Category Archives: Uncategorized

Sentencing Reform Act: a court may not impose or lengthen a prison sentence in order to promote rehabilitation.

Published By Stephen Preziosi

United States v. Vazquez-Mendez, 915 F.3d 85 (1st Cir.
Feb. 8, 2019).

The First Circuit vacated and remanded the defendant’s sentence for revocation of supervised release, holding that the district court erred in relying on the defendant’s rehabilitation needs when it imposed an upward variance 15 months above the guideline range. The court explained that, under the Sentencing Reform Act, a court “may not impose or lengthen a prison sentence in order to promote a defendant’s rehabilitation” or enable him to complete a prison rehabilitation program. Stating that the same rule applies to resentencing after a revocation, it held that the district court’s “statements show that it did or likely did rely on rehabilitation in fixing the sentence.”

Adrián Vázquez-Méndez (“Vázquez”) pled guilty in federal district court in Puerto Rico in 2001 to one count of conspiracy to distribute cocaine, 21 U.S.C. § 846, and was sentenced to 168 months in prison followed by five years of supervised release. After serving more than eleven years in prison, Vázquez began supervised release on December 28, 2012.

The defendant eventually violated the terms of his supervised release and was resentenced by the District Court. In resentencing the defendant the District Court imposed an upward variance and sentenced him to 2 years in prison when the guidelines range was 3 to 9 months. The sentencing court cited as one of its reasons for the variance was the rehabilitation of the defendant.

The First Circuit held that under the Sentencing Reform Act a court may not impose or lengthen a prison sentence in order to promote a defendant’s rehabilitation or to enable him to complete in prison a rehabilitative program. Tapia v. United States, 564 U.S. 319, 335, 131 S.Ct. 2382, 180 L.Ed.2d 357 (2011). The rule applies to resentencing after a revocation of supervised release. United States v. Molignaro, 649 F.3d 1, 5 (1st Cir. 2011).

The factors that the District Court must consider when imposing a sentence are found in 18 U.S.C. § 3582 and in 18 U.S.C. § 3553(a).

18 U.S.C. § 3582:

Factors to be considered in imposing a term of imprisonment.–The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation. In determining whether to make a recommendation concerning the type of prison facility appropriate for the defendant, the court shall consider any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(2).

18 U.S.C. 3553(a); (NOTE: what appears below is an abbreviated version of the statute)

Factors to be considered in imposing a sentence.–The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court shall consider–

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed–(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;(B) to afford adequate deterrence to criminal conduct;(C) to protect the public from further crimes of the defendant; and(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for–(A) the category of offense, the category of defendant as set forth in the guidelines-;

(5) any pertinent policy statement–(A) issued by the Sentencing Commission;

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and;

(7) the need to provide restitution to any victims of the offense.

Second Circuit: No Criminal History Points on Sentence Not Served

Published By Stephen Preziosi

United States v. Valente, 915 F.3d 916 (2d Cir. Feb. 15, 2019). The Second Circuit vacated the defendant’s 240- month term of imprisonment, affirmed the $8,616,113 restitution order, and remanded for resentencing, holding that the district court erred by assigning criminal history points for a sentence the defendant had not yet served, contrary to Application Note 2 to §4A1.2. Stating that the language of the application note was unambiguous, the court held that the district court’s error resulted in a higher guideline range, prejudicing the defendant, and required remand for resentencing using the correct guideline range.

Section 4A1.2(c) of the Sentencing Guidelines provides guidance for determining whether “prior sentences” are counted in an offender’s criminal history score. All felonies are counted. U.S.S.G. § 4A1.2(c). Certain prior misdemeanor convictions are not counted if they are listed under § 4A1.2(c)(1) or are similar to the listed offenses. But, an unlisted misdemeanor offense is counted if it is categorically more serious than a listed offense. United States v. Morales , 239 F.3d 113, 118 (2d Cir. 2000). In this context, “categorically more serious” does not mean that the unlisted offense is “within a category that is more serious than the [l]isted offenses” based solely on its underlying elements. Id. at 118 n.5. Rather, we “use[ ] the adverb [‘categorically’] in its ordinary sense to mean ‘without qualification or reservation.’ ” Id. (quoting Webster’s Third New International Dictionary (1993) (“categorically”) ). In determining whether an offense is categorically more serious than a listed offense, the court should use a common-sense approach that includes consideration of relevant factors such as (i) a comparison of punishments imposed for the listed and unlisted offenses, (ii) the perceived seriousness of the offense as indicated by the level of punishment; (iii) the elements of the offense, (iv) the level of culpability involved; and (v) the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct.

