S e n t e n c i n g P a r t n e r s

Transcription

1 Published By Joaquin & Duncan, L.L.C. A Law Firm of Federal Sentencing Attorneys July 2015 S e n t e n c i n g P a r t n e r s About Sentencing Partners: Sentencing Partners is published by Joaquin and Duncan, L.L.C., 1240 Souridge Ct. #105, Hurst, Texas 76053; telephone (817) ; facsimile (817) ; sentenceptrs@hotmail.com. Sentencing Partners is published monly and attempts to report e most recent cases at can aid you in effectively representing your clients at sentencing and in keeping you advised of e developments in e United States Sentencing Guidelines. If ere is an issue of particular interest at you would like discussed in Sentencing Partners, please feel free to contact us. About Joaquin & Duncan, LLC: Joaquin and Duncan, L.L.C. is a law firm of federal sentencing attorneys who work on a contract basis wi criminal defense attorneys assisting in pre-plea advisement; review of presentence reports; preparation of objections and motions for downward departure; preparation of motions for bond; preparation of appellate briefs; preparation of 2255 petitions; and assistance in obtaining choice of prison or drug treatment program. Note: Articles and summaries contained herein are based on information obtained rough research using a variety of sources. While every effort is made to insure accuracy, e firm of Joaquin & Duncan, L.L.C. its employees, agents, and associates cannot be held liable for any errors, omissions, or oversights contained herein. Readers are responsible for furer research of any case cited in is publication for which furer information is required. Inquiries are welcome via telephone, facsimile, , or U.S. mail Johnson v. United States 135 S. Ct (2015) Imposing Increased Sentence Under Residual Clause of ACCA Violates Constitution s Guarantee of Due Process The defendant pled guilty to being a felon in possession of a firearm. The government sought to enhance his sentence under e Armed Career Criminal Act, based on a prior conviction for unlawful possession of a short-barreled shotgun, which e government argued met e definition of a violent felony, as defined by 924(e)(2)(B) s residual clause. The district court held at e residual clause covered unlawful possession of a short-barreled shotgun, and imposed a 15-year sentence under ACCA. The Eigh Circuit affirmed. The Supreme Court held: Imposing an increased sentence under ACCA s residual clause violates due process because e statutory language was so vague at it fails to give ordinary people fair notice of e conduct it punishes, or so standardless at it invites arbitrary enforcement. The Court found at two areas of e residual clause made it unconstitutionally vague. First, by tying e judicial assessment of risk to a judicially imagined ordinary case of a crime raer an to real-world facts or statutory elements, e clause leaves grave uncertainty about how to estimate e risk posed by a crime. In addition, e residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony. Taken togeer, ese uncertainties produce more unpredictability and arbitrariness an e Due Process Clause tolerates. Applying e holding to e facts, e Court held t hat imposing an increased sentence under e residual clause of e Armed Career Criminal Act violates e Constitution's guarantee of due process. Today s decision does not call into question application of e Act to e four enumerated offenses, or e remainder of e Act s definition of a violent felony. Is It Applicable Retroactively? The Johnson Court did not specifically state at its holding should be applied retroactively on collateral review. However, Teague v. Lane, 489 U.S. 288 (1989), established e following general rule: [N]ew constitutional rules of criminal procedure will not be applicable to ose cases which have become final before e new rules are announced. Johnson does not announce a new rule of criminal procedure. Instead, it holds at a portion of a criminal code is not enforceable, regardless of e process a defendant might have been given. In is case, e Constitution was violated by e legislature and should be applied retroactively. That being said, not every federal prisoner serving a sentence under e ACCA sentence has a viable claim under Johnson. The be successful, a defendant would have to clearly show at his sentence was based strictly on a prior conviction at triggered e ACCA residual clause. Wiout at clear showing, no relief would be available.

