Category Archives: U.S. Sentencing Guidelines

RICO Conviction Triggers § 924(c) Enhancement

Published By Stephen Preziosi

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US v Martinez

991 F.3d 347

Second Circuit Court of Appeals

Decided on March 16, 2021

Issue:

RICO Conviction and a ‘Crime of Violence’

Whether 1) defendant Martinez’s RICO conviction based on only one predicate crime of violence is a violent crime for the purposes of § 924(c) and 2) whether Martinez’s sentence of 240 months’ imprisonment was substantively unreasonable.

Holding:

RICO Conviction With Any Element of Violence Triggers § 924(c) Enhancement

The Second Circuit held that 1) a RICO conviction based on only one predicate crime of violence is a violent crime for the purposes of § 924(c) and 2) Martinez’s sentence was not unreasonable and not an abuse of discretion.

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Facts:

Defendant Jose Antonio Martinez, along with other MS-13 gang members, traveled several times into rival gang territory searching for a man against whom Martinez had a grudge. When their search attempts proved unsuccessful, they decided to shoot at a group of men they believed to be members of Los Vatos Locos. The shots killed a man who was not affiliated with the rival gang, and Martinez later pled guilty to several RICO charges: conspiracy to commit murder for the purpose of maintaining and advancing his position in a racketeering enterprise in violation of 18 U.S.C. § 1959(a)(5), and possessing a firearm during a crime of violence during which the firearm was brandished and discharged in violation of 18 U.S.C. § 924(c)(1)(A). Martinez was sentenced to concurrent ten-year terms of imprisonment on the racketeering counts and a mandatory consecutive ten-year term on the firearms charge.

Martinez appealed, arguing that his 240 months’ imprisonment was substantively unreasonable due to his attempted cooperation with authorities, his personal circumstances, and the fact that he did not personally shoot Halley. Martinez later filed a supplemental brief arguing that the Supreme Court’s decisions in Johnson v. United States (576 U.S. 591, 135 S.Ct. 2551, 193 L.Ed2d 569 [2015]) and United States v. Davis (139 S.Ct. 2319, 204 L.Ed.2d 757 [2019]), and the Second Circuit’s decision in United States v. Ivezaj, 568 F.3d 88 (2d Cir. 2009), calls into question his § 924(c) conviction. Because he raised the § 924(c) argument for the first time on appeal, the Second Circuit examined the case under plain error review.

Analysis:

§ 924(c) Firearm Enhancement

As relevant here, § 924(c) provides an enhanced punishment for “any person who, during and in relation to any crime of violence…uses or carries a firearm.” (18 U.S.C. § 924(c)(1)(A). The enhancement requires a seven-year mandatory sentence if the firearm is brandished, and ten years if it is discharged.

Johnson and Davis Decisions

The Supreme Court held in Johnson that the “residual” clause of the Armed Career Criminal Act (ACCA), which similarly enhances punishment for possession of a firearm by a convicted felon who had multiple prior convictions for “violent felonies” defined as felonies that “involve conduct that presents a serious potential risk of physical injury to another” was unconstitutionally vague. This decision caused confusion in the courts of appeals as to whether the holding applied not only to statutes that required courts to characterize crimes of which a defendant had been previously convicted, but also to cases like this one involving § 924(c), where risk is assessed with respect to the offense charged.

Then came Davis, in which the Supreme Court invalidated the residual clause applicable to Martinez under § 924(c)(3)(B); thus Martinez’s underlying offenses cannot be found to be crimes of violence under that branch of the definition. Martinez therefore argued that these decisions call into question whether his convicted offense triggers §924(c)’s force clause, which requires that the conviction “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person or property of another.”

United States v. Ivezaj and RICO Violations

In United States v. Ivezaj, the Second Circuit held that a RICO offense based on two violent racketeering predicates is a violent crime for the purposes of § 924(c). Martinez contended that because his RICO offense is predicated on only one violent act and two conspiracy acts, his offense does not trigger the § 924(c) enhancement. But the Second Circuit disagreed, explaining that the substantive RICO violation based on only one predicate crime of violence would be a crime of violence under § 924(c).

