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1 Published By Joaquin & Duncan, L.L.C.; A Law Firm of Federal Sentencing Attorneys December 2008 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. Supreme Court Agrees to Hear Good Conduct Case On November 30, e Supreme Court granted certiorari in Barber v. Thomas (Docket # ), to review e issue of wheer e BOP formula for calculating inmates good conduct time is consistent wi e statute. Prisoners and eir advocates have long argued at e BOP meod, which grants 54 days per year off e sentence for each year of incarceration at is actually served (e amount left after prior deductions), cheats prisoners of about seven days per year, compared wi taking a straight 54 days off each year of e sentence as imposed by e judge, which is what e statute, 18 USC 3624(b), seems to require. The case should be briefed is winter, argued in e spring, and decided by e end of e Court s Term at e end of June. 1 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 The Attorneys and staff at Joaquin & Duncan, L.L.C. wish you a very Merry Christm as and a Happy New Year! 1 Thanks to NACDL member Peter Goldberger for bringing is to our attention.

2 Case Summaries Sentencing Partners December 2009 General Information (Chapter 1) United States v. Cooks 2009 WL (5 Cir. 2009) Uncharged conduct was properly included in loss amount The defendant was convicted on charges of wire fraud, bank fraud, and money laundering in connection wi a scheme to cheat mortgage lenders by fraudulently obtaining house mortgage loans. The evidence showed at in most of e transactions e defendant recruited an inexperienced real estate investor to serve as a straw purchaser. The defendant would en find a house for sale, contract to buy it, en flip it to e straw purchaser for a much higher price. Mortgage brokers used by e defendant would forge and fake key documents for e loan applications, or direct e straw purchasers to make false representations emselves. The inflated value of e property was supported by fraudulent appraisals (forged wi e name and license number of a real licensed appraiser). Prior to e closing, e defendant promised e straw buyers at he would make e mortgage payments for em. However, after a short period of time - generally less an six mons - e payments from e defendant stopped, and e straw purchasers were en forced into foreclosure. At trial, e district court permitted e admission of evidence of uncharged conduct at showed at e defendant engineered five fraudulent real estate deals at were substantially similar to ose charged in e indictment. At sentencing, e district court calculated a loss amount of $1,429,237.58, which included e similar uncharged conduct. The district court imposed a sentence of 135 mons and e defendant appealed, arguing at e loss amount was incorrect because it was based in part on irrelevant uncharged conduct. The Fif Circuit disagreed, explaining at uncharged conduct is relevant conduct and us may be used in determining loss amount if it is part of e same course of conduct or a common scheme or plan as e offense of conviction. 1B1.3, cmt. n.9. The court held at [t]here is ample evidence at e uncharged transactions qualify as relevant conduct: ey were e same type of mortgage fraud as ose charged in e indictment and ey include several common factors and people (straw purchasers, fake appraisals at generally used e same stolen credentials, fake rental verifications, and fake tax returns). In all cases, [e defendant] walked away wi e extra cash from e deal, wi e lender taking e loss. Thus, [e defendant] cannot demonstrate at e objected-to transactions are not properly considered relevant conduct, and his loss amount claim must fail. Offense Conduct (Chapter 2) United States v. Christianson 2009 WL (7 Cir. 2009) Loss amount, supported by expert s report, affirmed In e summer of 2000, defendants Christianson and Rivera were members of e Ear Liberation Front ( ELF ), identified by e FBI as a domestic eco-terrorist group. The two, along wi oers, decided to protest against e Forest Service s genetic-engineering experiments on trees by destroying several research projects at a U.S. Forest Service facility in Wisconsin. They entered e facility and damaged or destroyed more an 500 trees. The next day, ey issued a press release claiming responsibility for e attack and included a veiled reat at furer acts of violence against e Forest Service might occur. They were not caught and prosecuted until eight years later. Christianson and Rivera ultimately pled guilty to willfully injuring property belonging to e United States, in violation of 18 U.S.C. 2 and A government s expert estimated a conservative loss amount to be $424,361, an amount adopted by e district court. Based on at loss amount, e district court determined e sentencing range for bo defendants to be 151 to 188 mons. After considering e factors under 3553, e district court sentenced Christianson to 24 mons and Rivera to 36 mons. Bo defendants appealed, arguing first at e Forest Service did not suffer a loss because e experiment upon which e loss was based was

3 3 Sentencing Partners December 2009 terminated and us worless. Second, ey claimed e district court erred in calculating e loss amount at $424,361 because e evidence presented for e value of e experiments was unreliable. The appeals court disagreed stating: In is case, e district court s finding was well justified: [e expert s] testimony was supported by a report he prepared shortly after e attack, and e district court credited [his] testimony. We defer to e district court s determination of witness credibility, which can virtually never be clear error. Furer, a review of e sentencing transcript assures us at e district court s inquiries were sufficiently searching to ensure e probable accuracy of e available evidence. There is also no showing at e loss amount was inaccurate, and it is certainly not outside e realm of permissible computations. Accordingly, we find at e district court did not commit clear error in calculating e loss amount. United States v. Cooks 2009 WL (5 Cir. 2009) Mortgage number qualified as a means of identification under 