Tag Archives: guidelines

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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10th Circuit Says Robbery is Still Violent – Update for Tuesday, May 8, 2018

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TENTH CIRCUIT SAYS ROBBERY IS A GUIDELINES VIOLENT CRIME

Ed McCranie pleaded guilty to federal bank robbery, which his presentence report suggested was a crime of violence under United States Sentencing Guidelines 4B1.2(a)(1), just like a prior federal bank robbery and Colorado aggravated robbery. The three convictions made Ed a Guidelines career offender under USSG 4B1.1(a). Ed complained at sentencing that none of his three robberies qualified as a crime of violence, but the district court rejected the argument, sentencing him to 175 months.

violence180508Last week, the 10th Circuit affirmed, holding that federal bank robbery, which is taking property by force, violence, or intimidation, qualifies categorically as a crime of violence. Ed argued that because robbery can be accomplished by threatening something other than physical force, such as releasing poison if the teller does not hand over the case, the crime is not a “crime of violence.” But the Supreme Court’s 2014 decision in United States v. Castleman knocked down that issue.

Still, Ed contended, robbery can be committed by intimidation, and some people can be intimidated by raising an eyebrow, without any real threat of physical force at all. If one robs by scaring some clerk who is scared of his own shadow, Ed argued, it does not rise to a crime of violence.

caspar180508Not so, the Circuit said. “We have defined intimidation… as an act by [the] defendant ‘reasonably calculated to put another in fear, or conduct and words calculated to create the impression that any resistance or defiance by the individual would be met by force’… This definition requires the objective threatened use of physical force.” Even the 10th Circuit pattern jury instructions say that to take ‘by means of intimidation’ is to say or do something in such a way that a person of ordinary sensibilities would be fearful of bodily harm’… And then, putting to rest any concerns of the too-timid teller, the instructions clarify that “a taking would not be by ‘means of intimidation’ if the fear, if any, resulted from the alleged victim’s own timidity rather than some intimidating conduct on the part of the defendant. The essence of the offense is the taking of money or property accompanied by intentional, intimidating behavior on the part of the defendant.”

Because intimidation requires an objectively reasonable fear of bodily harm, Tim’s conviction was upheld.

United States v. McCranie, Case No. 17-1058 (10th Cir. May 3, 2018)

– Thomas L. Root

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2018 Guideline Amendments… The Rest of the Story – Update for April 17, 2018

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2018 GUIDELINE AMENDMENTS HARD ON SYNTHETICS, EASIER ON PROBATION

As we reported last Friday, the U.S. Sentencing Commission killed the First Offender proposal by neglect, never mentioning it during the half-hour meeting last week at which the USSC adopted a slate of new amendments to the Guidelines Manual to be sent to Congress.

khat180417That’s not to say, however, that the Commissioners did nothing. They did vote to update the federal sentencing guidelines to address synthetic drugs. The amendments addressed synthetic cathinone (the active drug in African khat, used in bath salts) and synthetic cannabinoids, including K2. To address fentanyl, the USSC adopted a four-level sentencing enhancement for knowingly misrepresenting or knowingly marketing fentanyl or fentanyl analogues as another substance (a 50% increase in sentence).

release180417The Commission also adopted a new application note suggesting judges consider alternative sentencing options to prison for “nonviolent first offenders” whose applicable guideline range falls at 8-14 months or less. Eligible defendants must not have any prior convictions and must not have used violence, credible threats of violence, or possessed a firearm or other dangerous weapon in the offense. The alternatives include probation, halfway house confinement and house arrest.

The USSC also increased offense levels for certain Social Security fraud offenses to incorporate statutory changes, and adopted a non-exhaustive list of factors that courts may consider in determining whether a prior Indian tribal court conviction warrants an upward departure from the recommended sentencing range.

Nothing in the proposed amendments, which will be effective November 1, 2018, applies to people who have already been sentenced.