As the Government argued, it is not necessary for every element of the crime to involve violence, only one element of the crime must do so. Ivezaj suggests that in order to address substantive violations of RICO, one must “look to the predicate offenses to determine whether a crime of violence is charged.” (Ivezaj, 568 F.3d at 96). Following this logic, the Court explained that a RICO pattern consisting of a murder and a narcotics conspiracy requires a finding of the use of force against another just as that of a RICO pattern consisting of two murders. Martinez therefore failed to prove that the district court plainly erred in accepting his guilty plea to a violation of § 924(c) predicated on an admitted pattern of racketeering that includes a predicate violent crime.

Unreasonableness of Sentence

Martinez also argued that his 20-year sentence was unreasonable, but because the RICO pattern included a murder, punishable under New York State law by a maximum of life imprisonment, the RICO offense is similarly punishable by a maximum of life imprisonment. The sentencing guidelines calculated by the district court recommended a sentence between 292 and 364 months’ imprisonment, so the Second Circuit could not find that Martinez’s sentence of 240 months’ imprisonment was unreasonable or an abuse of discretion. The Second Circuit accordingly affirmed the judgment of the district court.

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Armed Career Criminal Act and Past Convictions: Mens Rea of Recklessness is not violent.

Published By Stephen Preziosi

Borden v. U.S.

No. 19-5410

US Supreme Court

Decided on June 10, 2021

Issue:

Armed Career Criminal Act and Past Violent Convictions

Whether 1) a defendant is subject to the enhanced sentence under the Armed Career Criminal Act (ACCA) where one of three past convictions has the mens rea of recklessness, and whether 2) that conviction constitutes a “violent felony” under the elements clause 18 USC § 924(C)(3)(A) which qualifies a felony as violent when it “has as an element the use, attempted use, or threatened use of physical violence against the person of another.”

Holding:

‘Violent’ Requires Purposeful and Knowing Conduct, Excludes Recklessness

The Supreme Court held that 1) a defendant is not subject to the ACCA enhanced sentence where one of three past convictions had the mens rea of recklessness, and 2) that a “violent felony” requires purposeful and knowing conduct for the use of force “against the person of another.”

Facts:

Charles Borden Jr. pled guilty to a felon-in-possession charge and the Government sought an enhanced sentence under ACCA. One of Borden’s past three convictions was for reckless aggravated assault. Borden argued that this offense was not a violent felony under ACCA’s elements clause because a mental state of recklessness suffices for conviction, and that only purposeful and knowing conduct satisfies the clauses’s demand for the use of force “against the person of another.” The District Court disagreed and sentenced Borden as a career offender under ACCA, which mandates a 15-year minimum sentence for persons found guilty of illegally possessing a firearm who have three or more prior convictions for a “violent felony.”

Analysis:

ACCA Elements Clause

The Supreme Court held that the ACCA penalty enhancement kicks in only when three or more past offenses meet the statute’s definition of “violent felony.” An offense qualifies as violent under the elements clause if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.”

Borden argued that the word “against” introduces a conscious object (not the mere recipient) of the force, while the Government argued that “against” instead means “making contact with” and therefore introduces the mere recipient of force rather than its “intended target.” Indeed, dictionaries offer both meanings, “in opposition to” and “in contact with,” depending on context.

The Court held that Borden’s view of the word was correct, as “against another” modifies the “use of force,” which demands that the perpetrator direct his action at, or target, another individual in behavior that is knowing or purposeful. Reckless conduct is not aimed in that prescribed manner, and to treat reckless offenses as “violent felonies” would impose large sentencing enhancements on individuals (such as a reckless driver) far afield from the “armed career criminals” who the ACCA addresses.

