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1 Published By Joaquin & Duncan, L.L.C.; A Law Firm of Federal Sentencing Attorneys December 2013 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., 112 Bedford Road Suite 210, Bedford, Texas 76022; 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 pre-sentence 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 Sentencing Commission Quick Facts The Sentencing Commission has published e next in its series of Quick Facts, is one dealing wi Felon in Possession of a Firearm. It contains statistics including Offender and Offense Characteristics, Punishment, and Sentences Relative to e Guideline Range. All of e two-page publications provide basic facts about a single area of federal crime in an easy-to-read format, and e Commission will release additional Quick Facts during e coming mons. They are available at: Top Management and Performance Challenges Facing e Department of Justice On December 11, 2013, e Office of Inspector General sent a memo to e U.S. Attorney General listing e top management and performance challenges facing e Department of Justice (DOJ). The list identifies six challenges believed to represent e most pressing concerns for e DOJ. Among ose six challenges, according to e memo, is e continually increasing cost of incarceration. The memo points out at e prison population in BOP facilities grew from about 157,000 inmates in FY 2001 to about 219,000 inmates presently; us e cost of e federal prison system has increased dramatically and represents an ever increasing portion of e DOJ s budget, reatening e DOJ s ability to fulfill its mission in oer areas. The memo cites to several long-term solutions including a program announced by e Attorney General in August 2013, to limit e number of defendants at face lengy prison sentences for drug offenses by instructing federal prosecutors not to charge defendants under statutes carrying mandatory minimum sentences if e defendants are nonviolent; do not have significant ties to large-scale drug trafficking organizations, gangs, or cartels; and do not have significant criminal histories. Oer solutions from e DOJ also include e August 2013 Smart on Crime initiative, which set out several principles designed to identify reforms to enforce federal laws more fairly and efficiently. These include: 1) pursuing lower-cost alternatives to incarceration for low-level, non-violent crimes, including drug courts and diversion programs; 2) directing prosecutors to pursue e most serious cases, based on e DOJ s priorities to protect Americans from national security reats, violent crime, financial fraud, and to protect e most vulnerable members of society; and 3) encouraging prosecutors to focus on significant cases raer an just e number of cases prosecuted. This memo can probably serve, in certain cases, as e basis for a downward variance. It is available at:

2 Case Summaries Sentencing Partners December 2013 Offense Conduct (Chapter 2) United States v. Crowe 2013 WL (10 Cir. 2013) Reasonable foreseeability applies to calculation of actual loss, not to credits against loss The defendant purchased a home by falsely stating her income and employment on e loan applications. For e next 30 mons, e defendant, wi e assistance of co-defendant Jackson, purchased eighteen additional properties using false and/or omitted information on e loan applications. Several of e properties were purchased at inflated sales prices so at e defendant could receive cash at closing. Later, e defendant refinanced several of e properties in order to obtain more cash. After e scheme fell apart, e defendant was charged wi eight counts of mail fraud, and eight counts of wire fraud. A jury found her guilty on all charges despite her defense at she had acted wiout e intent to defraud. The PSR calculated a sentencing range of 87 to 108 mons, which included an 18-level increase because e loss exceeded more an $2,500,000, but [was] less an $7,000,000. At sentencing e defendant argued at e loss was not foreseeable because e housing market did not spiral downward until after she purchased e last home; erefore, e loss should be calculated using e gain of $400,00 to $1,000,000. The district court adopted e loss amount in e PSR, finding at it was reasonably foreseeable at e outstanding loan amounts, as offset by e value of e collateral, was e actual loss, and imposed a sentence of 60 mons. On appeal, e Ten Circuit explained at under 2B1.1, a sentencing court is instructed to use e greater of actual or intended loss. If e loss is not reasonably determinable, en a court must use e gain at resulted from e fraud as an alternative measure. The defendant s gain may be used only as an alternate estimate of at loss; it may not support an enhancement on its own if ere is no actual or intended loss to e victims. The defendant argued at while she might have known at e maximum potential loss was e total loan amount, e district court erred in concluding at e actual loss was reasonably foreseeable. The court disagreed concluding at e argument was contrary to e clear language of 2B1.1 and its commentary. [T]he plain language of Application Note 3 makes clear at e concept of reasonable foreseeability applies only to a district court s calculation of actual loss, and not to its calculation of e credits against loss. Consequently, it is irrelevant in is case wheer or not [e defendant], at e time she negotiated e various mortgages at issue, reasonably anticipated a precipitous decline in e real estate market at might result in e original lender or successor lenders being unable to recoup eir losses from e sale of pledged collateral should she default. Instead, e only foreseeability issue in is case, and e one at e district court correctly focused on, is e amount of e potential pecuniary harm at might result from [e defendant s] offenses, i.e., e reasonable foreseeability of e actual loss (raer an e loss ) at occurred in is case. Because e defendant fraudulently misrepresented key information on e loan applications, e banks assumed a risk of default, e loss of e unpaid principal on each loan was an eminently foreseeable consequence of her fraudulent conduct. In conclusion, we hold at, in calculating e amount of loss for purposes of 2B1.1(b), e concept of reasonable foreseeability applies only to a district court s calculation of actual loss, and not to its calculation of e credits against loss.