2B1.1(b)(10)(C)(I) The defendant was convicted on charges of wire fraud, bank fraud, and money laundering charges in connection wi a scheme to cheat mortgage lenders by fraudulently obtaining house mortgage loans. In most of e transactions e evidence showed at e defendant recruited an inexperienced real estate investor to serve as a straw purchaser. The defendant would en find a house for sale, contract to buy it, en flip it to e straw purchaser for a much higher price. Mortgage brokers used by e defendant would forge and fake key documents for e loan applications, or direct e straw purchasers to make false representations emselves. The inflated value of e property was supported by fraudulent appraisals (forged wi e name and license number of a real licensed appraiser). Prior to e closing, e defendant promised e straw buyers at he would make e mortgage payments for em. However, after a short period of time - generally less an six mons - e payments from e defendant stopped, and e straw purchasers were en forced into foreclosure. The district court imposed a sentence of 135 mons, which included a two-level enhancement because e offense involved e unauorized... use of anoer s means of identification unlawfully to produce or obtain any oer means of identification, under to 2B1.1(b)(10)(C)(I). The district court based e enhancement on e defendant s use, wiout auorization, e name and appraisal license number of a certified appraiser to create fraudulent appraisals to obtain mortgage loans. It en found at e loan numbers of e mortgages e defendant obtained rough e fake appraisals qualified as means of identification. The defendant appealed, arguing at e mortgage loan number was not a means of identification. The appeals court stated at under 2B1.1, cmt. n.9(c)(ii)(i), a means of identification is defined as any name or number at may be used alone or in conjunction wi any oer information, to identify a specific individual. Based on is definition, e appeals court found at [a] mortgage loan number is similar to a bank account number, which is specifically recognized in e guidelines as a means of identification at can be used to identify a specific individual. In fact, each mortgage loan number, like a bank account number, is presumably unique, and us traceable to e mortgagor. Accordingly, e district court did not err in applying e enhancement. United States v. McElroy st 2009 WL (1 Cir. 2009) State tax loss correctly included wiin relevant conduct loss calculation From 1993 to 2001, e defendants, Daniel and Aimee McElroy, owned and operated ree temporary employment agencies at supplied manual laborers to area businesses. All ree operated out of e same office space. They paid some of e temporary employees by check and paid oers in cash. The government alleged at e defendants defrauded e government of more an $9.9 million in payroll taxes by paying eir temporary workers in cash and by failing to report ose payments to e government or to e workers compensation insurance carriers. A jury found em guilty of one count of conspiring to defraud e United States of employment and income taxes and to commit insurance fraud by use of e mails; ree counts of mail fraud; and fourteen counts of procuring false tax returns. In calculating eir offense levels for e tax counts, e district court added e amount of unpaid state taxes to e amount of unpaid federal taxes, which caused each of e defendants to receive a base level at was one point higher an ey would have received if only federal taxes had been included in e calculation. Daniel was sentenced to 108 mons and Aimee was sentenced to 78 mons. Bo defendants appealed, arguing at a relevant conduct analysis should not have been applied to e loss calculation because 2T1.1 and 2T1.4 provided explicit instructions regarding e calculation for tax loss attributable to federal tax offenders. They maintained at is language trumped 1B1.3 s broad

4 4 Sentencing Partners December 2009 rule of construction for relevant conduct and e tax loss should erefore be based solely on federal tax loss. Following e lead of ree oer circuits, e appeals court held at We see no reason why state tax evasion, when proven to be sufficiently similar to e convicted crime, should not be included in e 2T1.1 calculation of tax loss. See United States v. Maken, 510 F.3d 654 (6 Cir. 2007); United States v. Baucom, 486 F.3d 822 (4 Cir. 2007); United States v. Powell, 124 F.3d 655 (5 Cir. 1997). The plain language of Application Note 2 [to 2T1.1] requires at a sentencing court factor relevant conduct into a total tax loss calculation. Thus, contrary to e defendants suggestion, no ambiguity exists as to wheer relevant conduct is to be considered in calculating 2T1.1 tax losses. Because e government established at e defendants evasion of state taxes was part of e same course of conduct or common scheme or plan as eir evasion of federal taxes, e state tax loss was properly considered relevant conduct. The sentence was affirmed. United States v. Varela 2009 WL (10 Cir. 2009) Cross reference under 2K2.1(c)(1)(A) properly applied Pursuant to e execution of arrest and search warrants, police officers found meamphetamine ice and two handguns inside a vehicle e defendant was driving, and additional firearms, explosive-related items, narcotics, and drug paraphernalia at his home. After a mistrial, e government dismissed e drug counts and at a second trial, e defendant was convicted by jury of being a felon in possession of multiple firearms. The PSR first calculated an offense level of 24, but noted at a cross reference under 2K2.1(c)(1)(A) would apply if it resulted in a greater offense level. The PSR concluded subsection (c)(1)(a) should apply, as well as its reference to 2X1.1. Utilizing 2X1.1, e PSR calculated e offense level using e guideline for possession wi intent to distribute 150 to 500 grams of ice, which generated an offense level of 34. The PSR en used e greater of e offense levels, 34, which was calculated pursuant to e cross reference under subsection (c)(1)(a). Finally, e PSR applied a two-level obstruction adjustment pursuant to 3C1.2, resulting in a total offense level of 36. Combined wi a criminal history