Tag Archives: US sentencing guidelines

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 The court determined that the mandatory minimums superseded the Guidelines ranges and, thus the Guidelines ranges were discarded.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

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.