U.S. Sentencing Commission, Amendments to the Sentencing Guidelines (Preliminary) (Apr. 12, 2018)

– Thomas L. Root

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A Good Idea is Not Necessarily the Law – Update for December 8, 2017

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‘MAY’ DOES NOT MEAN ‘MUST’

There’s the old public service tagline about seat belts not just being a good idea, but being the law as well. It spawned more than one parody. But one kiddie-porn possession defendant learned last week that the meme does not have legs.

gravity171208The Circuits are strongly split over how to treat defendants subject to child porn Guidelines, which in the past 14 years have become draconian even by the normally harsh advisory Sentencing Guidelines. The 2nd Circuit started off the principled opposition to the stratospheric child porn sentencing ranges mandated by Congress in the 2010 case of United States v. Dorvee, holding that courts could pay little deference to child porn Guidelines because they were not set by the reasoned professional judgment of the Sentencing Commission, but instead by the political hacks in Congress. Two years later, the 6th Circuit ruled in United States v. Bistline that the fact that Congress told the Commission to set the ranges high meant the child porn guidelines were entitled to even more deference than the normal Guidelines.

anarchy171208In 2014, the 7th Circuit held in United States v. Price that it agreed with Dorvee, and said a sentencing judge could vary downward because of policy differences with Congress. But last week, the Circuit reminded defendants that “while district courts may disagree with the Guidelines’ policies and impose a lower sentence, it is not true that they must” do so.

bereasonable171208Terry Obetz questioned the usefulness of the Guidelines in child pornography cases, because the Guidelines were shaped by Congress instead of sentencing experts, and thus lack a basis in empirical data. He argued that Price requires sentences in child pornography cases to fall below the Guidelines’ range in order to be reasonable.

The judge listened to Terry’s policy argument but was not convinced: after all, the judge said, Congress created the Sentencing Commission, and it was free to give the USSC “some direction” when it wanted to. After all, what is a sentence but a political expression of appropriate punishment.

The sentencing court knew it was not bound by the Guidelines, but the judge said he believed the Guidelines’ recommendation – even if it was authored by Congress (or maybe especially because it was authored by Congress) – was appropriate.

judges171208On appeal, the 7th observed that the exercise of discretion shown by Terry’s judge  was “exactly what the judge was supposed to do.” Just as the judge in Price exercised her discretion when she reasonably deviated down from the Guidelines on policy grounds, Terry’s judge exercised his discretion, too, when he reasonably chose not to do so.

Judges judge, the Circuit said. That’s what they do, and as long as they are reasonable about it, the Court of Appeals was not going to tell them differently.

United States v. Oberg, Case No. 17-1546 (7th Cir. Dec. 1, 2017)

– Thomas L. Root

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Newspeak Redux: Another Violent Crime is not a Crime of Violence – Update for November 2, 2017

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10TH CIRCUIT SAYS HOBBS ACT ROBBERY NOT A GUIDELINES “CRIME OF VIOLENCE”

angels170726The debate over whether criminal offenses that any viewer of Law and Order would have no problem labeling as violent are in fact “crimes of violence” continues to rage. In the Newspeakean world that remains after United States v. Curtis Johnson and United States v. Mathis, determining whether a violent crime is a “crime of violence” has come to occupy the same station as counting the number of angels on the head of a pin.

Whether a crime is a “crime of violence” has great relevance, because it can qualify the unlucky defendant for a 15-year mandatory minimum sentence (Armed Career Criminal Act), a mandatory consecutive sentence of at least five years (use of a firearm during crime of violence under 18 USC 924(c)), a much higher Guidelines sentencing range as a “career offender,” and a host of other statutory and Guidelines burdens. That’s not to mention the impact on legal residents subject to deportation for crimes of violence, an issue that is part of the Sessions and Dimaya case awaiting decision in the Supreme Court.

The latest entrant into the debate comes from the 10th Circuit, where Darnell O’Connor faced a Guidelines enhancement under USSG 2K2.1(a)(4)(A) because he had a prior conviction for a Hobbs Act robbery. Darnell’s advisory sentencing range for his felon-in-possession-of-a-gun conviction (18 USC 922(g)(11)) was increased by about six months because of the prior.

There are three ways a prior offense may be a crime of violence under the Guidelines. It may be either (1) an enumerated offense listed in the Guidelines (burglary, arson, extortion or use of explosive”); (2) an offense that has as an element the threatened use or actual use of physical force against a person; or (3) an offense that presents a significant risk of physical harm to others.

