Category Archives: federal appeals

U.S. Sentencing Guidelines: Eligibility for Lowered Sentencing Range

Published By Stephen Preziosi

Koons v. United States

U.S. Supreme Court

No. 17-5716

Decided June 4, 2018

Issue:

Whether petitioners qualify for a sentence reduction under § 3582(c)(2) where the sentences were “based on” mandatory minimums and not the Sentencing Guidelines ranges.

Holding:

The Supreme Court held that petitioners do not qualify for sentence reductions under § 3582(c)(2) because their sentences were not “based on” the lowered Guidelines ranges but, rather, they were based on their mandatory minimums and on their “substantial assistance” to the Government.

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Facts:

Five petitioners pled guilty to drug conspiracy charges that subjected them to mandatory minimum sentences under 21 U.S.C. § 841(b)(1). When the District Court calculated their advisory Sentencing Guidelines ranges, the top end of the ranges fell below the mandatory minimums. The court determined that the mandatory minimums superseded the Guidelines ranges and, thus the Guidelines ranges were discarded. However, because of the petitioners’ cooperation with the Government, the court departed downward from the mandatory minimums under 18 U.S.C. §3553(e).

The Sentencing Commission amended the Guidelines several years after the petitioners were sentenced. Among those amendments included a reduction of base offense levels for the same drug offenses for which petitioners were convicted. The petitioners sought sentence reductions under §3582(c)(2), which allows a defendant’s sentence to be reduced if that sentence was imposed based on a sentencing range that was later lowered by the Sentencing Commission. The lower courts held that the petitioners were not eligible for sentence reductions because they failed to demonstrate that their sentences were “based on” the lowered Guideline ranges.

Legal Analysis:

The primary function of the Sentencing Guidelines is to recommend to the judge an appropriate sentencing range by taking into account the seriousness of the offense and the defendant’s criminal history. However, these Guidelines are only advisory and can even be overridden in some cases. For instance, if there is a “mandatory minimum” sentence that must be imposed, the judge must consider the required minimum sentence over the sentencing range provided by the Guidelines where a conflict exists. Here, because the top end of the Guidelines range fell below the mandatory minimum sentences, the district court concluded that the statutorily required minimums superseded the Guidelines ranges for each petitioner, and the advisory ranges were discarded.

For a defendant to become eligible for a sentence within the lowered Guidelines range, the sentence must have been “based on” that lowed advisory range. Quoting Hughes v. United States, ante, at 14, the Court noted that a sentence is “based on” the lowered range when the range “played a relevant part in the framework the sentencing judge used’ in imposing the sentence.” By contrast, when the advisory ranges are tossed aside in the course of determining a sentence, the imposed sentence is not based on a Guidelines range.

The Court concluded that the petitioners’ sentences were not “based on” the lowered Guidelines range because the ranged played “no relevant part” in the district court’s sentencing determination. Therefore, the Court held that the petitioners were not entitled to §3582(c)(2) reductions.

The petitioners also asserted that, because the Guidelines range serves as the starting point for every federal sentencing calculation, all sentences are “based on” the Guidelines ranges. The Court made clear, however, that whether the Guidelines range played a part in the initial calculation is irrelevant and that it is, rather, the role the range played in the eventual calculation that should be considered. The Supreme Court disagreed with the petitioners’ remaining arguments.

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Fourth Amendment: What Constitutes The Seizure of a Person?

Published By Stephen Preziosi

Torres v. Madrid

No. 19-292

Supreme Court

Decided March 25, 2021

Issue:

Whether A Person Is Seized When Police Shoot At Her But She Escapes By Driving Away? 

Whether 1) defendant Torres’ “continued flight after being shot by police” negates a Fourth Amendment excessive force-claim where police shot into defendant’s vehicle from a distance, striking her twice before she escaped and 2) whether the shooting constituted a “seizure” under the Fourth Amendment when defendant was not apprehended.

Holding:

Application of Physical Force is Seizure

The Supreme Court held that 1) officers seized the defendant for the instant that the bullets struck her, that her escape does not negate an excessive force claim, and 2) the application of physical force with intent to restrain is a Fourth Amendment seizure even when the person does not submit and is not subdued.

