Federal Sentencing Update
Larry Allen Nathans
Jason D. Tulley
Nathans & Biddle LLP
120 East Baltimore Street
Baltimore, Maryland 21202
This Supreme Court and Fourth Circuit Federal Sentencing Update contains two sections, (1) two recent Supreme Court sentencing cases and one case pending before the Court, and (2) Fourth Circuit and Maryland District Court published sentencing cases decided from October 26, 1998 through October 20, 1999.
SUPREME COURT CASES
Pending before the Court: United States v. Johnson, No. 98-1696, cert. granted, September 10, 1999 - Whether term of supervised release begins to run on date federal criminal defendant should have been released from term of imprisonment due to change in law or on date he was actually released. below - 154 F.3d 569 (6 th Cir. 1998).
Mitchell v. United States, 526 U.S. 314 (1999) (Reversing Third Circuit affirmation of defendant's sentence for conspiracy to distribute cocaine. At her guilty plea, defendant indicated only that she had done "some of" the proffered conduct. At sentencing, the district court found the quantity of drugs to be greater than five kilograms mandating a ten year minimum. The court held that because of her guilty plea, the defendant had waived her right to remain silent at sentencing and thus her failure to testify was a factor persuading the court to rely on the co-defendant's testimony establishing the drug quantity. The Supreme Court ruled that the Fifth Amendment right to silence applies to criminal sentencing and is not waived by a guilty plea or the defendant's admission to "some of" the alleged conduct. Furthermore, a sentencing court may not draw adverse inferences from a defendant's invocation of her right to silence at sentencing. Finally, the Court noted it expressed no opinion on the effect of a defendant's invocation of the right to silence on lack of remorse or acceptance of responsibility for purposes of a downward adjustment. J. Scalia, Thomas, O'Connor and Rehnquist dissented arguing that the district court should have been allowed to make adverse inferences from the defendant's silence).
Jones v. United States, 526 U.S. 227 (1999) - Defendant charged with carjacking with a firearm (18 U.S.C. § 2119) which has subsections for 1) 15 year maximum, 2) 25 year maximum if serious bodily injury results, and 3) life imprisonment if death results. The indictment did not specify any of the three subsections. Defendant was sentenced to twenty years under 2) and appealed, affirmed by the Ninth Circuit and then sentence reversed by the Supreme Court which held that the statute provided for three distinct offenses which needed to be pled specifically in the indictment and were not merely sentencing enhancements.
RECENT FOURTH CIRCUIT PUBLISHED SENTENCING CASES
United States v. Ruhe, F.3d, 1999 U.S. App. LEXIS 20861 (4 th Cir. August 31, 1999) - Although value of transported stolen military aircraft parts was greater than jurisdictional amount needed ($5,000) when value was calculated as fair market value (albeit an illegal market), for the purposes of sentencing the amount of loss should not be the same as the jurisdictional calculation, but rather should be calculated viewing the parts' value as based upon the amount they were worth for scrap (much lower than $5,000) because the parts had been marked by the army to be sold for scrap. Reversing district court's erroneous calculation for sentencing purposes using market value when the loss was really the amount the military lost in scrap sales.
United States v. Davis, 184 F.3d 366 (1999) - Under the Assimilated Crimes Act, 18 U.S.C. § 13, defendant was sentenced to nine years imprisonment for failure to stop his vehicle when signaled by law enforcement because the incident involved serious bodily harm, reversed because "serious bodily harm" was an element of the offense which was not charged, and not just a sentencing factor.
United States v. Hall, 40 F. Supp. 2d 340 (D. of Md. 1999) (J. Motz) – Granting § 2255 for trial counsel's failure to move for a downward departure based on over representation of criminal history where defendant was sentenced as a career offender and district court judge asked at sentencing if there was anything he could do to find that the defendant was not a career offender and trial counsel remained silent. Furthermore, although no individual fact in defendant's criminal history justified a departure, a combination of factors warranted such departure pursuant to §4A1.3 where defendant had two prior minor drug offenses within two years starting at age nineteen for which he received minor state sentences. (First offense, 4.73g cocaine and 4.23g of marijuana, sentenced four years all but nine months suspended; second offense, fifty-two bags cocaine, sentenced eighteen months all but twenty days suspended).
United States v. Blalock, 29 F. Supp. 2d 688 (D. of Md. 1998) (J. Maletz) – Defendant's attempted murder conviction was not a "previous conviction" for purposes of armed career criminal definition, 18 U.S.C. § 924(e)(1), because attempted murder conviction occurred on 1/22/98 and instant firearm offense occurred on 12/22/97.