Robber160229The first clause is called the “enumerated clause,” because it enumerates certain offenses that count, period. The second is called the “force clause” or “elements clause,” because it relates to crimes that include elements of purposeful force. The third is called the “residual clause,” because it sweeps up what’s left. The “residual clause” was declared unconstitutionally vague two years ago in United States v. Johnson, at least as it applies to the ACCA, but the Supreme Court subsequently decided it could be applied in the Guidelines definition of “crime of violence.”

The definition of a “crime of violence” is the same whether its figuring out whether someone is an armed career offender under the ACCA or whether figuring out whether it’s a crime a violence under 18 USC 16(b), or whether figuring out whether the Guidelines make one a “career offender” under the Guidelines.

violence160110On appeal, Darnell argued that a Hobbs Act robbery was not a “crime of violence” under the Guidelines definition – which is fundamentally the same as the statutory definition – because it encompassed conduct that was broader than “robbery.” If some conduct that would be a crime under the statute would not be a “crime of violence” under the Guidelines, then any conviction under that statute will not qualify as a “crime of violence” for a sentence enhancement under the Guidelines, regardless of whether the conduct that led to the prior conviction was in fact violent.

Under the force clause, the court looks at whether the statute underlying the prior conviction “has as an element the use, attempted use, or threatened use of physical force against the person of another.” If the statute criminalizes only conduct that fits within the force clause, then a sentencing enhancement is valid. But if the Hobbs Act robbery statute covers conduct that falls outside the force clause—such as threatening property rather than “the person of another”—then Hobbs Act robbery would not categorically be a crime of violence under that clause.

The Hobbs Act defines robbery is the unlawful taking of someone’s personal property against his will by use or threat of force “to his person or property.” The Government argued that the Court had to focus on the “minimum conduct” criminalized by the underlying statute without applying “legal imagination” to consider hypothetical situations that technically violate the law but have no “realistic probability” of falling within its application. It argued it Darnell could point to no case where the government would prosecute” threats to property as a Hobbs Act robbery.

The Court held that was immaterial, because Darnell “does not have to make that showing.

Hobbs Act robbery reaches conduct directed at “property” because the statute specifically says so. We cannot ignore the statutory text and construct a narrower statute than the plain language supports.” Because Hobbs Act robbery can be committed against property, where generic robbery cannot, it is broader than enumerated robbery, and cannot qualify as violent crime under the “enumerated clause.”

Likewise, the enumerated offense of extortion cannot include the Hobbs Act within its sweep, because the Guidelines now define extortion as being focused only on physical injury to a person. Hobbs Act extortion includes threats to property, and thus is too broad under that term as well.

Finally, the Court said, Hobbs Act robbery cannot qualify as a crime of violence under the Guidelines “force clause,” because Hobbs Act robbery can include force against property, while the “force clause” requires physical force against a person.

Darnell’s two prior Hobbs Act convictions thus were not crimes of violence, despite the fact that they were undoubtedly violent crimes.

United States v. O’Connor, Case No. 16-3300 (10th Cir., Oct. 30, 2017)

– Thomas L. Root

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“Any Last Words?” — Allocution Prejudice Is Once Again Presumed – Update for May 30, 2017

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SPEAK NOW OR FOREVER HOLD YOUR PEACE

For more than 300 years, courts have recognized that a criminal defendant has a right to speak directly to the court before sentence is imposed. The judge’s failure to ask a defendant if he had anything to say – known as the right of allocution – traditionally has always required reversal. After all, as the Supreme Court put it, “the most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.”

allocution170530The allocution cases that make it to appeal inevitably result because the judge forgets to offer the defendant the right, and the defense attorney fails to notice the omission. In those cases – because no objection has been lodged – in order to complain about the mistake, a defendant had to show “plain error” that prejudiced him, affected his “substantial rights” as Federal Rule of Criminal Procedure 52 puts it.

Until the Guidelines came along in 1987, the courts always assumed that a defendant had been prejudiced if he or she was denied allocution, because the right had “symbolic meaning that lent legitimacy to the sentencing process.” But after the Guidelines, courts ruled that prejudice could be found only if a defendant was not “given the opportunity to speak to the court when the possibility of a lower sentence existed.” Until United States v. Booker – that is, for about 18 years – the Guidelines were mandatory, meaning the judge had virtually determined by the Guidelines’ confusing calculus.

