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Havis – Not Just for Drugs Anymore, 6th Circuit Says – Update for March 12, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

6TH CIRCUIT EXPANDS HAVIS HOLDING TO FRAUD GUIDELINES

The 6th Circuit expanded its groundbreaking United States v. Havis decision to white-collar cases last week in a fraud decision that suggests a Guidelines defense for a lot of defendants.

devil180418The devil’s in the details. Most federal crimes carry a statutory penalty of from a minimum to a maximum sentence. Distributing 100 grams of powder cocaine, for example, carries a punishment of zero-to-20 years. Where precisely within that range a judge should sentence a defendant is where the Sentencing Guidelines come in.

The Guidelines consider a variety of factors in determining an offense level – such as, in our cocaine example, the quantity of drugs, whether the defendant supervised other people, lied to the authorities, had a weapon in hand while dealing the powder, entered a guilty plea, and so on. Then, the defendant gets points for prior convictions (varying – drunk driving doesn’t score like a prior bank robbery, for instance), and a sentencing range is determined from a matrix with the criminal history as the abscissa and the total offense level as the ordinate.

The Guidelines are written by the U.S. Sentencing Commission, a judicial branch agency established by Congress. When a Guideline is written or amended, the provision is adopted by the Commission. Congress then has six months to either reject the change (kind of a legislative veto) or do nothing. If Congress does nothing, the Guideline provision is deemed adopted.

All of which brings us to Havis. I wrote about this decision in summer 2019 (way back before the pandemic). Each Guideline has appended to it commentary, which may be Application Notes – instructing a court on how to apply the provision – or just background. This is often useful stuff, but – unlike the Guideline itself – commentary is added by the Commission but not subject to Congressional approval.

humpty210312In Havis, the 6th Circuit was considering a particular piece of commentary attached to USSG § 4B1.2.  That Guideline defined “drug trafficking” crime in detail, but it did not specify that an attempt to commit a drug trafficking crime (or, for that matter, to conspire to commit such a crime), was included in the definition. No problem for the Commission staff – it just wrote into the commentary that attempts and conspiracies were included.

“Not so fast,” the 6th Circuit said in Havis. The Commission is not allowed to add to a Guideline definition approved by Congress with its own gloss. Sure, the definition could be expanded to include attempts and conspiracies, but to do so, it had to be approved by the Commission and subjected to Congressional oversight first.

Whew! Time for a break.  Get a cup of coffee and then let’s resume.

Last week, the 6th Circuit took up the case of Jennifer Riccardi, a postal employee who pled guilty to stealing 1,505 gift cards from the mail.

mail210312Jen worked in the Cleveland, Ohio, U.S. Postal Service distribution center (Motto: ‘Where Quality is a Slogan, and Chaos is a Lifestyle‘). In September 2017, an Ohioan mailed a $25 Starbucks gift card from Mentor, Ohio, to nearby Parma.  The card never arrived.  The sender complained to the U.S. Postal Service, which – in perhaps the only recorded instance in history – took the complaint seriously. opened an investigation. Investigators learned that supervisors at a Cleveland distribution center had been finding lots of opened mail in the processing area. Now you’d think this would have caused some puzzlement, but it did not until investigators followed the trail to Jen. When confronted, she admitted that she had been stealing mail that might contain cash or gift cards for quite some time. A search of her home uncovered over 100 pieces of mail that she had taken just that day, $42,102 in cash, and 1,505 gift cards.  The gift cards were laid out on the floor organized by the 230 or so merchants at which they could be redeemed.  Sad she hadn’t used such organizational skills at the Postal distribution center.

Most of the cards were worth about $35.00, for a total value of about $47,000. Under § 2B1.1 of the Guidelines, Jen’s offense level based on the amount of the loss, something § 2B1.1 does not define. But the Guidelines commentary to § 2B1.1 helpfully “instructs that the loss shall be not less than $500.00 for each unauthorized access device, a phrase that… covers stolen gift cards. Applying that definition, the district court pumped Jen’s loss up from $47,000 (which what the stolen cards were actually worth) to $752,500 (that is, 1,505 cards multiplied by $500.00 per card).

