Tag Archives: sentencing

‘I Did It Before and I’ll Do It Again’ – Update for February 6,2025

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

I SAY ‘TO-MA-TO,’ YOU SAY ‘TO-MAH-TO’… IT DOESN’T MATTER

The dark side of United States v. Booker – the 20-year-old Supreme Court case that held the Sentencing Guidelines must be advisory and not mandatory – is the untethering of federal district court judges to sentence as they see fit.

At first blush, that sounds like a feature and not a bug. However, a pair of cases handed down this week shows that it can lead to disparate and sometimes unreasonable results.

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Alexander Olson, a man easily led by others, was one of eight political wackadoodles who thought that setting fire to four Walmart stores would force the company to pay employees more, feed the homeless, limit executive pay and adopt an additional slate of progressive wish-list policies.

(In fairness, my wife was tempted to torch our local Walmart yesterday over $6.00-a-dozen eggs, but no jury of Walmart shoppers would ever convict her for that).

Alex and his fellow travelers were charged with conspiracy to commit arson in violation of 18 USC § 844(n). He pled guilty, with sentencing guidelines working out to 41-51 months, and a statutory sentencing mandatory minimum of 60 months (which by law, became the minimum and maximum of Alex’s Guidelines range). But at sentencing, the judge decided an upward variance to 180 months (15 years) was appropriate, despite the fact Alex was not the ringleader and evidence showed he suffered from prior psychological abuse that made him easily led by males from whom he craved validation.

The 180-month sentence was 60 months shy of that statute’s maximum 240 months, and the judge paid lip service to the 18 USC § 3553(a) sentencing factors even while discounting the mitigating evidence that didn’t fit with the court’s worldview.

judge160222The court called the sentence of three times Alex’s Guideline range an upward variance, but later in its written explanation of reasons, referred to it as a departure.

A variance and a departure both result in a sentence outside the advisory guidelines range but reach that result in different ways. A variance occurs when a court determines that a guidelines sentence will not adequately further the purposes reflected in 18 USC § 3553(a). A departure refers to non-Guidelines sentences imposed under the framework set out in the Guidelines departure provisions set out in USSG Chapter 5K. Advance notice to the parties is generally required for a departure but not for a variance.

Significantly, the court said, “I find the advisory guidelines range is not appropriate to the facts and circumstances of this case, and the sentence here, whether an upward departure or a variance, I find appropriate.”

The 11th Circuit this week said it may have been a variance, may have been a departure, but the distinction did not matter because the district court would have imposed the same sentence regardless of which it was and the sentence – which was well below the statutory maximum – was substantively reasonable. “Under those circumstances, any error in the court’s application of a guidelines issue,” the 11th said, “including a departure issue, is harmless.”

hobbsact200218In the 7th Circuit, a different take on the same issue: Chris Easterling tried to rob a Walgreens store by pulling a gun and telling the cashier, “Let’s get this going, babe.” She was uninterested in getting whatever he had in mind going, fleeing instead. Chris couldn’t open the register himself, so he left to enjoy a few more minutes of freedom before being charged with attempted 18 USC § 1951 Hobbs Act robbery and an 18 USC § 924(c) count for using the gun (among other offenses).

Chris pled guilty, with a Guidelines advisory range of 57 to 71 months in prison for the Hobbs Act violation and a consecutive mandatory 84 months’ imprisonment, to run consecutively to the Hobbs Act sentence (for a total range of 141-155 months).

At sentencing, the court sentenced Chris to 239 months, 155 months for the Hobbs Act robbery and a consecutive 84 months for the § 924(c), a sentence 54% higher than the high end of his advisory sentencing range just one month shy of the 240-month statutory maximum sentence for Hobbs Act robbery. The court said Chris’s conduct and his “persistent and repeated history of violence” called for a “significant sentence” to protect the public.

The Supreme Court then decided in United States v. Taylor that attempted Hobbs Act robbery – which is what Chris was convicted of – could not support a § 924(c) count because it was not categorically a crime of violence. But when Chris went back for resentencing without the consecutive 84-month sentence (new sentencing range of 84-105 months), the district court again slapped the 239-month sentence on him, saying that “nothing had changed” in Chris’s history or the nature of the offense.