U.S.S.G. § 4A1.2 cmt. n.12(A). The district court may also consider “any other factor the court reasonably finds relevant in comparing prior offenses and listed [o]ffenses.” United States v. Martinez-Santos , 184 F.3d 196, 206 (2d Cir. 1999). The misdemeanor interlock device offense is not listed in U.S.S.G. § 4A1.2(c)(1). United States v. Valente, 915 F.3d 916, 921 (2d Cir. 2019)

Separate Sovereigns Doctrine: State and Federal Prosecutions for Same Conduct Deemed Constitutional

Published By Stephen Preziosi

Gamble v. United States
No. 17-646
U.S. Supreme Court
Decided: June 17, 2019

ISSUE

Whether the separate sovereigns doctrine or dual sovereigns doctrine is unconstitutional under the Double Jeopardy Clause of the Fifth Amendment where the federal government charges a defendant with a federal offense for possession of a weapon when the defendant has already pleaded guilty to a State Penal Law offense stemming from possession of the same weapon.     

HOLDING

The U.S. Supreme Court declined to overturn the separate sovereigns doctrine and held: a) the separate sovereigns doctrine does not implicate the double jeopardy clause and b) the same conduct prosecuted by different sovereigns does not constitute the same offense as in a case of double jeopardy.

FACTS OF THE CASE

In 2015, petitioner Gamble was charged with violating state drug laws and Alabama’s felon in possession of a firearm statute. The federal government stepped in the prosecute Gamble for the same act–felon in possession of a firearm–but under 18 U.S.C. §922(g)(1).

Gamble moved to dismiss, arguing that the federal and state firearm indictments violated the Double Jeopardy Clause under the Fifth Amendment because each indicted him for the same “offence”. The District Court denied Gamble’s motion under the ground that prosecutions by different sovereigns are not prosecutions for the same offense for double jeopardy purposes.

Gamble pled guilty to the federal offense but preserved the right to challenge the denial of his motion to dismiss on double jeopardy grounds. The denial of his subsequent appeal to the Eleventh Circuit again cited the dual-sovereignty doctrine. Gamble asked the Supreme Court to overturn the dual-sovereignty doctrine and the Court granted certiorari.

COURT’S ANALYSIS

The opinion, delivered by Justice Alito, began by addressing the common misconception that the separate sovereigns doctrine is an “exception” to the double jeopardy clause. However, the Court pointed out, the double jeopardy clause “ . . .protects individuals from being put twice in jeopardy ‘for the same offence’, not for the same conduct or actions,” thus removing any relevance between double jeopardy exposure and separate sovereigns prosecution. Grady v. Corbin, 495 U.S. 508, 529 (1990). The separate sovereigns doctrine doesn’t allow for someone to be convicted of the “same offense” because an offense under the federal law and an offense under a state law is not the “same offense.”

The analysis continued by explaining that “offenses” are defined by laws; since sovereigns have their own set of laws, they also have their own set of offenses. In this instance, according to the Court, though Gamble’s conduct–being a felon in possession of a firearm–was indistinguishable, each offense for which Gamble was indicted, as a result of the conduct, were driven by distinct laws of the state of Alabama and the federal government. 

Gamble also urged the Court to consider that the history behind the ratification of the double jeopardy clause is contrary to the Court’s previous rulings, which have continued to uphold the separate sovereigns doctrine. While Gamble argues the Supreme Court should overrule this line of decisions, the Court held that Gamble failed to provide a sufficient reason to do so and his backing of historical evidence was unconvincing. Even if the Court did credit Gamble’s historical argument, they held that a departure from established precedent “demands special justification” that is “something more than ambiguous historical evidence.”