3 3 Sentencing Partners December 2013 United States v. Garza-Mendez 2013 WL (11 Cir. 2013) Clarification of state judgment did not change its treatment under 2L1.2(b)(1)(C) The defendant violated e Georgia familyviolence-battery statute for striking his girlfriend, causing visible bodily injury and was sentenced to confinement for 12 mons; e remainder of his sentence was probated after he had served 30 hours in prison. He was deported on January 25, In February 2011, he illegally re-entered and was subsequently arrested for striking an unattended vehicle and driving wiout a driver s license on January 27, He was released to e Bureau of Immigration and Customs Enforcement on outstanding warrants for failure to appear and probation violation and he pled guilty to illegal reentry. The PSR recommended at his sentence be enhanced by 8 levels under 2L1.2(b)(1)(C), stating at e prior family-violence battery was an aggravated felony because e sentence imposed was for at least one year. The defendant argued at e prior conviction was not an aggravated felony because he was not sentenced to at least a year of imprisonment. To support is position, e defendant presented a clarification from e state court (but a different judge) at had originally imposed e sentence, which stated: The Court sentenced Defendant to twelve (12) mons of probation wi e first irty (30) hours to be served in custody. The Court gave Defendant credit for irty (30) hours at Defendant had already served. The Court did not sentence Defendant to twelve (12) mons of incarceration. The district court noted at e clarification [wa]s simply e judge s stating what actually she intended to happen, but it doesn t impact e actual imposition of e sentence at was imposed. The court adopted e PSR and sentenced e defendant to 20 mons. On appeal, e defendant contended at he was not sentenced to at least one year, as evidenced by e clarified judgement. The Eleven Circuit found ree problems wi e argument. First, e state judge who issued e clarification order was not e sentencing judge. Second, e state judge did noing more an review e prior sentence to issue e clarification order. Third, e prior sentence was perfectly clear e defendant was sentenced to 12 mons of confinement, despite e subsequent state judge s interpretation. [O]ur interpretation of wheer [e defendant s] original sentence was an imprisonment term of at least one year governs, not e subjective, interpretive clarification order obtained from a different state judge five years after imposition of e sentence for e purpose of preventing an 8-level enhancement for his statebattery conviction. [The defendant] pled guilty to a state crime of violence, which he does not contest, and was sentenced to a term of imprisonment of at least one year. That qualifies as an aggravated felony as defined by 8 U.S.C. 1101(a)(43)(F), which made application of e 8-level enhancement under 2L1.2(b)(1)(C) proper. Judge Martin dissented: Unlike e Majority, I believe a proper application of our precedent requires e District Court to defer to e clarification order... which clearly states at [e defendant s] sentence for his family violence battery conviction was 12 mons of probation, wi e first 30 hours served in custody, not 12 mons of incarceration. Deferring to is order, I would find at [e defendant s] conviction does not constitute an aggravated felony because he did not receive a term of imprisonment of at least one year. See United States v. Guzman- Bera, 216 F.3d 1019 (11 Cir. 2000) (holding at when a court does not order a period of incarceration and en suspend it, but instead imposes probation directly, e conviction is not an aggravated felony. ) (quoting United States v. Banda-Zamora, 178 F.3d 728, 730 (5 Cir. 1999)). United States v. Anobah 734 F.3d 733 (7 Cir. 2013) 2B1.1(b)(10)(C) sophisticated means was proper The defendant was a loan officer licensed in Illinois and employed for more an eight years at American Financial Funding Corporation, ( AFFC ) where he received a handsome salary, but decided to engage in a complex mortgage fraud scheme. The defendant prepared an application at falsely stated at a strawman buyer intended to reside in e home, overstated his income, his employment, and his bank deposits, and understated his financial liabilities. The defendant also knowingly submitted

4 4 Sentencing Partners December 2013 false documentation purporting to reflect at e strawman had more funds in his bank account an was true, and submitted a letter from an accountant attesting to untrue facts. A loan of $760,000 was issued based on e application and supporting documents, and AFFC ultimately suffered a loss of $290,000. The defendant pled guilty to one count of wire fraud, and one count of mail fraud; however, he only admitted at he had participated in e preparation of e accountant s letter and oerwise denied e government s version of events and all relevant conduct. As a result, e PSR recommended no reduction for acceptance of responsibility. However, at sentencing, e defendant admitted all relevant conduct and e government s version of events, and received a ree-point reduction for acceptance. The PSR determined at an enhancement, under 2B1.1(b)(10)(C), for e use of sophisticated means did not apply because e offense was not any more complex or intricate an a fraud of is type - ere was no hiding of assets or transactions, nor use of fictitious entities, corporate shells nor offshore financial accounts. The government argued for e enhancement based on e use of multiple documents wi false statements, and creation of documents to support e false statements in ose documents. The district court agreed wi e government, applied e enhancement, and imposed a 36-mon sentence. On appeal, e Seven Circuit affirmed, noting at e offense involved at least five individuals were involved including a builder, a banker, a real estate agent, a tax accountant, and a straw purchaser. The offense was sophisticated in at it was a lengy scheme at evaded detection for quite some time. The scheme also involved a straw purchaser, false documents created in support of e loan applications, false property assessments, verification of information supplied by attorneys who were also prosecuted, and properties in two different states. The sentence was affirmed. Sentence Adjustments (Chapter 3) United States v. St. Junius 2013 WL (5 Cir. 2013) Abuse of trust enhancement warranted The defendant s stepfaer (Reese) ran a durable medical equipment