Newsletter – Summer 1995 – Issue 8 – How To Secure A Favorable Prison Designation: Making The Best Of A Bad Situation: Part One

[vc_row][vc_column width=”1/1″][vc_column_text]Summer 1995 – Issue 8

Federal Sentencing and Postconviction News

How To Secure A Favorable Prison Designation: Making The Best Of A Bad Situation: Part One

By Alan Ellis

For most federal criminal defendants, how much time they are going to do and where they are going to do it are of paramount importance. While I have written and will continue to write on how to do less time, little has been published here or elsewhere on how to achieve placement in the least restrictive facility and as close to home as possible.

Introduction
The 70-plus institutions of the federal prison system are divided into five security groups: minimum, low, medium, high and administrative. The security level is based upon the institution¹s type of perimeter security, number of towers, external patrols, detection devices, security of housing areas, type of living quarters and level of staffing. Minimum security institutions typically house inmates with 10 years or fewer to serve. Note that this is time to serve and not the same as a ten-year sentence. By earning goodtime at a rate of 54 days a year, a prisoner can generally expect to serve 85% of his or her sentence. Minimum security offenders are not violent and are not considered escape risks.

Designation
Designation of an inmate to a specific institution is governed by Bureau of Prison Program Statement 5100.05 and involves two steps. The first involves completing the Security Designation Form, which specifies the security needs of the incoming prisoners. This is done by the Community Corrections Manager. Every judicial district has a CCM who “scores out” a sentenced defendant for a preliminary determination of security level. Criteria include the existence of and type of detainer; severity of current offense; expected length of incarceration; type of prior commitments; history of escapes or attempts to escape; history of violence and pre-commitment status. The CCM seeks other information about the offense and the offender—information known as “Public Safety Factors”—that can dramatically influence the designation decision.

For example, most deportable aliens; offenders serving in excess of 10 years; defendants with a managerial role in a drug offense involving more than 10kg of cocaine or 620kg of marijuana; sex offenders, including those convicted of child pornography and child prostitution; and offenders identified as posing a significant threat to a government official may not be initially assigned to a minimum-security facility without a waiver of the PSF. The CCM looks to the Pre-Sentence Investigation report to obtain most, if not all, of this information.

The process begins as follows: The U.S. Probation Office provides a copy of the PSI to the CCM. The U.S. Marshal provides the CCM with a copy of the Judgment and Commitment Order. The CCM reviews these materials along with any other information submitted by the sentencing judge and determines the security score and any PSFs. The CCM’s evaluation, along with any special considerations such as a judicial recommendation, are then communicated to one of six Regional Designators.

Where a prisoner qualifies for a specific institution recommended by the sentencing judge, every effort is typically made to follow the recommendation, assuming that the defendant meets the criteria for a facility of that security level.

Voluntary surrender can also help a defendant get the best designation and lessen the trauma of going to jail. Under Bureau regulations, defendants permitted to surrender voluntarily to the U.S. Marshal Service, or better yet, to the designated institution, receive a lower security score and thus become better candidates for minimum-security facilities.

The Importance of the Pre-sentence Investigation Report
Finally, it is vitally important that prior to sentencing, any inaccurate information in the PSI be corrected. This document is the one collection of data upon which virtually all designation decisions are made. For example, if the PSI incorrectly states that a defendant has a history of aggressive sexual behavior (even though the behavior is not part of the instant offense), then he or she will not go to a camp (minimum security facility) despite what the otherwise calculated score might indicate or the judge and even the prosecutor recommend.

In Part Two I will discuss how a prisoner can be transferred to a more favorable facility once he or she has been incarcerated.

RECENT FAVORABLE CASE LAW

Concurrent vs. Consecutive Sentences
When a defendant is serving a sentence for conduct that was “fully taken into account” in determining his federal sentence, §5G1.3(b) requires that the new sentence run concurrently with the earlier one. In United States v. Bell, 46 F.3d 402 (5th Cir. 1995), the Fifth Circuit clarified the meaning of “fully taken into account.” The district court had imposed a consecutive sentence because the earlier state conviction had taken into account the extreme psychological harm to the victim, while the guideline sentence did not. The Fifth Circuit held that since the offense conduct was the same in both cases, §5G1.3(b) required the sentences to run concurrently.

Downward Departures
In drug cases, the Sentencing Commission has made drug quantity the predominant factor in setting the offense level. Occasionally, offense levels calculated in this way may overstate the seriousness of the offense and provide a basis for downward departure. For example, in United States v. Lara, 47 F.3d 60 (2d Cir. 1995), the Second Circuit approved a downward departure where the quantity of controlled substance was the result of sales of small amounts of controlled substance over a long period.

Mandatory Minimun Sentences
Breaking with the First, Fifth, Seventh, and Tenth circuits, the Ninth Circuit recently ruled in an LSD case that the actual weight of the carrier medium should not determine whether a mandatory minimum applies. Instead, the Court ruled that sentencing courts must use the Guideline standard of 0.4 mgs. per LSD dose, regardless of carrier weight, to determine the application of both mandatory minimums as well as Guideline base offense levels. United States v. Muschik,—F.3d—, 1995 WL 78024 (9th Cir. 1995).