“So what?” you might ask. The ‘so what’ is that Jen’s Guidelines offense level depends a lot on the amount of loss.  A loss of $47,000 elevated her range by six levels. But if you pretend the loss was $752,500 – and it would really be pretending – her offense level would shoot up 14 levels. In Jen’s case, the difference was a sentencing range of 10-16 months and a range of 46-57 months. The district court gave Jen 56 months.

loss210312Based on its Havis holding, the 6th rejected the loss calculation and sentence. Havis held “guidelines commentary may only interpret, not add to, the guidelines themselves… And even if there is some ambiguity in 2B1.1’s use of the word “loss,” the commentary’s bright-line rule requiring a $500 loss amount for every gift card does not fall “within the zone of ambiguity” that exists. So this bright-line rule cannot be considered a reasonable interpretation of — as opposed to an improper expansion beyond — 2B1.1’s text.”

Ohio State University law prof Doug Berman thinks this case is a big deal. He wrote in his Sentencing Law and Policy blog, “the fraud guideline is not the only one important part of the federal sentencing guideline with an intricate set of commentary instructions that might be challenged as full of ‘improper expansions.’ I sense a growing number of litigants and courts are starting to hone on potentially problematical guideline commentary and that some variation of this issue with be getting to the U.S. Supreme Court before too long. In the meantime, defense attorneys would be wise to challenge (and preserve arguments around) any application of guideline commentary that even might be viewed as ‘expansionary’.”

United States v. Riccardi, Case No 19-4232, 2021 U.S. App. LEXIS 6163 (6th Cir. March 3, 2021)

Sentencing Law and Policy, Did a Sixth Circuit panel largely decimate the federal sentencing fraud guidelines (and perhaps many others)? (March 5)

– Thomas L. Root

1st Circuit Gives Pre-Booker Career Offenders Some Relief– Update for October 5, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

NO DEFENDANT LEFT BEHIND

vagueness160110The 2015 Supreme Court decision Johnson v. United States was a landmark, holding that the residual clause in the Armed Career Criminal Act’s definition of “crime of violence” was unconstitutionally vague. Johnson’s reasoning led to Sessions v. Dimaya (extending Johnson to the criminal code’s general definition of “crime of violence” at 18 USC § 16(b)) and 2019’s United States v. Davis holding extending Johnson to 18 USC § 924(c), the “use or carry a firearm” statute.

But thousands of inmates who were held to be Guidelines “career offenders” because of prior crimes of violence got no relief. A Guidelines “career offender” is very different from an ACCA armed career criminal. A Guidelines career offender is someone with two prior crimes of violence or serious drug convictions (federal or state). If a defendant qualifies as a Guidelines career offender, he or she will be deemed to have the highest possible criminal history score and a Guidelines offense level that ensures a whopping sentencing range.

After Johnson, a number of Guidelines career offenders, whose status had been fixed by including some dubious prior convictions as “violent,” sought the same kind of relief that Johnson afforded armed career criminals. But in 2017 the Supremes said that Johnson did not apply to the Guidelines. Beckles v. United States held that the Guidelines were not subject to the same kind of “vagueness” challenge that worked in Johnson, because the Guidelines did not “fix the permissible range of sentences, but merely guided the exercise of discretion in choosing a sentence within the statutory range.”

This may have been so for people sentenced under the advisory Guidelines. However, back before the 2005 Supreme Court decision in United States v. Booker, those “advisory” Guidelines were mandatory. They did not guide a judge’s discretion. Instead, the law required a judge to sentence within the applicable Guidelines sentencing range except in very narrow circumstances, and then only if the sentencing court jumped through the many hoops the Guidelines erected.