Justice Thomas’ concurring opinion joins in maintaining the separate sovereigns doctrine but departs from the majority in one key part. Stare decisis, according to Justice Thomas, has no place in swaying the opinion of the justices of the Supreme Court of the United States. As Justice Thomas puts it bluntly – “[w]hen faced with a demonstrably erroneous precedent, my rule is simply: We should not follow it.” 

In her dissent, Justice Ginsburg looks at the separate sovereigns doctrine from the point of view of the individual rather than the government. Justice Ginsburg asserts that the Double Jeopardy Clause “safeguards the person and restrains the government.” Allowing the state and federal government to engage in successive prosecutions flies in the face of what Ginsburg claims is the purpose of our system of government–to “operate as a double security for the rights of the people.” She would have the majority hold that the unlike foreign nations, the United States and its constituent states are “parts of one whole” which compose one people, and that the Federal and State Governments should be disabled from accomplishing together what neither government could do alone–prosecute an ordinary citizen twice for the same offense.

Intent for “Remaining-in” Burglary Extends Beyond the Doorway

Published By Stephen Preziosi

Quarles v. United States

No. 17-778

U.S. Supreme Court

Decided June 10, 2019

ISSUE

Whether “remaining-in” burglary occurs only if a person has the intent to commit a crime at the exact moment he or she first unlawfully remains in a building or structure, or whether it occurs when a person forms the intent to commit a crime at any time while unlawfully remaining in a building or structure.

HOLDING

The U.S. Supreme Court held that “remaining-in” burglary occurs when the defendant forms the intent to commit a crime at any time while unlawfully remaining in the building or structure.

FACTS OF THE CASE

Petitioner Quarles pled guilty to being a felon in possession of a firearm under 18 USC § 992(g)(1) and qualified for enhanced sentencing–a 15 year minimum–under the Armed Career Criminal Act (ACCA) because he had three prior “violent felony” convictions under §924(e). 

However, during sentencing, Quarles claimed one of his three prior felony convictions, third degree home invasion, did not qualify as burglary, a violent felony under §924(e), and thus he was not subject to enhanced sentencing. Quarles argued that the Michigan statute, under which he was convicted, was broader than the generic definition of burglary set forth by the Supreme Court’s decision in Taylor v. United States, 495 U.S. 575.

The District Court rejected Quarles’ argument and sentenced him to 17 years in prison. The Sixth Circuit affirmed the District Court’s decision and the U.S. Supreme Court granted Quarles certiorari.


COURT’S ANALYSIS

The opinion, delivered by Justice Kavanaugh, required the Court to determine whether the Michigan home invasion statute swept too broadly to qualify as generic burglary as set forth by the Supreme Court’s decision in Taylor v. United States. Specifically, this issue called into question whether the intent to commit a crime must take place a) upon first entering or b) at any time the person remains in the building or dwelling to qualify as generic burglary.

Under the Michigan statute, third degree home invasion occurs when a person “breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a misdemeanor.” Mich. Comp. Laws Ann. §750.110a(4)(a) (West 2004) (emphasis added). In Taylor, the Supreme Court interpreted generic burglary to include “remaining-in” burglary (Taylor at 599), but the question of when the intent must occur remained.

Quarles argued that the intent to commit a crime must occur at the exact moment a person enters a building illegally to constitute burglary under §924(e). Although the Court agreed with this interpretation, it pointed out that Quarles failed to distinguish between a burglary predicated on unlawful entry and a burglary predicated on unlawful remaining. In the latter category, the Court concluded, intent may be formed at any point a person remains in the dwelling or building–not only upon entering. The Court further determined that to exclude the intent to commit a crime while remaining in the structure for purposes of defining generic burglary “would make little sense in light of Congress’ rationale for specifying burglary as a violent felony.”

Generic remaining-in burglary, therefore, occurs when intent is formed at any point a person unlawfully remains in a building or structure. The state law in this case substantially corresponded to generic burglary, and Quarles’ conviction qualified as a violent felony under §924(e) for purposes of enhanced sentencing.