Category Archives: U.S. Sentencing Guidelines

Sentencing Guidelines: Offense Level and Possession of Ammunition – no presumption that ammunition is “in connection with” another felony offense.

Published By Stephen Preziosi

United States v. Eaden, 914 F.3d 1004 (5th Cir. Feb. 5, 2019).

The question of first impression presented in this sentencing appeal concerns the effect of a defendant’s possession of ammunition alone, as opposed to a firearm, during a drug trafficking offense. Milo Eaden appealed his four-level sentencing enhancement pursuant to U.S.S.G. § 2k2.1(b)(6)(B) for using or possessing ammunition in connection with another felony offense. Eaden argued that he did not possess the ammunition “in connection with” his felony drug trafficking activities. The Fifth Circuit Court of Appeals held that the district court clearly erred in imposing the enhancement under these facts. The Court vacated Mr. Eaden’s sentence and remanded for resentencing.

The Fifth Circuit vacated and remanded the defendant’s sentence for possession of ammunition by a felon, holding that there was insufficient evidence to support the imposition of the 4-level enhancement at §2K2.1(b)(6)(B). Although there was evidence that ammunition was in close proximity to illegal drugs, the court stated, the government must show additional evidence that the nearby ammunition “facilitated, or had the potential of facilitating” the other offense. 

Police officers executed a search warrant of Eaden’s home after making a controlled purchase of crack cocaine from Eaden at his residence. During their search, the officers found 5.5 grams of crack cocaine and 19 rounds of ammunition. No firearm was found on Eaden’s person or in his home. 

The Presentence Report (PSR) assigned a base offense level of fourteen, added a four-level enhancement pursuant to U.S.S.G. § 2k2.1(b)(6)(B) for using or possessing the ammunition in connection with another felony offense, and reduced by three levels for acceptance of responsibility, bringing his total offense level to fifteen. Eaden objected to the four-level enhancement, arguing that his possession of ammunition was not connected with his drug trafficking because the ammunition did not facilitate or have the potential to facilitate the drug trafficking offense nor was the possession of the ammunition and drug trafficking part of a common scheme or plan.

If U.S.S.G. § 2k2.1(b)(6)(B)’s four-level enhancement can be applied to a defendant who possessed only ammunition. Section 2k2.1(b)(6)(B) provides for a four-level enhancement if the defendant “used or possessed any firearm or ammunition in connection with another felony offense.” Application Note 14(A) provides that the term “in connection with” mandates that “the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense.”

Possession of ammunition alone, under appropriate circumstances not present in this case, certainly may be sufficient for the four-level enhancement.  By using the disjunctive “or,” the guidelines plainly read to allow for the enhancement when the defendant possesses a loaded gun, an unloaded gun, or ammunition alone. That much is clear: ammunition alone can facilitate a drug offense. The more nuanced question will be under what circumstances and, absent a presumption, this question necessarily must be decided on a case by case basis.

As noted above, Application Note 14(A) clarifies that “in connection with” means “facilitated, or had the potential of facilitating.” Therefore, for the enhancement to apply, the government must show evidence of both (1) possession of a firearm or ammunition and (2) that the firearm or ammunition facilitated or had the potential to facilitate the other offense. Application Note 14(B) instructs us, however, that “in the case of a drug trafficking offense in which a firearm is found in close proximity to drugs … application of subsection[ ] (b)(6)(B) is warranted because the presence of a firearm has the potential of facilitating another felony offense.” Application Note 14(B)—addressed specifically to the drug trafficking context—states only that “the presence of the firearm” inherently “has the potential of facilitating” and makes no reference to ammunition. We see no reason in the text of the Guideline, or its explanatory notes, to expand this presumption beyond possession of a firearm during a drug trafficking offense.

No Need for Lower Court to Agree with Appellate Court’s Reasoning for Mandate

Published By Stephen Preziosi

United States v. Jesse Sawyer

No. 15-2276-cr

Second Circuit Court of Appeals

Decided October 26, 2018

 

Issue: Whether the resentencing of a defendant by a district judge who refuses to agree with the appellate court’s reasoning for the resentencing, and who reduces the sentence based on a factor not addressed by the appellate court, should be reversed.

 

Holding: The Second Circuit held that, pursuant to the mandate rule, on remand, the district court is only required to comply with the appellate court’s order; it is not required to agree with the appellate court’s reasoning for the order or to consider the appellate court’s reasoning upon making a decision.

