Supreme Court, Fourth Circuit and Maryland District Court Federal Sentencing Update
(January 1, 1998 - May 5, 2000)
Larry Allen Nathans,
Jason D. Tulley,
Nathans & Ripke LLP
This Supreme Court and Fourth Circuit Federal Sentencing Update contains two sections, (1) three recent Supreme Court sentencing cases, and (2) Fourth Circuit and Maryland District Court published sentencing cases decided from January 1, 1998 through May 5, 2000.
Supreme Court Cases
United States v. Johnson, 120 S. Ct. 1114 (2000) -- During defendant's incarceration two of his prior convictions were invalidated resulting in a situation where upon release defendant had served 2.5 years more time than he should have. Upon release his three year term of supervised release began and he moved to have it shortened by the extra time he had served in prison. The district court denied his request but the Sixth Circuit granted it. The Supreme Court reversed, however, holding that it was bound by the statutory language of 18 E. S.C. § 3624(e) which prevents the commencement of a term of supervised release until the individual "is released from incarceration."
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. Brock, F.3d, 2000 U.S. App. LEXIS 6730 (April 13, 2000) --Reversing imposition of two level enhancement under § 2A6.1(2)(b)(2) for making two or more threats during commission of the crime of making repeated interstate harassing phone calls (47 U.S.C. § 223(a)(1)(E)) because defendant sentenced under the contradictory guideline provision § 2A6.1(2) of a base offense level of 6 for an offense which did not involve threats could not then be enhanced for making threats; rejecting argument that offense under the enhancement meant relevant conduct while "offense" under the base offense level meant only the charged conduct.
United States v. Dawkins, 202 F.3d 711 (4 th Cir. 2000) – Reversing district court's calculation as to amount of loss where defendant fraudulently filed disability forms failing to introduce his minor income dealing drugs. The proper amount of loss is the difference between what the government did pay due to the fraud and what it would have paid had defendant been truthful in filling out the forms. Rejecting government argument that because the form contained perjury, defendant was not entitled to any benefits and the amount of loss was the entire amount defendant was entitled to absent any other income. Also reversing district court's setting of restitution schedule without making statutorily required findings that about defendant's financial resources, projected earnings, and financial obligations.
United States v. Gormley, 201 F. 3d 290 (4 th Cir. 2000) – Reversing enhancement for use of a special skill under §3B1.3, where the defendant was convicted of filing false tax returns and doing so without an accountant's license, because defendant had been in the return filing business was not enough by itself to impose the enhancement, typically the skill must be one gained through substantial training or the equivalent.
United States v. Rhynes, 196 F.3d 207 (4 th Cir. 1999) -- Defendant, convicted of conspiracy to distribute cocaine or heroin or marijuana was improperly sentenced to a term greater than the maximum for marijuana which was not appropriate for a general verdict case; reversed for plain error.
United States v. Ruhe,191 F.3d 376 (4 th Cir. 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. Williams, 152 F.3d 294 (4th Cir. 1998) - Reversing and remanding district court's drug quantity calculation because the court did not expressly or by implication adopt the PSR findings nor make sufficiently detailed independent findings. Upholding district court's finding that an obstruction of justice enhancement applied when appellant escaped during arrest.
United States v. Van Metre, 150 F.3d 339 (4th Cir. 1998) - Vacating and remanding 20 year solicitation sentence because district court improperly concluded that Application Note 5 of §5G1.3 allowed for imposition of the statutory maximum. Upheld district court's upward departure in kidnapping case to life in prison because the kidnapping was atypical and the purpose of the offense was to commit first degree murder.
United States v. Washington, 146 F.3d 219 (4th Cir.), cert. denied. 142 L. Ed. 2d 206 (1998) - Remanding sentence because district court impermissiby relied on appellant's statements to probation officer that were immunized under his plea agreement pursuant to §1B1.8. Upheld district court's admission of amended lab report (stating some of the cocaine was cocaine base) that was based on probation officer's independent investigation.
United States v. Lominac, 144 F.3d 308 (4th Cir. 1998) - Vacating and remanding sentence because a violation of supervised release sentence violated the prohibition against ex post facto laws since a sentence based on 18 U.S.C. § 3583(h) (allowing court to sentence defendant to term of imprisonment and new term of supervised release) acted to increase the punishment for his original crimes.
United States v. Terry, 142 F.3d 702 (4th Cir. 1998) - Vacating and remanding upward departure in manslaughter and reckless driving case because each of three encouraged factors were already taken into account in the guideline range (endangering public safety, extreme psychological injury to victim and death).
