Tag Archives: drug conviction

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.

Federal Criminal Appeals Lawyer call 1-800-APPEALS (1-800-277-3257)

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 The court determined that the mandatory minimums superseded the Guidelines ranges and, thus the Guidelines ranges were discarded.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.

For Criminal Appeals In New York see www.appealslawfirm.com

RICO Convictions in Puerto Rico Call First Circuit to Analyze Sufficiency Requirements

Published By Stephen Preziosi

US v. Rodriguez-Torres
939 F.3d 16
First Circuit Court of Appeals
Decided: September 18, 2019

Issue:

What is required to convict under RICO and what evidence is considered sufficient to meet those requirements?

Holding:

The First Circuit held that there was sufficient evidence to show defendants met the requirements under RICO. A RICO conviction requires:

  1. That an “enterprise” existed and that the group had:
    • a common purpose,
    • relationships within the enterprise, and
    • longevity
  2. That the organization affected foreign or interstate commerce;
  3. That the defendants had some role operating and managing the organization;
  4. That there was a pattern of racketeering; and
  5. That the defendants knowingly joined the conspiracy.

Facts:

A gang known as La Rompe ONU was one of the biggest street gangs in Puerto Rico. After the take-down, an astounding 105 defendants were charged with racketeering, drug trafficking, firearms offenses, and murder. It was alleged that La Rompe profited by selling drugs to a large number of public housing projects by using violence and threats to maintain power over its territory. Four convicted defendants appealed to the First Circuit and argued, among other things, that there was insufficient evidence to convict them under RICO.

Analysis:

The Racketeer Influenced and Corrupt Organizations Act (RICO) was enacted in 1970 to prosecute organized crime in the United States. 18 U.S.C. § 1962(c),(d) provides that anyone “employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of an enterprise’s affairs through a pattern of racketeering activity” or to conspire to do so. 

Enterprise Requirements Under RICO: Purpose, Relationships, and Longevity

Under RICO, an “enterprise” is defined as any group of individuals “associated-in-fact,” with the exception of legal entities. An association-in-fact is proved by evidence of an ongoing organization (formal or informal) and by evidence that its associates function as a continuing unit.

To determine whether an enterprise exists under RICO, the U.S. Supreme Court set out a three part test that asks whether the group has (1) a common purpose, (2) relationships among those associated with the enterprise, and (3) longevity sufficient to permit these associates to pursue the enterprise’s purpose. Boyle v. United States, 556 U.S. 938, 946, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009).

The First Circuit held La Rompe met the “common purpose” requirement in determining whether the group made up an enterprise under RICO. According to the Court, there was sufficient evidence to show that La Rompe’s purpose was to profit by selling drugs at housing projects under their control by using violence. The group also shared the common purpose of expanding and strengthening its power.

In determining whether the group met the “relationships” requirement under RICO, the Court held there was more than sufficient evidence to show the group made up an enterprise. To start, the group’s naming their organization “La Rompe ONU”—where “ONU” stands for Organization of United Drug Traffickers, in English—showed they viewed themselves as a united group. Additional evidence cited by the Court pointed to the group’s loyalty to one another, pooling resources for the group’s common purpose, and joint criminal activity.

As for the longevity requirement, the Court held evidence showing La Rompe continued as a unit for eight years was more than enough to check off the final enterprise factor under RICO.

RICO Racketeering Affects Interstate or Foreign Commerce

Another element of RICO the government must prove is whether the organization affected interstate or foreign commerce. The codefendants argued the organization never operate outside of Puerto Rico. However, La Rompe’s trafficking of cocaine and heroin affected foreign commerce because, as the government’s expert witness testified, these narcotics are not produced in Puerto Rico and must have been imported. Additionally, the Court pointed to expert testimony that the large quantities of marijuana were likely imported from southwestern US states, thus also affecting interstate commerce.

Running the Enterprise: Level of Participation in RICO Activities

Not only must the government prove defendants participated in RICO activities, but it must also show defendants were involved to some degree with operating or managing the enterprise. The member of the enterprise need not be in a position of “upper management” to operate an enterprise. A group member can hold management status even under the direction of someone further up the chain. The Court found the La Rompe defendants held this status, at least to a sufficient degree, as evidence established they were drug-point owners.