 

Facts: Defendant Jesse Sawyer pled guilty to two counts of sexual exploitation of children in violation of USC §§ 2251(a) and one count of receipt of child pornography in violation of 18 USC §§ 2252A(a)(2)(A) and 2256(8)(A). Sawyer was sentenced to 30 years in prison. Prior to this appeal, the Second Circuit remanded to the district court for resentencing, given “Sawyer’s harrowing upbringing and comparatively low danger to the community.” Sawyer was resentenced by the district court to 25 years in prison, and Sawyer challenged his new sentence on both reasonableness and “law-of-the-case-grounds.”

 

Each of Sawyer’s sexual exploitation charges carried a fifteen-year mandatory minimum and 30-year maximum sentence. The receipt of child pornography count carried a mandatory minimum of five years in prison and a maximum of 20 years. The combined maximum sentence, therefore, was 80 years in prison.

 

The presentence report and defendant’s sentencing memorandum described Sawyer’s horrific upbringing, which consisted of continuous sexual and physical abuse. Although the sentencing judge acknowledged Sawyer’s “nightmarish” childhood—or, rather, the “childhood that never was”—she found that it could not excuse his actions.

 

On the first appeal, the Second Circuit concluded that Sawyer’s original 30-year sentence had been substantially unreasonable. The Court considered the nature and extent of Sawyer’s crimes, which did not rise to the level of “extreme and heinous criminal behavior” like sexual assault, for which a 30-year sentence would have been more appropriate. In addition, the Second Circuit found that the district court “failed to give appropriate weight to a factor listed in Section 3553(a)”: the history and characteristics of the defendant.

 

At Sawyer’s resentencing in 2017, the district judge clearly expressed her disagreement with the Second Circuit’s conclusion and, in her view, the original sentence remained substantively reasonable. Based on Sawyer’s post-sentencing rehabilitative efforts alone, the judge reduced Sawyer’s sentence by five years.

 

Court’s Analysis: When an issue is resolved on appeal, on remand, the district court is prohibited from ignoring or rejecting the appellate court’s determination. See Burrell v. United States, 467 F.3d 160, 165 (2d Cir. 2006). This rule, known as the “mandate rule” requires district courts to comply with the Second Circuit’s holdings on the case.

 

Although the Second Circuit acknowledged the district court’s disagreement with the Court’s reasoning, it concluded that, nevertheless, the district court judge’s reduction of five years was substantial. The Court determined that its mandate did not prevent the district court from disagreeing with the Second Circuit’s reasoning, nor did it require the district court to consider the sentencing factors in the way that the Second Circuit would have done. Instead, the district court was only required to sentence the defendant “within the (elastic) bounds of reasonableness.”

 

Whether the district court agrees with the appellate court’s ruling is, thus, essentially irrelevant, as long as the court has complied with the mandate. Indeed, “the mandate rule only ‘compels compliance.’” See United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001).

 

Although the Second Circuit determined that it could not bring itself “to call [the sentence] shocking under governing law,” it still recognized the sentence as “barbaric” yet declined to remand for resentencing.

 

Chief District Judge Geoffrey Crawford dissented. He concluded that on remand, instead of relying on the Second Circuit’s ruling, the district court simply “changed the subject” by reducing the sentence by relying on a reason unaddressed by the Second Circuit. Judge Crawford noted that the new sentence “still fails to take into proper consideration the two § 3553(a) factors” the Court had addressed as the basis for reversal. Noting that the panel here identified the district court’s refusal to properly weigh these factors as significant substantive errors, Judge Crawford concluded that the “errors continue to form the primary basis for the new sentence.”

 

 

 

Sentence Reduction and Rule 35(b) Motions and the 3553(a) Factors

Published By Stephen Preziosi

USA v. KATSMAN

16-2583-cr

United States Court of Appeals for the Second Circuit

Decided on October 10, 2018

 

ISSUE

ONE Whether the district court is allowed to deny the government’s motion pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure for a reduction of sentence where the courts determined that the defendant provided substantial assistance in an ongoing matter and reaped the benefits of his cooperation in said matter dealing with SDNY. TWO Whether the factors in 18 U.S.C. §3553(a) should be a used in determining the reduction of a sentence pursuant to a motion under Rule 35(b) where the defendant was offered a plea deal in exchange for substantial assistance in an ongoing matter that the defendant had previously participated in.

 

HOLDING

ONE The Court held that the district court is allowed to deny the government’s motion pursuant to Rule 35(b) because such motions are to be decided in two steps: first it determines whether the defendant in fact provided substantial assistance; where the defendant pleaded guilty in SDNY with charges solely based on information voluntarily provided during proffer sessions. Second, if so, it must then determine what, if any, reduction in sentence is warranted; where no reduction in sentencing. TWO The Court held that the factors under 18 U.S.C. §3553(a) may be used in determining the reduction of a sentence because it directly effects step two in deciding whether to reduce the defendant’s sentence in light of his cooperation.