category of I, e resulting advisory guideline sentencing range was 188 to 235 mons. Because e statutory maximum sentence was ten years, e advisory guideline sentence was 120 mons. The district court adopted e PSR s recommendation and sentenced e defendant to 120 mons. On appeal, e defendant contended at e cross reference provision in subsection (c)(1)(a) did not apply where e firearms were merely present in connection wi anoer offense. The appeals court explained at is approach ignores e plain language of e Guidelines. The plain language of e Guidelines instructs at when a defendant uses or possesses firearms in connection wi e commission or attempted commission of anoer offense, e district court should apply e cross reference in subsection (c)(1)(a) only if it results in a higher offense level an would result under subsections (a) and (b). Thus, if a defendant s conduct falls under bo subsections (b)(5) and (c)(1), a district court should calculate e offense level twice: once using subsections (a) and (b), and en using e cross reference in subsection (c)(1)(a). Then, e district court should apply whichever resulting offense level is greater. In is case, e district court found at e defendant possessed meamphetamine wi intent to distribute in close proximity of several firearms. Therefore, e defendant s access to firearms during drug transactions puts him squarely wiin e language of subsection (c)(1)(a). United States v. Owens 2009 WL (7 Cir. 2009) Future sexual encounter supported 2G2.2(b)(3)(B) enhancement The defendant frequented an internet chat site and began a discussion wi Erica, a moer of an eightyear-old girl and a twelve-year-old boy. Unbeknownst to e defendant, Erica was actually a detective wi e Fishers, Indiana Police Department, who was investigating online offenses against children. The defendant expressed his goal of establishing a sexual relationship wi Erica and her children and offered to send Erica a child pornography video in an effort to stimulate role play between he and Erica. Erica accepted e offer and e defendant en transferred e video, along wi his graphic description of its contents. After a brief role play discussion, ey agreed to meet in person e following day at a coffee shop, where he was arrested upon his arrival. When e defendant consented to a search of his vehicle, two more child pornography videos were discovered, and additional child pornography videos were found at his home. The defendant pled guilty to transportation of child pornography and possession of child pornography. The district court imposed a sentence of 360 mons, which included a five-level enhancement under 2G2.2(b)(3)(B), finding

5 5 Sentencing Partners December 2009 at e defendant expected to receive a ing of value in exchange for his distribution of child pornography. On appeal, e defendant claimed at he should have received only a two-level enhancement because he did not expect to receive anying of value, and even if he did have an expectation, at expectation was of role play and not of a sexual encounter. The government countered at he did expect to receive a sexual encounter, and accordingly, e five-level enhancement was appropriate. The Seven Circuit stated at e sole question in is case can be answered by resolving wheer [e defendant] had a reasonable expectation of receipt of a ing of value, and, if so, wheer at reasonable expectation was of role play or of a sexual encounter. Citing United States v. Whited, 539 F.3d 693 (7 Cir. 2008), e appeals court noted at expectation of receipt under 2G2.2(b)(3)(B) does not require an explicit agreement or precise bargain.... Distribution of child pornography in e reasonable anticipation or reasonable belief of receiving a ing of value is enough for e enhancement to apply. Alough [e defendant] did not have an explicit agreement or precise bargain wi Erica, e content of his conversations lead us to e conclusion at [he] reasonably anticipated or believed at his exchange of child pornography would result in a sexual encounter wi Erica and her children. Here, e defendant clearly anticipated receipt of a sexual encounter, and his transmittal of e pornography only served to furer his goal. Furer, contrary to e defendant s argument at he transferred e video while role playing and could not have expected anying of value while role playing, e appeals court pointed out at e statute itself contains no temporal component. There is no requirement in 2G2.2(b) at e defendant send e images contemporaneously wi receipt of e ing of value. Therefore, e mere fact at [e defendant] expected to receive a ing of value in e future as opposed to immediately upon transmission is of no consequence. United States v. Garza 2009 WL , (5 Cir. 2009) Enhancement under 2L1.1(b)(6) for reckless endangerment was appropriate The defendant drove an extended-cab Dodge pickup truck to e United States border checkpoint near Laredo, Texas. She was accompanied by two visible passengers: her one-and-one-half-year-old child and a friend. During primary inspection at e checkpoint, a border patrol canine alerted to e presence of hidden persons in e vehicle. Subsequent investigation found two illegal aliens hiding undernea e back seat of e pickup truck. To furer conceal em, e defendant had placed her child in e back seat. At sentencing, e district court imposed a two-level enhancement under 2L1.1(b)(6), after finding at placing e two men under e back seat recklessly created a substantial risk of dea or serious bodily injury. The district court found at e aliens were lying on e floorboards, partially under e back seat and wedged between e front seat and e back seat, wi a child sitting on top of e back seat, which created a qualifying risk. The defendant argued on appeal at e aliens positions in e vehicle did not impede eir ability to exit and increase eir risk of injury. The Fif Circuit reiterated a list of five nonexhaustive factors to be considered in applying e reckless endangerment enhancement: 1) e availability of oxygen; 2) exposure to temperature extremes; 3) e alien s ability to communicate wi e driver of e vehicle; 4) e alien s ability to exit e vehicle quickly; and 5) e danger to e alien