This meant that if a defendant had a mandatory sentencing range of, say, 108-121 months, and the judge sentenced him or her to 108 months, the defendant could not claim prejudice because he or she was denied a chance to speak, because practically speaking, the defendant had already gotten the best deal he or she could possibly get. No harm, no foul.

guidelines170530Then the Guidelines became advisory. Yet in the 12 years since Booker, no court has bothered to change the “no prejudice” rule. Thus, when Tony Doyle appealed the fact the district court forgot to give him his right of allocution, the government argued that because Tony had gotten sentenced at the bottom of his Guideline range, the denial of the right to allocate did not hurt him.

Last week, the 11th Circuit said it was time to pitch the old Guidelines “no prejudice” presumption. Pointing out that Booker brought a “sea change” in sentencing practices, the Circuit said “a sentence outside the guidelines range is not the extraordinary event that it once was.” In fact, during 2016 almost half of the sentences handed out in the 11th Circuit were below the Guidelines range.

“Because Booker knocked out” the premise that the bottom of the Guidelines range was as good as it was going to get for the defendant, the Circuit said, “a defendant will generally be entitled to a presumption that he was prejudiced by the district court’s failure to afford him his right of allocution, which will satisfy the plain error rule’s third requirement, even if he received a sentence at the low end of his advisory guidelines range.”

United States v. Doyle, Case No. 14-12818 (May 25, 2017)

– Thomas L. Root

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5th Circuit Finds Sentencing Commission Mitigating-Role Amendment to be ‘Clarifying’ – Update for May 25, 2017

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 I’M ONLY THE PIANO PLAYER

whore170525When a cop stopped Frank Sanchez-Villarreal in Texas., he found six kilos of coke and a gun. Frank admitted that he had been hired by someone he only knew as “Chaparro” to deliver the cocaine to someone he did not know, for which he would be paid $1,000.00. He said the guy who hired him had given him the gun for protection.

At sentencing, Frank’s lawyer argued that he should get a 2-level mitigating-role adjustment under the sentencing Guidelines for having played a lesser part in the drug trafficking than the average conspirator. He argued that Frank was just a “standard ‘mule’” who had been ordered to transport drugs without knowing the end location or coordinating the drug trafficking. If the conspiracy had been a whorehouse, his lawyer argued, Frank was only the piano player.

The district judge reluctantly concluded that Frank’s conduct did not warrant the USSG Sec. 3B1.2 mitigating-role adjustment. She said she “probably had some disagreement with the guidelines,” but while Frank “may be not the person gaining the most financially from this, but – but he is – I’m hesitating to use the word “critical,” but I’ll go ahead and use the word “critical.” He is critical to the operation as far as moving the drugs, and – and also, especially here, where by his own admission this was the second time he’d done this – and in that regard I do consider that, his admission – he’s –he’s entrusted, obviously to get this work done.”

mule170525While Frank’s appeal was pending, the Sentencing Commission adopted Amendment 794, and changed the commentary to 3B1.2. The changed commentary makes it clear that the standards for a minor-role adjustment are not as stringent as a number of courts had said they are. In particular, the Commission added this:

The fact that a defendant performs an essential or indispensable role in the criminal activity is not determinative. Such a defendant may receive an adjustment under this guideline if he or she is substantially less culpable than the average participant in the criminal activity.

The Commission said it made the change because courts had been denying mitigating-role adjustments solely because defendants were “integral” or “indispensable” to the criminal activity. The Commission explained that such a standard was inconsistent with the primary issue of relative culpability. The Amendment Commission was intended to address a circuit split as to what an “average participant” might be.

This week, the 5th Circuit agreed with Frank that he should be considered for the 2-level reduction. In so doing, the Circuit held it could consider Amendment 794, even though it was “not effective at the time of the commission of the offense or at the time of sentencing” because it was intended only to clarify, rather than effect substantive changes.