Facts:

Officers Janice Madrid and Richard Williamson arrived at an Albuquerque apartment complex to execute an arrest warrant. They approached defendant Roxanne Torres, who was not the target of the warrant, as she stood near her vehicle. The officers attempted to speak with her as she got in the driver’s seat. Although the officers wore tactical vests marked with police identification, Torres, then experiencing methamphetamine withdrawal, saw that they had guns and believed the officers to be carjackers trying to steal her car, so she hit the gas to escape them. Police fired their service pistols to stop her, aiming 13 shots at Torres and striking her twice, temporarily paralyzing her left arm.

Torres “accelerated through the fusillade of bullets,” exited the apartment complex, drove a short distance and stopped in a parking lot where she asked a bystander to report an attempted carjacking. She then stole a Kia Soul that happened to be idling nearby and drove 75 miles to a hospital in Grants, New Mexico. The hospital in Grants airlifted Torres to another hospital back in Albuquerque, where she was arrested the next day. She pled no contest to aggravated fleeing from a law enforcement officer, assault on a peace officer, and unlawfully take a motor vehicle.

Torres later sought damages from officers Madrid and Williamson under 42 U.S.C. § 1983, claiming that the officers applied excessive force, making the shooting an unreasonable seizure under the Fourth Amendment. The District Court granted summary judgement to the officers, and the Tenth Circuit Court of Appeals affirmed on the ground that “a suspect’s continued flight after being shot by police negates a Fourth Amendment excessive-force claim.” 769 Fed. Appx. 654, 657 (2019). The court relied on Circuit precedent providing that “no seizure can occur unless there is physical touch or a show of authority, and that “such physical touch (or force) must terminate that suspect’s movement” or otherwise give rise to physical control over the suspect. Brooks v Gaenzle, 614 F.3d 1213, 1223 (10th Circ.2010). The Supreme Court granted certiorari. 

Analysis:

Bullets From a Distance Are Physical Force

In California v. Hodari D., 499 U.S. 621, 11 S.Ct. 1547, 113 L.Ed.2d 690 (1991), the Supreme Court interpreted the term “seizure” by consulting the common law of arrest, which treated “the mere grasping or application of physical force with lawful authority” as an arrest, “whether or not it succeeded in subduing the arrestee.” (Ibid.)  Put another way, an officer’s application of physical force to the body of a person “for the purpose of arresting him” was itself an arrest—not an attempted arrest—even if the person did not yield (Id.). The Court held that this logic applies to apprehension by firearm as well, and that the officers’ shooting applied force to Torres’ body and objectively manifested an intent to restrain her from driving away. The officers seized her for the instant that the bullets struck her, and “brief seizures are seizures all the same.”

‘Seizure by Force’ Does Not Require Physical Control

The officers argue that the common law doctrine recognized in Hodari D. applies only to civil arrests, and that Hodari D. is just “a narrow legal rule intended to govern liability in civil cases involving debtors.” They further argue that seizures of a person are “intentional acquisitions[s] of physical control.” Brower v. County of Inyo 489 U.S. 593, 596 109 S. Ct. 1378, 103 L.Ed.2d 628 (1989). Under their alternative rule, the use of force becomes seizure “only when there is a governmental termination of freedom of movement through means intentionally applied.” Id. At 597.

But the Court explains this approach erases the distinction between seizures by control and seizures by force. The former involves either voluntary submission to a show of authority or the termination of freedom of movement. The latter will often be unclear: courts will puzzle over whether an officer exercises control when he grabs a suspect, when he tackles him, when he slaps on cuffs, and for how long control must be maintained—only for a moment, to the squad car, to the station. For example, counsel for the officers in this case speculated that the shooting would have been seizure if Torres stopped “maybe 50 feet” or “half a block” from the scene of the shooting to allow the officers to promptly acquire control. None of this squares with the Court’s view that “seizure is a single act, not a continuous fact.” Hodari D. , 499 U.S. at 625.

The Court held that officers seized Torres by shooting her with the intent to restrain her movement even though the person does not submit and was not subdued. However, this was just the first step in the Fourth Amendment analysis because the Fourth Amendment does not forbid all or even most seizures, only unreasonable seizures. The Court did not address the reasonableness of the seizure, the damages caused by the seizure, or the officers’ entitlement to immunity. They vacated the judgment of the Court of Appeals and remanded the case for further proceedings.

The Fair Sentencing and First Step Acts: When Do They Apply?

Published By Stephen Preziosi

Terry v. U.S.