if an accident occurs. The court furer noted at a given case need not satisfy all five factors to warrant application of 2L1.1(b)(6). Here, e aliens were on e floorboards, partially under e back seat, and wedged between e front and back seats. This configuration would have prevented em from easily exiting e vehicle, increasing e potential danger in e event of an accident. Furer, while not an express factor, we note at placing a child on top of e seat and in e way of e aliens means of exit certainly exacerbated e risk to bo e aliens and to [e defendant s] child. In short, e aliens in [e defendant s] truck faced significantly greater danger an ey would have faced if ey were simply on e floorboards wiout a seatbelt. Consequently, we see no error in e district court s legal conclusion at an enhancement under 2L1.1(b)(6) for reckless endangerment was appropriate. United States v. Vaughn 2009 WL (7 Cir. 2009) Lying and bragging about drugs bought and sold results in greater drug amount This case represents anoer example of why, when arrested, e Fif Amendment right to remain silent should be invoked. The defendant supplied crack cocaine to Richard Gee on a regular basis. After Gee was arrested, he agreed to make an undercover buy from e defendant while wearing a wire. The defendant was arrested soon afterward and informed ATF agents at he had been dealing cocaine, marijuana, and firearms for most of his life. In an attempt to make a deal, e

6 6 Sentencing Partners December 2009 defendant offered information about oer people, as well as oer purchases and sales he had made, including a forty-pound purchase of marijuana and a quarterkilogram purchase of crack. The defendant was found guilty of possession wi intent to distribute five grams or more of crack cocaine; distribution of marijuana; possession of a firearm in furerance of a drug trafficking crime; and possession of a firearm by a felon. At sentencing, e district court held e defendant accountable for e drugs at he had told e ATF agents about. On appeal, e defendant contested e drug amount, arguing at his statement was an exaggeration so at he would appear to be a valuable cooperating witness. He also argued at his statement was insufficient to establish his sentence wiout corroboration. The Seven Circuit noted at e defendant was not e first person to claim at he was lying or bragging about his past sales and purchases. However, e district court had found at it was more likely an not at e defendant was being truful at e time he made ose admissions. The court also found at e transactions proved at trial corroborated [e defendant s] access to larger quantities of drugs. The district court rightly rejected [e defendant s] contention at his own admissions were insufficient to establish e drug quantity for relevant conduct calculations. Alough an uncorroborated confession is insufficient to prove guilt beyond a reasonable doubt, we have stated many times at uncorroborated evidence may support fact-findings for sentencing purposes under e more lenient preponderance-of-e-evidence standard. The sentence was affirmed. United States v. Jeffries 2009 WL (5 Cir. 2009) 2K21.1(b)(6) enhancement reversed The defendant pled guilty to a single count of violating 922(g)(1) following his arrest for possession of a firearm. The PSR recommended a four-level enhancement under 2K21.1(b)(6), for possession of a firearm in connection wi anoer felony offense, based on e fact at police officers found a single rock of crack cocaine in e defendant s car when ey stopped him. The district court adopted e PSR and imposed a sentence of 60 mons. The Fif Circuit reversed, holding at ere was insufficient evidence showing at e defendant s possession of a firearm facilitated, or had e potential of facilitating, e felony offense of cocaine possession. The court explained at in 2006, e Sentencing Commission issued a new Application Note to provide a definition to e phrase in connection wi. In e case of a drug trafficking offense in which a firearm is found in close proximity to drugs, drugmanufacturing materials, or drug paraphernalia e enhancement is automatically applied. By contrast, for all oer felony offenses at are not drug trafficking offenses, e enhancement is applied only if e firearm... facilitated, or had e potential of facilitating, at offense. Under e new comment, ere can erefore be no automatic conclusion at [e defendant s possession of e firearm was in connection wi his possession of cocaine just because e two are located in e same vehicle. Application Note 14(A) requires at, when e oer offense is possession only of a user quantity of drugs and no evidence is presented at e defendant is a trafficker, e evidence must support a finding at e firearm facilitated or had e potential to facilitate e drug possession in order to apply e enhancement. The district court here made no finding of facilitation, nor do we find such a finding plausible in light of e record as a whole, even accepting for purposes of is analysis at e rock of cocaine located behind [e s] seat was his. The facts here are too sparse to support e conclusion at [e defendant s] possession of a gun emboldened him to engage in e crime of cocaine possession. While is court and oer courts may well frequently reach ose conclusions where ere is evidence to support em, e evidence at would allow us to draw ose conclusions must be someing more an e simultaneous possession of a small quantity of drugs and a gun in e same vehicle standing alone; oerwise, e limitation of Application Note 14(B)(ii) to drug trafficking has no effect. We find no such evidence in e record here. Sentence Adjustments (Chapter 3) United States v. Christianson 2009 WL (7 Cir. 2009) Terrorism enhancement affirmed In e summer of 2000, defendants Christianson and Rivera were members of e Ear Liberation Front ( ELF ), identified by e FBI as a domestic eco-terrorist group. The two, along wi oers, decided to protest against e Forest Service s genetic-engineering experiments on trees by destroying several research projects at a U.S. Forest Service facility in Wisconsin. They entered e facility and damaged or destroyed more an 500 trees. The next day, ey issued a press release claiming responsibility for e attack and included a