2 Case Summaries Sentencing Partners July 2015 Offense Conduct (Chapter 2) United States v. Harris 2015 WL (7 Cir. 2015) Application of sophisticated means enhancement was warranted From 2007 to 2010, e defendant was involved in a conspiracy in which he and seven co-conspirators fraudulently added emselves as auorized users on existing credit card accounts wiout e account holders knowledge or permission. Once added to e accounts, ey took out cash advances, cashed convenience checks, and made fraudulent purchases wi e victims accounts. The scheme lasted ree years, involved over fifty victims, and resulted in approximately $300,000 in pecuniary loss. He was found guilty by a jury. The district court sentenced him to 132 mons, a downward variance from a range of 151 to 188 mons. The sentence included a two-level enhancement for e use of sophisticated means, under 2B1.1(b)(9)(A). On appeal, e defendant contended at his scheme was not sophisticated, but instead was amateur in at he kept victims information in notebooks, he and co-conspirators were caught multiple times, and he had fraudulent credit cards sent to his home. The Seven Circuit explained at [t]he enhancement is warranted when e defendant s offense, viewed as a whole, shows a greater level of planning or concealment an typical fraud of its kind. The court affirmed e enhancement, finding at e evidence showed e defendant used multiple aliases, obtained false state identification cards in two states to support ose aliases, and en used ose aliases to obtain fraudulent cards on victims accounts [and]... e scheme lasted ree years and involved numerous victims. Furermore, it is irrelevant at [e defendant] might have done a better job concealing his fraud; in determining e applicability of e sophisticated means enhancement, it does not matter at [e defendant s] own sloppiness or errors of judgment may have contributed to e unraveling of his scheme. Raer, e level of planning or concealment in relation to typical fraud of its kind is determinative. Based on e facts presented, e district court did not clearly err in applying e sophisticated means enhancement. United States v. Hines-Flagg 2015 WL (7 Cir. 2015) Defendant did not relocate fraud scheme; 2B1.1(b)(10)(A) enhancement did not apply The defendant pled guilty to one count of conspiracy to commit mail and wire fraud and one count of aggravated identity eft. At sentencing, e district court imposed a two-level enhancement for relocating e fraud scheme to evade law enforcement under 2B1.1(b)(10)(A). The defendant was sentenced to ree years for e conspiracy, and to a mandatory consecutive two-year sentence for aggravated identity eft, resulting in an aggregate five-year prison sentence. The defendant appealed e application of e relocation enhancement, arguing at she did not relocate e fraud scheme to anoer jurisdiction. The defendant and her accomplices would identify individuals wi good credit history in oer states, and travel to ose states to open fraudulent retail credit accounts using fake identification documents she created from her home computer in Detroit, Michigan. They would use ose credit accounts to purchase merchandise, and after doing so, would return to Michigan wi

3 3???? e merchandise and to sell it. She argued at she did not relocate e fraud scheme to anoer jurisdiction nor did she do so wi e intent to evade law enforcement. The Seven Circuit found at e defendant did not relocate e fraud scheme. While e scheme involved travel to oer jurisdictions, e scheme itself was not relocated for e purposes of 2B1.1(b)(10)(A), which was included in e guidelines in order to primarily deal wi conduct related to telemarketing fraud, an activity at often relocated to oer jurisdictions when e parties suspected at law enforcement had discovered e scheme. The court stated: We do not believe at is Guideline applies to every fraudulent scheme at just happens to operate in multiple jurisdictions. The Guideline does not state at it applies to fraudulent schemes at operate in or cross multiple jurisdictions, nor does any commentary on is sub-section indicate such an application. The case was remanded for resentencing. Sentence Adjustments (Chapter 3) United States v. Harris 2015 WL (7 Cir. 2015) Manager or supervisor enhancement was warranted From 2007 to 2010, e defendant was involved in a conspiracy in which he and seven coconspirators fraudulently added emselves as auorized users on existing credit card accounts wiout e account holders knowledge or permission. Once added to e accounts, ey took out cash advances, cashed convenience checks, and made fraudulent purchases wi e victims accounts. At e defendant s trial, five co-defendants testified regarding e defendant s involvement in e scheme, describing his role as a leader. Each do-defendant testified at e defendant recruited em into e scheme and at ey took eir instruction and direction from him. They also testified at he would accompany em to e Bureau of Motor vehicles to help em obtain fraudulent identification and e defendant made travel arrangements for e co-conspirators in furerance of e fraud on multiple occasions. Based on is testimony, e Seven Circuit affirmed e district court s finding at e defendant was a manager or supervisor, warranting e ree-level enhancement under 3B1.1(b). United States v. Shell 2015 WL (4 Cir. 2015) Defendant must be aware of pursuit before 3C1.2 applies A Nor Carolina Trooper attempted to stop e defendant for speeding. The defendant lost control of his vehicle trying to avoid e trooper. While fleeing on foot, e defendant discarded a bag behind a tree. It was later learned at e bag contained a loaded semiautomatic pistol. The defendant pled guilty to being a felon in possession of a firearm. The PSR recommended a two-level enhancement for obstruction of justice, pursuant to 3C1.2, based on e defendant s actions while fleeing from a law enforcement officer created a substantial risk of dea or serious bodily injury to anoer person. A witness testified at sentencing at e defendant s car skidded and almost hit her vehicle. The district court adopted e PSR and imposed a sentence of 57 mons. On appeal, e defendant conceded at he drove recklessly during e incident leading to his arrest, but at e enhancement did not apply because he was not aware at he was being pursued by a law enforcement officer. While is was an issue of first impression for e Four Circuit, e court noted at every circuit to consider e question has concluded at e enhancement is not warranted where an officer is following a defendant but e defendant does not know at e officer is in pursuit, and is driving recklessly