No. 20-5904

Supreme Court

Decided on June 14, 2021

Issue:

Entitled to Sentence Reduction under First Step Act?

Whether defendant Terry is entitled to receive a sentence reduction for his 2008 crack cocaine conviction under the First Step Act, which makes retroactive the provisions in the Fair Sentencing Act that increased the crack quantity threshold for mandatory minimum penalties, where the defendant’s offense did not trigger a mandatory minimum penalty.

Holding:

Reduction Entitlement for Mandatory Minimum Sentences Only

The Supreme Court held that a defendant is eligible for a sentence reduction under the First Step Act only if convicted of a crack offense that triggered a mandatory minimum sentence. Terry’s conviction was not a “covered offense” and therefore not eligible for reduction.

Facts:

Defendant Tahahrick Terry was convicted for possession with intent to distribute 3.9 grams of crack cocaine and sentenced as a career offender to 188-months’ imprisonment under 21 U.S.C. § 841(b)(1)(C) in 2008. After Congress enacted the First Step Act of 2018, which made retroactive the provisions of the 2010 Fair Sentencing Act, Terry sought resentencing on the ground that he was convicted of a crack offense modified by the Fair Sentencing Act. The District Court denied his motion, and the Eleventh Circuit affirmed. The Supreme Court granted certiorari.

Analysis:

Fair Sentencing Act Addresses Sentencing Disparities in Crack v. Powder Cocaine

As enacted in 1986, legislation defined three tiers of statutory penalties for possession with intent to distribute crack cocaine, creating a 100-to-1 ratio between the amount of powder and crack cocaine necessary for conviction. The first two tiers authorized enhanced penalty ranges, carrying mandatory minimum sentences based on drug quantity: a 5-year mandatory minimum (triggered by either 5 grams of crack cocaine or 500 grams of powder cocaine) and a 10-year mandatory minimum (triggered by either 50 grams of crack or 5 kg of powder). 100 Stat. 3207-2, 3207-3. The third penalty differed from the first two: it did not carry a mandatory minimum sentence, did not treat crack and powder cocaine offenses differently and did not depend on drug quantity. The statutory penalties for that offense were up to 20 years’ imprisonment, up to a $1 million fine, or both, and a period of supervised release.

The United States Sentencing Commission incorporated the 100-to-1 ratio into the Sentencing Guidelines, including a “Drug Quantity Table” that sets “base offense levels” that correspond to various ranges of weights for each drug type. Because the drug quantity tables are keyed to the statutory minimums, selling a given weight of crack cocaine would lead to the same base offense level as selling 100 times as much powder cocaine. Street-level crack dealers could thus receive significantly longer sentences than wholesale importers of powder cocaine. Additionally, crack cocaine sentences were about 50 percent longer than those for powder cocaine, and Black people bore the brunt of this disparity. Around 80 to 90 percent of those convicted of crack offenses between 1992 and 2006 were Black, while Black people made up only around 30 percent of powder cocaine offenders in those same years (USSC, Report to the Congress: Cocaine and Federal Sentencing Policy 13 (May 2007) (2007 Report)).

The Fair Sentencing Act of 2010 addressed the 100-to-1 crack-to-powder ratio sentencing disparity by increasing the crack quantity thresholds from 5 grams to 28 for the 5-year mandatory minimum and from 50 grams to 280 for the 10-year mandatory minimum, affecting convictions under §§ 841(b)(1)(A) and 841(B)(1)(B), thereby reducing the crack-to-powder ratio to 18-to-1. § 2(a), 124 Stat. 2372. The Sentencing Commission, in turn, quickly revised the drug quantity tables to reflect that new ratio. USSG App. C, Amdt. 748 (Nov. 2010). The act did not affect the penalty for subparagraph (C), as this statute never differentiated between crack cocaine and powder cocaine offenses. Congress made these changes retroactive in 2018 with the First Step Act.

Fair Sentencing Act Affects Only ‘Mandatory Minimum’ Sentences

Before 2010, §§ 841(a) and (b) together defined three crack offenses relevant here:

  • The elements of the first offense were (1) knowing or intentional possession with intent to distribute (2) crack, of (3) at least 50 grams. §§ 841(a), (b)(1)(A)(iii). This subparagraph (A) offense was punishable by 10 years to life, in addition to financial penalties and supervised release.