 

FACTS OF THE CASE

On November 17, 2010, Igor Katsman pled guilty in the EDNY to charges relating to a fraudulent check-cashing scheme and was sentenced to 84 months’ imprisonment. He moved to withdraw his guilty plea or for resentencing before a different judge. Consequently, his motion to withdraw was denied and his resentencing resulted in a total of 120 months’ imprisonment.

 

In 2013, the FBI and USAO-SDNY approached Katsman about cooperating in a separate case pending in the SDNY regarding a no-fault insurance fraud scheme and various investment frauds. Subsequently, the government entered into a joint EDNY-SDNY cooperation agreement with Katsman, and the government agreed to make a Rule 35 motion to reduce his sentencing in EDNY because he provided substantial assistance in the ongoing matter. In February 2015, Katsman was required to plead guilty to uncharged criminal conduct in SDNY as part of the plea deal.

 

The following year, the USAO-EDNY filed a motion pursuant to Rule 35(b) in the EDNY for resentencing based on his substantial assistance in the prosecutions in the SDNY. While the 125 years’ imprisonment in the SDNY sentencing was reduced to a sentence of time served, the district court denied the government’s motion to reduce sentencing in the EDNY. Following Katsman’s initial appeal and remand from the federal court, the district court issued its decision and a summary of its reasoning, which is sealed.

 

COURT’S ANALYSIS

In this case, the courts find that in deciding a Rule 35(b) motion, the district court must first determine whether the defendant in fact provided substantial assistance and second, if it does, the court must determine what, if any, reduction in sentence is warranted. The federal court did not accept Katsman’s argument that the district court “conflated these discrete steps into one.” They determined that the district court fulfilled the requirements of the first step by inferring that “Katsman clearly provided substantial assistance” when he pleaded guilty to a “uncharged criminal conduct” in the SDNY. They then determined that the district fulfilled the requirements of the second step by explaining that a “120-month sentencing, the middle of the guidelines range, remains sufficient but not greater than necessary to comply with the purposes of Section 3553(a)” D.Ct. Dkt. No. 103 because, among other things, Katsman had already received the benefit of his cooperation in the SDNY when the 125 years’ imprisonment in the SDNY sentencing was reduced to a sentence of time served.

 

While the federal court has yet to address the role of factors in 18 U.S.C. §3553(a), if any, in sentencing reduction pursuant to a Rule 35(b) motion, the text also does not preclude the district court from considering factors in addition to the defendant’s “substantial assistance” and to what extent. In fact, Rule 35’s use of the word “may” implies discretion and “discretion can best be exercised by considering the various sentencing factors”. The only limitation, however, is found under Rule 35(b) which requires that the defendant provides “substantial assistance if he is to receive any benefit for his cooperation.” Additionally, Section 3553(a) requires that courts “impose a sentence sufficient, but not greater than necessary,” and that they consider the “statutory factors in determining the particular sentence to be imposed.”

 

If the courts were required to resentence a defendant considering only substantial assistance, there would be “too little discretion for the court to exercise” in deciding whether a reduced sentence is “warranted or prudent under the circumstance.” United States v. Manella, 86 F.3d 201, 2014-05 (11th Cir. 1996). A defendant’s circumstances could change after the sentencing in a way that has an effect on the appropriateness of his sentencing. Take, for instance, a defendant with a terminal illness which may result in a greater reduction. As opposed to a defendant like Katsman who continued to engage in criminal behavior and lied to the courts about it which may result in a smaller reduction. Thus, the Circuit Court found that on a Rule 35(b) motion, the trial court may apply the 3553(a) factors at sentencing.

U.S. Sentencing Guidelines: Enhancements and Crimes of Violence under the Armed Career Criminal Act

Published By Stephen Preziosi

U.S. v. Jones

877  F.3d 884 (9th Cir. 2017)

Decided December 15, 2017

 

Sentencing Enhancement under the ACCA: Arizona Armed Robbery Not a Violent Felony

Issue: Whether Arizona armed robbery qualifies as a violent felony under the ACCA for the purposes of sentencing range enhancements and because the Supreme Court invalidated the residual clause, the Arizona armed robbery qualifies as a violent felony only if it meets the requirements of the ACCA’s force clause or enumerated felonies clause.