Chris appealed that sentence, too. While the appeal was pending, the Sentencing Commission changed its criminal history Guidelines in a way that would reduce Chris’s category by one level and drop his new sentencing range to 70-87 months. The government argued that the case should not be remanded for resentencing again, because the district court had checked a box on the Statement of Reasons form that every court must submit after a criminal sentence that says: “In the event the guideline determination(s) made in this case are found to be incorrect, the court would impose a sentence identical to that imposed in this case.”

Not good enough, the 7th said this week. “Putting aside the fact that the district court could not grapple with a Guidelines amendment that did not exist yet, this checked box is insufficient to prevent remand. We have previously held that a bare, boilerplate assertion – a conclusory comment tossed in for good measure – will not ordinarily suffice to hold a Guidelines error harmless.”

hammertime200818The Circuit ruled, “We require a district court to assure us that it would impose the same sentence again by specifically addressing the contested issue… Here, the court was unable to do so. We will not presume that a district court is so intransient that nothing the Commission does and no possible change to the Guidelines could sway its prior decision.”

United States v. Olson, Case No. 23-11939, 2025 U.S. App. LEXIS 2351 (11th Cir. Feb. 3, 2025)

United States v. Easterling, Case No. 23-1143, 2025 U.S. App. LEXIS 2376 (7th Cir. Feb. 3, 2025)

– Thomas L. Root

A Rare Sentencing Reversal on Evidentiary Failing – Update for November 18, 2022

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

WHEN ‘SOME’ CAN BE ENOUGH

Antwain Moore was sentenced to 120 months for multiple drug offenses. One factual foundation for the sentence was the district court’s finding that the 56 grams of methamphetamine found in Antoine’s house were 100% pure. At sentencing, Antwain submitted an affidavit from a chemist that slammed the DEA’s lab technique for measuring purity as pure bunk.

madscientist221118The district court was unimpressed. When the DEA argued that the defendant’s expert affidavit was “not conclusive that the government’s procedures were improper or led to a bad result” and that “the DEA’s testing procedures are well accepted in the scientific community.” After all, the government said, Antwain could have retested the methamphetamine himself, but he did not.

On appeal, Antoine argued that a chemist’s affidavit he submitted met the “some evidence” standard sufficient to call into doubt the government’s purity claim, especially where the government did not bother to rebut his expert’s claim with evidence of its own.

Antwain’s chemist said in his affidavit that the DEA’s purity test method, comparing the meth sample to a reference graph could not yield a reliable result. Instead, the chemist said, the meth had to be tested against an actual meth sample of known purity. If Antoine’s argument was right, his guideline sentencing range would fall from 130-162 months in prison to 77-96 months.

He got slammed with 120 months.

Last week, the 7th Circuit reversed. “If Antwain had done nothing more by way of objection,” the Circuit said, “he would have offered what we have repeatedly described as only a ‘bare denial’ of the presentence report information, which ordinarily is not enough to shift the burden of production or to require a hearing.”

destroyevidence200615But Antwain did offer more than a bare denial. “He offered the opinion of an independent expert about the reliability of the DEA’s test results. Dr. Beauchamp explained that the DEA’s results were potentially inexact and inconsistent, pointing out in particular that the DEA’s report did not enable him to determine whether the purity level of drugs was consistent throughout the 55.6 grams.” To rebut this, the DEA offered only an evidence-free argument.

Noting that Antwain “has a due-process right to be sentenced based on reliable information,” the 7th ruled that the district court was wrong to hold that “there was no indication here or no evidence before the Court that the DEA protocols are not reliable.” In fact, the only evidence in the record was that those protocols were unreliable.