4 4???? for some oer reason. See United States v. Martikainen, 640 F.3d 1191 (11 Cir. 2011); United States v. Moore, 242 F.3d 1080 (8 Cir. 2001); United States v. Hayes, 49 F.3d 178 (6 Cir. 1995). The court joined our sister circuits in holding at e 3C1.2 enhancement does not apply where a defendant was unaware at he was being pursued by a law enforcement officer. Applying is holding to e facts of is case, e court reversed e enhancement, remanding wi instructions for e district court to determine wheer e defendant knew at he was being pursued by e trooper. United States v. McCrimon nd 788 F.3d 75 (2 Cir. 2015) Reckless endangerment enhancement reversed The defendant received a 63 mon sentence for his part in a bank robbery. The sentence included a two-level enhancement for reckless endangerment during flight from a law enforcement officer pursuant to 3C1.2. During e robbery, e defendant fled from e bank in a getaway car driven by an accomplice and e accomplice led police on a chase rough busy streets at up to one-hundred miles per hour, driving on e wrong side of e road, striking anoer vehicle and endangering oers. The government presented testimony at e defendant encouraged is driving by e accomplice. However, e district court did not make factual findings as to e defendant s role in e flight, but found at under relevant conduct, 1B1.3(a)(1)(B), it was reasonably foreseeable to e defendant and e enhancement would apply. The defendant appealed, arguing at e reckless driving of e accomplice was not reasonably foreseeable to him due to his diminished cognitive abilities. The government requested remand for resentencing as e district court had used e wrong standard in applying e enhancement. Reviewing e defendant s argument for plain error, e Second Circuit found plain error and reversed and remanded for resentencing. The court noted at 3C1.2, Application Note 5 specifically stated at a defendant would be accountable for e defendant s own conduct and for conduct at e defendant aided or abetted, counseled, commanded, induced, procured, or willfully caused. The defendant himself must have engaged in conduct at recklessly created a substantial risk of dea or serious bodily injury in e course of fleeing law enforcement, or must have aided, abetted, or oerwise contributed to e creation of e risk. Reasonable foreseeability was not enough to support e enhancement, and active participation consistent wi Note 5 was necessary. Oer circuits have likewise so held. See e.g., United States v. Cespedes, 663 F.3d 685 (3d Cir. 2011); United States v. Johnson, 694 F.3d 1192 (11 Cir. 2012); United States v. Franklin, 321 F.3d 1231 (9 Cir. 2003); United States v. Chong, 285 F.3d 343 (4 Cir. 2002); United States v. Conley, 131 F.3d 1387 (10 Cir. 1997). The sentence was vacated and e case was remanded for resentencing. Criminal History (Chapter 4) United States v. Span 2015 WL (4 Cir. 2015) Finding at prior robbery convictions were committed on separate dates was clear error The defendant entered a plea of guilty to felon in possession of a firearm. At e plea hearing, e government stated at e punishment for e offense was imprisonment up to ten years, or 15 years if probation found him to be an armed career criminal under e ACCA, which e government did not believe would be e case. The probation officer in fact found e defendant to be an armed career criminal based on four Nor Carolina convictions for robbery

5 5???? wi a dangerous weapon, all occurring in The PSR stated at e four crimes were violent felonies committed on different occasions, alough some involved e same location and corporate victim. The defendant objected to is finding, as e offenses were not alleged in e indictment, admitted in his guilty plea or proven to a jury beyond a reasonable doubt. The defendant also argued at e documents relied upon by e government in proving e state convictions contained inconsistencies as to e offense dates. He also claimed at e court could not look beyond ose documents to determine e offense dates, such at sentencing him beyond e statutory maximum sentence would violate his Fif and Six Amendment rights. The government relied on a single judgment covering all four convictions, four indictments, and a single plea transcript in proving e applicability of e ACCA enhancement. Those documents conflicted as to e offense dates for each of e four offenses. At sentencing, e district court found e defendant to be an armed career criminal, and sentenced him to 180 mons, finding at consistent dates for ree of e convictions were listed in e indictments and plea transcript. On appeal, e Four Circuit found at e district court had erred in applying e ACCA enhancement, explaining at e enhancement required at least ree previous convictions for violent felonies or serious drug offenses at were committed on occasions different from one anoer. The issue for e appellate court to resolve was wheer e robbery offenses were committed on different dates and if not, on different occasions, and wheer ose determinations could be made by legal factual findings. The court held at e trial court could not legally find at ree predicate robbery offenses used in applying e enhancement were committed on separate dates, and us it could not find at e offenses were committed on occasions different from one anoer. The court found at no single offense date for any predicate offense was consistent across all ree sources - e four indictments, e plea transcript and e judgment. The trial court was only allowed to base e enhancement on e charging document, plea agreement, and plea transcript colloquy between judge and defendant in which e factual basis for e plea was confirmed by e defendant, or to some comparable judicial record. See Shepard v. United States, 544 U.S. 13 (2005). The court did not agree at e error in e dates in e judgment was a mere transcription error, but noted at e plea transcript contained numerous handwritten alterations and strikeroughs. While each indictment listed a distinct date, e judgment stated at e ree predicate offenses all occurred on e same day. The trial court s reliance on e indictments and plea transcript while ignoring e judgment was unsound and e trial court erred in finding at e offenses occurred on different dates. The court en turned to e question of wheer e offenses were committed on different occasions, meaning ey arose out of a separate and distinct criminal episode, even if ey occurred on e same day, which would allow em to be used for e enhancement. In making is determination, a court can consider: (1) e geographic location of each offense; (2) e nature of each offense; (3) e victims involved in each offense; (4) e criminal objectives of each offense; and (5) wheer ere had been an opportunity for e defendant to make a conscious and knowing decision to engage e subsequent offense(s). See United States v. Letterlough, 63 F.3d 332 (4 Cir. 1995). The court explained at it would not uphold e enhancement where e government fails to definitively establish any of ese factors to show at e offenses were committed on different occasions. The court found at according to e indictments, ree of e four offenses occurred at e same location, e nature of e offenses was e same - robbery using a gun to steal money and property from a