Robber160229So, how about guys like Tony Shea, who was sentenced after a bank robbery spree as a career offender back in 1998? Tony’s prior crimes of violence were pretty shaky bases for a career offender enhancement (not that Tony didn’t have plenty of problems for his string of armed robberies, but that’s another story). Tony was looking at minimum 430 months under normal Guidelines, nothing to sneeze at, but with the career offender label, Tony’s minimum sentence shot that up to 567 months (that’s 47-plus years, or 330 dog years).

Tony filed a § 2255 motion arguing that because his Guidelines career offender sentence was mandatory, not “advisory,” the Johnson holding should apply to wipe out his career offender status.

Last Monday, the 1st Circuit agreed. The appeals court noted that while Beckles was right that advisory Guidelines guide a judge’s discretion rather than “fix the permissible range of sentences,” the pre-Booker Guidelines did much more than this. The Circuit said “when the pre-Booker Guidelines ‘bound the judge to impose a sentence within’ a prescribed range, as they ordinarily did, they necessarily “fixed the permissible range of sentences” she could impose.”

Judicial despotism... probably not a good thing.
         Judicial despotism… probably not a good thing.

“It’s easy,” the 1st said “to see why vague laws that fix sentences… violate the Due Process Clause. The… rule applied in Booker serves two main functions. First, fair notice: requiring the indictment to allege ‘every fact which is legally essential to the punishment to be inflicted… enables the defendant to determine the species of offence with which he is charged in order that he may prepare his defense accordingly…” Second, “the rule also guards against the threat of ‘judicial despotism’ that could arise from ‘arbitrary punishments upon arbitrary convictions,’ by requiring the jury to find each fact the law makes essential to his punishment.”

Only the 11th Circuit has explicitly held that Beckles does not apply to mandatory Guidelines career offender enhancements. The 5th, 8th and 10th Circuits are on the fence. This 1st Circuit decision is the first to emphatically apply Johnson to give relief to people like Tony, who is already well into his third decade of imprisonment.

Shea v. United States, 2020 U.S. App. LEXIS 30776 (1st Cir., September 28, 2020)

– Thomas L. Root

The Short Rocket… – Update for January 27, 2020

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What’s Mine Is Mine…

rocket-312767The presentence report is one of the most valuable documents an inmate can have access to in working on post-conviction motions, as well as on prison-related issues. It controls access to drug programs, halfway house, earned time credits… just about everything that the BOP mandates or prohibits is based on what staff can glean from the presentence report.

The BOP does not permit you to keep a copy in your legal materials, but that does not mean you cannot have one at home.

More than one prisoner has run into a prior attorney saying he or she is not allowed to provide the PSR to a defendant. That happened to Kevin Marvin, whose judge had a policy that a defendant could go over his or her PSR, but was not allowed to have a copy. Kevin’s lawyer obeyed the judge, but at sentencing, Kevin complained to the judge that he wanted a copy of his PSR. She turned him down, saying, “There is confidential information in the PSR that would be harmful” to Kevin and his family if it were made public.

Last week, the 7th Circuit ruled that Federal Rule of Criminal Procedure 32(e)(2) requires a probation officer to give the PSR to “the defendant, the defendant’s attorney, and an attorney for the government at least 35 days before sentencing.” And “give” means “give—that is, transfer—the PSR to not only the defendant’s attorney, but also the defendant. Under its plain meaning, the rule cannot be satisfied by giving the PSR only to the defendant’s and government’s attorneys; the probation office also must also give the PSR to the defendant.”

The Circuit noted that a defendant’s possession of a PSR in prison could be dangerous, and suggested a district court could put reasonable limits on possession. But a blanket prohibition of a defendant possessing his or her PSR violates Rule 32(e)(2).