Purposeful and Knowing Conduct and the Four Mens Rea

The ACCA elements clause, then, excludes reckless conduct but covers conduct that is knowing and purposeful. Of the four mens rea that give rise to criminal liability (purpose, knowledge, recklessness, and negligence), purpose and knowledge are the most culpable levels in criminal law’s mental-state hierarchy. (U.S. v. Bailey, 444 U.S. 394, 404 (1980)). A person acts purposely when he “consciously desires” a particular result. A person acts knowingly when “he is aware that a result is practically certain to follow from his conduct,” what his affirmative desire.

For example, a person driving his car straight at a reviled neighbored has, in the statute’s language, “Used physical force against the person of another” in a purposeful way. A getaway driver who sees a pedestrian in his path but plows ahead anyway has likewise “used physical force against the person of another.”

Recklessness and negligence are less culpable mental states because they instead involve insufficient concern with a risk of injury. A person acts recklessly when he “consciously disregards a substantial and unjustifiable risk” (Model Penal Code § 2.202(2)(c); see Voisine v. U.S., 579 U.S. 686 (2018)).

For example, a reckless or negligent driver who, late to work, decides to run a red light and hits a pedestrian whom he did not see has not “used physical force against the person of another,” rather, he has consciously disregarded a real risk, thus endangering others. He did not train his car at the pedestrian understanding he will run him over. The reckless driver does not, therefore, come within the elements clause.

Leocal v. Ashcroft

In Leocal v. Ashcroft, 543 U.S. 1 (2004), the Supreme Court held that offenses requiring only a negligent mens rea fell outside a statutory definition relevantly identical to ACCA’s elements clause. That definition, codified at 18 U.S.C. § 16(a) is for the term “crime of violence.” Section 16(a) states that a “crime of violence” means “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”

The Court explained in Leocal that a “crime of violence” suggests a category of “violent, active crimes that cannot be said naturally to include negligent offenses.” That when read against the words “use of force,” the “against” phrase (which the Court held as a “critical aspect” of the definition) “suggests a higher degree of intent” than (at least) negligence” (Id. at 9).

The Court’s logic likewise applies in this case regarding recklessness. It is the pairing of volitional action with the word “against” that produces its oppositional or directed meaning and excludes recklessness from the statute.

Context and Purpose

Furthermore, the Court held that context and purpose remove any doubts regarding the elements clause’s meaning. In Leocal and Johnson v. U.S. the Court’s decisions construed the definitions of “crime of violence” and “violent felony” to mark out a narrow category of violent, active crimes. Those crimes “are best understood to involve not only a substantial degree of force, but also a purposeful or knowing mental state—a deliberate choice of wreaking harm on another, rather than mere indifference to risk” such as murder and rape as opposed to drunk driving.

The classification of reckless crimes as “violent felonies” does not comport with ACCA’s purpose. ACCA sets out to identify and address “the sort of offender who, when armed, might deliberately point the gun and pull the trigger” (Begay, 553 U.S. at 146). The Act discharges that goal by looking to a person’s criminal history. An offender who has repeatedly committed “purposeful, violent, and aggressive” crimes poses an uncommon danger of “using a gun deliberately to harm a victim. (Id. at 145.) However blameworthy, reckless or negligent conduct is “far removed” from the “deliberate kind of behavior associated with violent criminal use of firearms” (Id. at 147). The Supreme Court therefore reversed the judgment, and remanded the case for further proceedings.

Appeal Waivers: Departures and Variances under the United States Sentencing Guidelines. What’s the difference?

Published By Stephen Preziosi

US v Jacobs

635 F.3d 778

Fifth Circuit Court of Appeals

Decided on March 15, 2011

Issue:

Appealing Upward Variances in Sentencing

Whether an appeal waiver is valid when a defendant receives an upward variance at sentencing when he preserved his right to appeal an upward departure from the Sentencing Guidelines.

Holding:

Appeal Waiver Valid and Enforceable

The Court held that an upward variance and an upward departure are not the same, therefore the defendant’s appeal waiver is valid and his appeal dismissed.