supplier at was suspended from e Medicare program because of fraudulent billing. Reese en created anoer company, The Mobility Store ( TMS ), but registered e defendant as e sole owner and submitted e initial Medicare application wi e defendant s name and signature as owner/operator. Based on e application, Medicare issued TMS a provider number. Despite e defendant being listed as e owner/operator, Reese received e majority of TMS s income and managed e company s operations. Between May 2005 and October 2007, site inspections of TMS revealed multiple violations of Medicare standards, and as a result continuous failure to comply wi ose standards, TMS s supplier number was revoked in October The defendant was found guilty of heal care fraud and was sentenced to 135 mons. The base offense level was enhanced by two levels under 3B1.3, for abuse of trust. On appeal, e Fif Circuit explained at e sentencing court should conduct a two-step inquiry when considering wheer to apply 3B1.3. First, e court must determine wheer e defendant occupied a position of trust at all. If not, e inquiry ends and no enhancement accrues. If, however, is initial inquiry produces an affirmative response, e court must proceed to ascertain e extent to which e defendant used at position to facilitate or conceal e offense. The court found at e defendant occupied a position of trust as e listed owner of TMS. Her position and auority as owner involved e type of complex, situation-specific decision-making at is given considerable deference precisely because it cannot be dictated entirely by, or monitored against, established protocol and Medicare entrusted her to render a necessary service to some of e most vulnerable members of her

5 5 Sentencing Partners December 2013 community. Moreover, Medicare auorized [e defendant] to render ose services wi an attendant expectation at she would submit accurate information in seeking reimbursement from e Medicare program. As for e second step of e process, e court was satisfied at e defendant used her position to significantly facilitate e offense. She signed important documents as owner of TMS, issued pay checks to employees and contractors, and engaged in numerous oer activities at helped facilitate is heal care fraud conspiracy. Wiout [e defendant], it would have been extraordinarily difficult, if not impossible, for TMS to accomplish its criminal pursuits. Given ose considerations, we affirm e district court s application of e abuse of trust sentencing enhancement. United States v. Anobah 734 F.3d 733 (7 Cir. 2013) 3B1.3 abuse of trust enhancement was warranted The defendant was a loan officer licensed in Illinois and had been employed for more an eight years at American Financial Funding Corporation ( AFFC ). The defendant engaged in a complex mortgage fraud scheme involving a strawman buyer, a real estate developer and his employee, a Chase Bank employee, and a licensed real estate agent. The defendant prepared an application at falsely stated at e strawman buyer intended to reside in e home, overstated his income, his employment, and his bank deposits, and understated his financial liabilities. The defendant also knowingly submitted false documentation purporting to reflect at e strawman buyer had more funds in his bank account an was true, and submitted a letter from an accountant attesting to untrue facts. A loan of $760,000 was issued based on e application and supporting documents, and AFFC ultimately suffered a loss of $290,000. The defendant pled guilty to one count of wire fraud, and one count of mail fraud. The PSR calculated a sentencing range of 41 to 51 mons, which included an enhancement under 3B1.3 for abuse of position of trust. The district court imposed a 36-mon sentence and ordered restitution of $290,000. The defendant appealed, arguing it was error to apply e abuse of position of trust enhancement because e district court relied on e unsworn statements made by e U.S. Attorney at sentencing. Those statements included at e defendant was an employee of AFFC (as opposed to an independent contractor) and had been endowed wi trust by his employer, at e defendant held a special license as a loan originator, and his employer relied on him in determining at e strawman buyer was a suitable risk. The Seven Circuit found at ose ings facilitated e commission of e offense and aided in its concealment. Alough e defendant argued at he was a gopher, wi no discretion, much less substantial discretion, e court found at he abused a position of trust because he was state-licensed, was a long-term, highly compensated employee entrusted wi obtaining new clients, gaering eir information, completing loan applications and gaering supporting documents and AFFC relied on at information in deciding to make e loan. United States v. Volkman 736 F.3d 1013 (6 Cir. 2013) Vulnerable victim enhancement applied; no double counting The defendant, a physician wi an M.D. and Ph.D in pharmacology from e University of Chicago, was board-certified in emergency medicine and was a diplomat of e American Academy of Pain Management. After being sued various times, he found himself wi no malpractice insurance and no job. He was hired by Tri-State, a pain management clinic at operated on a cash-only basis. After approximately six mons, local pharmacies would no longer fill prescriptions from e clinic, due to concerns of improper dosing. As a result, e defendant asked e clinic owner s daughter to research e process for obtaining a license to operate a dispensary at e clinic. The Ohio Board of Pharmacy conducted an inspection of e clinic, and found a Glock in e safe where e drugs were stored, but issued a license after its initial inspection. During a follow-up inspection, it was found at e dispensary logs were not sufficiently