7 7 Sentencing Partners December 2009 veiled reat at furer acts of violence against e Forest Service might occur. They were not caught and prosecuted until eight years later. Christianson and Rivera ultimately pled guilty to willfully injuring property belonging to e United States, in violation of 18 U.S.C. 2 and The district court found at e offense was among ose listed in e terrorism enhancement under 3A1.4, and at e defendants committed ose acts to influence or affect e conduct of government by intimidation or coercion. Rivera challenged e terrorism enhancement on appeal, arguing at he was not a terrorist because his motivation was to save our ear from destruction and redressing e misdeeds and injustice at [he] felt industry inflicted on e natural world. The appeals court disagreed, noting at since ELF s inception, its members have been responsible for bombings, arson, vandalism, and a host of oer crimes. In fact, between 2000 and 2005, 43 of e 57 reported terrorist attacks committed on American soil were done by ELF members or eir sister organization, e Animal Liberation Front. Furer, e only difference between e offense at hand and past offenses was at explosives were not used. The Guidelines provide a practical definition for what constitutes an act of terrorism, and ereby establishes a very workable definition of who is a terrorist. It looks at e crime involved and e perpetrator s motive. If e act is among e litany of crimes listed in 2332b(g)(5)(B)... and it was calculated to influence or affect e conduct of government by intimidation or coercion, or to retaliate against government conduct, en it is a federal crime of terrorism. And for all intents and purposes at sentencing, at person is a terrorist. Indeed, it doesn t matter why e defendants oppose capitalism and e United States government if ey use violence and intimidation to furer eir views, ey are terrorists. Despite Rivera s denial at he is a person who uses violence and intimidation to serve his political ends, e evidence sufficiently defines him as a terrorist, and e enhancement is appropriate. Criminal History (Chapter 4) United States v. Thompson 2009 WL (6 Cir. 2009) Juvenile conviction properly counted under 4A1.1(e) The defendant pled guilty to possession wi intent to distribute 1.9 grams of cocaine base. The PSR calculated a total of six criminal history points, after adjustments pursuant to 4A1.1(c), including two points for a drug possession conviction at occurred while e defendant was a juvenile. The two points were added because e defendant committed e instant offense less an two years following his release from custody. The PSR recommended a sentencing range of 24 to 30 mons and e district court imposed a sentence of 28 mons. On appeal, e defendant argued at because juvenile offenses are specifically included in e language of 4A1.2(d) in reference to calculating sentences under 4A1.1(a), (b) and (c), but not specifically in reference to 4A1.1(e), 4A1.1(e) necessarily excludes confinements for juvenile offenses and e district court erred in including e juvenile offenses under at section. The Six Circuit affirmed e sentence, noting at in United States v. Kirby, 893 F.2d 867 (6 Cir. 1990), it had addressed a similar argument, finding at because e juvenile adjudication was properly counted under section 4A1.1(b), e two-point enhancement was proper under section 4A1.1(e), since at section is keyed to a sentence counted under section 4A 1.1(b). Consequently, e district court properly attributed six criminal history points to [e defendant s] prior convictions and two additional points under USSG 4A1.1(e) because e instant offense occurred less an two years after his release from confinement, for a total of eight criminal history points and a sentencing guidelines range of 24 to 30 mons. United States v. Caldwell 2009 WL (10 Cir. 2009) Instant offense not committed while serving under a criminal justice sentence pursuant to 4A1.1(d) The defendant pled guilty to one count each of distributing cocaine, distributing cocaine base, and possessing wi intent to distribute cocaine base. The district court determined at e defendant fell into a Criminal History Category of IV and imposed a sentence of 121 mons. Following e passage of Amendment 706 to e Sentencing Guidelines, e district court reduced e defendant s sentence by twenty-one mons. The criminal history score was based, in part, on e defendant s 2002 conviction of driving while a habitual offender. The district court attributed two criminal history points pursuant to 4A1.1(d), finding at e instant offense was committed while e defendant was serving under a criminal justice sentence. For e 2002 offense, he was initially sentenced to twelve mons probation and irty days in jail. However, he was given

8 8 Sentencing Partners December 2009 e option of paying a $1,500 fine in lieu of serving ose irty days. He apparently paid a portion of at fine but, after failing to pay e balance of e fine, he served five of his irty-day sentence in March When he committed e instant offense, he had not yet served any portion of his irty-day sentence. On appeal, e defendant argued at e district court wrongly attributed e two criminal history points to him because when he committed e instant offense, e probationary term he was en serving did not yet qualify as part of a criminal justice sentence under 4A1.1(d). The Ten Circuit agreed. The question of first impression before is court is, wheer a defendant s criminal history category can be increased for committing an offense while serving under a criminal justice sentence where e probationary term he was serving at e time of e offense only later qualified as a criminal justice sentence due to events at took place after e defendant committed e offense of conviction. We hold at, in ese circumstances, it was error to add ese two points to [e defendant s] criminal history. The plain language of 4A1.1(d) is limited to offenses committed while under any criminal justice sentence... In is case, [e defendant] was not under a criminal justice sentence at e time he committed any of e