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Favorable New Cases

1. The Sentencing Commission has acknowledged from the begin­ning that the guidelines do not take into account “the vast range of human conduct potentially relevant to a sentencing decision.” USSG § 1A1.1(4)(b) (1987 ed.). That is why, even under the formerly mandatory guideline regime, departures were permitted where there existed a miti­gating factor “of a kind or to a degree that was not adequately considered by the Sentencing Commission in formulating the guidelines.” USSG § 5K2.0(a); Koon v. United States, 518 U.S. 81, 113 (1996). Even so, the guidelines prevented courts from taking certain §3553(a) factors into account in determining a sentence. For example, although USSG § 5K2.13 encourages courts to depart when a defendant’s diminished mental capacity “contributed substantially to the commission of the offense,” it used to prohibit courts from sentencing below the guideline range when the diminished mental capacity was caused by the voluntary use of drugs of other intoxicants. The Ninth Circuit recently held that after Booker, that prohibition no longer prevents sentencing courts from considering a variance based on the impact of a defendant’s drug addic­tion. See United States v. Garcia, — F.3d –, 2007 WL 2284347 (9th Cir. Aug. 10, 2007) (remanding for resentencing after district court refused to consider drug addiction as a mitigating factor under 18 U.S.C. § 3553(a)(1)).

2. Prosecutors, district courts, and sometimes even defense counsel misunderstand Booker to require district courts to impose “reasonable” sentences. As the Supreme Court clarified in Rita v. United States, 127 S.Ct. 2456 (2007), “reasonableness” is a standard of appellate review, not a consideration of the district court. District courts are to select the sentence which is “sufficient, but not greater than necessary” to meet the goals of sentencing as laid out in 18 U.S.C. § 3553(a)(2). The D.C. Circuit recently applied this principle to reject a government argument that it should review an unreasonableness claim for “plain error,” because defense counsel did not object to the reasonableness of the sentence in the district court. United States v. Bras, 483 F.3d 103 (D.C. Cir. 2007). The Sixth Circuit recently applied the principle to vacate a sentence and remand for resentencing where the sentencing judge had improperly applied the presumption of reasonableness. The Court held that when a sentencing court applies the presumption, it necessarily failed to consider the § 3553(a) factors. United States v. Wilms, 493 F.3d 277 (6th Cir. 2007).

3. Whenever the government enters into a plea agreement with a defendant, it must fulfill its promises – even if it promises more than it may have intended. That seems to be the lesson of United States v. McIntosh, 484 F.3d 832 (6th Cir. 2007). In that case, the government appealed a sentence below the normally applicable five-year mandatory minimum, arguing that the district court had no authority to impose such a sentence, since the government’s departure motion was pursuant to 5K1.1, rather than 18 U.S.C. § 3553(e). While a court may not impose a sentence below a mandatory minimum unless it is authorized to under § 3553(e) or the safety valve (id. § 3553(f)), the Court of Appeals rejected the government’s argument, because during the plea colloquy, the district court informed the defendant that under the agreement the Court would have the authority to impose a sentence below the mandatory minimum should the government file a departure motion. Since the prosecutor did not object to the district court’s interpretation of the agreement, the Court of Appeals held that any departure motion it filed was necessarily pursuant to § 3553(e), even if it did not mention that statute in the motion.

4. In theft and fraud cases, the guidelines provide for an upward adjustment for offenses that involve multiple victims. See USSG § 2B1.1(b)(2). Creative thinking by defense counsel about who or what constitutes a “victim” can sometimes make a big difference. In United States v. Icaza, 492 F.3d 967 (8th Cir. 2007), the district court applied a six-level adjustment, because the defendants had stolen $674,634 in merchandise from 407 Walgreens stores. Defense counsel objected, arguing that there was only one victim – the Walgreens Corpo­ration. The Court of Appeals agreed, noting that the evidence demon­strated that none of the 407 stores personally lost any money. All the loss was absorbed by one entity – the Walgreens Corporation. The Court of Appeals rejected the government’s argument that the error was “harmless,” noting that before such an error could have been harmless, the district court would have had to have explained why it would have imposed the same sentence even if the six levels should not be applied. Since no presumption of reasonableness would have applied (since the sentence would not be within the correctly calculated guideline range), the district court would have had to explain why a variance was appro­priate. Since the district court did not, the error was not harmless.

5. USSG § 3B1.3 provides for a two-level upward adjustment for defendants who abuse positions of public or private trust. While posi­tions of trust are generally “characterized by professional or managerial discretion,” Appl. Note 1, the application notes make an exception for employees of the Postal Service who destroy or steal undelivered mail. Appl. Note 2(A). In United States v. Ikechukwu, 492 F.3d 331 (7th Cir. 2007), the district court applied that adjustment to a low-level employee of a courier company who stole checks from misdelivered mail he was to return to the post office. The district court reasoned that the adjustment applied, because in its view, its purpose was to deter mail theft. The Court of Appeals disagreed. The Court of Appeals held that the rationale that all postal employees who handle mail are in positions of public for the exception is not to deter mail theft, but to recognize the fact trust, regardless of whether they exercise any discretion. Because the defen­dant was not a postal employee, the adjustment did not apply. United States v. Ikechukwu, 492 F.3d 331 (7th Cir. 2007).

