Tag Archives: sentencing enhancement

U.S. Sentencing Guidelines and The Modified Categorical Approach: Sentencing Enhancements and Prior Offenses

Published By Stephen Preziosi

United States v. Mohamed, 920 F.3d 94 (1st Cir. Apr. 3,
2019).

Federal Sentencing Enhancement: First Circuit Court of Appeals and the Modified Categorical Approach

On the government’s appeal, the First Circuit vacated and remanded the defendant’s 37-month sentence for being a felon in possession of a firearm, holding that the district court erred in finding that his prior state conviction in Maine for trafficking 5.7 grams of cocaine base did not qualify as a “controlled substance offense” for purposes of assigning the base offense level at §2K2.1. The court held that that the intent element was not stripped away by Maine’s statutory permissible inference of drug trafficking based the quantity of drugs involved. It noted that there was no evidence that the defendant’s conviction “rested on anything other than his intentional distribution plea.”

Predicate Offense for Federal Sentencing Enhancement

Whether a prior conviction qualifies as a predicate offense under U.S.S.G. § 4B1.1 is a question of law that the First Circuit reviewed de novo.

For 18 U.S.C. § 922(g) and other statutes, the Sentencing Guidelines establish enhanced Base Offense Levels (BOLs) for particular aggravating factors, including when a defendant has been convicted of a prior “controlled substance offense.” U.S.S.G. § 2K2.1(a). A “controlled substance offense” under § 2K2.1(a) “has the meaning given that term in § 4B1.2(b) and Application Note 1 of the Commentary to § 4B1.2,” id. § 2K2.1 cmt. 1: an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance … or the possession of a controlled substance … with intent to manufacture, import, export, distribute, or dispense.

The Modified Categorical Approach

The Supreme Court has held that a sentencing court should use a categorical or modified categorical approach when considering sentencing enhancements based on prior offenses. See, e.g., Mathis v. United States, ––– U.S. ––––, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016); Taylor v. United States 495 U.S. 575, 588, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The categorical or modified categorical approach “applies not just to jury verdicts, but also to plea agreements.” Descamps v. United States, 570 U.S. 254, 262-63, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). 

When taking the modified categorical approach, “a sentencing court looks to a limited class of documents … to determine what crime, with what elements, a defendant was convicted of.”  These are known as Shepard documents (Shepard v. U.S. , 125 S.Ct. 1254) the documents establish that Mohamed’s Maine conviction rested on intentional distribution, to which he pled. The elements of the statute at issue — when taking into account the definitions of “traffick” relevant here, see Me. Stat. tit. 17–A, § 1101(17)(C)-(D) — include intent to distribute. This element is not swept away by the existence of a permissible inference. Again, the statutory elements here closely track the “controlled substance offense” definition in the Guidelines, and include “the indictment, jury instructions, or plea agreement and colloquy.” The First Circuit concluded from these permissible documents that Mohamed’s Maine conviction falls under a provision requiring intent to distribute as an element.

Sentencing Enhancement And The Categorical Approach from Taylor

Author’s Note: In the Guidelines Manual, the Commission lists “crimes of violence” and “controlled substance offenses” as the types of prior convictions that increase the sentencing range for career offenders. Sentencing and appellate courts have interpreted these terms through application of the “categorical approach” mandated by the Supreme Court in Taylor v. United States.  Under the categorical approach, courts must look to the statutory elements of an offense, rather than the defendant’s conduct, when determining the nature of a prior conviction. This form of analysis permits a federal sentencing court to examine only the statute under which the defendant sustained a conviction (and, in certain cases, judicial documents surrounding that conviction) in determining whether the prior conviction fits within a federal predicate definition.

The Shepard documents establish that Mohamed’s Maine conviction rested on intentional distribution, to which he pled. The elements of the statute at issue — when taking into account the definitions of “traffick” relevant here, see Me. Stat. tit. 17–A, § 1101(17)(C)-(D) — include intent to distribute. This element is not swept away by the existence of a permissible inference. Again, the statutory elements here closely track the “controlled substance offense” definition in the Guidelines.