Although the “safety valve” statute, 18 U.S.C. §3553(f), merely allows courts to ignore mandatory minimums and impose sentence within the otherwise applicable guideline range, I argued in Issue 6 of this newsletter, that when the safety valve is combined with a downward departure, a court would be authorized to impose even lower sentences. The D.C. district court recently adopted similar reasoning in United States v. Hart, 876 F.Supp. 4 (D.D.C. 1995), to order a downward departure in a case involving 50 grams of cocaine base. The court found that the guidelines sentence would have been grossly disproportionate since co-defendants had fled the country and were not being prosecuted at all.

Obstruction of Justice
Two years ago, the Supreme Court ruled that perjury may justify an enhancement for obstruction of justice. The Court nevertheless required district courts to first identify which portions of the testimony were perjured, and then to determine the materiality of the defendant’s testimony. Recently, several courts of appeals have reversed obstruction enhancements where the district courts failed to conduct the required analysis. United States v. Arias-Santos, 39 F.3d 1070 (10th Cir. 1994) (guilty verdict not enough to prove perjury); United States v. Bauers,—F.3d—, 1995 WL 57926 (2d Cir. 1995) (same); United States v. Montague, 40 F.3d 1251 (D.C. Cir. 1994) (must be “clear and convincing” evidence to support obstruction); United States v. Spears—F.3d—, 1995 WL 108966 (6th Cir. 1995) (must identify with specificity portions of record where defendant lied, then address materiality); United States v. Massey,—F.3d—, 1995 WL 92627 (10th Cir. 1995) (same).

Plea Negotiations
The United States Court of Appeals for the Tenth Circuit has held that before the government may threaten to prosecute third persons to induce a defendant to plead guilty, it must have probable cause to believe that those third persons committed the crime it threatens to charge. United States v. Wright, 43 F.3d 491, (10th Cir. 1994). See also United States v. Pollard, 959 F.2d 1011 (D.C. Cir.) cert. denied—U.S—,113 S.Ct. 322, 121 L.Ed.2d 242 (1992). The issue in Wright was successfully raised on a 2255 motion.

Positions of Trust
Section 3B1.3 provides a two-level enhancement for abusing a position of trust. The enhancement is only applicable, however, when the abuse facilitated the commission or concealment of the offense. In United States v. Custodio, 39 F.3d 1121 (10th Cir. 1994), the Tenth Circuit reversed the enhancement where the defendant’s submission of false claims was not enhanced by his position as partner in a medical insurance program. In United States v. Brown,—F.3d—, 1995 WL 45036 (7th Cir. 1995), the Seventh Circuit reversed the enhancement where the relationship between a defendant in a “Ponzi” scheme and defrauded investors was commercial in nature, and not one of trust.

Presentence Investigation Reports
Fed.R.Crim.P. 32(b)(6)(D) and (c)(1) make it clear that once an objection is made to a PSI, the information objected to may not be relied on by the sentencing court unless a finding is made on the objection. Several Courts of Appeals have recently held that this means that once a defendant objects, the government must present evidence to support the PSI before the Court may rely on it. United States v. Willard Makes Room for Them,—F.3d—, 1995 WL 82879 (8th Cir., 1995); United States v. Greene, 41 F.3d 383 (8th Cir. 1994); United States v. McMeen,—F.3d—, 1995 WL 101130 (6th Cir. 1995).

Relevant Conduct
Guidelines offense levels are determined by “relevant conduct” as defined in §1B1.3. In cases of jointly undertaken criminal conduct (such as drug conspiracies, and frauds involving more than one person), relevant conduct includes “all reasonably foreseeable acts … of others in furtherance of the jointly undertaken criminal activity.” Section 1B1.3(a)(1)(B). In the past, Courts have held defendants accountable for “reasonably foreseeable” conduct of others, while often ignoring that conduct must also be “in furtherance of jointly undertaken criminal activity.” Two recent cases augur a welcome and more balanced approach. In United States v. Mitchell,—F.3d—, 1995 WL 128289 (D.C. Cir. 1995), a drug conspiracy involving one distributor in a multi-distributor operation, the Court held that before reasonably foreseeable sales to the other distributors are “relevant” they must also be shown to be a part of the defendant’s conspiratorial agreement. In United States v. Studley,—F.3d—, 1995 WL 57931 (2d Cir. 1995), the Second Circuit applied the same principle to refuse to find the loss caused by a 20 person fraud scheme “relevant” to a defendant who was merely employed by the scheme as a salesman.

