• Uncontested Drug Quantities In The PSR Report And §3582 Resentencing

    Published By Stephen Preziosi

    United States v. Rodriguez, 921 F.3d 1149 (9th Cir. Apr. 24,
    2019).

    The Ninth Circuit reversed the district court’s order granting the defendant’s request for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), based on Amendment 782, and remanded for supplemental drug quantity findings. In reversing, the court clarified that, under United States v. Mercado-Moreno, 869 F.3d 942 (9th Cir. 2017), drug quantities in an adopted PSR are not binding in section 3582(c)(2) proceedings without a specific and explicit drug quantity finding. The court further explained that the appropriate course of action is to engage in supplemental fact-finding to determine whether it is “more likely than not” that the defendant is responsible for a drug quantity that meets the threshold and may, in its analysis, consider the “court-adopted PSR, as well as the trial and sentencing transcripts.”

    The Ninth Circuit stated that the central question is whether uncontested drug quantities in a court-adopted presentence investigation report (“PSR”) constitute specific drug quantity findings that bind district courts in subsequent 18 U.S.C. § 3582(c)(2) sentence reduction proceedings. We clarify that, without an explicit and specific drug quantity finding by the original sentencing judge, drug quantities in an adopted PSR are not binding in § 3582(c)(2) proceedings.

    Ordinarily, a federal court “may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). Congress has, however, provided a narrow exception to this rule of finality. A court may modify a defendant’s term of imprisonment if the defendant was “sentenced … based on a sentencing range that has subsequently been lowered” pursuant to a retroactive amendment to the U.S. Sentencing Guidelines (“Guidelines”). Id. The purpose of this limited exception is to provide the defendant with “the benefit of later enacted adjustments to the judgments reflected in the Sentencing Guidelines” without engaging in plenary resentencing proceedings. United States v. Mercado-Moreno, 869 F.3d 942, 948 (9th Circuit 2017)

    Section 3582(c)(2) sets forth a two-step inquiry for determining whether a defendant is entitled to a sentence reduction. At the first step, the reviewing district court decides eligibility by determining whether a reduction is consistent with U.S. Sentencing Guidelines Manual § 1B1.10, the policy statement that implements § 3582(c)(2). Dillon, 560 U.S. at 826, 130 S.Ct. 2683; see also18 U.S.C. § 3582(c)(2). Section 1B1.10 permits a reduction if, but only if, the amendment has the “effect of lowering the defendant’s applicable Guideline[s] range.” U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 1B1.10(a)(2)(B). A court determines whether the retroactive amendment lowered the defendant’s Guidelines range by calculating the “amended Guideline[s] range that would have been applicable to the defendant if the relevant amendment to the Guidelines … had been in effect at the time the defendant was sentenced.”  § 1B1.10(b)(1). Only the relevant amendment for the corresponding guideline provisions applied when the defendant was sentenced may be considered in the first step of the analysis, and the court must leave all other guideline application decisions unaffected.  Mercado-Moreno, 869 F.3d at 949 (quoting U.S.S.G. § 1B1.10(b)(1)).

    At the second step, the court must consider all applicable 18 U.S.C. § 3553(a) factors and determine whether, in its discretion, “the authorized reduction is warranted, either in whole or in part.” Dillon, 560 U.S. at 826, 130 S.Ct. 2683; see also18 U.S.C. § 3582(c)(2).2 But the court’s consideration of the § 3553(a) factors may not “serve to transform the proceedings under § 3582(c)(2) into plenary resentencing proceedings.

    The Guidelines use a drug quantity table, based on drug type and weight, to establish the base offense levels for drug-related offenses, with a maximum of level 38. SeeU.S.S.G. § 2D1.1(c). Amendment 782, adopted by the U.S. Sentencing Commission (“Commission”) in 2014, modified the drug quantity table by reducing the base offense level for most drugs and quantities by two levels. U.S.S.G. supp. app. C. amend. 782 (Nov. 1, 2014). Shortly thereafter, the Commission made Amendment 782 retroactive for defendants, like Rodriguez, who had been sentenced before the change to the Guidelines. U.S.S.G. supp. app. C amend. 788 (Nov. 1, 2014). 

  • Firearms: One Altered Serial Number Is Enough.

    Published By Stephen Preziosi

    United States v. Jones, 927 F.3d 895 (5th Cir. June 21,
    2019).

    The Fifth Circuit affirmed the defendant’s 84-month sentence for being a felon in possession of a firearm, holding that the §2K2.1(b)(4) enhancement for an altered or obliterated serial number was warranted where the metal plate reflecting the serial number had been removed from the firearm’s frame but it had a legible serial number on its slide. Joining the First, Eighth, and Eleventh Circuits the court held that §2K2.1 requires that only one serial number be altered or obliterated even if others are clearly legible, and that a serial number is “altered or obliterated” when it is “materially changed in a way that makes accurate information less accessible.

    Guideline § 2K2.1(b)(4) applies a four-level enhancement to a defendant’s base offense level “[i]f any firearm … had an altered or obliterated serial number.  In United States v. Perez, 585 F.3d 880 (5th Cir. 2009) the Fifth Circuit addressed the meaning of “altered or obliterated” and adopted the Ninth Circuit’s holding in United States v. Carter, 421 F.3d 909 (9th Cir. 2005) that “a firearm’s serial number is ‘altered or obliterated’ when it is materially changed in a way that makes accurate information less accessible. The Fifth Circuit held in Perez that an attempt to scratch the serial number off of a firearm made accurate information less accessible, even though the serial number was “actually readable.

    The First Circuit noted that the guideline requires “only ‘an altered or obliterated serial number. U.S. v. Serrano-Mercado, 784 F.3d 838 (1st Cir. 2015) and reasoned that[a]pplying an enhancement for firearms that have a single totally obscured serial number may serve as a deterrent to tampering, even when incomplete. And, relatedly, the single-obliteration rule could facilitate tracking each component that bears a serial number, given that various parts of firearms may be severable.

    The Fifth Circuit joined the First, Eighth, and Eleventh Circuits in holding that the applicable guideline “requires only that one serial number be altered or obliterated, even if others are clearly legible.

  • 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.

  • 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.