Facts:

Marcus Jacobs pled guilty to possessing stolen mail in violation of 18 U.S.C. § 1708. In his signed plea agreement, Jacobs waived his right to appeal his sentence but preserved his right to appeal an upward departure from the Sentencing Guidelines.


Jacobs’ waiver stated that, “The defendant waives the right to appeal the sentence imposed or the manner in which it was determined. The defendant may appeal only a) the sentence imposed above the statutory maximum; or b) an upward departure from the Sentencing Guidelines which had not been requested by the United States as set forth in Title 18 U.S.C. § 3642(b).”

At sentencing, the district court calculated the advisory Guidelines sentencing range as four to ten months. The Government recommend a sentence of seven months. However, the district court opted to vary upwardly under 18 U.S.C. § 3553(a), citing Jacobs’ extensive criminal history, failure of prior sentences to deter Jacobs from further criminal conduct, and a high risk of recidivism. The court sentenced Jacobs to 36 months in prison.

Jacob appealed, challenging the reasonableness of a sentence that is 260 percent longer than the high end of the Guidelines Range.

Analysis:

‘Departure’ Distinct From ‘Variance’

Jacobs’ plea agreement, which was knowing and voluntary, only allows him to appeal an “upward departure.” Departure refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines. The Guidelines set out a three-part framework for the imposition of sentences: the district court 1) calculates the advisory sentencing range; 2) considers the specific offender characteristics and grounds for departure enumerated in the Guidelines; and 3) weighs the applicable factors in 18 U.S.C. § 3553(a) as a whole. A district court cannot impose a departure unless it first notifies the parties, and it must explain its reasons for doing so.

By contrast, if after completing the Guidelines’ three-step process the district court “imposes a sentence that is outside the guidelines framework, such a sentence is considered a ‘variance.’” The court’s authority to impose a variance is discretionary and stems from 18 U.S.C. § 3553(a).

The Fifth Circuit held that an upward departure and an upward variance are not the same. The plea agreement applies only to “departures,” which has an ordinary, well-settled meaning in the sentencing context. That meaning does not extend to variances such as the one the district court imposed in this case. Therefore, Jacobs’ appeal waiver is valid and does not authorize him to appeal the upward variance he received at sentencing. His appeal was dismissed.

GOVERNMENT’S BREACH OF PLEA AGREEMENT VOIDS APPEAL WAIVER

Published By Stephen Preziosi

Plea agreements, Breach of Plea Agreement, Waiver of Right to Appeal

U.S. v. Gonzalez

309 F.3d 882

Fifth Circuit Court of Appeals

Decided on October 14, 2002

Issue:

Plea agreements and sentence enhancements

Whether a defendant’s appeal waiver is enforceable when the Government violated the terms of the plea agreement by using information provided by the defendant in a debriefing to obtain sentence enhancement, where the cooperation agreement pursuant to U.S.S.G. § 1B1.8(a) stated that “any statements made by the defendant in the course of his promised cooperation would not be used against him when determining the applicable guidelines range except as provided by U.S.S.G. § 1B1.8(b).”

Holding:

Appeal waiver not valid after breach of plea agreement

The Fifth Circuit held that the Government breached the plea agreement by using information provided by the defendant against him at sentencing absent any exceptions, therefore voiding the appeal waiver provision of his agreement. The Court vacated the conviction and remanded to district court before another judge.

Facts:

Francisco Gonzalez pled guilty to conspiracy to distribute more than 100 kilograms of marijuana acquired from Mexico and transported for sale in Texas.

Pursuant to his plea agreement, which contained a standard waiver of appeal provision, Gonzalez agreed to cooperate with the Government. In turn, the Government agreed that “pursuant to U.S.S.G. § 1B1.8(a), any statements made by Gonzalez would not be used against him when determining the applicable guidelines range, except as provided in U.S.S.G. § 1B1.8(b).”