Bit170525The 5th joined three other circuits agreed with the parties that Amendment 794 is a clarifying amendment. In determining whether a Guidelines amendment is clarifying or substantive, a court looks (1) whether the Commission declared the amendment to be clarifying; (2) whether the amendment is intended to address a circuit split (which generally indicates that the amendment is substantive, not clarifying); (3) whether the amendment was made retroactively applicable by the Commission; and (4) whether the amendment alters the language of the commentary rather than the language of the Guideline itself (which may suggest that it is clarifying). Because Amendment 794 altered the text of the commentary but not the guideline itself, and because the change was to better reflect the Commission’s intent and provide “additional guidance to sentencing courts,” Amendment 794 was clarifying.

The Circuit concluded the district judge erred in her application of Sec. 3B1.2 “by giving conclusive weight to the finding that Sanchez-Villarreal’s role was ‘critical’.” After that conclusion, the district court did not consider whether, despite playing a critical role, Frank was “substantially less culpable than the average participant in the criminal activity.” Because his culpability is the central issue in a 3B1.2 reduction, Frank was entitled to resentencing where that issue would be resolved.

United States v. Sanchez-Villarreal, Case No. 15-41303 (5th Cir., May 23, 2017)

– Thomas L. Root

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2nd Circuit Holds “In Guidelines” Sentence to be Unreasonable – Update for April 20, 2017

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LISAStatHeader2smallA SHOT ACROSS THE BOW

We have to begin, as always, with our usual disclaimer: child pornography is odious. The creation of it has a terrible impact on the children forced into such conduct. And of course, we – like the overwhelming majority of people – are repulsed by child porn itself. Even reading details of it in appellate court decisions often has us getting up frequently to wash our hands.

childporn170420As a result, there is hardly a crime easier to demagogue than child pornography. Congress has juiced the kiddie porn sentencing guidelines repeatedly, because – after all – who could object to hammering depraved people who looked at kiddie porn with what are effectively life sentences? Certainly not legislators. And can you imagine a senator or House member who voted against dictating guideline levels to the Sentencing Commission (who is expert in sentencing matters)? Any challenger at reelection time is going to point at the unfortunate solon and shout, “My opponent voted to let child molesters out of prison early!!!”

pork170420It’s the kind of thing (along with eating one too many pork-chops-on-a-stick) that will keep a politician awake at night.

Seven years ago, the U.S. Court of Appeals fired the first warning shot at the child porn guidelines in United States v. Dorvee. After reviewing in detail the politically-charged and commonsense-challenged history of the child pornography guideline, the Court “encouraged” district judges “to take seriously the broad discretion they possess in fashioning sentences under § 2G2.2 – ones that can range from non-custodial sentences to the statutory maximum – bearing in mind that they are dealing with an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results.”

shot170420Last Monday, the 2nd Circuit revisited the question, and in a remarkable decision – a real shot across the bow for the child pornography Guidelines – held that a child porn sentence that fell within the calculated Guidelines range was nevertheless substantively unreasonable. And it did so even where the defendant was rather unsympathetic.

To our knowledge, no court has ever before held that a within-range Guidelines sentence was substantively unreasonable. That alone makes today’s decision a remarkable case.

Joe Jenkins – a man with no prior criminal conduct – was on his way to Canada to meet his parents for a family vacation. When Joe crossed into Canada, Canadian customs people thought he was acting squirrely, and so they inspected his laptop and a couple of thumb drives he had with him. They found a lot of kiddie porn.

Joe was charged in Canada, but – being released on bail – he beat feet back to the US. The Mounties, deciding that getting mad was not as rewarding as getting even, asked US Homeland Security whether they might be interested in Joe’s collection. They were. Joe was charged with a count of possession of child porn, and another of transportation of such porn across state lines.

bound170420At trial, Joe was obstreperous, sharp-tongued and uncooperative. He was convicted, and the court figured his Guidelines as 210-240 months. Joe was sentenced to 120 months for possession, the statutory maximum. On the transportation count, he got a concurrent sentence of 225 months, with a supervised release term of 25 years after the sentence ended. The district court thought Joe’s disrespect for the judicial process – not to mention some of the whoppers he told on the stand – suggested he was likely to possess child porn again after he got released.

