be a 13-year-old girl. In reality, it was a law enforcement officer taking part in a joint federal-state sting operation. After chatting with the “girl” the defendant turned on
his webcam and masturbated in front of it. Over the next two weeks, the defendant discussed meeting the girl and masturbated a second time in front of his webcam. He was ultimately arrested and found guilty by a jury of violating 18 U.S.C §2422(b). This conviction was overturned on appeal and the government then charged him for the same conduct under a different statute, 18 U.S.C. §1470, which punished the transfer or attempted transfer of obscene material to a person under the age of sixteen years. He was again found guilty and sentenced to three years of probation. The defendant appealed certain special conditions of his probation including: 1) prohibiting him from viewing adult pornography and from knowingly visiting any place where adult pornography is sold or available for viewing; and 2) no knowing direct or indirect contact with a person under the age of 18, including avoiding “any  area in which persons under the age of 18 are likely to congregate, such as school grounds, child care centers, sport centers for youth sports, or playgrounds.” The Seventh Circuit noted that the first condition was not limited to illegal child pornography, but instead barred the defendant from accessing adult pornography that was otherwise legal. Further, there was no evidence that viewing adult pornography in any way led the defendant to commit the crime, or led him to commit any other crime, nor was there any evidence that viewing adult pornography would lead to him committing the same or a similar offense. The condition was vacated as being overbroad. Regarding the second condition, the court disagreed that no ban was necessary, pointing out that the defendant had discussed meeting the girl; thus some restriction on contact with minors was justified. However, the condition imposed was too broad in that it imposed an absolute bar on any knowing contact with minors, with no exceptions. In United States v. Thompson, 777 F.3d 368 (7th Cir. 2015), the court reversed a similar condition, finding that “contact, being undefined, could be understood to mean being served by a waitress, paying a cashier, sitting next to a girl (a stranger) at a baseball game, replying to a girl asking directions, or being shown a friend’s baby girl or his own baby, for that matter.” Further, the court recognized other exceptions for contact with non-related minors such as in the course of normal commercial business, in the presence of an adult approved by probation, and in other cases of unintentional or incidental contact. The condition in this case was too broad and was an abuse of discretion.

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Tags: defendant, guilty, drugs, federal, jury, firearm, compensation