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Newsletter – Spring 1995 – Issue 3 – Federal Sentencing and Postconviction News

Spring 1994 – Issue 3

Federal Sentencing and Postconviction News


In bank fraud cases, the “intended loss” is not necessarily the gross amount of the loan. While the Second Circuit has equated “intended” and “probable” loss with the gross amount of the loan that a defendant fraudulently obtained, making intent to repay largely immaterial, other courts, best exemplified by U.S. v. Kopp, 951 F.2d 521 (3rd Cir. 1991) and most recently, U.S. v. Shaw, 3 F.2d 311 (9th Cir. 1993), as well as the Fourth, Tenth, and Eleventh Circuit, have concluded that the amount of the “intended” loss was the amount the defendant subjectively intended for the bank to lose. Where the defendant fully intended to repay the loan, the “loss” is therefore the “actual loss.” If there is no actual loss, then there is no loss for guideline purposes.

Downward Departures
In seeking a downward departure, counsel often focus on the fact that the defendant is an “atypical offender,” oftentimes ignoring the fact that the offense behavior itself may have been “atypical.” In U.S. v. Alba, 933 F.2d 1117 (2nd Cir. 1991) and U.S. v. Restreppo, 936 F.2d 661 (2nd Cir. 1991), the Court of Appeals recognized that the guidelines may very well overstate the seriousness of the defendant’s offense, thus warranting a downward departure.

A federal court of appeals has jurisdiction to entertain the defendant’s claim that, although he was rewarded for cooperation by reduction in sentence under Fed.R.Crim.P 35(b), the reduction was insufficient. U.S. v. McAndrews, ___ F3d ___, WL 502099 (1st Cir. 1993).

In U.S. v. Sclamo, 997 F.2d 970 (1st Cir. 1993), the First Circuit upheld a downward departure based upon the defendant’s family situation. The 12-year-old son of the woman with whom the defendant had been living had suffered various psychological problems as a result of his abusive father. The defendant had developed a warm and trusting relationship with the boy, who now viewed him as his stepfather. The boy’s psychologist believed that this relationship played an important role in the boy’s progress and that removal of the defendant could trigger a major regression.

Concurrent vs. Consecutive Sentence
Guideline §5G1.3, which establishes special rules for the sentencing of persons already serving terms of imprisonment, has been frequently amended. In its current version, §5G1.3(b) states that where the defendant is serving an undischarged federal guidelines sentence, the new sentence should result in a combined term equal to the total punishment that would have been imposed under §5G1.2 (sentencing on multiple counts), had all the sentences been imposed at the same time. In a recent case, the defendant was already serving a ten-year term for threatening the arresting agent and his family, when he came up for sentencing in a drug case. The district judge refused to apply §5G1.3(b) and, instead, imposed a further, consecutive sentence. The Court of Appeals remanded for resentencing, finding §5G1.3(b) to be mandatory and clearly applicable. U.S. v. Tracy, ___ F.3d ___ 1993 WL 535889 (2nd Cir. 1993).

Breach of Pleas Agreement
Where a plea agreement stated that the government would make a §5K1.1 motion if it deemed defendant’s assistance substantial in the investigation or prosecution of another person, it breached the plea agreement by failing to file a §5K1.1 motion where the government admitted, at sentencing, that defendant’s assistance in the investigation of crimes was substantial, but refused to move for a departure until after he testified at trial. U.S. v. Dixon, 998 F.2d 228, (4th Cir. 1993).

In the plea agreement, the government agreed to make defendant’s cooperation known to the court and to recommend “that defendant be sentenced to the minimum period of incarceration required by the sentencing guidelines.” The minimum guideline range was 41 months, but the government refused to make a §5K1.1 substantial assistance motion to enable the court to sentence below the statutory five-year mandatory minimum. The district court found that this breached the plea agreement because the government’s refusal to recommend departure was in bad faith, and it therefore sentenced defendant to 41 months in custody. On appeal, the Ninth Circuit affirmed, holding that any ambiguities in the plea agreement should be construed against the government and that the district court had the power to order specific performance of the plea agreement and to find that the government was in bad faith under Wade v. United States, 112 S.Ct. 1840, 1843 (1982). U.S. v. De la Fuente, 8 F.3d 1333, (9th Cir. 1993).