“The government submitted DEA test results that were not supported by any affidavit,” the Circuit wrote. “When the reliability was questioned in Dr. Beauchamp’s affidavit, the government chose to rest on an assumption that the district court adopted: that the DEA has reliable and generally accepted methods of testing drug purity. We assume that’s probably true as a general matter, but in a particular case, a defendant whose liberty is at stake is entitled to hold the government to its burden of proof by a preponderance of reliable evidence. An unsupported assumption does not tell us anything about whether test results in a particular case can reasonably be relied upon.”

Hearsayevidence210809The 7th held that “when the government relies on hearsay — such as the laboratory results here — and a defendant raises a plausible objection about whether its contents are indeed reliable, the government can reasonably be required to provide more of a foundation.”

Antwain’s case was remanded for resentencing.

United States v. Moore, Case No. 21-2485, 2022 U.S. App. LEXIS 30831 (7th Cir., Nov. 7, 2022)

– Thomas L. Root

Voodoo Economics in the Courtroom Takes a Hit – Update for September 25, 2020

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

DO THE MATH

Christian Delgade-Lopezwas convicted of methamphetamine distribution. At sentencing, he argued for a reduction in his Sentencing Guidelines score for a minor role (USSG § 3B1.2), arguing he was just a simple DJ who was forced by circumstances to deliver meth for $1,000 a trip, and even having to pay his own expenses out of the grand he received.

djmeth200925The district judge didn’t buy it. Based in part on information the judge had gathered on his own about gas prices and mileage, the court did a back-of-the-envelope calculation from the bench, and estimated Chris’s expenses per trip to be $730.00, leaving him with a net profit of $270.00. After learning that Chris made $14.00 an hour at his full-time job, the district court speculated he could have made $224,00 in two days at his regular DJ gig had he not acted as a drug courier. The judge, wondering why anyone would act as a drug courier for what amounted to a lousy $100.00 net gain over honest work, decided Chris’s testimony about being a mere courier simply was not believable. Besides, the court said, Chris refused to cooperate with the government, and thus should not benefit from a minor-role reduction.

Last week, the 10th Circuit reversed Chris’s sentence. The Circuit admitted that a district court’s credibility findings should receive deference, but it ruled that nevertheless, a sentencing finding “must be based on evidence before the court, and thus in the record, and not on speculation or hypothesis.”

idontbelieveyou200925In this case, the district court’s determination was based on pure speculation about the economics of the drug-trafficking scheme, without any evidence with which to evaluate the financial wisdom of Chris’s decision to be a drug courier. “Its impromptu calculations were based on speculation,” the 10th said, “that Jude could work more hours at his existing job, unfounded estimates about the costs involved in each of his trips, and the assumption that he knew of the relative financial benefits of the arrangement prior to accepting.” The court thus erred by relying on its own speculation, the Circuit held, in finding that Chris was not credible.

What’s more, the district court was not entitled to hold that Chris’s lack of cooperation should deny him a minor-role reduction. The Guidelines “include a detailed explanation of what factors a court may and must consider,” the 10th held, “but does not mention cooperation. And although the determination requires a court to look at the totality of the circumstances, logic dictates that a defendant’s cooperation or lack thereof is entirely irrelevant to the factual determination of whether he or she played a minor role in an offense.”

United States v. Delgado-Lopez, 2020 U.S. App. LEXIS 29032 (10th Cir. Sept. 14, 2020)

– Thomas L. Root

Quantifying The “Bad” In “Bad Boy” – Update for February 19, 2020

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

7TH CIRCUIT PUZZLED BY INCONSISTENT UPWARD SENTENCING VARIANCES

pecks200219Jesse Ballard was a bad boy, having compiled what his sentencing court called “probably one of the worst criminal histories I’ve seen in 30 years” of experience. From 1985 until 2017, he accrued over 30 convictions for attempted burglary, kidnapping, battery, and aggravated assault. He also committed a pile of parole violations, prison disciplinary infractions, and a few DUIs, just for good measure.