United States v. Melvin, 2020 U.S. App. LEXIS 2262 (7th Cir. Jan. 24, 2020)

I Promise to Do Whatever

New York assemblyman Nathan Silver was convicted of seven counts of Hobbs Act extortion under color of right and honest services fraud. The evidence on three of the counts was that in exchange for payments, he promised to take action favorable to the people bribing him “as the opportunity arose.”

money170419The three counts accused Nathan of taking bribes in exchange for agreeing to help out on whatever he might be able to do for the payors in the future. The Circuit said that while bribery does not “require identification of a particular act of influence, we do agree that it requires identification of a particular question or matter to be influenced. In other words, a public official must do more than just promise to take some or any official action beneficial to the payor as the opportunity to do so arises; she must promise to take official action on a particular question or matter as the opportunity to influence that same question or matter arises.”

United States v. Silver, 2020 U.S. App. LEXIS 1737 (2nd Cir Jan 21, 2020)

Thank You For Your Service

Three 6th Circuit Judges who never served a day of their lives in the armed forces, let alone ever got shot at, reversed a one-day sentence imposed on a defendant who showed that his child pornography offense was a result of the horrific combat PTSD he suffered from the Iraq war.

service200127The defendant’s Guidelines base offense level was 15, to which the same enhancements that affect virtually every child porn defendant were added, yielding a Guideline sentencing range of 78-87 months.

The district court rejected the enhancements, complaining that “everyone” who is brought into federal court for possessing child porn receives the same enhancements, which “makes it impossible to distinguish between individual defendants.” But the Circuit held the district court failed to consider “the retributive purposes” of the enhancements, and “its disagreement with the Guidelines cannot justify its decision to ignore the delineated enhancements.”

ptsd200127What’s more, the 6th said, the sentence was substantively unreasonable. “By focusing on the defendant’s PTSD diagnosis to the exclusion of other considerations,” the Circuit said, “the district court failed to acknowledge analogous cases within this circuit… and cast the defendant more as the victim than the perpetrator, stating that his crimes were ‘the result of his voluntary service to his community and his country’ and ‘an unintended consequence’ of his decision to serve in the Army.” Dismissing the science found to apply by the District Court, the appellate panel opined that ‘knowing possession of child pornography… is not a crime that just happens to a defendant’.”

The defendant will return to the District Court for resentencing.

United States v. Demma, 2020 U.S. App. LEXIS 2326 (6th Cir Jan 24, 2020)

– Thomas L. Root

Guidelines Are A “Disaster,” Judge Says – Update for July 3, 2019

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JUDGE BLASTS SENTENCING REFORM ACT

Democratic presidential candidate Joe Biden has taken some heat recently because he – like everyone else at the time – supported the 1994 crime control bill that so contributed to mass incarceration. But a federal judge writing in last Sunday’s Washington Post said critics should not stop with 1994.

trainwreckguidelines190703Eastern District of Wisconsin Judge Lynn Adelman wrote that the Sentencing Reform Act of 1984, the U.S. Sentencing Commission and the Guidelines “have been a disaster, and a debate by lawmakers about their status is long overdue.” Partly due to the sentencing guidelines, about 20% of all people imprisoned in the world are imprisoned in the United States (which has 4.27% of the world population) “The Sentencing Reform Act, and the commission and its guidelines,” the Judge said, “contributed substantially to this inexcusable state of affairs.”

The judge noted that after the Guidelines became advisory in the 2005 United States v. Booker case, the average federal sentence increased from 28 to 50 months and, with the abolition of parole, the average time a defendant served increased from 13 to 43 months. Between 1987 and 2019, the number of federal prisoners increased from about 50,000 to 219,000 before dropping to about 180,000.

badjudge160502Even after the Guidelines became advisory instead of mandatory, Judge Adelman complained, “district court judges have largely failed to… ameliorate the harshness of the federal sentencing system.” After Booker, average sentences dropped from 47.9 months to 44 months, but the percentage of defendants receiving prison-only sentences increased from 83.3% in 2003 to 87.8% in 2018.

The Judge argues that the Sentencing Reform Act should be substantially revised. “Congress was foolish to have abolished parole,” he wrote, “and should overturn that decision.”