The 2nd Circuit, in an unprecedented decision, held that Joe’s “in Guidelines” sentence was excessive. Noting that “in view of Jenkins’s age [43], this sentence effectively meant that Jenkins would be incarcerated and subject to intense government scrutiny for the remainder of his life,” the Court rejected the sentence as violating § 3553(a)’s “parsimony clause,” which instructs a district court to impose a sentence “sufficient, but not greater than necessary,” to achieve § 3553(a)(2)’s goals.

The Court noted that “bringing a personal collection of child pornography across state or national borders is the most narrow and technical way to trigger the transportation provision. Whereas Jenkins’s transportation offense carried a skittyporn170420tatutory maximum of 20 years, the statutory maximum for his possession offense was “only” 10 years. Jenkins was eligible for an additional 10 years’ imprisonment because he was caught with his collection at the Canadian border rather than in his home.” What’s more, the Court said, the Sentencing Commission’s own statistics suggest that Joe’s age makes him much less likely to reoffend after a 10-year prison stint, which is at odds with the district judge’s holding to the contrary.

The Circuit reserved its most withering criticism for the enhancements that applied to Joe’s Guidelines calculations. The four most common include a 2-level increase for use of a computer and another increase for “more than 600 images.” The Court said that in Dorvee,

we noted that four of the sentencing enhancements were so “run-of-the-mill” and “all but inherent to the crime of conviction” that “[a]n ordinary first-time offender is therefore likely to qualify for a sentence of at least 168 to 210 months” based on an offense level increased from the base level of 22 to 35… The concerns we expressed in Dorvee apply with even more force here and none of them appears to have been considered by the district court. Jenkins received precisely the same “run-of-the-mill” and “all-but-inherent” enhancements that we criticized in Dorvee, resulting in an increase in his offense level from 22 to 35. These enhancements have caused Jenkins to be treated like an offender who seduced and photographed a child and distributed the photographs and worse than one who raped a child…

kporn160124The Circuit cited Sentencing Commission stats showing that 96% of child porn possession defendants received the enhancement for an image of a victim under the age of 12, 85% for an image of sadistic or masochistic conduct or other forms of violence, 79% for an offense involving 600 or more images, and 95% for the use of a computer. When nearly everyone qualifies for the enhancement, it ceases being an enhancement and begins being merely a characteristic of the underlying offense.

The 2-1 majority observed that

a sentence of 225 months for a first-time offender who never spoke to, much less approached or touched, a child or transmitted explicit images to anybody is unreasonable. Additional months in prison are not simply numbers. Those months have exceptionally severe consequences for the incarcerated individual. They also have consequences both for society which bears the direct and indirect costs of incarceration and for the administration of justice which must be at its best when, as here, the stakes are at their highest.

The appellate court concluded that “on remand, we are confident that Jenkins will eventually receive a sentence that properly punishes the crimes he committed. But Judge Suddaby, in imposing his sentence, went far overboard.”

United States v. Jenkins, Case No. 14-4295 (2nd Cir., Apr. 17, 2017)

– Thomas L. Root

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Does the Beckles Cloud Have a Silver Lining? – Update for March 7, 2017

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SUPREME COURT FURTHER MUDDLES GUIDELINES

In a decision long awaited by federal inmates, the Supreme Court yesterday held that unlike criminal statutes, the federal sentencing guidelines can never be void for vagueness. But in so ruling, the Court may have weakened the guidelines rather than strengthened them.

silverlining170307The history: In 2015, the Supreme Court ruled in Johnson v. United States that a part of the definition of “crime of violence” found in the Armed Career Criminal Act – the “residual clause” that swept up offenses with a significant chance that someone might get hurt as being violent – was unconstitutionally vague. That ruling made sense: crimes such as drunk driving and not stopping for the police were being called “violent,” and on the strength of such dubious definitions, the law was making 51-month sentences into 15-year bits.