conduct of conviction. Accordingly, we reverse e district court s decision to add two additional points to his criminal history for committing his offense while under a criminal justice sentence. Because a two-point reduction would move [e defendant] from criminal history category IV to category III, we must remand is case for resentencing in light of is error. United States v. Harris 2009 WL (11 Cir. 2009) Conviction under Fla. Stat (3)(a) is a crime of violence The defendant was convicted of being a felon in possession of a firearm. The district court applied e career offender enhancement under 2K2.1(a)(4)(A), finding at a prior conviction under Fla. Stat (3)(a) for willfully fleeing or eluding a police officer at high speed or wi wanton disregard for e safety of persons or property was a crime of violence, as defined by 4B1.2. The Eleven Circuit affirmed e sentence holding at e application of e framework explained by e Supreme Court in Begay, as well as its holdings in James v. United States, 550 U.S. 192 (2007), and Chambers v. United States, --- U.S. ----, 129 S.Ct. 687 (2009), yields e conclusion at a conviction under Section (3)(a) of Florida s penal code qualifies as a crime of violence for Section 2K2.1(a)(4)(A) purposes. From e plain language of e Florida statute, it is clear at is predicate crime is similar in kind and degree to ose enumerated in e Armed Career Criminal Act. Fleeing from e police at high speed or wi a wanton disregard for e safety of persons or property does indeed show an increased likelihood at e offender is e kind of person who might deliberately point e gun and pull e trigger. Furer, e act of fleeing e police under e statute is undeniably purposeful, is a violent offense, and is also aggressive. In short, a conviction arising under Fla. Stat (3)(a) is a crime of violence as defined by 4B1.2. Fleeing at high speed or wi wanton disregard for safety amounts to holding a finger on e trigger of a deadly weapon, wiout care for whom e bullet may strike. Variance/Reasonableness Review United States v. Livesay 2009 WL (11 Cir. 2009) Unreasonable sentence of probation reversed in massive fraud case The defendant was charged and convicted for his part in a massive accounting fraud conspiracy at HealSou Corp. ( HealSou ). The defendant s participation was to artificially inflate HealSou s earnings and to falsely report its financial condition. Senior officials at HealSou issued instructions as to e desired earnings per share and e defendant and members of e accounting staff would meet to discuss ways to artificially inflate HealSou s earnings. Once ey decided upon e means of inflating earnings, e defendant instructed HealSou s accounting staff to manipulate various accounts to accomplish is purpose. The PSR determined e defendant s sentencing range to be 78 to 97 mons. The government filed for a substantial assistance departure under 5K1.1 and 18 U.S.C. 3553(e), and recommended a sentence of 60 mons. The district court sentenced e defendant to 60 mons probation. The government appealed and e Eleven Circuit reversed, holding at e district court failed to state e reasons supporting e extent of its departure, leaving it to speculate regarding at reasoning. At re-sentencing, e same judge imposed e same sentence. Once again e government appealed and e sentence was again reversed, finding at e extent of e departure and e ultimate sentence were unreasonable given e defendant s key role in e

9 9 Sentencing Partners December 2009 massive fraud. The Supreme Court granted e certiorari petition and remanded for reconsideration in light of Gall v. United States, 552 U.S. 38 (2007). The Eleven Circuit vacated e sentence, finding at e district court committed procedural Gall error by basing e extent of its 5K1.1 departure on an impermissible consideration: specifically, e defendant s repudiation of or widrawal from e conspiracy. A different district judge granted e government s 5K1.1 motion and imposed a term of five years probation. For e ird time, e government appealed e sentence, and for a ird time, e appeals court reversed. Citing United States v. McVay, 294 Fed. Appx. 488 (11 Cir. 2008), e appeals court concluded at e sentence imposed by e district court in is case is patently unreasonable in light of [e defendant s] role in is massive corporate fraud. Accordingly, because e sentence imposed in is case is not reasonable in light of e sentencing factors outlined in 3553(a), we once again vacate e sentence and remand is case to e district court for resentencing. Not only do we hold at e particular sentence imposed below is unreasonable, but we also hold at any sentence of probation would be unreasonable given e magnitude and seriousness of [e defendant s] criminal conduct. [O]nly e imposition of a meaningful period of incarceration will meet e goals at Congress laid out in e sentencing statute. Crime of Violence United States v. Sanchez 2009 WL (11 Cir. 2009) Florida escape conviction was serious violent felony under 3559(c) The defendant, wi four accomplices, were caught burglarizing, or attempting to burglarize, Sou Florida houses used for growing hydroponic marijuana. All were charged wi conspiring to possess wi intent to distribute marijuana and several related offenses. The defendant was found guilty by a jury and was sentenced to life in prison because he had a prior conviction in state court for escape and trafficking in cannabis, as well as a federal conviction for conspiracy to import and possess wi intent to distribute cocaine. On appeal, e defendant argued at while he was convicted of felony escape, his actual offense conduct did not constitute a violation of e felony statute. Instead, he argued, his conduct violated Fla. Stat (4), which punishes a failure to return. The Eleven Circuit affirmed e sentence, noting at under 3559(c)(2)(F)(ii), an offense is a serious violent felony if it meets one of several sets of criteria, one of which is at e offense is punishable by a maximum term of imprisonment of 10 years or more [and]... by its nature, involves a substantial risk at physical force against e person of anoer may be used in e course of committing e offense. In is case, e