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Newsletter – Summer 1994 – Issue 4 – Federal Sentencing and Postconviction News

Summer 1994 – Issue 4

Federal Sentencing and Postconviction News


Acceptance of Responsibility
The Second Circuit has reversed the district court’s denial of a downward adjustment for acceptance of responsibility where the defendant refused to assist the government in recovering 31 firearms he admitted selling illegally. Application Note 1(a) to U.S.S.G. §3E1.1 states that a defendant may not be denied the acceptance of responsibility adjustment for failing “to volunteer, or affirmatively admit, relevant conduct beyond the offense of conviction.” Since the defendant’s offenses of conviction did not involve these guns (they involved five guns he illegally sold to a government agent), the Court of Appeals held that he could not be denied acceptance of responsibility credit for this reason. The Court of Appeals also held that denying acceptance of responsibility because a defendant refused to cooperate with respect to uncharged criminal activity would violate Fifth Amendment rights against self—incrimination. U.S. v. Austin, __F.3d__, 1994 WL 45427 (2d Cir. 1994).

A defendant may appeal an upward adjustment under the guidelines, even where the district court also departs downward to a point below what the range would have been had there been no upward adjustment. The exception to this rule is where the district court states on the record that it would have departed no further downward, even if it had not imposed the upward adjustment. U.S. v. Elfant, 999 F.2d 674 (2d Cir. 1993). This analysis is consistent with the rule in most Circuits. See U.S. v. Shaw, 891 F.2d 528, 530 (5th Cir. 1989), U.S. v. Roberson, 872 F.2d 597, 608 (5th Cir.), cert. denied, 493 U.S. 861 (1989).

Breach of Plea Agreement
The government violated its plea agreement when it admitted at sentencing that a defendant’s assistance in a criminal investigation had been “substantial,” but refused to file a §5K1.1 motion since the defendant had not yet testified at upcoming trials. The plea agreement required the government to file a departure motion for substantial assistance in either the investigation “or” prosecution of another person. U.S. v. Dixon, 998 F.2d 228 (4th Cir. 1993).

In U.S. v. Mergerson, 995 F.2d 1285 (5th Cir. 1993), the Court of Appeals held in a drug case that a gun found between the mattress and box springs of the bed shared by the defendant and his girlfriend did not support an enhancement under U.S.S.G. §2D1.1(b)(1), because there was insufficient evidence that the defendant knew of the gun and had access to it. In this case, the defendant’s girlfriend purchased the gun before the defendant moved in with her.

In a case involving a contractor¹s submission of a fraudulent payment and performance bond with his bid to perform work on an Air Force base, the First Circuit determined the “loss” to the government under U.S.S.G. §2F1.1 to be the cost of a valid bond (in that case, $20,200). The Court of Appeals held that this figure is appropriate, because it represents the average cost of failure to perform the contract, adjusted by the average risk for performance failure. In reaching this result, the Court of Appeals rejected the district court’s determination that the “loss” was the difference between the defendant’s and the next lowest bid ($88,477), plus $250 for the administrative costs of awarding the contract to a new bidder. U.S. v. Stern, 13 F.3d 489 (1st Cir. 1994).

Guilty Pleas
Where the defendant has a plea agreement under Fed.R.Crim.P. 11(e)(1)(B), rule 11(e) requires that the judge inform the defendant that the plea cannot be withdrawn if the court does not accept the government’s recommendation. A violation of that rule is not harmless when raised on direct appeal, even though the defendant admits having read the agreement. U.S. v. Kennell, 15 F.3d 134 (9th Cir. 1994).

In U.S. v. Corbitt, 996 F.2d 1132 (11th Cir. 1993), the Eleventh Circuit reversed a conviction and remanded to a different district court judge based on a guilty plea that followed the district court’s comment that he gives defendants fair trials, and, if convicted, fair sentences, although “fairly high.” The court found these comments violated Fed.R.Crim.P. 11(e)(1), which prohibits district courts from participating in plea negotiations.

Increased Mandatory Minimum for Repeat Offenders
In Suveges v. U.S., 7 F.3d 6 (1st Cir. 1993), the court reversed the denial of a 2255 motion and remanded for a further hearing to determine whether the defendant’s attorney was ineffective when the attorney failed to object to and then to appeal the district court’s imposition of an enhanced punishment for repeat offenders under 21 U.S.C. §841(b), even though the government had not filed the notice (called an “information”) required by 21 U.S.C. §851.

In a similar case, the Eighth Circuit took the bolder action of reversing outright the denial of 2255 relief and remanding for imposition of a sentence without the repeat offender enhancement. The court found the error could be remedied by 2255 both because the defendant’s counsel had been ineffective in waiving and then not appealing the enhanced sentence, as well as because “2255 expressly makes relief available if Œthe sentence was in excess of the maximum authorized by law.¹” Neary v. U.S., 998 F.2d 563, 566 (8th Cir. 1993) (emphasis added).