Government wins :
United States v. Pearce, F.3d, 1999 U.S. App. LEXIS 21881 (4 th Cir. September 13, 1999) - After government had recommended a 3 level downward departure for substantial assistance pursuant to §5K1.1, district court granted 24 and 20 level departure for each of two co-defendants. Reversed as to the extent of the departure for each because the court provided no reasons for its departure other than its own discretion and defense counsels had each argued factors impermissible in determining substantial assistance (that defendant was a good husband and father, his family relied upon him, that his career offender status was not warranted, he had been drug free for ten years, imperfect entrapment, prosecutorial misconduct in a prior state case which contributed to career offender status, and counsel harkened back to pre-guideline sentencing power of the court) instead of looking to the permissible factors relating to the actual assistance, listed in §5K1.1. Also prior state drug conviction was not minor even though defendant stated the case "was defensible" and he had pled guilty to a re-indictment following appellate court reversal of his conviction because he could then walk with time served, "we cannot conceive of any drug felony that would be considered minor."
United States v. Pillow, F.3d, 1999 U.S. App. LEXIS 21336 (4 th Cir. September 7, 1999) - affirming district court's sentencing calculation where the defendant's guideline range was originally 188-235, but he had a twenty year minimum pursuant to 21 U.S.C. § 851, so the court used that (240 months) as a starting point for a downward departure due to substantial assistance, pursuant to 18 U.S.C. § 3553(e); defendant had argued that the starting point for downward departure should be 188 months, i.e that § 3553(e) removed the minimum mandatory. The Fourth Circuit held that the statute allows for a departure from the minimum mandatory, not the obliteration of it.
United States v. Pregent, F.3d, 1999 U.S. App. LEXIS 20861 (4 th Cir. August 10, 1999) - Defendant was sentenced to thirty-two months longer than he legally should have been, served the extra time unknowingly and was then discharged to supervised release where he discovered the mistake and filed a motion pursuant to 18 U.S.C. § 3583(e) to terminate his supervised release thirty-two months early. The district court denied the motion which was affirmed on appeal, because despite the uncontested addition of "several months" onto his sentence, the defendant "had a long criminal background . . . and also had a history of drug abuse . . . therefore it would be in Pregent's interest and in the interest of justice that he continue the rehabilitative regimen facilitated by supervised release."
United States v. Edwards, 188 F.3d 230 (4 th Cir. 1999) - Affirming district court's denial of reduction for minimal role in the offense pursuant to §3B1.2 where in mail fraud conviction based on substitution of GED test answers for co-defendant seeking educational qualification for employment, defendant was the one who actually switched the test papers.
United States v. Debeir, 186 F.3d 561 (4 th Cir. 1999) - Reversing district court's grant of three level downward departure for both a number of factors independently and for those factors in combination, in interstate travel for purposes of sex with a minor case, where FBI internet sting agent had pretended to be a young woman and defendant went to meet her for sex. Fact that defendant was not a pedophile and his 33 counseling sessions between arrest and sentencing was not a factor so extraordinary in these cases to remove from the heartland. Defendant's "extreme sensitivity" and likelihood of abuse in prison because of the nature of the charge was not so extraordinary here to remove case from the heartland. Because there was no evidence that defendant's alien status adversely affected incarceration options available to him, this was not a proper departure factor. Likewise, the employment consequences and negative publicity in this case were not so extraordinary as to justify a departure. Finally, the "victimless nature of the offense," because an FBI agent was the youngster involved, did not remove the case from the heartland, because sting type operations were not uncommon.
United States v. Mikalalunas, 186 F.3d 490 (4 th Cir. 1999) - In this § 2255 proceeding, although original sentencing court erred in enhancing second degree murder conviction under §3A1.3 (restraint of victim), because murder itself is the ultimate restraint and the enhancement adds nothing to the crime, habeas relief was not available because the error was procedurally defaulted and not excused by ineffective assistance of counsel as the error was "ordinary" and not a miscarriage of justice.
United States v. Akinkoye, 185 F.3d 192 (4 th Cir. 1999) - Affirming enhancement pursuant to §3B1.3, abuse of a position of trust, in credit card fraud scheme where defendant was a real estate agent who obtained personal information from real estate clients, such as social security numbers, and used this information to obtain credit cards.
United States v. Franks, 183 F.3d 335 (4 th Cir. 1999) - In bank robbery, note was sufficient for enhancement for threat of death, pursuant to §2B3.1(b)(2)(F) where note read "[You don't have to give me all your cash. No dye packs. I have a gun. I have nothing to lose."