When Jesse was sentenced for being a felon in possession of a gun (in violation of 18 USC § 922(g)(1)), the court applied the Armed Career Criminal Act’s 15-year minimum mandatory sentence as a starting point, and then – considering Jesse’s extensive criminal history – went upward from there. The judge imposed a sentence of 232 months, a 10% upward variance from the high end of Jesse’s advisory Guidelines sentencing range.

badjudge171016But on appeal, Jesse proved that his prior attempted burglary convictions could not count as ACCA predicates. This dropped his Guidelines range dramatically. No more ACCA 15-to-life sentencing range – now, Jesse’s statutory maximum was 10 years, and his advisory Guidelines sentencing range was a mere 33-41 months. At Jesse’s resentencing, the judge – still citing our boy’s “extensive criminal history, which it found demonstrated a disrespect for the law and an inability to live a law-abiding life” – varied upward again by 67 months, imposing a 108-month sentence.

Naturally, this came as a shock to Jesse’s system. He headed back to the Court of Appeals. Last week, the 7th Circuit reversed Jesse’s sentence again.

The Circuit observed that when a district court fails to adequately explain a chosen sentence, including the reason for deviation from the range, it commits a procedural error. This makes sense: an appellate court can hardly review the reasonableness of a sentence if the district court has not provided an adequate explanation for why it did what it did.


badboy200219Here, the Circuit complained, the district court failed to justify the extreme difference between the second sentence’s upward variance and that of the original sentence. “To justify a sentence that was 67 months above the Guidelines range (a 160% upward departure),” the 7th held, “the court referred to… appropriate factors to consider under 18 USC § 3553. However, these were the same factors cited and discussed at the original sentencing, resulting in a sentence only 22 months above the original Guidelines range (a 10% upward departure)… The district court’s explanation of its departure from the Guidelines upon resentencing does not articulate and justify the magnitude of the variance where the explanation is essentially identical to the explanation provided for a much less extreme departure in the original sentence.”

The district court will now get a third whack at our mischievous Jesse. This is not to say that Jesse should expect much leniency – just more explanation.

United States v. Ballard, 2020 U.S. App. LEXIS 4771 (7th Cir, Feb 14, 2020)

– Thomas L. Root

Ghost Dope Takes a Little Hit – Update for February 3, 2020

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

QUESTION AUTHORITY

question200203Anyone looking to take up writing fiction for a living could do worse than to become a presentence report writer for the US Probation Office. More than one defendant has found his or her PSR describing an offense so nasty and a person so rotten that you’d never want to associate with such a person.

Background: Every federal criminal defendant who either pleads guilty or is found guilty has a presentence report prepared by the U.S. Probation Office. The Report, required by Federal Rule of Criminal Procedure 32(c)(1), is supposed to set out in neutral terms information about the offense and the defendant’s background, and propose a calculation of how the Sentencing Guidelines should apply to the crime. In fact, the PSR usually reads like it was dictated by a drunken Nancy Grace, describing the offense conduct based solely on what the U.S. Attorney and law enforcement agents have provided and painting the defendant as something you’d grimace at while you scraped it off your shoe.

The worst departures from reality one finds in PSRs usually come in drug cases, where “ghost dope” can send the Guidelines into low earth orbit. Any drug defendant can tell you about “ghost dope.” “Ghost dope” is the amount of controlled substance a defendant was not caught with, but which existed or did not exist according to the say-so of law enforcement.

nancygrace200203Anyone who has seen the system knows the deal. The most pernicious example is the stash-house sting, where an agent provocateur working for the ATF convinces some down-on-their luck boyz in the ‘hood (and yes, virtually all stash-house sting defendants are black) that there is a drug stash house where drugs and money are stored. The guys are recruited to help rob the stash house. When they arrive at the staging area, preferably with guns (if they can locate them to bring), the hapless defendants are arrested. These cases are legion for “ghost dope:” because the stash house does not exist, the ATF can make up as much crack cocaine is purportedly stored at the stash house. Why rob a drug dealer of five kilos when you can rob him of 20 kilos? And since sentence length is driven by the amount of drugs at issue, a “pretend” 20 kilos locks people up a lot longer than five kilos.