6 6 Sentencing Partners December 2013 maintained, ere was little oversight over recordkeeping processes, and no licensed physician or pharmacist oversaw e actual dispensing process. Evidence showed at e clinic purchased 135,900 dosage units of oxycodone for approximately onehalf of 2003, 457,100 dosage units for 2004, and 414,200 dosage units between January and September of Patients would come to e clinic essentially to obtain e drugs. Many of e patients had no complaint of pain and most did not receive much actual medical care. After a federal investigation was conducted in June of 2005, e defendant was fired from e clinic, but he continued by opening his own clinic. During his time at Tri- State and his new clinic, twelve of e defendant s patients died. After a 35 day trial, e defendant was convicted of conspiring to unlawfully distribute a controlled substance, unlawful distribution at did not lead to dea, unlawful distribution leading to dea, maintaining a drug-involved premises, and possessing a firearm in furerance of a drug-trafficking offense. The district court imposed a sentence of four consecutive terms of life for e counts of unlawful distribution leading to dea, to be served concurrently wi a sentence of 240 mons for e counts of conspiracy and unlawful distribution not leading to dea, 120 mons for e drug-related premises counts, and 60 mons for e firearm count. The sentence included a vulnerable victim enhancement under 3A1.1(b) and a special skill enhancement under 3B1.3. On appeal, e defendant first argued at e district court improperly relied on e victims status as drug addicts in applying e vulnerable victim enhancement. The Six Circuit agreed at drug addiction, standing alone, could not serve as e basis for applying e enhancement, citing United States v. Amedeo, 370 F.3d 1305 (11 Cir. 2004). Drug addicts are not necessarily vulnerable victims for purposes of section 3A1.1, and we decline to categorically classify em as such. However, e victims drug addiction was not e sole basis for applying e enhancement. The sentencing court made additional findings regarding e victims mental and emotional frailties, including e fact at some had serious psychiatric problems and had prior suicide attempts. Reversal on is ground was not warranted. The defendant also argued at applying bo e vulnerable victim enhancement and e special-skill enhancement was impermissible double counting. In denying e defendant s argument, e court explained at double counting occurs when precisely e same aspect of e defendant s conduct is factored into his sentence in two separate ways. Here, e two enhancements focused on different aspects of e case. The vulnerable-victim enhancement focused on e nature of e victim, while e special-skill enhancement focused on abilities of e offender. The fact at a defendant is a doctor and his victim a patient is insufficient for applying e vulnerable-victim enhancement.... It is, however, sufficient for applying e special-skill enhancement, especially in light of e fact at [e defendant] would not have been in a position to abuse his prescription power wiout his medical license. Probation/Supervised Release (Chapter 7) United States v. Garza-Mendez 2013 WL (11 Cir. 2013) Special condition requiring defendant to report from Mexico was warranted The defendant violated e Georgia-familyviolence-battery statute for striking his girlfriend, causing visible bodily injury and was sentenced to confinement for 12 mons; e remainder of his sentence was probated after he had served 30 hours in prison. He was deported on January 25, In February 2011, he illegally re-entered and was subsequently arrested for striking an unattended vehicle and driving wiout a driver s license on January 27, He was released to e Bureau of Immigration and Customs Enforcement on outstanding warrants for failure to appear and probation violation and he pled guilty to illegal reentry. The district court sentenced e defendant to 20 mons, ree years supervised release, and required him to report from Mexico after his deportation as a special condition of his supervised release. On appeal, e defendant argued at

7 7 Sentencing Partners December 2013 requiring him to report from Mexico was beyond e jurisdiction of e court and 5D1.1(c) instructed a sentencing judge not to impose supervised release when e convicted defendant was likely to be deported following imprisonment. The Eleven Circuit disagreed, explaining at application note 5 provides: The court should, however, consider imposing a term of supervised release on such a defendant if e court determines it would provide an added measure of deterrence and protection based on e facts and circumstances of a particular case. Furer, e reporting requirement was imposed to verify at e defendant remained in Mexico, particularly since is is his second deportation. Finally, e reporting requirement was reasonably related to several 3553(a) factors: his unlawful reentry crime, deterrence from illegally re-entering e United States again, and protection for e public from his future attempt to re-enter is country unlawfully. See United States v. Guzman, 558 F.3d 1262 (11 Cir. 2009). United States v. Malenya 736 F.3d 554 (D.C. Cir. 2013) Release conditions were unreasonable deprivation of defendant s liberty The defendant, a 41-year-old Army nurse, posted a personal ad on e Men Seeking Men section of Craigslist.com. D.R., who was 14 at e time, responded to e ad by and claimed to be an 18 years old. The two arranged a meeting at e defendant s apartment, where ey engaged in sexual acts. After D.R. s moer became concerned, she contacted e police, who used D.R. s phone and pretending to be D.R., set up anoer meeting where e defendant was arrested. The defendant was charged wi violations of 18 U.S.C. 2422(b) and D.C. Code Pursuant to a plea agreement, e defendant pled guilty to e D.C. Code violation and e district court imposed a sentence of 36 mons, suspended all but a year and a day, and supervised release of 36 mons. The conditions of supervised release contained numerous restrictions including severe limits, subject to prior approval of e probation office, on 1) computer/internet access (including accessing pornography sites); 2) contact wi minors; and 3) romantic relationships. On appeal, e defendant argued at e conditions unreasonably deprived him of his liberty. The D.C. Circuit agreed, finding at e district court failed to consider e consequences of e conditions, particularly e restriction related to computer use at stated at e defendant shall not possess or use a computer or have access to any on-line service wiout e prior approval of e United States Probation Office... and [shall] allow installation of a computer and Internetmonitoring program. The court found at a ban on computer and internet usage, qualified only by e possibility of probation office approval, is obviously a significant deprivation of liberty. The same was true regarding e pornography restriction in at e record contained no evidence at e defendant viewed pornography, or at viewing adult pornography would increase e likelihood at he would again indulge in sex wi non-adults. Wi no evidence of a need for e restriction, it