Pattern of Racketeering

At least two predicate acts of racketeering within ten years of each other are required in showing a pattern of racketeering exists. These predicate acts include drug trafficking, bribery, money laundering, murder, robbery, extortion, and more. The government must also prove the acts are somehow related to one another and “amount to or pose a threat of continued criminal activity.” H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989).

The La Rompe defendants argued that they should not have been prosecuted under RICO because evidence only established predicate acts of drug trafficking and no other acts. However, the Court held the defendants incorrectly interpreted the requirements of “pattern of racketeering” in that the “two or more” predicate acts do not have to be two distinct acts. On the contrary, a defendant may be prosecuted under RICO for multiple counts of mail fraud, for instance, without evidence of any other types of predicate acts. 

“Knowingly Joined” Requirement

The final RICO requirement disputed by the defendants is that they did not “knowingly join” the RICO conspiracy. This element only requires that a defendant “agreed with one or more coconspirators to participate in the conspiracy.” See United States v. Ramírez-Rivera, 800 F.3d 1, 18 n.11 (1st Cir. 2015). The Court held that the defendants’ participation as drug-point owners was enough to show they knowingly entered into the conspiracy since making money through drug dealing was the main purpose of La Rompe’s conspiracy.

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.

Indicted to Convicted: Second Circuit Sets Standard for Indictment Amendments and Variances

Published By Stephen Preziosi

United States v. Dove

No. 14-1150-cr

Second Circuit Court of Appeals

Decided on March 6, 2018

Federal Appeals Attorney in the Second Circuit Court of Appeals

Issue: Whether (1) an indictment is constructively amended where the majority of names of co-conspirators are removed from jury instruction and where the government presents evidence of minimal involvement in the conspiracy on the part of the defendant; (2) whether there is prejudicial variance from an indictment when the evidence at trial demonstrates multiple conspiracies although the indictment charged one large conspiracy; (3) whether the evidence was sufficient to convict the defendant of conspiracy; and (4) whether the district court erred in sentencing the defendant as a career offender based on two New York first and second-degree robbery convictions.

 

Held: The Second Circuit held that (1) neither the redaction of co-conspirators’ names in jury instruction nor evidence demonstrating the defendant’s minimal involvement constructively amended the indictment; (2) no prejudicial variance from the indictment occurred, even though the government presented evidence of multiple conspiracies; (3) evidence was sufficient to convict the defendant of conspiracy even though evidence only showed the defendant interacted with one co-conspirator; and (4) the defendant was properly sentenced as a career offender.

 

Facts: Dove was convicted of conspiracy to distribute and possess with intent to distribute heroin and cocaine in violation of 21 U.S.C. § 841(b)(1)(C) and 846. He was also charged with intent to distribute cocaine, in violation of 21 U.S.C § 841(a)(1) but was acquitted of that count.

 

The government’s primary evidence was testimony of undercover agents and video recordings of Dove participating in a drug transaction. The evidence presented at trial only included interactions between Dove and co-conspirator Ingram, although the indictment charged a six-member conspiracy. Out of the 30 transactions that took place throughout the operation, Dove was only involved in one. At trial, the district court gave jury instructions, in which the names of four of the alleged co-conspirators were redacted, leaving only the names of Dove and Ingram. Dove moved for acquittal and, alternatively, moved to vacate the judgment, claiming that the evidence was insufficient to convict him of conspiracy. The court denied both motions.

 

At sentencing, the court found that Dove qualified as a career offender under U.S.S.G. § 4B1.1, which resulted in a sentence of 72 months and five years of supervised release. Dove appealed both his conviction and sentence.

 

 

Analysis: Dove argued on appeal that 1) the indictment was constructively amended, 2) the government’s evidence constituted a prejudicial variance from the terms of the indictment, 3) the evidence was insufficient to support Dove’s conviction, and 4) the district court erred in sentencing him as a career offender.