Washington Post, There’s another tough-on-crime law Democrats should focus their criticism on (June 30)

– Thomas L. Root

Sentencing Commission Cannot Add to Drug Offense Definition, 6th Circuit Says – Update for June 10, 2019

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NEITHER FISH NOR FOWL

fishfowl170803Everyone who paid attention in high school government class knows there are three branches of the federal government, the legislative (Congress), the executive (President and the agencies), and the judicial.

And then there’s the United States Sentencing Commission. It is part of the judicial branch, but it is part legislative, too, answering to Congress (which has the right to pass on any amendments, and veto those of which it disapproves). Legal scholars might say it’s neither fish nor fowl.

In 2017, Jim Harvey pled guilty to felon-in-possession of a firearm. Under the Sentencing Guidelines, a defendant convicted of a 18 USC 922(g)(1) offense starts with a base offense level of 14, but that level increases to 20 under USSG § 2K2.1(a)(4) or (6) if he or she has a prior conviction for a “controlled substance offense.” At sentencing, the district court decided that Jim’s 17-year-old Tennessee conviction for selling or delivering cocaine was a “controlled substance offense” under the Guidelines.

Jim objected because the Tennessee statute criminalized both sale and delivery of cocaine. Under state law, “delivery” of drugs includes the “attempted transfer from one person to another of a controlled substance.” Jim argued that the prior conviction was not a controlled substance offense because the Guidelines’ definition of “controlled substance offense” does not include “attempt” crimes.

Jim was right that the Guidelines themselves do not include “attempt” offenses. However, each of the Guidelines comes with its own handy commentary and application notes, helpful annotations by the Sentencing Commission to aid users in what it considers the “proper” way to apply each Guideline. The commentary at the end of USSG § 4B1.2(b), which (among other things) defines a controlled substance offense for Guidelines purposes, directs that the definition of controlled substance offense in the text necessarily includes ‘the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.’

robbank190610Not so, Jim argued. The Guidelines text itself says nothing about attempt, and the Sentencing Commission, he complained, has no power to add attempt crimes to the list of offenses in § 4B1.2(b) through its own commentary. It would be like West Publishing adding a note after the bank robbery statute saying that bank robbery includes the offense of shaking a few quarters out of your kid’s piggy bank for bus fare.

Last Thursday, the 6th Circuit agreed with Jim.

The Guidelines commentary, the Court said, “never passes through the gauntlets of congressional review or notice and comment. That is generally not a problem, the Supreme Court tells us, because such commentary has no independent legal force — it serves only to interpret the Guidelines’ text, not to replace or modify it. Courts need not accept an interpretation that is “plainly erroneous or inconsistent with” the corresponding guideline.

bootstrappingBut the problem comes where the commentary does more than just interpret, but instead tries to bootstrap the Guideline into saying something more than what Congress approved. In this case, the commentary in question does not “interpret,” but rather supplements. The Commission was perfectly capable of adding “attempt” to the Guideline itself. Clearly, the 6th Circuit noted, the “Commission knows how to include attempt crimes when it wants to — in subsection (a) of the same guideline, for example, the Commission defines “crime of violence” as including offenses that have “as an element the use, attempted use, or threatened use of physical force against the person of another.”

To make attempt crimes a part of 4B1.2(b), the Commission did not interpret a term in the guideline itself, but instead used Application Note 1 to add an offense not listed in the Guideline. Application notes, the Court held, are to be “interpretations of, not additions to, the Guidelines themselves.” If that were not so, the institutional constraints that make the Guidelines constitutional in the first place — congressional review and notice and comment — would lose their meaning.

Jim’s case was remanded for resentencing.