6 6???? pawn shop. As a result, e court explained at it hesitated to assign any significant weight to e Letterlough factor assessing wheer [e defendant] had an opportunity to make a conscious and knowing decision to engage in one offense after e oer. [The defendant] could have committed e robberies at Pawn Mart all at once, or wiin a short period of time. We lack reliable information from e Government to make e distinction between e former scenario and e latter. The fact at each offense involved a separate victim was noted by e appellate court, however, it did not find is factor to be dispositive, due to e weight of e oer factors. As a result, e court reversed and remanded for resentencing. Plea Agreements ( 6B) United States v. Vanderwerff 2015 WL (10 Cir. 2015) Rejection of initial plea because it contained appellate waiver was abuse of discretion The defendant pled to one of ree childpornography-related charges. The agreement stated at he would not to seek a departure or variance or request a sentence of less an five years, and it contained a provision by which he waived his right to appeal. At an initial changeof-plea hearing, e district court declined to eier accept or reject e plea, citing Lafler v. Cooper, --- U.S. ----, 132 S. Ct (2012), and stating a belief at e plea waiver might violate... e criteria listed in [18 U.S.C. ] After reviewing supplemental briefs on e issue, e district court rejected e plea agreement, concluding at e waiver was not justified. A new plea agreement was negotiated wherein e defendant pled to a different count (receipt instead of possession), which resulted in a five-year mandatory minimum and a 25-year maximum, but preserved e defendant s right to appeal. The PSR calculated a sentencing range of 188 to 235 mons, but recommended a sentence of 108 mons. The district court adopted e PSR and imposed a sentence of 108 mons. On appeal, e defendant argued at e district court abused its discretion by rejecting e first plea agreement. The government agreed and joined in requesting reversal. The Ten Circuit also agreed. We conclude at e district court s rejection of [e defendant s] initial plea agreement, because it contained an appellate waiver, was premised on legally erroneous and irrelevant considerations and, consequently, at is action amounted to an abuse of discretion. The district court s reliance on Lafler as a basis for rejecting e appellate waiver... evinces a serious misunderstanding of at case [and] we discern noing in Lafler to suggest at it introduced a new role for trial courts in e pleabargaining process, let alone one at would make e judiciary a more active player in at process. Furer, e district court committed legal error in attempting to interject 3553(a) s sentencing factors into e calculus regarding wheer to accept or reject e appellate waiver in [e] first plea agreement. Consequently, in is respect, e district court abused its discretion. The matter was reversed and remanded wi instructions to allow e defendant to widraw his guilty plea. Post Conviction United States v. Newbold 2015 WL (4 Cir. 2015) Sentence was subject to collateral attack; Prior conviction not ACCA predicate offense The defendant pled guilty in 2005 to being a felon in possession of a firearm. The district court found at his ree prior Nor Carolina convictions triggered e Armed Career Criminal Act (ACCA), including a fifteen-year mandatory

7 7???? minimum. The defendant objected, arguing at at least one of e convictions was not a predicate serious drug offense because it was not punishable by a term of ten years of imprisonment. The district court rejected his argument and imposed a sentence of 225 mons. Wiout e ACCA enhancement, e defendant would have faced a maximum sentence of 10 years. The Four Circuit affirmed e sentence, applying United States v. Harp, 406 F.3d 242 (4 Cir. 2005). In 2008, e defendant raised e same challenge in his 2255 motion, which was denied by e district court while Harp was still good law. While his appeal was pending, e Four Circuit overruled Harp in United States v. Simmons, 649 F.3d 237 (4 Cir. 2011) and granted a partial certificate of appealability on e issue of wheer he was entitled to relief in light Simmons and Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010). However, e court later denied relief because, after granting e certificate, it decided in United States v. Powell, 691 F.3d 554 (4 Cir. 2012), at Carachuri-Rosendo could not be applied retroactively on collateral review. The defendant appealed to e Supreme Court. While at petition was pending, e Four Circuit decided Miller v. United States, 735 F.3d 141 (4 Cir. 2013), which declared at Simmons was retroactive. The Supreme Court granted e defendant s petition and remanded for furer consideration in light of Miller. The Four Circuit held at because e sentence imposed was an illegal one, e defendant could challenge e sentence on collateral review. The defendant challenged only e use of one of his prior convictions as an ACCA predicate, a conviction for Possession Wi Intent to Distribute ( PWID ). A review of Nor Carolina s sentencing regime, as well as e defendant s criminal history and e circumstances of his offense, shows at he should never have been sentenced as an armed career criminal. To begin wi, e court had to determine e maximum penalty at [e defendant] potentially faced given his particular offense and his particular criminal history. Such an analysis of e maximum possible sentence at e particular defendant could have received requires examination of a defendant s offense class and e applicability of e aggravated sentencing range. Furer, where ere are no aggravating factors, we consider e presumptive term to be e maximum applicable punishment. Here, e defendant demonstrated at ere was noing in e record showing at e PWID offense was punishable by ten years. In addition, ere was no aggravating factors supporting a sentence greater an 10 years. There is simply noing to support e idea at [e defendant] ever faced more an e presumptive term of ree years for e state court, PWID conviction. Rejecting several government arguments, e court held: when we follow Simmons to consider not e hypoetical defendant, but e specific criminal history of [e defendant] and e circumstances of his offense, it is clear at e maximum sentence [he] faced for e PWID offense was e presumptive, ree-year term, meaning he cannot be considered an armed career criminal. Restitution United States v. Zhang st 2015 WL (1 Cir. 2015) IRS was victim under MVRA; Restitution obligation to IRS could not be offset by funds forfeited to government The defendants (sisters) operated two Chinese restaurants in Maine and employed undocumented immigrants. One sister, Mei Juan, admitted to transporting e restaurant s employees back and for from a safe house where e employees lived, at she was responsible for hiring new employees, and at she knew some of e individuals were not auorized to work in e United States. The