 

Constructive Amendment of the Indictment

 

The conspiracy involved six individuals. However, the district court’s jury instructions removed the names of four co-conspirators and the government’s evidence only linked Dove to Ingram and no other co-conspirators. Dove claimed this constructively amended the indictment, but the Second Circuit rejected the argument, holding that neither the jury instructions nor the government’s evidence altered an essential element of the charges in the indictment.

 

When the charge upon which the defendant is tried differs significantly from the charge for which the grand jury voted, the indictment has been constructively amended. A constructive amendment occurs when an additional element is added or an element essential to the crime charged is altered. United States v. Agrawal, 726 F.3d 235, 259 (2d Cir. 2013).

 

The Second Circuit first considered whether the names of four co-conspirators, which were removed from the district court’s jury instructions, could have been essential to the charges set forth in the indictment. Pointing to United States v. Harris, 8 F.3d 943, 946 (2d Cir. 1993), in which this Court held that “an individual need not know the identities of all coconspirators in order to be found guilty of being a member of a conspiracy,” the Second Circuit determined that the inclusion of the other co-conspirators’ names was not essential and, thus, did not constructively amend the indictment. In addition, the Court concluded that the names did not constitute a necessary element by setting the minimum size of the conspiracy because the indictment specified that Dove and Ingram conspired “with others.”

 

The Second Circuit was also unpersuaded by Dove’s argument that the indictment was constructively amended by the government’s evidence at trial. The evidence demonstrated that: Dove participated in one transaction; the transaction was the only one out of the 30 that involved cocaine unlike the others, which involved heroin and pills; there was no evidence linking Dove to other members of the conspiracy besides Ingram; and there was no evidence that investigators were aware of Dove prior to the last day of the conspiracy.

 

While the Second Circuit conceded that Dove played a minor role in the conspiracy, the Court declined to agree that the evidence resulted in a constructive amendment from the conduct considered by the grand jury. The evidence at trial included Dove’s agreement to sell cocaine and that Ingram had informed the agent that Dove had sources for heroin (in Dove’s presence). The Court determined that this evidence was consistent with the terms of the indictment voted on by the grand jury.

 

Prejudicial Variance from the Indictment

 

Dove also argued that the evidence presented at trial, demonstrating multiple conspiracies involving Ingram, resulted in prejudicial variance from the indictment because the indictment alleged a single larger conspiracy. A variance occurs when the charging terms of the indictment are left unaltered, but the evidence at trial proves facts materially different from those alleged in the indictment. Reversal is only warranted for a variance if the defendant shows both: (1) the existence of a variance, and (2) that “substantial prejudice” occurred at trial as a result.

 

The government did not contest that there was a variance in Dove’s trial. However, the question that remained was whether the variance was prejudicial. Dove argued that he was not given proper notice of the charges against him pursuant to the Grand Jury Clause. However, the Second Circuit pointed out that Dove failed to demonstrate that he met the prejudice factors outlined in United States v. McDermott, 245 F.3d at 139 (2d Cir. 2001). In any event, the Court found that Dove had sufficient notice from the indictment that the government would attempt to prove multiple conspiracies.

 

Sufficiency of the Evidence

 

Although the evidence adduced at trial only showed that Dove was involved in “a minimum agreement between Dove and Ingram to engage in transactions,” the Second Circuit determined the evidence was sufficient to convict Dove of conspiracy.

 

Dove asserted that the evidence was insufficient due to the “buyer-seller” exception, which provides that “the mere purchase and sale of drugs does not, without more, amount to a conspiracy to distribute narcotics.” However, the Court determined that this exception was inapplicable in Dove’s case because the evidence demonstrated that Dove and Ingram: (1) enjoyed mutual trust and extensive cooperation; (2) had a history of standardized dealings in wholesale quantities of heroin; and (3) were planning future sales of wholesale quantities of heroin plainly not intended for personal use.

 

Career Offender Designation

 

Finally, the Second Circuit held that Dove was properly sentenced as a career offender. Dove argued that his New York convictions for first and second-degree robbery were inappropriately categorized as crimes of violence under the Career Offender Guidelines. However, recent Second Circuit case law renders Dove’s New York robbery convictions violent within the meaning of U.S.S.G. § 4B1.1.