Holding: Applying the categorical approach and pointing to its recent decision in United States v. Molinar, 2017 WL 5760565, the Ninth Circuit Court of Appeals held that armed robbery in Arizona does not qualify as a violent felony under the ACCA and, therefore, it cannot serve as a predicate violent conviction for sentencing enhancement purposes.

Facts: Jones pled guilty to one count of being a felon, in violation of 18 U.S.C. Section 922(g)(1) and the Armed Career Criminal Act, 18 U.S.C. Section 924(e). The district court found that Jones was convicted of at least three violent felonies (three were armed robbery convictions) and sentenced him to the fifteen-year mandatory minimum under the ACCA. Jones later filed a § 2255 motion, arguing that he no longer has three qualifying convictions to trigger the ACCA’s fifteen-year minimum sentence. The district court denied Jones’s motion and Jones appealed the district court’s denial.

Analysis: The Armed Career Criminal Act (ACCA), Section 924(e), imposes a mandatory minimum sentence of fifteen years of imprisonment on a person who violates Section 922(g) and has three previous convictions for a serious drug offense or a violent felony or some combination of the two.

To determine whether a conviction qualifies as a “violent felony” under the ACCA, we apply the “categorical approach,” looking “only to the fact of conviction” and “the statutory definitions of the prior offense, and not to the particular facts underlying those convictions. A prior conviction qualifies as an ACCA predicate only if, after “compar[ing] the elements of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime—i.e., the offense as commonly understood [,] … the statute’s elements are the same as, or narrower than, those of the generic offense.

United States v. Jones, 877 F.3d 884, 887 (C.A.9 (Ariz.), 2017)

 

What is a “crime of violence” under the U.S. Sentencing Guidelines?

Under the U.S. Sentencing Guidelines, a “crime of violence” is “any offense under federal or state law, punishable by imprisonment for a term exceeding one year” that

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another (the “force clause”), or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives (the “enumerated felonies clause”), or otherwise involves conduct that presents a serious potential risk of physical injury to another (the “residual clause”).

Guidelines manual § 4B1.2(a)

The U.S. Supreme Court has since denounced the “residual clause” of the ACCA as it violates due process and is unconstitutionally vague. Johnson v. United States, 135 S.Ct. 2551, 2555-57 (2015) (Johnson II). The residual clause states that a felony that “involves conduct that presents a serious potential risk of physical injury to another” should be treated as a “violent felony.

Thus, Jones only needed to demonstrate that Arizona armed robbery meets the requirements of the force clause or the enumerated felonies clause.

 

Is armed robbery in Arizona a violent felony under the ACCA’s “Force Clause”?

In Johnson v. United States (Johnson I), the U.S. Supreme Court defined “violent felony” under the ACCA as a “violent force—that is, force capable of causing physical pain or injury to another person.” Johnson, 559 U.S. 133, 140 (2010). Last year, in United States v. Molinar, 2017 WL 5760565, the Ninth Circuit examined the Supreme Court’s “violent felony” definition in Johnson I and held that Arizona’s armed robbery statute “on its face . . . does not require that the robber actually use or even threaten to use a weapon.” Therefore, in Arizona, “armed robbery is indistinguishable from robbery for the categorical analysis under the force clause” and the Molinar panel concluded that Arizona armed robbery can no longer be considered a violent crime under Section 4B1.2’s force clause of the U.S. Sentencing Guidelines.

Here, the Ninth Circuit concluded that the holding in Molinar “applies equally” to the ACCA’s force clause because it is identical to the Sentencing Guidelines’ force clause. Accordingly, the Court held that Arizona armed robbery is not categorized as a violent felony under the ACCA’s force clause.

 

Is armed robbery in Arizona a violent felony under the ACCA’s “Enumerated Felonies Clause?”

While the Molinar panel held that Arizona armed robbery was not a violent crime under the Sentencing Guidelines’ “force clause,” it came to a different conclusion with regard to the “enumerated felonies” clause. Though robbery is not listed as an enumerated felony under the U.S. Sentencing Guidelines, the Molinar court looked to the commentary of Section 4B1.2, which specifically states that robbery is a crime of violence. However, the ACCA’s enumerated felonies clause contains no such clarifying commentary and, thus, the commentary in the U.S. Sentencing Guidelines does not apply to Jones. The Ninth Circuit also pointed out that a previous decision had already determined that robbery is not an enumerated felony under the ACCA. United States v. Dixon, 805 F.3d 1193, 1196 (9th Cir. 2015).

Concluding that Arizona armed robbery does not qualify as a violent felony under the ACCA, the Ninth Circuit Court of Appeals reversed the district court’s denial of Jones’s Section 2255 motion.