United States v. Havis, 2019 U.S. App. LEXIS 17042 (6th Cir. June 6, 2019)

– Thomas L. Root

11th Circuit Travels Farther From Earth – Update for May 8, 2019

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11TH CIRCUIT BAR FIGHT

Last week, the 11th Circuit denied en banc review of a case in which a pre-Booker Guidelines career offender sought collateral review of his sentence, based on the void-for-vagueness doctrine of Johnson v. United States. No surprise there. But a number of judges on that court, including the former acting chairman of the Sentencing Commission, Judge William Pryor, wrote 27 weird pages explaining the soundness of their denial.

earth190508Essentially, the majority said that the Guidelines were always advisory, even when they were mandatory, because the mandatory guidelines were never lawful. Therefore, a judge could have given the defendant the same high sentence even if he was not wrongly considered to be a career offender, despite the obvious fact that any judge who had done that would have been summarily reversed. If the sentence conceivably could not have changed, the majority wrote, then the ruling (in this case, Beckles) is obviously procedural, and the defendant cannot rely on it to change his sentence, because it is not retroactive.

Judge Rosenbaum and two other judges threw 36 pages back at the majority:

According to the Pryor Statement, the Booker Court did not make the Guidelines advisory because they were always advisory, since the Sixth Amendment never allowed them to be mandatory. That is certainly interesting on a metaphysical level.

But it ignores reality. Back here on Earth, the laws of physics still apply. And the Supreme Court’s invalidation of a law does not alter the space-time continuum. Indeed, there can be no dispute that from when the Guidelines were adopted in 1984 to when the Supreme Court handed down Booker in 2005, courts mandatorily applied them, as 3553(b) required, to scores of criminal defendants — including many who still sit in prison because of them.

The inmate, Stoney Lester, was lucky enough to get released on a 2241 motion by the 4th Circuit – in which circuit he was imprisoned at the time – making the 11th Circuit denial academic. But the otherworldly logic of the majority, especially from a circuit fast becoming notorious for accepting any tissue-thin reason to deny a defendant constitutional or statutory justice (see here and here, for instance), is mind-numbing.

Lester v. United States, 2019 U.S. App. LEXIS 12859 (11th Cir. Apr. 29, 2019)

– Thomas L. Root

Gun Plus Drugs Does Not Always Equal Enhancement – Update for April 1, 2019

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PILING ON NOT ALLOWED, 7TH CIRCUIT SAYS

It comes as little surprise to most federal defendants that after a guilty plea, the government and court Presentence Report writers let Guidelines sentencing enhancements explode like confetti. Once you’re guilty, the amount of proof needed to pump up your sentencing range appears to fall dramatically.

But the 7th Circuit reminded courts last week that however low the enhancement evidence bar may be, it is still greater than zero.

pilingon190401Alandous Briggs pled guilty to being a felon in possession after his parole officer found drugs and guns in his house. The presentence report said Al had committed a felony drug offense in connection with the gun possession, and proposed a 4-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B). Al objected that the gun possession was unrelated to the drugs found in his home, but the court applied it anyway.

The 7th Circuit vacated the sentence. Observing that the district court’s findings consisted of nothing more than finding “an inference that the defendant may have been involved in some drug distribution… [but] at minimum, he was possessing drugs,” the Circuit said that the court was “resting its decision instead only on felony possession, to which Al had admitted.

The district never made any findings about how the coke possession was connected to the firearms. “The mere fact that guns and drugs are found near each other doesn’t establish a nexus between them,” the 7th said. “A court must say more to connect the two… Mere contemporaneous possession while another felony is being committed is not necessarily sufficient, and possessing a gun while engaged in the casual use of drugs might not give rise to the inference that the gun was possessed in connection with the drugs.”

United States v. Briggs, 2019 U.S. App. LEXIS 9131 (7th Cir. Mar. 27, 2019)

– Thomas L. Root

Court Must Address Defense Arguments on Sentencing – Update for January 24, 2019

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TALK TO ME

A dozen years ago, the Supreme Court held in Gall v. United States that district courts must sufficiently address the parties’ arguments and provide an explanation for sentences for good enough for “meaningful appellate review.” The 4th Circuit last week found that some district courts still don’t get it.

kporn160124Carl Ross was convicted of receiving and possessing child porn. His Presentence Report that included a recommended term of confinement and recommended special conditions of supervised released. The PSR recommended a prison sentence 188-235 months and lifetime term of supervised release.