8 8???? oer sister, Mei Ya, admitted to being responsible for e hiring of new employees for her restaurant, some of whom she knew were not auorized to work in e United States. She also was in charge of e safe house. The defendants uncle was e mastermind behind e hiring of e undocumented immigrants and arranged for em to be sent to e restaurants and hired. Bo defendants pled guilty to various charges including conspiracy to file false employer s quarterly tax returns wi e IRS, based on eir failure to include e cash compensation paid to e immigrants on e restaurants tax returns, which in turn resulted in an underpayment of federal employment taxes. The government seized $18, from two related bank accounts and e funds were forfeited. At sentencing, e district court held at e Mandatory Victims Restitution Act ( MVRA ) applied and ordered Mei Ya to pay $88,087 and Mei Juan to pay $54,288 in restitution to e IRS. On appeal, bo defendants argued restitution could not be ordered because e United States was not a victim for purposes of e MVRA, and at if restitution was due, it should be offset by e amount forfeited. The First Circuit noted at e defendants argument at e government was not a victim under MVRA had been rejected by every court to have considered it because, in e context it is used, e terms victim and person unequivocally includes e government. The enforcement provision of e MVRA explicitly recognizes e government as a possible victim. Regarding e offset by e forfeiture proceeds, e court explained at forfeited monies go to e Attorney General, who has e responsibility for disposing of funds seized under e criminal forfeiture statute. Alough e Attorney General and e IRS are bo part of e federal government, ey are distinct entities. Citing United States v. Joseph, 743 F.3d 1350 (11 Cir. 2014), e court held at e plain language of e MVRA... prohibits a district court from considering e value of defendant s forfeited property in initially determining e full amount of restitution. At least five oer circuits have reached e same conclusion. See United States v. Reese, 509 F. App x 494 (6 Cir. 2012); United States v. Martinez, 610 F.3d 1216 (10 Cir. 2010); United States v. Taylor, 582 F.3d 558 (5 Cir. 2009); United States v. Bright, 353 F.3d 1114 (9 Cir. 2004); United States v. Alalade, 204 F.3d 536 (4 Cir. 2000). United States v. Alisuretove 2015 WL (10 Cir. 2015) Remand to determine proper amount of restitution The defendant pled guilty to one count of conspiracy to commit wire fraud, arising out of his role in a scheme at involved skimming debit card account information from convenience store gas pumps and en using at account information to make cash widrawals from ATMs. In total, e defendant compromised approximately 524 debit card accounts and made approximately 779 fraudulent widrawals, totaling $348, In addition, e defendant attempted unsuccessfully to widraw $12, He was sentenced to 63 mons, and e district court ordered him to pay restitution of $240, On appeal, e defendant argued at e district court, in determining e amount of restitution, erroneously took into account losses incurred by twelve financial institutions, even ough Count 1 (e count he pled guilty to) listed only five specific financial institutions at were targets of e conspiracy. The Ten Circuit noted at it was conceivable at e defendant directly harmed oer financial institutions. However, neier e PSR nor e district court made any factual findings in is regard. Instead, e PSR and e district court effectively treated e offense of conviction as a general wire fraud conspiracy at was unlimited in scope. Thus, e PSR and e district court took into account all financial institutions at suffered losses as a