appears to be a more significant deprivation of liberty an is reasonably necessary. Finally, e vague language and vast scope of e contact and residential conditions demonstrate e district court s failure to consider e effect of e imposed conditions on [e defendant s] liberty. The restrictions not only prevent [him] from intentionally interacting directly wi children, which could potentially be justified, but also prevent him from participating in many activities of everyday American life, activities at [he] is not shown to have abused. Here, e significant deprivations of liberty were not supported by e evidence. Since e district court did not apply e correct standard for imposing conditions of supervised release, we vacate all e challenged conditions and remand to e district court to impose special conditions of supervised release in compliance wi 3583(d). Crime of Violence United States v. Montes-Flores 2013 WL (4 Cir. 2013) Prior Sou Carolina ABHAN conviction not crime of violence

8 8 Sentencing Partners December 2013 The defendant was found in possession of a handgun after a traffic stop. He was charged wi unlawful carrying of a firearm in violation of Sou Carolina law. It was later determined at he had been deported for committing assault and battery of a high and aggravated nature ( ABHAN ). He was charge in federal court wi illegal reentry after a prior removal for a conviction of an aggravated felony, and wi being an illegal alien in possession of a firearm and ammunition. He pled guilty to e illegal reentry charge and reserved e right to argue at sentencing at he was guilty of illegal reentry after a felony conviction, as opposed to illegal reentry after an aggravated felony conviction. The PSR added a 16-level enhancement for e prior ABHAN conviction, which e PSR classified as a crime of violence under 2L1.2(b)(1)(A)(ii), resulting in a sentencing range of 46 to 57 mons. Citing United States v. Gomez, 690 F.3d 194 (4 Cir. 2012), e defendant urged e district court to employ e categorical approach in considering wheer ABHAN was a crime of violence. The government argued at e modified categorical approach applied. The district court applied e modified categorical approach and found at e ABHAN conviction was an offense in which e use, attempted use[,] or reatened use of physical force was involved and applied e 16-level enhancement. The Four Circuit reversed holding at because e ABHAN statute is comprised of two indivisible elements: (1) an unlawful act of violent injury to anoer; and (2) circumstances of aggravation applying e modified categorical approach was improper. Applying e categorical approach, e court found: Because ABHAN can be committed wi or wiout force--and even when force is involved, ABHAN can be committed in a violent or nonviolent manner--a conviction for ABHAN is not categorically for a crime of violence. Accordingly, [e defendant s] sentence must be vacated and is case remanded for resentencing. United States v. Blair rd 734 F.3d 218 (3 Cir. 2013) Modified categorical approach properly used in ACCA determination In 2011, e defendant participated in e sale of guns, even ough his criminal past rendered him a person prohibited by federal law from possessing a firearm. After his arrest, he pled guilty to two counts of being a felon in possession of a firearm. The PSR recommended at e defendant be sentenced under ACCA, which mandates a minimum 15-year prison sentence, based on prior Pennsylvania convictions: 1) a 1987 guilty plea to ird-degree robbery physically tak[ing] or remov[ing] property from e person of anoer by force however slight, in violation of 18 Pa. Cons.Stat. Ann. 3701(a)(1)(v); and a 1991 guilty plea to four counts of first-degree robbery in violation of 18 Pa. Cons.Stat. Ann The PSR recommended at each of e 1991 robbery counts be treated as a separate criminal episode committed on a separate occasion. The defendant argued at e 1991 robbery convictions qualified as, at most, one violent felony under ACCA, because ey were entered on e same day and e charging documents did not conclusively establish at e crimes were committed on occasions different from one anoer. Using e modified categorical approach, e district court gave e defendant e benefit of e doubt, and did not count two of e convictions separately because ose two robberies were committed on e same day. However, e district court found e oer robberies to be separate, and wi e 1987 conviction, imposed e 15 year mandatory minimum under e ACCA. On appeal, e defendant raised e same arguments regarding his prior convictions and, citing Descamps v. United States, ---U.S. ----, 133 S. Ct (2013), argued at e district court should not have used e modified approach. The Third Circuit disagreed, stating at e defendant tries to make of Descamps someing it is not. He notes at, alough e Pennsylvania robbery statute as a whole is divisible, some of its subsections can be viewed as indivisible and overbroad. He en argues at, because e charging documents and plea agreement in his case do not say which subsection of e robbery statute he was convicted under in 1991, a sentencing court could properly apply e modified categorical approach only to determine which statutory subsection criminalized e least culpable behavior of which he could have been convicted. Since e least culpable subsection is 3701(a)(1)(iii), which

9 9 Sentencing Partners December 2013 is overbroad and indivisible, he says e court could go no furer. Thus, he says, it was error under Descamps for e District Court to use e modified categorical approach and review e charging documents to determine at e elements of his conviction satisfy ACCA. The court found at e alternative elements of e Pennsylvania robbery statute made it obviously divisible and, erefore, a sentencing court can properly look to e kinds of documents listed by e Supreme Court in Taylor and Shepard to determine which subsection was e basis of [e defendant s] prior convictions. The court concluded at at least ree of e 1991 robbery convictions qualified under ACCA as violent felonies committed on separate occasions and affirmed e district court s application of at enhancement. Restitution United States v. St. Junius 2013 WL (5 Cir. 2013) Award of restitution was excessive The defendant s stepfaer (Reese) ran a durable medical equipment supplier at was suspended from e Medicare program because of fraudulent billing. Reese en created anoer company, The Mobility Store ( TMS ), and hired several individuals, including