Unconstitutional Federal Statute Calls Supreme Court to Protect Sixth Amendment Right to Trial by Jury

Published By Stephen Preziosi

United States v. Haymond

No. 17-1672

U.S. Supreme Court

Decided: June 26, 2019

ISSUE

Whether 18 U.S.C. §3583(k)’s requirement that a district court impose a mandatory minimum prison sentence by a preponderance of the evidence for certain offenses committed during supervised release violates the constitution’s guarantee of a trial by jury. 

HOLDING

The U.S. Supreme Court held that the 5-year mandatory minimum sentence under 18 U.S.C. §3583(k) is unconstitutional unless the charges can be proven by a jury beyond a reasonable doubt.

FACTS OF THE CASE

Haymond was found guilty of possessing child pornography by a jury and was sentenced to 38 months in prison followed by 10 years of supervised release. During his supervised release, the government discovered what appeared to be child pornography on Haymond’s phone. As a result of the violation, the government sought additional incarceration for Haymond.

A district judge found that Haymond knowingly possessed the images depicting child pornography by a proponderence of the evidence. Under 18 U.S.C. §3583(k) of the Sentencing Reform Act of 1984, a judge is required to impose a minimum prison sentence of five years where a defendant has violated supervised release by committing certain offenses. Relevant to this case, one of those listed offenses is possession of child pornography. Although reluctant to do so, the district judge imposed the mandatory 5-year sentence.

The Tenth Circuit found that §3583(k) violated the Fifth and Sixth Amendments, acknowledging that while a jury previously convicted Haymond by a reasonable doubt resulting in a 0-10 year sentence, §3583(k) allowed Haymond to face a higher mandatory minimum only by a judge’s finding of a preponderance of the evidence. This, the Tenth Circuit held, violated Haymond’s constitutional right to a trial by jury. Haymond was resentenced without regard to §3583(k)’s provisions, and the U.S. Supreme Court was asked to resolve the question of the statute’s constitutionality.

COURT’S ANALYSIS

The Fifth and Sixth Amendment guarantee the accused the right to a trial by an impartial jury and due process of law in criminal proceedings in the United States. A jury’s finding of guilt must also be proven beyond a reasonable doubt.

Only after a jury finds a defendant guilty of an offense beyond a reasonable doubt may the judge impose a penalty within the range allowed for that offense. The Supreme Court recognizes that “even when judges [enjoy] discretion to adjust a sentence based on judge-found aggravating or mitigating facts, they [cannot] ‘swell the penalty above what the law [provides] for the acts charged.’” 588 U.S. ___ (2019) quoting Apprendi v. New Jersey, 530 U.S. 466 at 519 (Thomas, J., concurring). 

Here, §3583(k) permits just that. Only as a result of the district judge’s finding of the defendant’s guilt by a preponderance of the evidence is the five-year mandatory minimum imposed. Contrary to the government’s argument, this new sentence was not authorized by the jury’s verdict.

The Supreme Court  already held a similar statutory scheme allowing judges to impose sentences above the allowed maximum unconstitutional. In Apprendi v. New Jersey, a judge sought to impose a longer sentence than the prescribed maximum after a jury trial pursuant to a statute that permitted him to do so under a preponderance of the evidence standard. The Court held this scheme unconstitutional and later applied the same rule when it held a similar sentence enhancement unconstitutional in Alleyne v. United States, 570 U.S. 466.

Section 3583(k) essentially permits district courts to impose a new and potentially harsher punishment for a new offense. By allowing a judge to increase “‘the legally prescribed range of allowable sentences’ [is] in violation of the Fifth and Sixth Amendments.” 588 U.S. ___ (2019) (quoting Alleyne at 115). The Supreme Court vacated Haymond’s judgment, holding §3583(k) unconstitutional.

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.