United States v. Nicolaou, 180 F.3d 565 (4 th Cir. 1999) - Affirming district court's guideline calculation where the court grouped four related counts (illegal gambling business, conspiracy for an illegal gambling business, money laundering and conspiracy to launder money) and used the money laundering count as the base offense level because it was the highest level, and then enhanced the base offense level for leadership role, even though the leadership role was in the gambling business and not in the money laundering.
United States v. O'Neal, 180 F.3d 115 (4 th Cir. 1999) - Affirming district court's imposition of armed career criminal enhancement pursuant to §4B1.4, prior offenses were a 1975 state conviction for breaking and entering and a 1977 conviction for felony larceny, applicability of those crimes as predicates turned on procedural interpretation of North Carolina law.
United States v. Pitts, 176 F.3d 239 (4 th Cir.), cert.denied, 68 U.S.L.W. 3231, 1999 U.S. LEXIS 6386 (1999) - Charges of conspiracy to commit espionage (for activities in NY from 1987-1993 with Russian agents) and attempted espionage (for activities in Washington, D.C. from 1995-1996 with undercover FBI agents) were not "a single course of conduct with a single objective" and thus were properly not grouped by the district court, despite the defendant's objections.
United States v. Ward, 171 F.3d 188 (4 th Cir.), cert.denied, 68 U.S.L.W. 3326, 1999 U.S. LEXIS 5564 (1999) – Defendant was properly sentenced as an armed career criminal where prior offense was state "conspiracy" charge. District court properly looked beyond the elements of statute which did not indicate if the crime was violent or not. In fact, case had been based upon conspiracy to commit robbery, thus conviction counted as crime of violence for ACCA.
Pelissero v. Thompson, 170 F.3d 442 (4 th Cir. 1999) - Although the regulation's language has since changed, the Bureau of Prisons under 18 U.S.C. § 3621(b) offered one year early release to inmates who had completed a substance abuse program so long as their offense was "nonviolent," (under 28 C.F.R § 550.58); although Bureau initially tracked definition under 18 U.S.C. § 924(c)(3), Bureau did not follow subsequent case law of § 924 holding that "nonviolent" offense did not include enhancement for possession of a firearm in a drug conviction. Affirming district court's affirmation of the Bureau's denial of one year benefit to defendant due to their own interpretation of "nonviolent."
United States v. Aramony, 166 F.3d 655 (4 th Cir.),cert. denied, 143 L.Ed. 2d 1034 (1999) – Defendant had objected to relevant conduct calculation and claimed that because of the grant of his motion for judgement of acquittal on one fraud charge he was prevented from offering evidence countering the charge and the court's use of that fraud as relevant conduct to enhance their sentences was improper. Affirmed, because defendant had ample opportunity through PSI objections and at sentencing to present such evidence. Also, enhancement for misrepresenting charitable motives, §2F1.1(b)(3)(A), was appropriate where even though defendant, who was employed by charity, did not actually misrepresent that he had authority from the charitable organization because he misrepresented that he was acting wholly on behalf of the organization instead of in part for himself. Fines imposed upon defendants vacated and remanded because district court failed to make any findings regarding defendant's financial status or ability to pay.
United States v. Wells, 163 F.3d 889 (4 th Cir. 1998),cert. denied, 68 U.S.L.W. 3275, 1999 U.S. LEXIS 5352 (1999) – Affirming upward departure for "domestic terrorism" where defendant collaborated with Montana Freeman and provided suburbans which were to be used in kidnapping federal officials for trial and hanging. Further, district court did not err in calculating amount of loss to include face value of fraudulent "warrants" even though they were not mailed, fact that they had specified amounts and were in sealed addressed envelopes created evidence of intended loss.
United States v. Jackson, F. Supp. 2d, 1999 U.S. Dist LEXIS 15865 (D. Md. October 5, 1999) (J. Maletz) - Denying § 2255 relief where defendant was sentenced as an armed career criminal for prior conviction he believed was not eligible because he claimed his civil rights had been restored (see 18 U.S.C. § 921(a)(20)), however Illinois state law required defendant to make petition for restoration in his type of case, which defendant did not do. Even if later change in law making restoration automatic was retroactive, in the interim, Illinois passed a law that felons could never possess firearms, thereby under Fourth Circuit precedent, negating any potential relief for defendant under § 921(a)(20).
United States v. Smith, 29 F. Supp. 2d 691 (D. Md. 1998) (J. Maletz) – Defendant filed a motion to reduce sentence, 18 U.S.C. § 3582(c)(2), based upon Guideline Amendment 484 which directed the drug weight should not include substances such as waste-water which have to be removed before a drug is usable. Motion denied because no evidence that the liquid "neutralizer" added to the PCP needed to be removed before use, in fact liquid PCP is often used by spraying it onto marijuana.