Tag Archives: federal criminal appeals

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.

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 The court determined that the mandatory minimums superseded the Guidelines ranges and, thus the Guidelines ranges were discarded.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

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PLEA AGREEMENTS AND APPEAL WAIVERS: VOIDABLE OR ENFORCEABLE.

Published By Stephen Preziosi

U.S. v. Riggi

649 F.3d 143

Second Circuit Court of Appeals

Decided on Aug. 10, 2011

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Appeal Waivers in Plea Agreements

Issue:

Whether a waiver of the right to appeal in a plea agreement is enforceable when the sentencing court applied the 2008 Sentencing Guidelines and the conviction, a murder conspiracy, ended in 1989 where the 2008  Guidelines contain a significant enhancement, creating a Constitutional Ex Post Facto issue

Holding:

The Court held that waivers of the right to appeal are presumptively enforceable, even when the Ex Post Facto Clause is implicated, as the defendant knowingly waived his right to appeal in the plea agreement where he expressly agreed that the 2008 Guidelines would be used to calculate the offense level and that the plea agreement was binding even if the court used a different Guidelines range.  

Facts:

Defendant Philip Abramo pled guilty to conspiracy to commit murder, conspiracy to commit loansharking and receiving proceeds of extortion in a plea agreement that contained a broad appeal-waiver provision for any sentence eighteen years or less. Abramo was sentenced to 186 months’ imprisonment.

Though the charged murder conspiracy ended in 1989 upon the death of the targeted victim, the 2008 Sentencing Manual Guidelines were applied to determine Abramo’s sentence. He appealed, arguing the application of the 2008 Guidelines violated his ex post facto rights. He invoked contract principles, classifying the Guidelines stipulations as a mutual mistake of fact that rendered his appeal-waiver unenforceable.

Analysis:

General Principles of Appellate Waivers

Waivers of the right to appeal a sentence are presumptively enforceable.  The Second Circuit has repeatedly upheld the validity of appeal waivers if they are knowingly, voluntarily and competently provided by the defendant.  Plea agreements are construed according to contract law principles, but because the plea agreements are unique contracts, the application of ordinary contract principles are tempered with special due process concerns for fairness and the adequacy of procedural safeguards. 

Appellate Waivers: When Are They Voidable

Appeal waivers are voidable when a defendant’s fundamental rights are violated. The Court has voided appeal waivers where the sentence imposed was based on unconstitutional factors such as race (see Gomez-Perez, 215 F.3d at 319), naturalized status (see U.S. v. Jacobson, 15 F.3d 19, 23 (2d Cir.1994), or ability to pay restitution (see U.S. v. Johnson 347 F.3d 412, 415, 419 (2d Cir.2003). Additionally, The Court has voided waivers when a sentencing court “failed to enunciate any rationale for the defendant’s sentence” and thus abdicated its judicial responsibility (U.S. v. Woltmann, 610 F.3d 37, 39-40 (2d Cir.2010).

Appellate Waivers: When Are They Enforceable

The Court upholds the validity of appeal waivers if they are “knowingly, voluntarily, and competently provided by the defendant” (U.S. v. Gomez-Perez 215, F.3d 315, 318 (2d Cir. 2000), and maintains that “other meaningful errors” are insufficient to void a waiver. The Court has enforced appeal waivers where a sentence was arguably imposed contrary to a statutory requirement (see Yemitan 70 F.3d at 748). The Court determines that a defendant who enters a plea agreement “simultaneously waives several constitutional rights” (U.S. v. Waters, 23 F.3d 29, 36 (2d Cir.1994).

Decisive Considerations: Voidable versus Enforceable

The Second Circuit held that in determining whether a waiver of appellate rights will be voided or enforced the decisive considerations are the nature of the right at issue and whether the sentence was reached in a manner that the plea agreement did not anticipate.  Regarding the nature of the right, a defendant can waive fundamental constitutional and statutory rights.

Constitutional Concerns Regarding the Ex Post Facto Clause

In U.S. v. Rosa, (123 F.3d 94 (2d Cir.1997), the Court held that they will set aside the waiver and accept appeal when constitutional concerns are implicated. In Rosa, the parties did not stipulate to a sentence below which the defendant would not appeal, thus the agreement “may have subjected a defendant to a sentence vastly greater than he, or possibly even the Government, could have anticipated” (Id.) Notwithstanding the Rosa case’s “disturbing characteristics,” the Court enforced the appeal waiver.

In this case, however, Abramo’s plea agreement stipulated (1) that the 2008 Guidelines be used; (2) that the applicable Guidelines sentence was eighteen years’ and (3) that the agreement was binding even if the court used a different Guidelines range.

Ignorance of Existing Constitutional Rights as Grounds for Voidable Appeal Waiver

The Court has hinted that ignorance of existing rights may void a plea agreement and a waiver of appellate rights when a “defendant can establish that he was unaware of his Apprendi rights at the time he entered into his plea agreement” (U.S. v. Morgan 386 F.3d 376, 381 n. 3 (2d Cir.2004). Abramo claims the Guidelines error in this case rose from his ignorance of existing constitutional rights, but the Court determines that claim would be relevant only to a claim of ineffective-assistance regarding the advice Abramo received from counsel, as it was his lawyer’s obligation to inform the client of his constitutional rights. But Abramo is not raising an ineffective-assistance claim here.