United States v. Sampson, 140 F.3d 585 (4th Cir. 1998) - Vacating and remanding one defendant's sentence because it was unclear whether one drug sale location was a protected area within the meaning of §2D1.2(a) (2 point enhancement) or whether the drug quantities attributable to him included amounts distributed from that location. Second defendant's sentence not vacated because enhancement did not effect the fact that he would have otherwise have received a life sentence. Court also rejected claim that the amount of drugs was improperly calculated based upon trial testimony.
United States v. Neilssen, 136 F.3d 965 (4th Cir. 1998) - Vacating and remanding upward departure because had district court considered 1996 amendment to the commentary of §2G2.2 (1995) it would have realized that a certain amount of punishment for appellant's sexual abuse of his daughter and sister was reflected in §2G2.2(b)(4) (1995). Appellant's argument rejected that the district court erred as a matter of law in applying 5 level enhancement pursuant to the 1995 version of §2G2.2(b)(4) (engaging in a pattern of activity involving the sexual abuse or exploitation of a minor).
United States v. Hall, 40 F. Supp. 2d 340 (D.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 the 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. Alalade, 204 F.3d 536 (4 th Cir. 2000) – Affirming imposition of restitution at the full amount of loss under 18 U.S.C. § 3664, district court did not err in claiming it had no authority to reduce restitution amount by the amount of money taken from defendant in related forfeiture action.
United States v. Davis, 202 F.3d 212 (4 th Cir. 2000) – Affirming enhancement under § 2K1.4 for property damage by use of explosives where defendant shot a gun into a house because the "explosion" of the gunpowder in the gun projecting the bullet counted as use of an explosive.
United States v. Karam, 201 F.3d 320 (4 th Cir. 2000) – Affirming district court restitution calculation in fraud case, rejecting defendant's arguments that the victims did not want their fraudulent loan losses repaid because they intended to cancel the loans in order to qualify for tax benefits. Also affirming district court's holding that defendant's personal guarantees of repayment to victims in the form of promissory notes could not be included in calculating restitution because civil settlements do not preclude an award of restitution.
United States v. Gormley, 201 F. 3d 290 (4 th Cir. 2000) – Affirming enhancement for obstruction of justice under § 3C1.1 despite claim by defendant that his statements to the probation officer during the pre-sentence investigation came right after sentencing during a very emotional time; statements were material because if believed could have affected the appropriate guideline range.
United States v. Mosley, 200 F.3d 218 (4 th Cir. 1999) – District court did not err in sentencing defendant under § 5G1.3 to a term consecutive to a term he was currently serving, post-1995 version of the guidelines does not require court to create hypothetical aggregation of sentence being served with instant sentence, court merely had to consider four factors listed in application note 3.
United States v. Wilson, 198 F.3d 467 (4 th Cir. 1999), cert, denied, 146 L. Ed. 2d 499 (2000) – Affirming enhancement under § 2B3.1(b)(4)(B) for physical restraint of a victim where defendant after entering victim's car (having been offered a ride), pulled a gun, ordered victim to pull over, took her money and then told her to get out of the car; the time the victim spent giving defendant her money before she left the car was sufficient)
United States v. Turner, 198 F.3d 425 (4 th Cir. 1999), cert, denied, 146 L. Ed. 2d 475 (2000) – Affirming district court's application of enhancement for § 3B1.1(c) for role in the offense which was not double counting with conviction under 18 U.S.C. § 848(e)(1)(A) because continuing criminal enterprise offense does not include role in the offense element.
United States v. Pearce,191 F.3d 488 (4 th Cir. 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,191 F.3d 403 (4 th Cir. 1999), cert. denied, 145 L. Ed. 2d 1112 (2000) - 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,191 F.3d 376 (4 th Cir. 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. Williams, 187 F.3d 429 (4 th Cir. 1999) - Affirming district court's imposition of ACCA for three prior offenses where defendant had one prior drug offense and other offenses stemmed from one extended chase by police where defendant fired at one officer (one assault conviction) fled through woods and onto a bus while pursuit was temporality stopped for 10 minutes, and then pointed his gun at two other officers after having been chased from the bus, three blocks from the first shooting (this constituted two other assault convictions), the two groups of assaults were held to be committed "on occasions different from one another."
