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Newsletter – Spring 1995 – Issue 7 – Avoiding Common Errors That Add Points In Multicount Cases

Spring 1995 – Issue 7

Federal Sentencing and Postconviction News

Avoiding Common Errors That Add Points In Multicount Cases

By Peter Goldberger and Anna M. Durbin

Correct calculation of the federal sentencing guidelines for a multi-count case can be tedious, but failure to proceed carefully can result in costly errors. This issue has come up recently in one case in which I were assisting a defense attorney prior to sentencing, in another where I had the direct appeal, and in a third as a ground for resentencing under 2255.

When multiple counts form a single “group” under the guidelines (Chapter 3D), there is a tendency in preparing Pre-Sentence Investigation Reports (PSIs or PSRs) to assume mistakenly that only a single calculation of offense level is needed for the entire group. In fact, it is often necessary to calculate each count separately. Indulging in the shortcut of doing only one calculation for the group, rather than a separate calculation for each count, can result in an higher level being erroneously assigned to the group. The error involves the somewhat complex interrelationship among various Sentencing Guidelines concepts.

Adjustments under the guidelines must not be applied to the case overall, but rather to particular counts. Under the guideline instructions, most adjustment issues must be assessed with respect to each separate count, before grouping. USSG §1B1.1(c); see also §3D1.3, applic. note 1 (adjustments under Ch. 3, parts A, B, and C apply count-by-count, prior to grouping). See United States v. Eng, 14 F.3d 165, 170-71 (2d Cir. 1994); United States v. Seligsohn, 981 F.2d 1418, 1426 (3d Cir. 1992). This general rule stands in contrast to the adjustment for acceptance of responsibility under USSG §3E1.1, which under USSG §1B1.1(e) is made after grouping.

For example, there may be “vulnerable victims” of one kind of offense in the case (a fraud count, for example), but not of another (such as a money laundering count). Or the defendant may have an “aggravating role” under one count (such as a drug conspiracy), but not another (such as related tax evasion). Each of those adjustments, and most others, must be applied on a count by count basis, unless the conduct involved in one count happens to qualify as “relevant conduct” under §1B1.3(a) in rating the other count. Only in the latter situation will the adjustments for one count carry over to another.

Take the case in which my client was convicted on several counts each of mail fraud and money laundering. Under USSG §3D1.2(c) all counts fell into a single group, because the fraud counted in a specific offense characteristic in the money laundering calculation. The PSI applied four separate two-point enhancements—vulnerable victim, leadership, abuse of trust, and obstruction of justice—to the money laundering counts’ Level 25, thus reaching Level 33 and a guideline range of 135-168 months. None of those adjustments even arguably applied to the facts of the money laundering conduct, only to the underlying fraud scheme, which carried a Level 20 before adjustments.

The PSI had compared 25 with 20, to decide that the money laundering level controlled the group, then added the 8 points from the four adjustments. Instead, the 8 points should have been added to the fraud count level of 20, for a 28. This level would then control the group, because it is higher than the unenhanced Level 25 on the money laundering. Result: a range of 78 to 97 months, some 4-1/2 to 6 years shorter.

Such mistakes are probably quite common and may be costing many defendants unnecessary time in prison. With the help of alert counsel and timely objections, these errors can be pointed out and corrected in most cases. If a defendant has been incorrectly sentenced under this rule, he may appeal, or, if it is too late, file a 2255 motion.


Plea agreements waiving appellate rights are not uncommon, and may be appropriate where the waiver is knowing and intelligent. As an added measure of protection, the Eleventh Circuit has recently refused to enforce such a provision where the judge taking the plea did not personally question the defendant ensure that the waiver was knowing and intelligent. United States v. Bushert, 997 F.2d 1343 (11th Cir. 1993). The law in the Ninth Circuit is, unfortunately, not so enlightened. In a similar case, the Ninth Circuit recently upheld the waiver, and dismissed the appeal. United States v. DeSantiago-Martinez,—F.3d—, 1992 WL 684874 (9th Cir. 1994). Nevertheless, even defendants who have waived their right to appeal, may still find relief through 2255 motions to vacate sentence. United States v. Pruitt, 32 F.3d 431 (9th Cir. 1994) (waiver of appeal does not preclude 2255 motion).