Carl was already serving a 120-month state sentence related to the same set of facts. He asked the district court to impose a 60-month mandatory minimum sentence to run concurrent with the state term. The government argued for a 120-month sentence stacked on top of the state sentence, whining that Carl’s proposed sentence would result in “essentially no sentence” and “absolutely zero impact, zero additional punishment as a result of the conduct in this case.” The prosecutor said Carl destroyed evidence, lacked remorse and had continued his criminal conduct even after the state had caught him.

sorry190124Carl argued the government’s sentencing position was above the advisory Guidelines sentencing range, because it would result in two separate 120-month sentences to be served one after the other. His lawyer argued that “felony convictions relating to sexual offenses are already very punitive and that the lifelong social stigma” Carl would experience justified a 60-month concurrent sentence. Also, he offered a mental health report showing Carl’s apparent lack of remorse was nothing more than a symptom of his mental disorders, which among other things caused him to insist on trial instead of taking a plea. Defense counsel argued that Carl maintained gainful employment, cared for his aging mother and had only a relatively small amount of illicit material compared to the average child porn offender.

After hearing the arguments, district court imposed a 120-month, stacked on the state sentence and lifetime SR. The judge said he found Carl’s arguments unpersuasive and that “the government’s recommendation is appropriate.” This was too little explanation even for the government, which asked the court to explain its basis for the sentence. The court replied with gibberish, saying essentially that it was concerned about the lack of remorse, and it believed “it’s a specific deterrence, requires the sentence I’m imposing. I did not find that the guidelines are so flawed as to essentially have no sentence at all. And in terms of general deterrence, I think that the sentence I’m imposing is required.”

Sentencestack170404Last week, the 4th Circuit threw out the sentence as procedurally unreasonable. Noting that a “district court must address or consider all non-frivolous reasons presented for imposing a different sentence and explain why he has rejected those arguments,” the Circuit complained that “the district court did not address or consider any of the numerous non-frivolous arguments advanced by Ross’s counsel requesting a lower and concurrent sentence.” The appellate panel was particularly unhappy that “the district court did not provide an individualized assessment regarding important mitigation evidence related to Ross’s mental health,” care of his mother, gainful employment, and the fact that he possessed a relatively small amount of kiddie porn.

The Circuit said, “the district court could have conceivably given Ross a different sentence if it had considered his non-frivolous mitigation arguments. The district court had an obligation to specifically address Ross’s non-frivolous arguments. It did not do so here.” This was equally true for the district court’s failure to explain why Carl got lifetime SR. “It is the settled law of this circuit,” the panel wrote, “that Ross has a right to know why he faces special conditions that will forever modify the course of his life, and the district court’s silence violated his rights.”

United States v. Ross, 2019 U.S. App. LEXIS 1186 (4th Cir. Jan. 14)

– Thomas L. Root

Pay Your Money and Take Your Chance on Rule 11(c)(1)(C) Sentence – Update for October 3, 2018

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VACATED STATE CONVICTION DOES NOT LEAD TO LOWER RULE 11(c)(1)(C) SENTENCE

Brian Hoskins, a man with two prior felony drug convictions, made a deal under Federal Rule of Criminal Procedure 11(c)(1)(C) to plead to 112 months on a federal drug trafficking case. A so-called (c)(1)(C) plea specifies a precise sentence which the court may accept or reject, but not change. The (c)(1)(C) deal brought Brian’s sentence in way below what his Sentencing Guidelines “career offender” status would have gotten him.

jailfree140410But after sentencing, Brian was able to get his Vermont drug felony conviction – one of the two prior convictions that qualified him as a “career offender” – set aside because his state lawyer had screwed up the plea. All of a sudden, he no longer qualified as a career offender, dramatically lowering his sentencing range. His  112-month plea no longer looked like such a good deal.