9 9???? result of e defendants general criminal activity, and ey did not attempt to link e losses suffered by each financial institution to a particular skimming device or gas pump. As a result, it is impossible to determine from e record on appeal wheer ese seven additional financial institutions were directly and proximately harmed by e wire fraud committed on e five financial institutions listed in e indictment. Consequently, it is necessary to remand is matter to e district court for resentencing so at it may consider again e proper amount of restitution to be awarded under e MVRA. United States v. Fonseca 2015 WL (8 Cir. 2015) Reduction of restitution by fair market value of returned firearms warranted The defendant pled guilty to stealing irty six firearms from a federally licensed firearms dealer and was sentenced to 88 mons, wi a 50-mon credit for time served in a state case involving some of e firearms. He was also ordered to pay restitution of $18, He appealed e restitution order, which was payable to two victims, $2500 to a gun dealer called 417 Guns, and $16, to Gibson and Associates, 417 Guns insurance company. The amount paid by Gibson and Associates to 417 Guns included bo e value of e stolen firearms and damage to e building caused by e break-in. Eighteen firearms had been recovered at e time of sentencing, however, e district court made no revision to e recommended restitution amount for e value of e recovered firearms. During briefing, e government disclosed at eight of e firearms had been given to Gibson and Associates, and had been sold back to 417 Guns for $2,025. The remaining ten recovered firearms were in police custody. The government conceded at e district court had committed plain error in not reducing e restitution owed to Gibson and Associates by $2,025. However, e Eigh Circuit held at e sales price of $2,025 was not dispositive of e amount to be credited under e Mandatory Victims Restitution Act ( MVRA ). Under e MVRA, only actual loss caused by e defendant s offense could be awarded. When property is lost or destroyed, actual loss is e greater of... e value of e property on e date of e damage, loss, or destruction; or... e value of e property on e date of sentencing. The victim in e present case was 417 Guns, not e insurer. While it might be reasonable to conclude at amounts paid by an insurer to e victim represented e fair market value of e property, is was subject to challenge by e victim or e defendant. A reduction for recovered property must be based on e fair market value of e recovered property to e victim on e date ey were returned, not e value to e insurer, which could have been salvage or liquidation prices. The court held at on remand, e government had to prove e proper amount of e reduction for e eight firearms. Furer, e court held at e ten firearms in police custody must be explained as, when a criminal proceeding was completed, property at was not subject to forfeiture must be returned to e rightful owner. The government was required to provide e district court an accounting of e recovered firearms in official custody, proof of e fair market value of e firearms on e date ey were recovered and an explanation of when ey would be returned to 417 Guns or why ey would not be returned. United States v. Cavallo 2015 WL (11 Cir. 2015) Restitution order overstated actual loss to victims In a huge mortgage fraud conspiracy in Florida at lasted from 1997 to 2008, two defendants were ordered to pay $13,229, in restitution. They appealed, arguing at e

10 10???? restitution amount did not provide credits for e proceeds of properties at had been sold or for e current fair market value of e properties at had not yet been sold. The amount of loss, which did apply ese credits, was $7,454, The Eleven Circuit held at e district court had erred, and under e Mandatory Mandatory Victims Restitution Act ( MVRA ), a restitution award must be based on an actual loss, and a victim was not entitled to receive a windfall. The court held at in a typical case, e amount of loss would usually be e same as e amount of restitution. In mortgage fraud cases, if property at had been pledged as collateral for e loan have been sold, e amount recovered from at sale was to be deducted. See 2B1.1 cmt. n. 3(E)(ii). If e property had not been sold, e fair market value of e property must be deducted from e loan balance. Id. The restitution ordered in is case was a windfall to e victim and did not represent e actual loss to e victim, such at e restitution order was vacated and e case was remanded. Crime of Violence United States v. Shell 2015 WL (4 Cir. 2015) Prior N.C. conviction for second-degree rape not categorically a crime of violence The defendant pled guilty to being a felon in possession of a firearm. His base offense level was increased (from 14 to 20) based on e district court s finding at his prior N.C. conviction for second-degree rape constituted a crime of violence under 2K2.1(a)(4)(A), as defined in 4B1.2. On appeal, e question was wheer e full range of conduct covered by Nor Carolina s second-degree rape statute, including e most innocent conduct, would qualify as a crime of violence for purposes of e 4B1.2 enhancement. If it is evident from e statutory definition of e state crime at some violations of e statute are crimes of violence and oers are not, en e state offense is deemed categorically overbroad and 4B1.2 does not apply. The defendant argued at e district court erred in characterizing his Nor Carolina conviction as a crime of violence because e state statute did not require e use of physical force, and may instead be violated rough constructive force or e absence of legally valid consent. The Four Circuit agreed, concluding at offenses at may be committed wiout physical force and predicated instead on e absence of legally valid consent as under e Nor Carolina second-degree rape statute are not categorically crimes of violence under eier clause of 4B1.2. The government argued at e N.C. conviction was a crime of violence based on e commentary to 4B1.2, which lists forcible sex offense as an example of a crime of violence. The court joined two oer circuit courts at have rejected precisely at argument. See United States v. Wray, 776 F.3d 1182 (10 Cir. 2015); United States v. Wynn, 579 F.3d 567 (6 Cir. 2009). See also United States v. Leshen, 453 F. App x 408 (4 Cir. 2011) (unpublished). The sentence was vacated and remanded. United States v. Hernandez-Rodriguez 2015 WL (5 Cir. 2015) Prior Louisiana conviction for aggravated assault was not crime of violence In November 2013, e defendant pled guilty to one count of illegal reentry. The PSR assessed a base offense level of eight, en added a sixteen-level enhancement on e ground at his 2006 Louisiana conviction for aggravated battery qualified as a crime of violence under 2L1.2(b)(1)(A)(ii). Over e defendant s objection, e district court adopted e PSR, and sentenced e defendant to 41 mons. On appeal, e defendant contended at e Louisiana statute ( 14:34) was broader an e