A probation officer filed a pre-sentencing report (PSR) indicating that Gonzalez’s sentence should be enhanced by two levels under U.S.S.G. § 3B1.1(c) because he had a leadership role in the offense. If the role enhancement were not applied he would be eligible for a safety valve. Gonzalez filed, under seal, objections to the PSR claiming that he was not the leader, that individuals following behind in a Suburban were the leaders.

Prior to a debriefing session, Gonzalez’s counsel received a proffer letter that stated, “No statements that either you or Mr. Gonzalez make during these discussions can be used as evidence against him in any civil or criminal proceedings except the Government may use such statements for the purpose of cross-examination, impeachment and rebuttal should your client testify at any proceeding contrary to this proffer.”

At the sentencing hearing, prosecution disclosed the information Gonzalez had provided in the debriefing and the lower court determined that fact was “the ultimate admission against interest” because his exclusive knowledge of the Suburban showed “some type of planning or direction” and gave “credence to what everybody else was saying.”

The district court sentenced Gonzalez to 70 months’ imprisonment, assigning an enhancement for his leadership role. He filed a motion for reconsideration, which the district court denied.

Analysis:

Preponderance of Evidence Standard

In determining whether the Government violated the terms of the plea agreement, Gonzalez must prove that the underlying facts establish a breach by a preponderance of evidence. The Fifth Circuit Court of Appeals “must determine whether the government’s conduct is consistent with the parties’ reasonable understanding of the agreement” (US v Wilder, 15 F.3d 1292, 1301 (5th Cir.1994)). The Fifth Circuit held that, “a plain reading of the proffer letter indicates that the parties’ reasonable understanding” would prohibit the Government’s use of the information Gonzalez provided in his debriefing against him, absent any exceptions.

Breach of Plea Agreement Voids Appellate Waiver

Pursuant to U.S.S.G § 1B1.8(a), which states that, “Where a defendant agrees to cooperate with the government by providing information concerning unlawful activities of others, and as part of that cooperation agreement the government agrees that self-incriminating information provided pursuant to the agreement will not be used against the defendant, then such information shall not be used in determining the applicable guideline range, except to the extent provided in the agreement,” Gonzalez’s statements during the debriefing should only have been disclosed (1) if one of U.S.S.G. § 1B1.8(b) exceptions applied; or (2) for the purpose of cross-examination, impeachment, or rebuttal if Gonzalez testified contrary to the proffer at any proceeding.

U.S.S.G. § 1B1.8(b) reads:

(b) The provisions of subsection (a) shall not be applied to restrict the use of information:

  1. known to the government prior to entering into the cooperation agreement;
  2. concerning the existence of prior convictions and sentences in determining §4A1.1 (Criminal History Category) and § 4B1.1 (Career Offender);
  3. in a prosecution for perjury or giving a false statement
  4. in the even there is a breach of the cooperation agreement by the defendant; or
  5. in determining whether, to what extents downward departure from the guidelines is warranted pursuant to a government motion under § 5K1.1 (Substantial Assistance to Authorities)

The Government never argued that any exceptions listed in § 1B1.8(b) did apply, nor did it argue that it was using the information as allowed in the proffer letter. Rather, the Government asserted that the information concerning the Suburban had been disclosed earlier by Gonzalez in his objection to the PSR and was no longer privileged, and that according to U.S.S.G. 1B1.8, the information could be disclosed but not “used against” the defendant. According to case law, the Government was not allowed to use the information against Gonzalez unless it could prove that the information came from a wholly independent source (US v Taylor, 277 F.3d 726, 727 (5th Cir. 2001)). The Government’s disclosure that no one else but Gonzalez knew about the Suburban proves they did not obtain the information from an independent source and were therefore prohibited from using it against Gonzalez.

The Fifth Circuit holds that § 1B1.8 does not prohibit disclosure of information provided in a plea agreement at sentencing, but it does prohibit this information from being used to determine the applicable guideline range (US v Taylor, 277 F.3d at 724), as it was used in this case. The Fifth Circuit Court of Appeals held that the Government breached the plea agreement, and therefore vacated Gonzalez’s conviction and sentence and remanded the matter to the district court.