6. I have often argued that extraordinary post-offense rehabilita­tion supports a sentence well below the bottom of the applicable guideline range. Since one of the purposes of sentencing is to protect the public, once a defendant poses no future threat, a much lower sentence is sufficient to meet the other goals of sentencing. The Eleventh Circuit recently agreed, and denied a government “reasonable­ness” appeal of a sentence less than one third the low end of the guide­line range. The Court started by describing the evidence that supported the lower court’s finding of extraordinary rehabilitation. That evidence included testimony from the defendant’s employer that showed that the defendant’s performance went well beyond the requirements of the conditions of pretrial release. A drug abuse counselor testified that the defendant not only attended drug abuse rehabilitation classes, but also actively assisted other drug abusers rehabilitate themselves, as well. Finally, there was evidence that the defendant did all of this before felony charges were filed, in addition to the originally-filed misdemeanor charges. The Court of Appeals noted that, even though the sentencing court did not discuss every § 3553(a) factor, it had made clear that it was considering the seriousness of the offense in fashioning the sentence. This was enough to withstand the government’s “reasonable­ness” challenge, since, as the Court of Appeals noted, “we have not required district courts to discuss each factor exhaustively.” United States v. Clay, 483 F.3d 739 (11th Cir. 2007).

7. Although it is not done very often, it is possible for defendants to plead guilty to some counts and to take others to trial. One possible downside to this strategy is that if the defendant is convicted on the counts he takes to trial, he risks losing credit under the guidelines for acceptance of responsibility. That is because § 3E1.1 credit is gener­ally applied to the offense level for the case as a whole – not to particular counts. But that is not always the case. When a defendant is convicted of carrying or using a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c), the guidelines do not call for the typical offense level calculation. Instead, § 2K2.4 simply calls for imposition of the five-year minimum sentence required by statute. Because of this anomaly, the Fourth Circuit recently reversed a district court’s denial of § 3E1.1 credit where a defendant pled guilty to drug counts, but went to trial and lost on a § 924(c) count. Because the offense level for the drug counts did not take into account the § 924(c) offense at all, the Court held that the sentencing court should have granted the downward adjustment for acceptance of responsibility. United States v. Hargrove, 478 F.3d 195 (4th Cir. 2007).

8. Since Booker, district courts have had discretion (subject only to review by the Court of Appeals for “reasonableness”) to impose sentences below the bottom of correctly calculated guideline ranges – even where there is no basis for a “departure.” “Variance” is the term many courts now use to describe a below-guideline sentence that would not have been supported by a “departure” under the old system. Unfor­tunately, Courts of Appeals have been quick to find substantial “vari­ances” unreasonable. That’s what makes United States v. Jimenez-Gutierrez, 491 F.3d 923 (8th Cir. 2007), so noteworthy. In that case, the district court calculated a guideline range of 188-235 months, but imposed a 96-month sentence. The lower court justified the variance in several ways. First, it noted that, although the defendant was one of the most culpable of the indicted conspirators, there were undoubtedly unin­dicted co-conspirators who were more culpable – such as the people who manufactured or imported the drugs involved in the case. The sentencing court noted that 60-months of the variance was to differentiate the defendant from these more culpable co-conspirators. The court increased the vari­ance by 20 months based on the Criminal History Category’s overstate­ment of the seriousness of the defendant’s criminal history. The court further increased the variance to account for the defendant’s agreement not to contest “removal” (what used to be called “deportation”) after he completed his sentence. The court also explained why it believed that the resulting sentence met all of the goals of sentencing. Under these circumstances, the Court of Appeals held that while the sentence “test[ed] the limits of [a sentencing court’s] discretion, I do not find that discretion to have been abused.” United States v. Jimenez-Gutierrez, 491 F.3d 923 (8th Cir. 2007).

9. Whenever a court imposes a sentence of imprisonment, it may also impose a term of supervised release. 18 U.S.C. § 3583(a). Sexual offenses involving minors, including possession of child pornography, carry a possibility of supervised release for life. Id. § 3583(k). It is, therefore, especially important in such cases for defense counsel to remember that any special conditions of supervised release not only be “reasonably related” to the factors listed in 18 U.S.C. § 3553(a), but also “involve[] no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D).” Id. §§ 3583(d)(1) and (2). The Third Circuit recently found that a district court abused its discretion in a child pornography case when it imposed conditions of supervised release which barred the defendant from using a computer for any purpose, including work, for life; from possessing any sexually explicit material, including legal adult pornography, for life; and from associating with any child under 18 years of age, including his own children, except in the presence of a responsible adult approved by the probation officer, for life.

The Court held that the computer use and sexually explicit material ban were not reasonably related to any § 3553(a) factor, but left open the possibility of barring association with children, if the district court at resentencing made a finding that the defendant posed a danger to them. But even if the district court made such a finding, the opinion required it to give the probation officer guidance on approving such contacts. United States v. Voelker, 489 F.3d 139 (3d Cir. 2007).[/vc_column_text][/vc_column][/vc_row]

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