A much more common application of “ghost dope” comes in cases where the defendant is charged with and pleads to, say, 1.44 kilos of cocaine powder, only to discover at sentencing that “two CIs [confidential informants] reported that defendant sold 10 kilos of meth a day for three years.” Attacking such fanciful PSR claims is like shadow boxing, and too often, the district court finds the claim is proven by a preponderance of the evidence because, after all, the PSR says so.

dope200203Joe Helding found himself in that position. He pled to possession of 100 kilos of marijuana, but the PSR cited five confidential informants who had told law enforcement Joel had also possessed “over a pound” of methamphetamine on one particular date, had fronted one of them a couple ounces of meth every day or two for two months, and had been seen by another selling “multiple ounces” of meth on three occasions for $500 per ounce. The PSR, converting the supposed meth weight to pot, set Joel’s drug amount at 4,680 kilos, 32 times what he pled to.

Joel objected to the PSR’s meth findings, arguing that nothing corroborated what the CIs reportedly told law enforcement. Nor, he added, did the PSR include any explanation of why law enforcement found the CI information credible. The district court overruled Nick’s objection, finding that the government had shown his possession of the 4,680 kilos of meth by a preponderance of the evidence. The court reasoned the reports were reliable, because the “confidential informants were able to provide specific information related to the defendant’s involvement in sales of drugs, including dates and quantities.” Thus, the district court said, “[a]bsent contrary evidence, therefore, I overrule that objection. “

Last week, the 7th Circuit reversed. The Circuit said, “Our reading of the sentencing transcript leaves us with the impression that the district court overruled Helding’s objection because the information supplied by the CIs was detailed. While the observation appears accurate, the reasoning came very close to the district court saying it credited the CI information because of its inclusion in the PSR. What concerns us is that this reasoning prevailed over Helding’s objection, with no step being taken to find some modicum of reliability of the CI information…”

“A criminal defendant has a due process right to be sentenced based on accurate information,” the 7th said. “Reliability is a central ingredient of the due process analysis: where the district court sentences a defendant based on the drug-quantity guidelines, it must find the government’s information sufficiently reliable to determine drug quantity by a preponderance of the evidence…” Though the threshold for a sufficient reliability finding may be low, it is not so low as to be met in the face of a defendant’s objection by a confidential informant’s out-of-court statement unaccompanied by any additional support.”

witness191111Here, Joel had never admitted to any meth trafficking, and “the district court saw no affidavits, reviewed no reports from the case agent, and heard no testimony from law enforcement handlers or other witnesses corroborating the drug quantity information. The court relied solely on CI-1 and CI-2’s statements as they were recounted in the PSR, which accounted for over 96% of Helding’s drug quantity.” While how it determines reliability is up to the district court’s discretion, nevertheless, “facing an objection like Helding’s, the district court must take some step to ensure that the CI-provided information has a modicum of reliability.”

United States v. Helding, 2020 U.S.App. LEXIS 2655 (7th Cir Jan 28, 2020)

– Thomas L. Root

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

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

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

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

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

Too Little, Too Late for a Lot of Defendants – Update for September 6, 2018

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

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AT LEAST THEY’RE TALKING ABOUT IT…

hammer160509Hearings on the nomination of Judge Brett Kavanaugh to serve on the Supreme Court opened this past Tuesday and are to conclude tomorrow, and debate (at least among scholars, rather than the rabble in the hearing room) has already ramped up on the Judge’s dislike of the acquitted conduct rules in the Sentencing Guidelines.

Under the Guidelines, a defendant convicted on one count but acquitted on other counts can be sentenced as if he or she was guilty on everything, as long as the court finds it more likely than not that the defendant did what the jury acquitted him or her on.

Kavanaugh, a generally conservative judge, wrote separately in a 2015 appeal decision to ask, if a defendant has a right to “have a jury find beyond a reasonable doubt the facts that make him guilty and received, for example, a five-year sentence, why doesn’t he have a right to have a jury find beyond a reasonable doubt the facts that increase that five-year sentence to, say, a 20-year sentence?”