11 11???? generic, contemporary definition of aggravated assault. The Government countered at e elements of an aggravated battery under 14:34 were a [c]ategorical [m]atch to e elements of a generic aggravated assault. After comparing e statutes and reviewing Louisiana and Fif Circuit case law, we are persuaded at e offenses are meaningfully different, and, erefore, a conviction for e least culpable violation of 14:33 does not constitute e enumerated offense of aggravated assault. Because e least culpable means of violating e Louisiana aggravated battery statute falls outside of e generic definition of aggravated assault, e statute encompasses prohibited behavior at is not wiin e plain, ordinary meaning of e enumerated offense, and [e defendant s] conviction is not a crime of violence as a matter of law. Miscellaneous Issues United States v. Harris 2015 WL (7 Cir. 2015) Applying guidelines at became effective after criminal conduct began did not violate Ex Post Facto Clause From 2007 to 2010, e defendant was involved in a conspiracy in which he and seven co-conspirators fraudulently added emselves as auorized users on existing credit card accounts wiout e account holders knowledge or permission. Once added to e accounts, ey took out cash advances, cashed convenience checks, and made fraudulent purchases wi e victims accounts. The scheme lasted ree years. At e defendant s trial, five codefendants testified regarding e defendant s involvement in e scheme and he was found guilty. At sentencing, e district court applied e 2009 version of e Guidelines and enhanced e sentence by four levels pursuant to 2B1.1(b)(2)(A)-(B), finding at e fraud involved more an 50 victims. On appeal, e defendant argued at using e 2009 Guidelines violated e ex post facto clause, citing Peugh v. United States, --- U.S. ----, 133 S. Ct (2013). He claimed at e court should have used e 2008 version, which would have resulted in a two-level increase. Reviewing for plain error, e Seven Circuit affirmed e enhancement, explaining at in United States v. Hallahan, 756 F.3d 962 (7 Cir. 2014), e court had held if any of a defendant s criminal conduct occurred after a revised edition of e Guidelines becomes effective, at edition applies to all of e defendant s offenses wiout violating e ex post facto clause. Because e criminal activity spanned from 2007 to 2010, it was easily encompassing e 2009 addition. United States v. Lockwood 2015 WL (7 Cir. 2015) District Court failed to adequately explain sentence deviation In e late 1980s, e defendant was convicted of a number of felonies, but completed his prison term and operated a successful automotive repair and towing business. A friend convinced him to take part in a scheme to make it appear as if e friend s broer had manufactured a bomb. The defendant placed a package, given to him by e friend, in e broer s mailbox, en called to report e bomb s presence. Inside e package, e bomb squad found two metal pipes containing gun powder. After being confronted by federal agents, e defendant admitted to placing e package in e mailbox. At trial, e defendant claimed at he did not know what was in e package. A jury found him of one count of possessing an unregistered firearm and one count being a felon in possession of a firearm. Due to

12 12???? e staleness of e defendant s previous felony convictions, e government widrew its initial recommendation at he be sentenced as a career criminal. The district court accepted e PSR s criminal history of category I. The PSR recommended a sentencing range of 33 to 41 mons, while e government argued for a sentence of 120 mons. Not believing e defendant s claim at he was unaware at ere was a bomb in e package, and based on e defendant s extensive criminal record, e district court imposed a sentence of 120 mons. On appeal, e defendant argued at e sentencing court failed to adequately explain e deviation from e guidelines range. The Seven Circuit noted at a departure from e Guidelines, especially a significant one, must be carefully explained. United States v. Snyder, 635 F.3d 956 (7 Cir. 2011). Here, e district court made no explicit reference to 18 U.S.C. 3553, it failed to explain how it balanced ose factors, and it made no reference to e advisory Guideline range at all and made no mention of mitigation factors. Furer, e district court s reliance on e defendant s extensive criminal record was already taken into account by e defendant s criminal history level category I. In is case, e sentencing court s truncated reference to e defendant s criminal history, a mention of e current offense, and two comments about incapacitation, fail to adequately satisfy e procedural conditions necessary for us to sustain a sentence at is nearly ree times above e Guideline recommendation. Because e sentence was procedurally unsound, it was vacated and remanded. United States v. Webster 2015 WL (8 Cir. 2015) Upward variance based on unproven, objected-to facts in PSR reversed While on pretrial release for domestic assault, e defendant violated a court order not to visit his girlfriend s residence. A fight broke out between him and her two broers. As e broers began to leave, e defendant retrieved e unregistered rifle from e residence and shot at eir vehicle. The defendant pled guilty to one count of possessing an unregistered sawed-off rifle. The PSR calculated a sentencing range of 70 to 87 mons. The defendant objected to several factual issues, specifically denying e facts regarding a pending domestic-assault charge. The district court, relying on e objected-to facts, varied upward to e statutory maximum of 120 mons. On appeal, e Eigh Circuit noted e district court granted e variance after reciting e aggravated nature of each particular act of e domestic assault listed only in e objected-to part of e PSR. This was error. A PSR is not evidence and not a legally sufficient basis for findings on contested issues of material fact. If e PSR s factual allegations are objected to, e government may prove relied-on and contested facts. Then, e court must eier make findings by a preponderance of e evidence or disregard ose facts. The government did not prove e allegations by a preponderance of e evidence. Furer, because e government had notice of e defendant s factual objection to e PSR and had fair opportunity to present evidence at e hearing, e district court on remand may resentence, wheer relating to e Guidelines or statutory grounds under 18 U.S.C. 3553(a), only based on e existing record.