Spicer, to recruit Medicare patients. The recruiters were paid a 10% commission on e price of items purchased for patients ey referred. Medicare and TMS records reflected at in 2005, Medicare paid TMS over $710, on claims for patients referred by Spicer. Spicer received $71, in commissions in The investigation showed at many of e products were billed for, but never delivered. Spicer was found guilty of Anti-Kickback charges, but acquitted on conspiracy charges. The district court sentenced Spicer to ree concurrent terms of 60 mons. The court also ordered Spicer to pay $794, in restitution based on e total amount Medicare/Medicaid paid TMS due to Spicer s referrals. On appeal, Spicer challenged e restitution order on e grounds at it was improperly based on conduct outside of e offenses for which he was convicted. Reviewing for plain error, e Fif Circuit agreed, holding at e ordered amount grossly exceeded e amount Medicare/Medicaid paid wi respect to e crimes for which Spicer was convicted. While e district court can award restitution to victims of e offense, e restitution award can encompass only ose losses at resulted directly from e offense for which e defendant was convicted. Here, e Government concedes at e district court s award of restitution exceeds e losses derived from e conduct for which Spicer was convicted. Accordingly, we VACATE e restitution order and REMAND for re-sentencing. If e district court imposes restitution, it should be limited to e losses suffered as a result of e crimes for which Spicer was convicted. Post Conviction Grandberry v. Keever 2013 WL (7 Cir. 2013) COA not required before appealing denial of habeas petition for disciplinary sanction The defendant petitioned for habeas corpus relief under 28 U.S.C. 2254, seeking relief from a disciplinary sanction at a state prison had imposed against him. The sanction was a loss of good-time credits at extended by 30 days e time he spent in custody. He alleged at e Indiana prison s disciplinary proceedings failed to provide him wi e minimal due process protections required under e Fourteen Amendment. The district court denied e petition on e merits and he appealed wiout first obtaining a certificate of appealability ( COA ). Previously, e Seven Circuit had held at when a habeas petitioner challenges a prison disciplinary action raer an e underlying conviction, e COA did not apply. See Walker v. O Brien, 216 F.3d 626, 638 (7 Cir. 2000). However, e court requested additional briefing on wheer Walker should be overruled in light of e en banc decision in Hayward v. Marshall, 603 F.3d 546, 554 (9 Cir. 2010), where e Nin Circuit found at a COA was required. The Seven Circuit

10 10 Sentencing Partners December 2013 noted at it was e only court, us far at reads e statutory phrase e detention complained of arises out of process issued by a State court as not applying to prisoners challenging prison disciplinary decisions at prolong eir custody. (See Circuit Split below). The court gave e question a fresh look and did not find persuasive reasons to change our approach. We believe Walker remains sound on is point, and we decline to overturn it. The fact at e Nin Circuit has now switched sides does not persuade us to do e same, however. We are lonelier an before, but we have previously rejected e existence of contrary rulings from oer circuits as a reason to overrule Walker. Accordingly, e defendant s appeal was allowed to proceed wiout a COA. Circuit Split Oer circuits have considered e issue of a COA when appealing a disciplinary sanction imposed by a state prison and have disagreed wi e Seven Circuit s interpretation. See e.g., Hayward, 603 F.3d at 553; Medberry v. Crosby, 351 F.3d 1049 (11 Cir. 2003); Madley v. United States Parole Comm n, 278 F.3d 1306 (D.C. Cir. 2002); Greene v. Tennessee Dep t of Corr., 265 F.3d 369 (6 Cir. 2001); Coady v. Vaughn, 251 F.3d 480 (3d Cir. 2001); Montez v. McKinna, 208 F.3d 862 (10 Cir. 2000). United States v. Huff 734 F.3d 600 (6 Cir. 2013) Defendant was entitled to an evidentiary hearing on ineffective counsel claim The defendant was employed at an insurance company and had access to customers account information. He used at information to obtain credit cards and oer lines of credit, as well as creating and processing fraudulent cell phone contracts. The loss amount exceeded $350,000. His plea agreement stipulated at e parties would use Guidelines Manual effective on November 1, 2002, which resulted in an offense level of 22. The PSR used e 2006 version, but stated at e 2002 and 2006 editions produced e same computations, and recommended several enhancements including a two-level enhancement for abuse of trust under 3B1.3. At sentencing, e probation officer stated at he relied on application note 2B, which states at e guideline applies to a defendant who exceeds or abuses e auority of his or her position in order to obtain unlawfully or use wiout auority any means of identification. However, at language was in e 2006 Manual, but not e 2002 version. The district court adopted e PSR, and imposed a sentence of 60 mons. On appeal, e defendant was appointed new counsel. He argued, among oer ings, at e abuse of trust enhancement was improper because it violated e Ex Post Facto Clause. Subsequently, e defendant filed a motion for voluntary dismissal of e appeal, which was granted. The defendant later filed a 2255 petition claiming at he dismissed e direct appeal based on his appellate attorney s advice at if he was successful on appeal, he would receive a higher sentence because e district judge would be unhappy about being reversed. The government responded, but did not include an affidavit from e appellate counsel. The district court denied e motion wiout a hearing and denied a certificate of appealability. The Six Circuit granted a COA, first holding at e defendant waived all of his prior claims when his direct appeal was dismissed, unless he can demonstrate cause and prejudice to excuse his default. The defendant argued at he dismissed e direct appeal because he relied on his appellate counsel s flawed advice. The government countered at e defendant s decision was strategic and it was not credible at an experienced appellate attorney would have given e advice e defendant described. The problem wi at position is at ere is no evidence in e record to support it. The trial court did not conduct an evidentiary hearing, and [appellate counsel] has not provided any explanation of e decision to dismiss e defendant s appeal, despite e fact at e government advised him of [e 2255] motion and offered him an opportunity to submit an affidavit. Under ese circumstances, e district court s conclusion, wiout analysis, at e decision to dismiss e appeal could be considered sound strategy does not hold up. Here, e defendant s affidavit contained a factual narrative of e events