district court did not err in concluding at [e defendant s] conviction for escape was a serious violent felony. A conviction for escape under Florida law is a serious violent felony wiin e meaning of 3559(c) because it is punishable by a sentence of up to 15 years and involves a substantial risk at physical force against e person of anoer may be used. United States v. Hampton 2009 WL , (7 Cir. 2009) Indiana criminal recklessness conviction not a crime of violence for ACCA The defendant was charged wi possession of a firearm by a felon in violation of 18 U.S.C. 922(g)(1). The court found at e defendant qualified as an armed career offender, based on ree prior violent felonies: (1) resisting law enforcement; (2) residential entry (in violation of Indiana Code ); and (3) criminal recklessness (in violation of Indiana Code ). The defendant was sentenced to 387 mon after e district court found at e criminal history score was understated because of e defendant s extensive criminal history. On appeal, e defendant argued at his prior conviction for residential entry was not a crime of violence. The Seven Circuit disagree, finding at e offense involved conduct at presents a serious potential risk of physical injury to anoer. However, e appeals court reversed after reviewing e record and discovering at e defendant s conviction for criminal recklessness also presented a Begay problem. Neier party identified e criminal recklessness conviction as an issue in e district court or on appeal, but at e time, circuit precedent held at it was a crime of violence. However, in light of Begay and its progeny, e district court committed plain error when it enhanced [e defendant s] sentence based on e determination at criminal recklessness in Indiana constituted a violent felony under e ACCA. Wiout e conviction, e defendant did not have e requisite number of felony convictions to qualify for e sentence enhancement. The sentence was vacated and remanded.

10 10 Sentencing Partners December 2009 Post-Conviction United States v. Daniels 2009 WL (5 Cir. 2009) Deferred adjudication properly included in career offender designation The defendant filed a petition under 28 U.S.C at was denied by e district court. The Fif Circuit granted a certificate of appealability (COA) on e limited issue of wheer he should be resentenced because one of e offenses upon which his career offender status was based has been invalidated. In 2004, e defendant pled guilty to conspiring to possess wi intent to distribute more an 100 kilograms of marijuana. At sentencing, e district court found at he was a career offender, based in part on a prior state conviction for aggravated assault wi a deadly weapon. For at offense, e defendant pled guilty but received community supervision. In 2006, e state court dismissed e aggravated assault charge at e end of e defendant s ree-year term of community supervision. The defendant now claimed at he was entitled to resentencing on e federal conviction, because one of e two crimes underlying his career-offender status had been dismissed. The Fif Circuit denied relief, noting at at e time e federal sentence was imposed, e district court lawfully included e diversionary disposition in its career-offender calculation. Had e defendant s prior sentence been reversed or vacated because of errors of law or because of subsequently discovered evidence exonerating e defendant, or... have been ruled constitutionally invalid it would not have been counted. However, where a defendant received a diversionary disposition, such as deferred adjudication or assignment to a substance abuse program, and after e defendant completed e diversionary disposition e underlying offense was dismissed [e conviction] remains a valid basis for a career offender designation. Because e defendant did not show at e state court dismissed his assault charge for an error of law or for newly found exonerating evidence, e guilty plea was properly counted toward e status as a career offender. Miscellaneous Issues United States v. Jensen 2009 WL (8 Cir. 2009) Significant reduction under 3553(e) does not require extraordinary assistance The defendant was convicted of conspiracy to distribute 500 grams or more of meamphetamine and possession wi intent to distribute 500 grams or more of meamphetamine. He was subject to a mandatory term of life, but e government moved for a reduction under 5K1.1 and 18 U.S.C. 3553(e). The district court departed downward by 40% to 180 mons, based on e defendant s substantial assistance, as well as e factors in 3553(a). The district court noted at it did not depart by 50% or greater because what e defendant has done is not extraordinary to warrant a greater departure. The Eight Circuit reversed, holding at e district court impermissibly considered factors unrelated to e defendant s assistance in making e reduction under 3553(e). The defendant petitioned for a writ of certiorari. The Supreme Court granted e petition, vacated e judgment, and remanded for furer consideration in light of Gall v. United States, 552 U.S. 38 (2007). The case was held pending a decision by e en banc court in United States v. Burns, 577 F.3d 887 (8 Cir. 2009), concerning wheer and how Gall should be applied in e context of reductions under 3553(e). The en banc court in Burns concluded at when considering e reasonableness of reductions under 3553(e), as when evaluating variances under 3553(a), e court of appeals must rule after putting aside all notions of exceptional/extraordinary circumstances, departure percentages, proportionality review, and similar databased standards of review. Based on e decision in Burns, e appeals court reversed, holding: The record reflects at e district court believed at it lacked auority to reduce [e defendant s] sentence by fifty percent of e statutory minimum penalty unless [his] assistance was extraordinary. The decisions in Gall and Burns changed e law of e circuit and granted auority to e district courts at ey lacked under our pre-gall precedents, including e auority to make certain major reductions in e absence of extraordinary assistance. Accordingly, is case should be remanded for resentencing in light of Gall and Burns.