13 13???? United States v. Ortiz-Rodriguez st 2015 WL (1 Cir. 2015) District Court did not adequately explain upward variance The defendant pled guilty to one count of cocaine trafficking. Part of e offense conduct involved a co-defendant firing a pistol into e air from a vehicle while e defendant rode in a different car. The plea agreement contained a non-binding guideline calculation of 27 to 33 mons, wi a recommended sentence of 33 mons. The PSR set a base offense level of 12, enhanced e sentence by two levels under 2D1.1(b)(1) (use of firearms) and reduced it for acceptance of responsibility, resulting in a sentencing range of 10 to 16 mons. The district court did not follow eier, but instead varied upward to 48 mons, explaining at alough e defendant did not plead to a weapons offense, e offense involved firearms and at ose firearms were fired during e offense and at ere was ammunition, rifle magazines, marijuana, and cocaine was found in e defendant s car when he was arrested. On appeal, e defendant argued at e reasons stated for imposing e higher sentence were neier sufficiently particularized nor compelling to survive e review for reasonableness. The First Circuit agreed, explaining at e District Court was obliged to explain how [e defendant s] situation was different from e ordinary situation covered by, and accounted for, in e guidelines calculation and us why such a significant variance was justified. Here, e district court failed to provide such an explanation. Furer, e district court s consideration of e involvement of firearms was a factor at was already included in e calculation of e sentencing range. [T]he presence and use of firearms was accounted for in e two-point enhancement for firearms e judge included in e guidelines calculation, and so e reference to e mere presence or use of e firearms cannot justify such a significant variance. Where a judge wishes to rely on at same factor to impose a sentence above or below e range [he] must articulate specifically e reasons at is particular defendant s situation is different from e ordinary situation covered by e guidelines calculation. [T]he District Court s description of e facts at e sentencing hearing does not explain why is case is so substantially outside e heartland of e guideline enhancement for e use of firearms at a variance of is magnitude is justified. Because e rationale failed to adequately explain e basis for e variance e sentence was vacated and remanded. United States v. Goad 788 F.3d 873 (8 Cir. 2015) Defendant was in custody at residential reentry center, unauorized departure constituted escape The defendant s supervised release was revoked for a second time and he was sentenced to five mons, followed by 120 days in a residential reentry center. Sixty days into e required time at e residential reentry center, he absconded, but was ultimately arrested and indicted for escaping from custody. He argued at he was not in custody while at e residential reentry center, such at absconding was not a criminal and e indictment had to be dismissed under Federal Rule of Criminal Procedure 12(b)(3)(B). The district court denied e motion, and e defendant pled guilty reserving e right to appeal his argument. The Eigh Circuit explained at physical restraint could be minimal and custody could be constructive, and could include a hospital or halfway house. While e defendant argued at he could not have been in custody as e conditions were far less restrictive an prison or

14 14???? jail, e court of appeals held at it was enough at he had been court-ordered to reside at e facility and obey its rules for 120 days, departures wiout auorization were prohibited, and e defendant had left wiout auorization and failed to return. The court of appeals upheld e conviction, joining e Second and Ten Circuits in finding at an unauorized departure from a residential reentry facility constitutes escape from custody under 18 U.S.C. 751(a). See United States v. Foster, 754 F.3d 1186 (10 Cir. 2014); United States v. Edelman, 726 F.3d 305 (2d Cir. 2013). His sentence was also affirmed. Cases In This Issue United States v. Alisuretove, 2015 WL (10 Cir. 2015) United States v. Cavallo, 2015 WL (11 Cir. 2015) United States v. Fonseca, 2015 WL (8 Cir. 2015) United States v. Goad, 788 F.3d 873 (8 Cir. 2015) United States v. Harris, 2015 WL (7 Cir. 2015) United States v. Hernandez-Rodriguez, 2015 WL (5 Cir. 2015) United States v. Hines-Flagg, 2015 WL (7 Cir. 2015) United States v. Lockwood, 2015 WL (7 Cir. 2015) nd United States v. McCrimon, 788 F.3d 75 (2 Cir. 2015) United States v. Newbold, 2015 WL (4 Cir. 2015) st United States v. Ortiz-Rodriguez, 2015 WL (1 Cir. 2015) United States v. Shell, 2015 WL (4 Cir. 2015) United States v. Span, 2015 WL (4 Cir. 2015) United States v. Vanderwerff, 2015 WL (10 Cir. 2015) United States v. Webster, 2015 WL (8 Cir. 2015) st United States v. Zhang, 2015 WL (1 Cir. 2015)