Brian filed a 28 USC 2255 motion, arguing that his Rule 11(c)(1)(C) plea should be set aside. The district court agreed, holding that his “now-vacated state conviction clearly led to a significant enhancement of his sentence.” The district judge cut Brian’s sentence to 86 months, which Brian has now completed.

Not so fast, Brian. Last week, the 2nd Circuit upheld a government appeal of the 2255 grant. Noting that a non-constitutional error – like the state court conviction that had now gone away – can be recognized on a 2255 motion only if “the claimed error constituted ‘a fundamental defect which inherently results in a complete miscarriage of justice.’”

Here, the Circuit said, there was no miscarriage. Brian’s 112-month deal fell within his non-career offender sentencing range of 100-125 months. What’s more, the 2nd said, “Sec. 2255 does not encompass all claimed errors in conviction and sentencing.” Id. at 185. Rather, those instances where an error in conviction or sentencing rise to the level to be a cognizable basis for a collateral attack are reserved for when the “error of fact or law is of the fundamental character that renders the entire proceeding irregular and invalid… A “later development” that “did not affect the lawfulness of the judgment itself—then or now,” is not enough to vacate the sentence imposed.

The appellate court said Brian’s plea deal agreed he was a career offender, but applied a sentencing range well below it. The deal also let Brian avoid a superseding indictment with enhanced mandatory minimum sentence of ten years. “Together, these circumstances show that, even with a career offender enhancement applied to calculate Hoskins’s Guidelines range at 155 to 181 months, in securing agreement to a sentence of 112 months, Hoskins left the bargaining table with a deal that secured him real benefit, hardly indicating a a miscarriage of justice.”

welcomeback181003Second, because the Guidelines are advisory, the district court necessarily had to make an individualized determination that the 112-month sentence was right for Brian. The district court obviously did so, the 2nd Circuit said, and the fact the 112-month deal was in the middle of his non-career offender range made it clear Brian’s sentence was no miscarriage of justice.

The 2255 grant was reversed, and Brian will have to return to prison.

United States v. Hoskins, Case No. 17-70-cr (2nd Cir. Sept. 26, 2018)

– Thomas L. Root

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More of the Same Ol’ Same Ol’ at the Sentencing Commission – Update for August 28, 2018

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SENTENCING COMMISSION ANNOUNCES PRIORITIES FOR COMING YEAR

The U.S. Sentencing Commission last week approved a list of policy priorities for the coming year, including a multi-year examination of the “differences in sentencing practices that have emerged across districts, within districts, and, in some cases, within courthouses under the advisory guidelines system.”

In light of the Supreme Court’s decision in Koons v. United States, the Commission will also consider application issues related to the calculation of retroactive sentence reductions for certain offenders convicted of mandatory minimum penalties.

newsun180828For the third consecutive year, the Commission also set as a priority the adoption of a uniform definition of “crime of violence.”  The Dept. of Justice has raised several application issues that have arisen since the Commission’s 2016 amendment, including the meaning of “robbery” and “extortion.”  The Commission will also consider possible amendments to Guideline § 4B1.2 (the “career offender” guideline) to allow courts to consider the actual conduct of the defendant in determining whether an offense is a crime of violence or a controlled substance offense.

The USSC will also continue to study recidivism among federal offenders as well as the use of mandatory minimum penalties in the federal system.

Over the past two years, the Commission released eight reports on those topics. Despite the net effect of the prior reports (being zero), the Commission plans an additional recidivism report this coming year, as well as reports on the use of mandatory minimums in cases involving identity theft and sex offenses.

U.S. Sentencing Commission, Final Priorities for Amendment Cycle Ending May 1, 2019 (Aug. 22, 2018)

– Thomas L. Root

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