11 11 Sentencing Partners December 2013 at is neier contradicted by e record nor inherently incredible and e government offers noing more an contrary representations to contradict it. Consequently, e defendant was entitled to an evidentiary hearing. In addition, e defendant s Ex Post Facto Clause argument had merit and could not be considered harmless. The prejudice prong of Strickland was satisfied because of e ex post facto error, and ere was a substantial likelihood at had e defendant not dismissed his appeal, e outcome would have been different. Because e defendant s allegations were not inherently incredible nor contradicted by e record, his ineffective assistance claim had merit, and because he demonstrated prejudice, we must remand e case to e district court for an evidentiary hearing on wheer appellate counsel rendered ineffective assistance. Miscellaneous Issues United States v. Oyegoke-Eniola 2013 WL (10 Cir. 2013) Reversal required where no indication at sentence imposed would be same under multiple sentencing approaches The defendant, a citizen of Nigeria who had resided in Great Britain before coming to is country. While in Great Britain, he was convicted of several felonies involving fraud and deception. He entered e United States in 2009 on a visa by falsely stating in his visa application at he had not been convicted of a crime. In 2011 he submitted an application for status as a permanent resident, again falsely answering at he had no criminal convictions. He was charged wi violating 18 U.S.C. 1546, based on e 2011 false statement. He was also charged wi mail-fraud and identity eft for his part in an identity-eft scheme where he purchased merchandise wi credit cards issued to oer persons and had e merchandise delivered to him. He pled guilty and e PSR calculated a base offense level of 7, pursuant to 2B1.1(a)(1), en added four enhancements: (1) a 2-level increase for possessing five or more stolen-identity documents, under 2B1.1(b)(11)(C)(ii); (2) a 2-level increase for sophisticated means, under 2B1.1(b)(10)(C); (3) an 8-level increase for e intended loss; and (4) a 2- level increase because ere were 10 or more victims. The PSR en reduced e offense level by for acceptance of responsibility, leading to a total offense level of 18 and a sentencing range of 27 to 33 mons. The government responded at it lacked evidence at e defendant possessed five or more stolen-identity documents and it would not seek at enhancement, and e court acknowledged is by writing e parties, stating it would appear at defendant s recalculated guideline sentence is mons. At sentencing, after e government presented evidence to support e sophisticated means enhancement, e district court expressed doubt about its sufficiency and concluded at it would not impose it, stating at it was not going to make a finding one way or anoer about wheer ere was sophisticated means. The court en considered e factors under 3553, incorporated by reference e letter sent to e parties, as well as e decision not to impose e sophisticated means enhancement, en announced at e facts and findings in e PSR were accurate and orders em to be incorporated into e following sentence and imposed an upward variance to 60 mons. In its subsequent written Statement of Reasons, e court checked off e box stating, The court adopts e presentence investigation report wiout change. The Ten Circuit reversed, holding at e district court erred in its Statement of Reasons when it adopted e PSR and calculated e total offense level as 18. While e district court adequately explained its reasons for ruling on e sentencing arguments of e parties and explained why an upward variance was warranted, adopting e PSR as written was an abuse of discretion. As e government concedes on appeal, ere was no factual support for e enhancement for possession of five or more stolen-identity documents, and e court did not make e findings necessary to impose e sophisticated-means enhancement. Furer, e error was not harmless. [U]nless e district court indicated at sentencing at e sentence imposed would be e same under multiple sentencing approaches, one of which was e correct approach, we are compelled to remand for resentencing when

12 12 Sentencing Partners December 2013 we find at an improper offense level or criminal history category was applied See United States v. Kieffer, 681 F.3d 1143 (10 Cir. 2012). The district court gave no such indication. Bound by is precedent, we must reverse. United States v. LaDeau 734 F.3d 561 (6 Cir. 2013) Prosecutorial vindictiveness leads to dismissal of superceding indictment Auorities intercepted letters from e defendant to his en-jailed broer. The letters, written in code, allegedly contained communications about ways to obtain and conceal child pornography. The defendant was indicted on a single count of possessing child pornography, wi a statutory sentencing range of zero to ten years. The defendant filed a motion to suppress his statements and e evidence against him, arguing at officers executing e search warrant improperly coerced his responses by reatening to inform his wife about eir investigation moments before she underwent lifereatening surgery. The district court granted e motion and excluded his inculpatory statements and e evidence found on two umb drives during e search of his home. After is evidence was suppressed, ere was no longer any admissible evidence at e defendant had possessed any child pornography. Five days before e scheduled trial, e government obtained a superseding indictment at added e defendant s broer as a co-defendant and charged em wi conspiracy to receive child pornography, a charge at carried a five-year mandatory minimum and a statutory sentencing range of five to twenty years. The defendant moved to suppress e superseding indictment for prosecutorial vindictiveness, pointing out at e new charge was not based on any new evidence at e government obtained after e initial indictment. After a hearing, e district court agreed and entered an order finding: (1) at e presumption of vindictiveness was triggered on e facts of e case and (2) at e government had failed