Unfortunately, the definition of “crime of violence” (along with the “residual clause”) was not just an ACCA provision. Instead, the same definition had metastasized throughout the criminal code and guidelines. Under the legal principle that quid est ius gander anserem condimentum (“what’s sauce for the goose is sauce for the gander”), inmates whose sentences had been shot into low-earth orbit by the guidelines’ “career offender” provision immediately began arguing that their sentences were based on an unconstitutionally vague “residual clause” as well.

sauce170307The United States Sentencing Commission lent some support to the argument. After Johnson, the Commission changed the guidelines’ “crime of violence” definition to comport with Johnson. But a few courts of appeal held that guidelines are different from statutes, and could never be void for vagueness.

Yesterday’s Decision: Beckles v. United States was such a case. Travis Beckles had been sentenced to double prison time for possessing a sawed-off shotgun under the “career offender” guideline. If the ACCA “crime of violence” definition was unintelligible, Travis argued, so was the guidelines definition that matched it word for word.

Yesterday, the Supreme Court disagreed. Because guidelines are merely advisory and judges hold the final authority on sentences, the Court held, defendants cannot successfully argue that a sentencing guideline is so vaguely worded as to violate the constitutional right to due process. Laws that “fix” the sentencing range can be challenged in ways that “advisory guidelines” simply cannot.

The Fallout: Beckles hobbles what has up to now been a well-honed defense tool, while exposing contradictions between the guidelines in theory and in practice in a way that almost guarantees further litigation.

Not if it's in the guidelines...
Not if it’s in the guidelines…

One former federal prosecutor notes, “Saying those guidelines can’t be challenged for vagueness takes away a tool for review and puts the onus on the Sentencing Commission to keep going back and looking at how they are being applied.”

Up to 2005, judges had been required by law to apply the Guidelines in sentencing. But in United States v. Booker, the Supreme Court decided mandatory guidelines the Sentencing Reform Act of 1984 created were unconstitutional. Instead of throwing the whole law out, the court decided the guidelines should be considered advisory.

The broad opinion Justice Clarence Thomas wrote in Beckles built on Booker, differentiates between sentencing provisions in laws like the ACCA and the guidelines, which are subject to district courts’ discretion.

A former associate deputy attorney general who is now a law professor said the Beckles decision is a symptom of the hybrid situation that flowed from Booker: “You live in this weird world where the guidelines are both advisory and highly influential.”

Justice Sonia Sotomayor concurred in Beckles with a scathing rejection of the majority’s reasoning. She argued that while the guidelines may be “advisory” in name, in practice judges often consider them a default, meaning they should get the same treatment as a law under the constitution. Ironically, this is the same argument that helped carry the day in a 2011 decision, Peugh v. United States, which held the guidelines could be subject to an ex post facto analysis.

Sotomayor argued that Booker tweaked the guidelines’s status but left them at the heart of the sentencing consideration — or as the court put it last year in Molina-Martinez v. United States, the “basis” for the sentence. “It follows from the central role that the guidelines play at sentencing,” Sotomayor wrote, “that they should be susceptible to vagueness challenges under the due process clause,” she wrote.

sweetbrown170307Another law professor who filed an amicus brief in Beckles argued yesterday that the majority’s ruling ignores the “messy reality” of federal sentencing. “It reads as though the federal sentencing guidelines are just advice for district court judges that they can take or leave as they want, but that’s just not true,” she said.

An optimistic footnote to Beckles: Justice Kennedy’s short concurring opinion may hint at another option for defendants. He wrote that while the legal tests for constitutional vagueness are ill fitted to the sentencing guidelines, a defendant might still run into a sentence that is “so arbitrary that it implicates constitutional concerns.” Kennedy said, “In that instance, a litigant might use the word vague in a general sense — that is to say, imprecise or unclear — in trying to establish that the sentencing decision was flawed.”

Most notably, Beckles underscores to district court judges that the guidelines are not just purely advisory, but occupy a place in the law that is considerably less that statute, and perhaps much less than regulation as well. “It sends a signal to district court judges and reinforces the message that is already out there that these guidelines are purely advisory,” one lawyer said.

That may embolden courts to deviate from guidelines to an even greater extent than they have before. Courts have repeatedly held that a within-guidelines sentence is “presumptively reasonable.” If those guidelines can be so vague as to defy fairness – too vague to survive a constitutional analysis were they statutes – how long can such a reasonableness presumption endure?

Beckles v. United States, Case No. 15–8544 (March 6, 2017)

– Thomas L. Root

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