Downward Departures
The Guidelines suggest that a downward departure may be appropriate in a reverse sting where the government sells a controlled substance at substantially below market value (thus increasing the offense level by artificially permitting the defendant to purchase a greater amount of controlled substance). §2D1.1. (App. Note 17). Nevertheless, Courts have been reluctant to find sentencing entrapment on this, or any other, basis. The Ninth Circuit’s recent decision in United States v. Staufer, —F.3d—, 1994 WL 583998 (9th Cir. 1994) is therefore a welcome addition to this body of law. In that case, the defendant succumbed to pressure by an informant to sell twice as much LSD as he had offered to sell—a much larger quantity than he had ever sold before. The Court remanded for the sentencing court to consider a downward departure on this basis.

In fraud cases, the Guideline base offense level is determined by the loss suffered by the victims. In complex business frauds, the measure of that loss is often complicated by losses which are related to the fraud, but which were not caused directly by it.

United States v. Daddona, 34 F.3d 163 (3d Cir. 1994), for example, involved frauds concerning performance bonds. When contractors backed out of the project, the mortgagee took over, and spent $1.5 million to complete the venture. The district court found this to be the loss to the victims—but the Third Circuit reversed. Since the mortgagee was not listed as an obligee under the bonds, the Court found that its loss was not a direct result of the fraud—it would never have been entitled to collect on the bonds. The Court remanded for resentencing.

In United States v. Harper, 32 F.3d 1387 (9th Cir. 1994), the defendant purchased victims’ homes for fair market value, falsely telling them that they would be released from their mortgages (which exceeded the selling price). The defendant then rented out the homes, collecting $160,000 rent. The district court found the loss to be the value of the homes ($6 million) plus the rents collected. The Ninth Circuit reversed. The fraud did not cause the $6 million loss since the homeowners received fair market value. Their only loss was the rents the defendant’s fraud prevented them from receiving.

Ineffective Assistance of Counsel
The right of criminal defendants to attorneys free from conflicts of interest is one of the prime guarantees of the Sixth Amendment. The Ninth Circuit has ruled that that guarantee is threatened when an attorney’s fee is paid by an unknown third party. Given the possibility that the fee could have been paid by an unindicted co-conspirator, the Court in Quintero v. United States, 33 F.3d 1133, (9th Cir. 1994) (per curiam), noted that the attorney’s advice not to accept a plea agreement could have been influenced by a conflict of interest—i.e., a desire to protect the individual paying her fee. The Court reversed the denial of the 2255 motion to vacate sentence and remanded for a hearing.

Outrageous Government Conduct
It is well known that an entrapment defense is available to defendants who, although unpredisposed to commit crimes, are nevertheless pressured into it by government agents or informants. What is less well known is that there are limits beyond which the government may not tread in setting up stings. Outrageous government conduct may result in the dismissal of an indictment—even where a defendant is predisposed to commit the crime. In United States v. Solorio,—F.3d—, 63 USLW 2190, 1994 WL 509047 (9th Cir. 1994), the Ninth Circuit found the fact that the government informant was paid on a contingent-fee basis to be so outrageous as to violate his Due Process rights, and dismissed the indictment .


From the Sentencing Commission
On October 14, 1994, the Sentencing Commission published three amendments. One immediately implements the recent Crime Bill provision which authorizes district courts, to impose sentences below otherwise mandatory minimum sentences for certain non-violent first offenders. I discussed this important develop at length in my last issue.

The second affects the way base offense levels are calculated under the Career Offender guideline ( §4B1.1). Under that guideline, the higher the “Offense Statutory Maximum,” the higher the guideline offense level. The amendment (which is to be applied retroactively) makes it clear that “Offense Statutory Maximum” refers to the maximum sentence without any enhancement for prior offenses. The third amendment makes retroactive an earlier amendment which beginning November 1, 1991, created lower offense levels for crimes involving various precursor chemicals or laboratory equipment possessed or manufactured with intent to manufacture a controlled substance. Prisoners sentenced under earlier versions of these Guidelines should explore whether the now retroactive amendments might make a difference for them. If it would, they should consider filing motions for reduced sentences pursuant to 18 U.S.C. §3582(c)(2).