Restitution
The Fourth Circuit recently issued two important decisions concerning restitution. United States v. Johnson,—F.3d—, 1995 WL 85429 (4th Cir. 1995), reversed a restitution order which delegated to a probation officer the power to determine the amount of restitution as well as the size of any installment payments, ruling that the order violated Article III of the Constitution. In United States v. Smith, 47 F.3d 681 (4th Cir. 1995), the Court ruled that the anti-alienability provisions of the Employee Retirement Income Security Act (ERISA) place pension benefits out of reach of restitution orders, even after being received by the retiree.

Role in Offense
Enhancements for leadership role are only appropriate when a defendant actually controls another participant. Section 3B1.1, Appl. Note 2. Nevertheless, district courts occasionally misapply it to defendants who play significant roles, but who do not control anyone else. The Seventh Circuit recently reversed an enhancement in United States v. Mustread, 42 F.3d 1097 (7th Cir. 1994), a case involving a distributor at the top of a large marijuana distribution network. Although the defendant was a large distributor, he did not control the actions of any other participant.

Sentencing Entrapment
Defense attorneys have long argued that when government agents cause someone to purchase more controlled substance than he would otherwise be predisposed to buy, the surplus is not “relevant” for sentencing. The Guidelines recognize a form of sentencing entrapment, suggesting that downward departure “may be warranted” when agents sell for less than the going rate. Section 2D1.1, Appl. Note 17. The Ninth Circuit recently broadened the relief suggested by Appl. Note 17. United States v. Naranjo,—F.3d—, 1995 WL 153394 (9th Cir. 1995), finding “strong evidence” of sentencing entrapment where, after the defendant told agents he could buy no more than 1kg (and that much only if he could buy on credit), the agents convinced him to purchase 5kg (bumping up the mandatory minimum from 5 to 10 years) by offering to buy back three or four of them. In remanding for resentencing, the Court noted with apparent approval the district court’s conclusion that if there was entrapment, the additional quantity should simply be removed from relevant conduct.

Vulnerable Victim Enhancement
The actual vulnerability of victims is not enough to warrant an enhancement pursuant to §3A1.1. The Sixth Circuit ruled in United States v. Smith, 39 F.3d 119 (6th Cir. 1994), that the government must first prove that victims were targeted because of their vulnerability.

NEWS

Favorable News from the Sentencing Commission
On May 1, 1995, the Sentencing Commission sent its annual list of guideline amendments to Congress. The amendments will take effect on November 1, 1995, unless prior to then Congress delays the effective date, or modifies or rejects the amendments. While up until now all amendments proposed by the Commission on May 1 have become law on November 1, the sailing may not be so smooth for the rest of this year. Attorney General Janet Reno has vowed to fight an amendment which would abolish the distinction between powder and crack cocaine for sentencing purposes. Currently each gram of crack is punished on the same level as 100gm of powder. If the amendment becomes law, each gram of crack would result in no greater punishment than an equal amount of powder.

In another positive development, the Commission has proposed to treat marijuana plants in all cases as equivalent to 100gm of marijuana. Currently, the Guidelines equate each plant with 1 kilo of marijuana in cases involving more than 50 plants. Another amendment would make it clear that the weight of marijuana does not include any moisture which renders it unsuitable for consumption.

The Commission has also proposed to replace the money laundering guidelines (§§2S1.1 and 2S1.2) with a consolidated §2S1.1 which would provide a greater range of possible sentences. Where laundered funds are derived from a defendant’s own criminal conduct, the proposed guidelines assign the offense level for the underlying offense—where that can be determined. To soften the blow, where the defendant is also convicted of the underlying offense, the amendment would group the counts, resulting in no additional punishment for money laundering. In other cases, the proposed amendment generally results in lower offense levels than under the present rules. An application note provides that where laundered funds are derived from fraud, enhancements should be based on actual loss, rather than on the amount laundered. For example a sale of $120,000 worth of stock for $200,000 would result in an enhancement based on $80,000, not $200,000.

Another favorable amendment would lower sentences under the “safety valve” law, which allows courts to ignore mandatory minimums and impose sentences within the otherwise applicable guideline range. Since the guideline ranges themselves track the mandatory minimums, few defendants currently benefit from the safety valve unless the court also departs downward. The new amendment would decrease the offense by 2 levels in safety valve cases where the offense level would otherwise be 26 or greater.

PRACTICE TIPS

When a defendant wins a resentencing, counsel should consider requesting a different judge whenever the original sentence was unduly harsh, or was based on information precluded by the appeal. Recent examples of remands for resentencing before a new judge are United States v. Gaviria,—F.3d—, 1995 WL 97468 (2d Cir. 1995) (on remand, judge would be “hard pressed” to put out of mind prosecutor’s previous argument against minor role reduction); United States v. Jordan,—F.3d—, 1995 WL 128496 (5th Cir 1995) (judge imposed excessively harsh sentence after refusing to recuse herself); United States v. Huckins,—F.3d—, 1995 WL 237158 (9th Cir. 1995) (listing criteria for resentencing by difference judge); United States v. Hanna,—F.3d—, 1995 WL 113325 (9th Cir. 1995) (judge would have had difficulty not considering rejected evidence).[/vc_column_text][/vc_column][/vc_row]