11 11 Sentencing Partners December 2009 United States v. Bain 2009 WL (8 Cir 2009) Unpreserved Gall error was plain, but did not affect substantial right On February 9, 2005, e FBI executed a search warrant at e defendant s house and seized ree computers and numerous floppy disks containing 496 images and digital movies depicting minors engaged in sexual acts. The defendant admitted to e FBI at he traded child pornography files from his home, using e file sharing program Kazaa. He pled guilty to one count of receiving and distributing child pornography (Count 1), and one count of possession of child pornography (Count 2). The PSR calculated a base offense level of 22, but at was increased to a 37, wi a sentencing range of 210 to 262 mons, after e pleora of enhancements at accompany child porn cases were applied. The defendant requested a sentence of 60 mons, based on e factors set out in 3553(a), including two psychological examinations concluding at he did not meet e criteria for a diagnosis of pedophilia, and at he presented low risk of re-offense. After considering e 3553 factors, e district court concluding at a sentence at e bottom of e range is sufficient to address e essential sentencing considerations. In doing so, e judge implied at he could not vary downward wiout extraordinary circumstances to justify a non-guidelines sentence. On appeal, e defendant argued at e district court violated Gall v. United States, 552 U.S. 38 (2007), by requiring extraordinary circumstances to support a downward variance. While e Eigh Circuit agreed at e district committed Gall error, e court found at e issue was not properly preserved and reviewed for plain error. The Gall error here is plain. The issue is wheer e error affected a substantial right. An error affects a substantial right if it is prejudicial. A sentencing error is prejudicial if ere is a reasonable probability e defendant would have received a lighter sentence but for e error. The fact at e defendant was sentenced to e low end of e guidelines range was insufficient to establish a reasonable probability at he would have received a lower sentence. However, based on e record, it is not clear what action e district court would have taken absent e Gall error. Where e effect of e error on e result in e district court is uncertain or indeterminate - where we would have to speculate - e appellant has not met his burden of showing a reasonable probability at e result would have been different but for e error. Therefore, is court finds at [e defendant] has not met his burden of showing a reasonable probability of a lower sentence. The appeals court also held at e 210-mon sentence was substantively reasonable, despite e Gall error. Judge Benton filed a concurring opinion stating: I concur due to is circuit s precedent requiring plain error review of unpreserved procedural errors. I write separately because, on ese facts, Gall requires remand. This case illustrates e difficulty of conducting substantive review, after a finding of Gall error. The majority finds a Gall error here, but does not reverse under plain error review because e record does not indicate at e district court would have given a lower sentence had it been aware of its full auority to sentence outside e guidelines. The majority must en proceed to review e substantive reasonableness of e sentence, based on e district court s explanation of e 3553(a) factors. Here e court has no basis to judge wheer e sentence is reasonable. The record here does not indicate what sentence e district court believed was sufficient but not greater an necessary. Due to e deferential abuse of discretion standard, e majority affirms e sentence based on explanations at may not reflect e district court s unrestrained opinion. Substantive review under Gall requires is court to defer to e district court s unrestrained opinion about what sentence is sufficient but not greater an necessary, and e reasons erefor. Since is court has no reliable basis for substantive review, is sentence should be reversed and remanded for resentencing in order to fulfill e mandate of Gall. United States v. Tate 2009 WL (11 Cir. 2009) Except clause in 924(c) did not prohibit consecutive sentence The defendant was charged wi committing four counts of armed bank robbery, one count of bank robbery, and four counts of using a firearm during a crime of violence, in violation of 18 U.S.C. 924(c). He was convicted on all counts except one count of using a firearm during a crime of violence. On e robbery counts, e district court sentenced e defendant to a total concurrent sentence of 262 mons; a consecutive 84-mon sentence for brandishing a firearm during e commission of a crime of violence; and a consecutive 300-mon sentence 924(c) offenses. The total sentence was 946 mons (78 + years). On appeal, e defendant argued at e district court erred as a matter of law in concluding at it was required to sentence him to consecutive terms of imprisonment for each of his