From the Crime Bill
The recent Crime Bill offers a potential benefit to prisoners who are the primary caretakers of young children. The bill authorizes the Attorney General to select “eligible prisoners” to live in special, separate community correctional facilities with their children under seven years of age. “Eligible prisoners” are primary caretaker parents serving prison terms of less than seven years (or who have not yet been sentenced, but face a maximum term of less than seven years), and have no history of violent behavior or child abuse. Congress has authorized a mere $360,000 to be appropriated annually for the federal end of this program beginning in fiscal year 1996. There is, unfortunately, no guarantee that Congress will actually appropriate any money for this program.

We have learned from a reliable source that in response to the Crime Bill’s provision authorizing a one-year sentence reduction for inmates who complete an intensive drug treatment program, the BOP will be establishing such programs at all institutions that have residential drug treatment program. Prisoners who have a substance abuse problem will be screened, and if verified will be placed on a waiting list based on their release dates. The less time a prisoner has to serve, the more likely he or she will be placed into the program. The program is likely to begin in March.


Departures for Deportable Aliens
Attorneys representing deportable aliens should be consider moving for downward departures where their clients’ status results in harsher punishment. For example, an alien’s deportable status may occasionally preclude him from a lower security prison, or from certain early release programs. See United States v. Smith, 27 F.2d 649 (D.C. Cir. 1994) (holding that such departures may be appropriate, and remanding to the district court for further consideration).

Bail Pending Appeal
The Seventh Circuit is encouraging defendants with “relatively short sentences” either to apply for bail pending appeal or to move to have their appeals handled on an expedited basis. The Court noted that without such extraordinary measures, defendants with light sentences are likely to serve their terms of imprisonment before their appeals are decided. v. Jackson, 32 F.3d 1101 (7th Cir. 1994).

Quantity of Controlled Substance
The Guidelines assign dramatically different base offense levels to the quantity of methamphetamine in a case, depending on whether the substance is “Methamphetamine,” “Methamphetamine (actual),” or “L-Methamphetamine”—with L-meth being treated the most leniently. While several courts have wrestled with the issues resulting from these distinctions, the most recent entry in the fray is perhaps the most thorough and well-reasoned. In United States v. Boguez 1994 WL 715048 (3d Cir., Dec. 28, 1994), The Third Circuit held that “Methamphetamine (actual)” refers to the amount of pure D-meth contained in a mixture (the Court noted that meth is virtually never completely pure). Most important, the Court held that the burden is on the government to prove that quantity. Where there is sufficient evidence to determine the quantity of pure D-meth, the guideline for “Methamphetamine (actual)” is to be used if it is greater than the entire weight of the mixture. The Court also found the district court’s failure to determine whether the mixture in question contained L- or D-meth to be plain error (correctable on appeal even though the issue was not raised at sentencing, and remanded for resentencing. The decision implies that if the government is unable to prove (either through chemical tests or circumstantial means) that the substance contains D-meth, that the defendant must be resentenced based on the more favorable L-meth guideline.

Three Strikes
As everyone is aware by now, Congress recently amended 18 U.S.C. §3559 to provide mandatory life sentences for defendants convicted of serious violent felonies who have two prior convictions for serious violent felonies or one prior conviction for a serious violent felony and one prior conviction for a serious drug offense. Practitioners should be aware that the technical requirements of this law are rigorous and complex. For example, before the mandatory life term applies, the government must file an information pursuant to 21 U.S.C. §851(a). Additionally, crimes a defendant commits prior to being convicted of an earlier qualifying offense do not count towards the three strikes.

The one glimmer of hope in this draconian law is that the crime bill also amended 18 U.S.C. §3582(c)(1)(A) to authorize the Bureau of Prisons to move sentencing courts to reduce terms of imprisonment for defendants who have been sentenced under the three strikes provision of the Crime Bill who are more than 70 years old, have served at least 30 years in prison, and no longer pose a danger to any person or the community. While this provision only applies to individuals sentenced to life terms under the new three strikes law, I am hopeful that this is merely a Congressional oversight which will be corrected to apply to all prisoners serving life terms.

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