to rebut e presumption. The government appealed. The Six Circuit explained at if a defendant establishes at (1) e prosecutor has some stake in deterring e [defendant s] exercise of his rights and (2) e prosecutor s conduct was somehow unreasonable, en e district court may find at ere is a reasonable likelihood of vindictiveness and may presume an improper vindictive motive. Contrary to e government s argument, e court found at e district court was not barred from finding e requisite stake could arise in a pretrial setting, citing United States v. Goodwin, 457 U.S. 368 (1982) and United States v. Andrews, 633 F.2d 449 (1980) ( prosecutorial vindictiveness can potentially be found in e pre-trial addition of charges following pre-trial assertions of protected rights. ). Here, e government had ree charging options: (1) conspiracy to possess child pornography, which carries an identical penalty to e offense originally charged - zero to ten years; (2) conspiracy to receive child pornography, which carries a penalty of five to twenty years; or (3) conspiracy to receive or possess child pornography, which carries a penalty of zero to five years. It would have been reasonable for e government to obtain a superseding indictment charging him wi conspiracy to possess child pornography, however, ere was no reasonable basis for e government s decision to shift from a possession eory to a receipt eory when e latter carried a five-year mandatory minimum at e former did not. In is case, e evidence relating to e conspiracy remained unchanged over e entire course of e prosecution; ere is no new revelation or discovery to support e government s sudden shift to a receipt eory from a possession eory. Consequently, e district court did not base its decision to dismiss e superseding indictment upon an error of law or upon clearly erroneous factual findings. We find no abuse of discretion in its decision and erefore decline to disturb its judgment. United States v. Pagen-Ferrer st 736 F.3d 573 (1 Cir. 2013) Using guidelines in effect at time of last offense of conviction did not violate Ex Post

13 13 Sentencing Partners December 2013 Facto Clause Police officers beat a man who was high on cocaine and evaded arrest by stealing a patrol car. The man subsequently died as a result of his injuries. The police officers involved in e beating and dea were not punished for six years, due to eir lying about e cause of dea and e officers who were present at e man s arrest. In August 2009, e defendant was ultimately convicted of two counts of violating e man s civil rights and causing his dea, of making false statements, and obstructing justice. The civil rights violations occurred in July 2003; e false statements and obstructing justice occurred in March At sentencing in 2009, e district court used e November 2009 edition of e Guidelines, and e defendant did not object. The sentence was calculated by grouping e four counts, which led to a total offense level of 39 and a guideline range of 262 to 327 mons. The defendant received a sentence of 200 mons on e civil rights violations, and 57 mons on e false statements and obstructing justice violations, to run concurrently. On appeal, e defendant argued at e civil rights violations, which were completed on July 20, 2003, should have been sentenced under e November 2002 manual, which would have provided a base offense level of 25, resulting in a total offense level of 34, wi a guideline range of 168 to 210 mons. He argued at is significant increase in e guideline range violated ex post facto principals. The First Circuit explained at e sentencing guidelines contain a one-book rule at specifies at a single version of e guidelines should be applied for all convictions being sentenced. The rule also provides at where a defendant is being sentenced for an offense committed before a revised guideline book, in conjunction wi an offense committed after a revised guideline book, e revised edition should be used to sentence bo offenses. In is case, e last offense took place in March 2008, which made e November 2007 manual e correct manual to be used. The court of appeals, reviewing for plain error, found at as an issue of first impression, e one-book rule was constitutional and did not violate e Ex Post Facto Clause as applied to e series of grouped offenses present in is case. United States v. Christie nd 736 F.3d 191 (2 Cir. 2013) Insufficient explanation of sentencing decision The defendant was convicted of drug offenses involving cocaine base, as well as firearms offenses. His guideline range was calculated to be 168 to 210 mons and he received a sentence of 168 mons. After e 2007 guideline amendments at lowered penalties for crack cocaine, he was re-sentenced pursuant to a motion under 18 U.S.C. 3582(c)(2), and his guideline range was reduced to 151 to 188 mons. He received a sentence of 151 mons. After e 2011 amendments were adopted, furer reducing e penalties for crack cocaine, he filed a second 3582(c)(2) motion, and his defense counsel urged e court to reduce e sentence to 120 mons, relying on a memorandum dated November 29, 2011, from e probation office to e district court, which recommended a sentencing range of 120 to 150 mons. The government conceded at is was e proper guideline range, but argued at e district court, using its discretion, should decline to reduce e sentence because of e firearms offenses and extensive criminal history. Almost one year after e second motion was filed, e district court entered an order denying e motion using a preprinted form wi boilerplate language. There was no case-specific content as to why e court declined to exercise its discretion and furer reduce e sentence, even ough e form provided space for an explanation. The defendant appealed e denial, arguing at e district court s decision must be vacated because e lack of reasoning in e court s order prevented e appellate court from exercising meaningful appellate review. The Second Circuit found at when considering a reasonableness challenge to a sentence on direct appeal, an adequate explanation of e lower court s action was a precondition for meaningful appellate review, as e court of appeals must review wheer a decision was based on a lower court s exercise of discretion on e basis of valid reasons. The court held at is same rule applied in a 3582(c)(2) proceeding, regardless of e fact at such proceeding is not a plenary re-sentencing proceeding, subject to e procedural requirements of sentencing. There must