Furthermore, the Court determines that even if Abramo was unaware of the ex post facto issue when he pled guilty, he was well aware of it by the time of sentencing and he made no motion to withdraw his plea and took no step to preserve the issue for appeal. The Court holds that the plea waiver is enforceable, and Abramo’s appeal is denied.

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.

Civil RICO Racketeering Claims

Published By Stephen Preziosi

LLM Bar Exam, LLC v. Barbri, Inc.
No. 17-3463-cv
Second Circuit Court of Appeals
Decided: April 25, 2019

The Alleged Conspiracy: Bribery, Monopolization, Kickbacks and Racketeering

In 2016, LBE, a bar exam prep company, filed a lawsuit against Barbri and several law schools claiming conspiracy to restrain trade, monopolization, and attempted monopolization in violation of the Sherman Act, 15 U.S.C. §§ 1 and 2, and racketeering in violation of the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, 18 U.S.C. § 1962(c). Unpersuaded, the District Court dismissed each of LBE’s claims of racketeering.

LLM Bar Exam, LLC (“LBE”) is a company that offers courses for foreign attorneys who wish to obtain Master of Law, or “LL.M.” degrees from U.S. law schools. Barbri, Inc. provides bar prep courses to U.S. law school graduates as well as LL.M. graduates and is a direct competitor of LBE.

LBE filed a racketeering lawsuit against Barbri, alleging they were forced out of business due to a conspiracy between and among Barbri and several law schools, including Harvard, NYU, and Columbia. LBE alleged that Barbri maintained a monopoly over the market by donating money to schools, bribing their administrators, and hiring faculty in exchange for promotion of Barbri’s products.

LBE appealed to the Second Circuit, challenging the dismissal of its Sherman Act and RICO claims. As to the RICO claim, LBE asserted that there were sufficient facts to show that defendants-appellees engaged in “a pattern of racketeering activity” within the meaning of RICO for the “common purpose” of using “dishonest means to wrest customers from LBE in the LLM Market.”

Ultimately, the Second Circuit upheld the District Court’s decision to dismiss LBE’s complaint because they failed to state a plausible claim of relief. The Court provided no further analysis.

Civil RICO Racketeering Claims: Strict Requirements Limit Success

On the criminal side of RICO, a convicted defendant can receive a lengthy prison sentence. However, criminal liability is not the only potential consequence of a RICO violation. Alleged victims of racketeering may bring a civil suit as a mechanism for receiving compensation for injury.

A successful RICO claim must demonstrate:

  • tangible financial loss;
  • a pattern of criminal activity (although a conviction is not necessary);
  • the claim is brought within the four-year statute of limitations.

RICO claims are often dismissed by courts because plaintiffs fail to show the defendant actually committed racketeering activities. Thus, the standard for a successful civil RICO suit is rarely met. Predicate acts that are required in RICO claims include extortion, kickbacks, money laundering, bribery, wire and mail fraud and more.

RICO Racketeering Claims under 18 U.S.C. § 1962(c)

Among other claims, LBE alleged Barbri engaged in affecting interstate or foreign commerce by violating section § 1962(c) of the RICO Act. 18 U.S.C. § 1962(c) makes it illegal for a person who is employed by or associated with an enterprise engaged in or affecting interstate or foreign commerce to conduct or participate in the conduct of the enterprise’s affairs through a pattern of racketeering or collection of unlawful debts.

For a successful showing of a RICO violation under §1962(c), the plaintiff must demonstrate the defendant conducted or participated in conduct, that the conduct was of an enterprise, and that there was a pattern of racketeering activity.

A showing of a “pattern” of racketeering activity requires proof that the acts are related to and that the acts posed a threat of continued criminal activity. “Related” acts will generally have the same goal, participants, or victims, or methods of commission. The activity is “continuing” where the conduct occurred during the course of a confined period of time or past conduct that threatens future repetition.

Under RICO, an “enterprise” is defined as any group of individuals associated in fact. An association-in-fact is proved by evidence of an ongoing organization (formal or informal) and by evidence that the associates function as a continuing unit. A civil RICO complaint must show that each defendant participated in the operation of the enterprise.

To decide whether a pattern of racketeering activity exists, courts have historically considered the following factors:

  • the number of victims
  • the nature and quantity of predicate acts
  • how long the activity took place
  • whether there were distinct injuries
  • the quantity of distinct transactions involving the conduct

LBE’s Unsuccessful RICO Claims

Although the Second Circuit does not make clear why, specifically, LBE failed to establish a showing that Barbri engaged in a pattern of racketeering activity, the District Court’s decision outlines reasons for dismissal.

As an initial matter, the District Court addressed the vagueness of the complaint alleging wire and mail fraud communications, noting the complaint failed to specify the fraudulent content of the communications, who made the statements, and when the statements were made. “RICO claims premised on mail fraud must be particularly scrutinized . . . ,” the Court held. Like many other civil RICO claims, LBE’s complaint failed to meet the strict requirements of demonstrating a pattern of racketeering.

The District Court further found that LBE failed to show that the defendants formed an enterprise-in-fact because the complaint did not indicate they acted as one unit. Moreover, the complaint omitted any evidence that each individual participated in the operation it alleged.

Chances of winning a RICO civil suit are slim. As this case demonstrates, courts scrutinize civil RICO claims with careful eyes and the requirements for showing sufficient evidence for a RICO violation exists are extensive.