Or, as Blakely v. Washington put it, “[A]s the law now stands, prosecutors can brush off the jury’s judgment by persuading judges to use the very same facts the jury rejected at trial to multiply the duration of a defendant’s loss of liberty threefold. In that regime, the jury is largely “relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish” at sentencing.”

hammer171221Writing at SCOTUSBlog last week, Sen. Orrin Hatch (R-Utah), senior senator on the Judiciary Committee, said, “In the past, I have been supportive of considering all relevant conduct at sentencing, including acquitted conduct. But Kavanaugh and others have convinced me that this practice must end — as a matter of fundamental fairness if not of constitutional law. I plan to soon introduce the Acquitted Conduct Sentencing Reform Act, which will stop judges from punishing defendants for crimes for which a jury found them “not guilty.” The contours of civilization require fairness in our criminal justice system, and the Constitution demands that American men and women hold prosecutors and judges accountable. The role of the jury is central to the Constitution’s protection of individual rights, and it is time for Congress to restore power to the people.”

SCOTUSBlog.com, Judge Kavanaugh’s fight for stronger jury rights (Aug. 31, 2018)

– Thomas L. Root

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Reports Attack Plea Pressure, Inconsistent Drug Sentence Enhancements – Update for July 17, 2018

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

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NEW STUDIES SLAM GUILTY PLEA PRESSURE AND 851 ENHANCEMENTS

Two studies released last week documented affronts to justice from pressure to plead guilty, and “851 enhancements” that dramatically increase mandatory minimum sentences.

pleadeal180104A troubling study released last week by the National Association of Criminal Defense Lawyers found “ample evidence that federal criminal defendants are being coerced to plead guilty because the penalty for exercising their constitutional rights is simply too high to risk. This ‘trial penalty’ results from the discrepancy between the sentence the prosecutor is willing to offer in exchange for a guilty plea and the sentence that would be imposed after a trial.

The NACDL study documents the corrosive effect of the trial penalty on the criminal justice system, resulting from uncontrolled prosecutorial charging discretion, mandatory minimum sentencing statutes, and the Guidelines. The government’s capacity to process large caseloads without hearings or trials has resulted in an exponential increase in incarceration.

The system’s pressures on defendants to plead guilty causes innocent people to plead guilty. Of 354 defendants exonerated by DNA analysis in the last six years, 11% had pled guilty to the crime they did not commit.

The Report recommends wholesale changes in the Guidelines to exclude relevant conduct, to permit the court to award a third acceptance-of-responsibility point even without government motion, and to prevent application of an obstruction-of-justice enhancement simply because the defendant testifies. It also called for substantial revision of mandatory minimums for sentences.

pleadealb161116Ironically, the 9th Circuit reversed a sentence last week where it said the judge seemed to penalize the defendant for his decision to assert “protected Sixth Amendment right” to go to trial. The district court had emphasized the defendant’s “decision to go to trial” five separate times during the sentencing hearing, and just before imposing the sentence, declared to the defendant: “You decided to roll the dice, and it came up snake eyes. You didn’t think she’d testify, and she did. You went – you wanted to go to trial, so you went to trial. And Probation rightly recommends 327 months for that.”

The 9th Circuit held that “the district court’s statements run headlong into our precedent that a judge cannot rely upon the fact that a defendant refuses to plead guilty and insists on his right to trial as the basis for denying an acceptance of responsibility adjustment…” The Circuit complained the record did not specify which if any 18 USC 3553 sentencing factors the judge considered, “or whether it considered any facts at all beyond Hernandez’s decision to exercise his constitutional rights.” On this record, the Circuit said, “it is impossible to avoid the centrality of the comments about Hernandez’s decision to go to trial.”

mandatory170612Meanwhile, the Sentencing Commission issued a surprising report on government use of so-called 851 enhancements to drug trafficking sentences. Under 21 USC 841(b), mandatory minimum sentences are dramatically increased if the defendant has prior serious drug cases. The government triggers the higher mandatory minimum by filing a notice of enhanced penalty under 21 USC 851, which then requires the court to apply the higher mandatory minimum.