When a case is remanded for re-sentencing under the Federal Sentencing Guidelines, the proper version of the guidelines to apply is the one in effect on the date of the resentencing. The only exception to this rule is when the application of the current set of guidelines would create an ex post facto clause problem. U.S. v. Fagan, 996 F.2d 1009 (9th Cir. 1993). In a subsequent decision, the Court of App reemphasized this point in vacating a sentence where the district court had clearly erred in denying defendant a two-level reduction for acceptance of responsibility. It held that, on remand, the district court should consider whether the defendant was entitled to an additional one-level reduction under the current version of the guidelines. U.S. v. McKinney, ___ F.3d 1994 WL 20672 (9th Cir. 1994).

Mandatory Minimum Sentences
A district court need not impose a mandatory minimum sentence even though the quantity triggering the mandatory minimum is set forth in the indictment. The sentencing judge has the ultimate responsibility to determine the quantity of drugs attributable to a defendant. U.S. v. Castaneda, 9 F.3d 761, (9th Cir. 1993).

Presentence Investigation Report
The Ninth Circuit has vacated a sentence and remanded for resentencing because the record did not show that the defendant had read the Presentence Report or discussed it with counsel as required by Fed.R.Crim.P. 32(a)(1)(A). U.S. v. Sustaita, 1 F.3d 950, (9th Cir. 1993).

Under Fed.R.Crim.P.32(c)(3)(D), if a defendant challenges the factual accuracy of the presentence report, the district court must either make a finding as to the allegation or state that the controverted matter will not be taken into account at sentencing. Here, the district court made no findings on the defendant’s objections. The Tenth Circuit rejected the government’s claim that the court complied with Rule 32 by stating in the judgment that the court was adopting the factual findings and guidelines application in the presentence report. U.S. v. Roederer, ___ F3d ___ WL 497385 (10th Cir. 1993).

Acceptance of Responsibility
In U.S. v. LaPierre, 998 F.2d 1460, (9th Cir. 1993), the defendant was denied an Acceptance of Responsibility adjustment apparently because he reserved the right to appeal and refused to discuss the facts of his case with the probation officer conducting the Presentence Investigation. The Court of Appeals reversed, holding that the sentencing judge may not discount evidence of contrition merely because of a refusal to discuss the fact of his role in the case with the probation officer.

Career Offenders
In U.S. v. Price, 990 F.2d 1367 (D.C. Cir. 1993), the Court of Appeals held that the statute, on which the Sentencing Commission relied when it promulgated the career offender guidelines, did not permit application of those guidelines to a conspiracy to commit controlled substance offenses.

A timely filed motion to correct a sentence imposed under the guidelines pursuant to Fed.R.Crim.P. 35(c) tolls the time fixed for taking an appeal until the district court disposes of the motion. U.S. v. Corey, 999 F.2d 493 (10th Cir. 1993).


From the Sentencing Commission
The amendments to the Federal Sentencing Guidelines proposed by the U.S. Sentencing Commission this past spring have gone into effect, since Congress took no action on the amendments before the November 1 deadline. Meanwhile, in October, the Commission provided retroactive effect pursuant to U.S.S.G. §1B1.10 for several fo the amendments, which may result in a lower guideline range and, thus, may entitle a defendant to be resentenced under 18 U.S.C . §3582 (c)(2). Among hte retroactive amendments are those affecting LSD, exclusion of unusable materials from the weight calculation of a controlled substance, the new all-inclusive money laundering guideline, and amended U.S.S.G. §2S1.3, which includes Structure Transaction to Evade Reporting Requirements.

From the Federal Bureau of Prisons
A year and a day sentence results in a defendant’s serving significantly less time (approximately 46 days) than a 12-month sentence that carries with it no good conduct time.

In an effort to reduce prison overcrowding, the Office of Enforcement Operations of the Department of Justice and the Bureau of Prisons have launched a “full court press” to expedite the transfer of foreign inmates, who comprise approximately 25% of the federal prison population, to their home countries under prisoner transfer treaties.

From the U.S. Parole Commission
Prisoners serving non-parolable sentences plus consecutive parole-eligible sentences are eligible for parole hearings while they are serving their non-parolable sentences. Additionally, credit is given towards the parole guidelines for any time served on the non-parolable federal sentence if the non-parolable sentence offense behavior is considered in assessing the guidelines. For example, if an inmate is serving a new law non-parolable guideline sentence for distributing a kilogram of cocaine and a consecutive pre-guideline parolable sentence for distributing another kilogram of cocaine, he is eligible for a parole hearing during his non-parolable sentence. Additionally, at his parole hearing, the Commission will hold the inmate accountable for distribution of two kilograms of cocaine, but will give him credit for any time served on the non-parolable guideline sentence.

The Law Offices of Alan Ellis specializing In Federal Sentencing, Appeals, 2255 Habeas Corpus