  • The elements of the second offense were (1) knowing or intentional possession with intent to distribute, (2) crack, of (3) at least 5 grams. §§ 841(a), (b)(1)(B)(iii). This subparagraph (B) offense was punishable by 5-40 years, in addition to financial penalties and supervised release.
  • The elements of the third offense were (1) knowing or intentional possession with intent to distribute, (2) some unspecified amount of a schedule I or II drug. §§ 841(a), (b)(1)(C).

Defendant was convicted of the third offense, subparagraph (C) as a “career offender” because of two prior drug convictions committed when he was a teenager. As a result, his Guidelines range went from about 3-4 years (for just 3.9 grams of crack) to 15 to 20 years, and he received a sentence of 188 months at the bottom of the range. If he had been charged under either of the other subparagraphs (A) or (B), which require larger quantities of drugs, he would be eligible for resentencing. Similarly, if his Guidelines range had been calculated like that of a non-career offender, he would have been eligible for a sentence reduction when the USSC retroactively reduced the amount of crack cocaine necessary to trigger higher Guidelines range.

Under the First Step Act of 2018, everyone with a pre-August 3, 2010 crack conviction under § 841(b)(1)(A) or § 841 (b)(1)(B), including career offenders, has a “covered offense” and is eligible for resentencing. But the Court holds that no one convicted under § 841(b)(1)(C) has a covered offense, even though their sentences were also based on the 100-to-1 crack-to-powder ratio that was retroactively lowered, and though the law now treats the offense as a far less serious crime.

APPEAL WAIVER PRECLUDES RIGHT TO APPEAL SENTENCE ENHANCEMENT

Published By Stephen Preziosi

U.S. v. Solis

784 Fed. Appx. 202

Fifth Circuit Court of Appeals

Decided on August 9, 2019

Issue:

Whether an appeal waiver is valid when the defendant claims the Government breached the plea agreement where it promised to move for a one-level sentence reduction for conspiracy to transport an undocumented alien if the defendant qualified under U.S.S.G. § 3E1.1(b) for Acceptance of Responsibility, but the district court instead imposed an offense level enhancement because the defendant assaulted a prisoner and was not eligible for the reduction under U.S.S.G. § 3E1.1(b).

Holding:

The Fifth Circuit held that the appeal waiver is valid as the Government did not breach the agreement where they imposed a sentence level enhancement. Solis did not qualify for a sentence reduction under U.S.S.G. § 3E1.1(b) despite Acceptance of Responsibility because he assaulted a prisoner. The plea agreement was knowing and voluntary, and the waiver precludes the defendant’s right to appeal based on the sentencing issue he attempts to raise here.

Fact:

Josue Osvaldo Solis pled guilty to conspiracy to transport an undocumented alien within the US, and was sentenced to 97 months’ imprisonment based on an offense level enhancement.

In Solis’s plea agreement the Government (1) promised to move for the additional one-level reduction under U.S.S.G. § 3E1.1(b) if the district court determined that Solis qualified for the two-level § 3E1.1(a) reduction for acceptance of responsibility and his offense level exceeded the relevant threshold and (2) reserved the right to present facts and argument relevant to sentencing.

The Government presented facts and argument that Solis assaulted “another prisoner,” which resulted in an offense level enhancement, rather than a reduction. Solis appealed, claiming the district court breached the plea agreement.

Analysis:

Appeal Waiver Precludes Appeal of Sentence that Imposed Offense Level Enhancement

The court dismissed Solis’s appeal based on the waiver in his plea agreement and found his sentence was consistent with a reasonable understanding of “the plain language of the agreement.” Solis knowingly and voluntarily agreed to the appeal waiver which precluded his right to appeal except on the basis of ineffective assistance of counsel.

U.S.S.G. § 3E1.1 reads:

  • If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.
  • If the defendant qualifies for a decrease under subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and upon motion of the government stating that the defendant has assisted authorities in the investigation or prosecution of his own misconduct by timely notifying authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently, decrease the offense level by 1 additional level.

The Government presented evidence that Solis did not qualify for a § 3E1.1 sentence reduction because he assaulted another prisoner.

The Fifth Circuit was not persuaded by the argument that Solis reasonably understood the language of the agreement to include “an additional promise that the Government would refrain from advocating against his qualification for the two-level § 3E1.1(a) reduction.” The sentencing was consistent with the agreement, therefore the Government did not breach the agreement. The Fifth Circuit dismissed Solis’s appeal.