The report found that the government filed 851 enhancements in only 12.3% of eligible cases in 2016. The enhancement seems to be used mostly as leverage to force cooperation. After accounting for cases in which the notice was withdrawn, only 39% of eligible defendants ultimately got the enhanced sentence.

The rate at which 851 enhancements are filed or withdrawn varies widely among districts. In most districts in fiscal year 2016, at least 25% of all drug trafficking defendants were eligible for an 851 enhancement. In five districts, 851 enhancements were filed against more than 50% of eligible drug trafficking offenders; in 19 districts, no 851 enhancements were filed at all.

Defendants against whom an 851 information was filed received an average sentence that was 61 months longer than eligible defendants against whom the information was not filed. Black offenders constituted 51.2% of offenders against whom the government filed an information seeking an 851 enhancement, followed by white offenders (24.3%) and Hispanic offenders (22.5%).

NACDL, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It (July 9, 2018)

U.S. Sentencing Commission, Application and Impact of 21 U.S.C. § 851: Enhanced Penalties for Federal Drug Trafficking Offenders (July 11, 2018)

United States v. Hernandez, Case No. 13-10428 (9th Cir. July 10, 2018)

– Thomas L. Root

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Well, Then, Would You Believe…? – Update for July 3, 2018

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

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IF AT FIRST YOU DON’T SUCCEED…

At their first sentencing, the Vera brothers watched as the Government established the drug amounts implicated in their case for sentencing purposes through an FBI agent who “interpreted” the contents of wiretapped phone conversations to conjure up a drug weight. Drug weight, of course, drives the base offense levels of the Sentencing Guidelines – a kilo of meth will buy you a much higher sentencing range that a blunt of Mary Jane in your back pocket.

code180703The district court accepted the agent’s white-bread explanations of the purported code being used in the phone conversations, and hammered Armando with 360 months and his brother with 262.

After the 9th Circuit threw that out, the brothers were resentenced. This time, the Government – fearful of the FBI “translator” gambit – relied instead on the contents of co-conspirators’ plea agreements to establish drug quantities attributable to the Vera brothers.

Anyone who has been in a federal courthouse for any purpose other than to use the restrooms knows that the government dictates the contents of a plea agreement, and as long as the language in implicating someone else, a defendant will happily sign on. Paragraph 5 says a co-defendant kidnapped the Lindbergh baby? Why not? Despite the fact that using a plea agreement with Defendant A as sentencing evidence for Defendant B is like the government quoting itself, the district court found the approach “more credible” than the PSR and Armando’s sentencing memorandum, because it was the “least dependent on interpretation of the recordings” as well as the government’s “single most significant data source.”

lindbergh180703Last week, the 9th Circuit reversed the Vera brothers’ second sentencing, too. The panel held that the district court relied too heavily upon co-conspirator plea agreements to determine drug quantities, mistaking holding that the plea agreement statements were reliable statements against interest under F.R.Ev. 804(b)(3). The panel said “a defendant signing a plea agreement may adopt facts that the government wants to hear in exchange for some benefit, usually a lesser sentence. In pointing their fingers at the Vera brothers, the co-conspirators were acknowledging neither their own guilt nor conduct that would necessarily enhance their own sentences. Rather, these statements merely helped the government’s prosecution of the Veras.” Due to a co-defendant’s strong motivation to implicate the defendant and to exonerate himself, any statements “about what the defendant said or did are less credible than ordinary hearsay evidence.”

Hearsay is admissible at sentencing, so long as it is accompanied by “some minimal indicia of reliability.” But here, the district court’s primary rationale for relying upon the plea agreements was Evidence Rule 804(b)(3). The Circuit ruled that a district court may not rely solely on Rule 804(b)(3) to use non-self-inculpatory statements in a co-conspirator’s plea agreement to determine a defendant’s drug-quantity liability.

United States v. Vera, Case No. 16-50634 (9th Cir. June 25, 2018)

– Thomas L. Root

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