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), cert. denied, 146 L. Ed 2d 230 (2000) - 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), cert. denied, 145 L.Ed. 2d 1111 (2000) - 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.), cert. denied, 145 Led. 2d 339 (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, 145 L.Ed. 2d 92 (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. Romer, 148 F.3d 359 (4 th Cir. 1998), cert. denied, 525 U.S. 1141 (1999) - Affirming district court's imposition of enhancement pursuant to §3C1.1 (obstruction of justice) for failing to provide probation officer with a complete accounting of her assets, no express finding of materiality by district court required before applying the enhancement.
United States v. Fenner, 147 F.3d 360 (4th Cir.), cert. denied, 142 L. Ed. 2d 473 (1998) - Finding in drug conspiracy that the district court did not err in determining that it lacked authority to depart based on a huge increase in sentence based after applying § 2K2.1(c)(1)(B) (enhancement for possession of a firearm in connection with a homicide offense) cross reference. Defense contention also rejected that downward departure also warranted because defendant's due process rights were violated because they were twice acquitted of conduct forming the basis for the enhancement.
United States v. Kirksey, 138 F.3d 120 (4th Cir.), cert. denied, 142 L. Ed. 2d 98 (1998) - Affirming imposition of career offender sentence because in a limited class of cases, when the definition of the prior crime of conviction is ambiguous (e.g. Maryland battery convictions) and will not necessarily provide an answer to whether the prior conviction was for a crime of violence, courts should look beyond the definition of the crime to examine the facts contained in the charging document. This exceptional application of the categorical approach never involves a factual inquiry into the facts previously presented and tried. Review of the charging document requires focus only on the facts necessarily decided by the prior conviction. It is proper in Maryland cases to review complaining witness' statements because they serve to supply the facts of the charges.
United States v. Johnson, 138 F.3d 115 (4th Cir. 1998) - Affirming supervised release violation sentence because: (1) appellant had not challenged his drug screening and fine requirement on direct appeal; (2) that consecutive sentences were properly based upon simultaneous violations of supervised release; and (3) the district court did not err in reimposing Johnson's fine and reimbursement costs for his court appointed counsel in the revocation order when it failed to reimpose them at the original sentencing hearing.
United States v. Gray, 137 F.3d 765 (4th Cir.), cert. denied, 142 L. Ed. 2d 129 (1998) - Rejecting appellant's assertion that the Sentencing Commission's decision to impose a presumptive life sentence for violations of 18 U.S.C. 1959(a)(1) (murder in aid of racketeering) was beyond its statutory authority because judges have the discretion to sentence less than life imprisonment and can award a downward adjustment for acceptance of responsibility.
United States v. Wilkinson, 137 F.3d 214 (4th Cir.), cert. denied, 142 L. Ed. 2d 140 (1998) - Affirming refusal to downwardly depart because district court determined that departure was not factually warranted and hence review is precluded.
United States v. Martinez, 136 F.3d 972 (4th Cir.), cert. denied, 142 L. Ed. 2d 98 (1998) - Rejecting appellant's assertion that because the indictment did not specify a particular crime of violence in aid of racketeering they should have been sentenced under 18 U.S.C. § 1954(a)(4) (threatening a crime of violence) instead of § 1954(a)(5) (attempting or conspiring to murder or kidnap). Also rejecting one appellant's claim that the crime he conspired to commit was a robbery rather than a robbery and a murder and another appellant's claim that he should have been awarded a downward departure because he would have pled guilty but for the ineffective assistance of his trial counsel in understanding and explaining the guidelines prior to trial.
United States v. Hobbs, 136 F.3d 384 (4th Cir.), cert. denied, 141 L. Ed. 2d 727 (1998) - Remand for sentencing under the Armed Career Criminal Act because the district court improperly determined that appellant's three prior burglaries were not offenses committed on occasions different from one another because all three burglaries occurred at least a mile apart from each other and in two different towns even though they occurred within a short period of time.
United States v. Love, 134 F.3d 595 (4th Cir.), cert. denied sub nom, Sheppard v. United States, 524 U.S. 932 (1998) - Rejecting appellant's contention that the district court incorrectly determined their base offense levels by holding them responsible for drug amounts inconsistent with the jury's criminal forfeiture verdicts. Also rejecting claims of refusing to decrease sentence for minimal role, and for increases based on obstruction of justice, possession of a firearm and criminal history computation.
United States v. Jackson, 71 F. Supp. 2d 491 (D. Md. 1999) (J. Maletz), aff'd 205 F.3d 1335 (4 th Cir. 2000)- 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 wastewater 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.