The Ninth Circuit has ruled unconstitutional the provision in 21 U.S.C. §851 barring defendants from challenging the validity of convictions that occurred more than five years before the date the government files the “information,” which triggers enhanced sentences based on prior convictions. U.S. v. Davis, __F.3d__, 1994 WL 59792 (9th Cir. 1994). This result may be affected by Custis v. U.S., cert. granted, 62 U.S.L.W. 3272 (1993) (argued Feb. 28, 1994), now pending and awaiting decision in the Supreme Court on the question whether the defendant may challenge the constitutional validity of priors used to invoke the Armed Career Criminal Act.

Mandatory Minimum Sentences
Amounts of controlled substances under negotiation with a government agent may not be considered in assessing whether a mandatory minimum sentence applies. Only quantities that the defendant actually possessed or conspired to possess with the intent to distribute may be considered. U.S. v. Mergerson, 995 F.2d 1285 (5th Cir. 1993).

Money Laundering
In U.S. v. Garcia—Emmanuel, 14 F.3d 1469 (10th Cir. 1994), the Tenth Circuit held that proof of a defendant¹s use of the proceeds of a crime to purchase cashier¹s checks in his own name and his subsequent use of those checks to purchase land, horses, and vehicles (things of immediate resale value that also provided him with immediate present enjoyment), was insufficient to support a conviction on money laundering counts. Noting that money laundering, not money spending, was the crime, the Court of Appeals held that to sustain a conviction, the government must prove that the transactions in question were designed to create the appearance of legitimate wealth. Since the defendant in this case listed himself as the source of the funds for the cashier’s checks, the evidence in this case was insufficient.

Presentence Investigation Reports
On direct appeal, the Ninth Circuit has held that the fact that, while counsel made legal objections to the PSI, this did not necessarily prove that the attorney had discussed the PSI with the defendant. The court, therefore, remanded the case for resentencing where the district court had not determined, as required by Fed.R.Crim.P. 32(a)(1)(A), that the defendant had read and discussed the PSI with counsel. U.S. v. Sustaita, 1 F.3d 950 (9th Cir. 1993). It is erroneous for a PSI to include information that the government learned through a grant of immunity. Whether the error is prejudicial depends on whether it affects a defendant’s sentence. U.S. v. Abanatha, 999 F.2d 1246 (8th Cir. 1993).

Probation Violations
The Supreme Court has just held in U.S. v. Granderson, __U.S.__, 1994 WL 87454 (1994), that, where probation is revoked because a probationer possessed a controlled substance, 18 U.S.C. §3565(a) requires the district court to impose a sentence of at least one—third the top of the guideline range determined at the original sentencing, rather than one—third of the term of probation, as argued by the government. This decision is good news for defendants, since one third of the top of the guideline range will normally be shorter than one—third the term of probation, and never any longer. U.S.S.G. §5B1.2 (authorizing terms of probation up to five years). Unless there are grounds for departure, a district court is not empowered to impose a term of probation unless the top of the guideline range is 12 months or less (U.S.S.G. §5B1.1(a)). Granderson also continues the Supreme Court¹s recent revival of the “rule of lenity” as a tool for construing federal laws defining crimes and sentences, with ambiguities resolved in favor of the defendant.

Role in Offense
The Second Circuit has held that a steerer or facilitator of drug sales can receive a minor role adjustment under U.S.S.G. §3B1.2. The issue is not whether a defendant played an important role in the offense (such as facilitating drug sales), but, rather, how the defendant¹s culpability compared to that of other participants. U.S. v. LaValley, 999 F.2d 663 (2d Cir. 1993).

The Ninth Circuit has held that a defendant convicted of a “sole participant” offense, such as possession of a controlled substance with intent to distribute, may be eligible for a minor or minimal role adjustment. The issue depends on the presence of other participants in the offense conduct (such as where the defendant was part of an uncharged conspiracy) and the defendant’s culpability, relative to others involved. U.S. v. Demers, 13 F.3d 1381 (9th Cir. 1994).

Supervised Release
The Sixth Circuit has joined all circuits but the Eighth to hold that, while district courts may require defendants who violate terms of supervised release to be reincarcerated for the term of the originally imposed supervised release, 18 U.S.C. §3583(e)(3), they may not impose a new period of supervised release. U.S. v. Truss, 4 F.3d 437 (6th Cir. 1993).


Credit for Time Served
Many practitioners are still unaware that if a federal criminal defendant has been serving a pre—existing valid federal or state sentence, the Bureau of Prisons will generally not credit any of this time towards the new federal sentence. Rather, the inmate’s new federal sentence, if it is concurrent, will begin to run as of the date of the new sentencing. There are exceptions to this rule, but they are highly complex and require a close reading of applicable U.S. Bureau of Prisons regulations on the subject. Similarly, a district court does not have the authority to order credit for time served. U.S. v. Wilson, 503 U.S. ___, 112 S.Ct. 1351 (1992).

On a related matter, the question often arises whether a defendant will be given credit towards time served for time spent in a community correctional center (CCC) or even under home confinement or other restrictive conditions of bond such as “official detention.” In a pre—guideline case, the Ninth Circuit held that halfway house confinement, as a condition of bond, is to be credited. Brown v. Rison, 895 F.2d 533 (9th Cir. 1990). The Bureau of Prisons has interpreted Brown v. Rison to apply to all defendants sentenced “within the Ninth Circuit,” but has refused to apply it to prisoners sentenced outside the circuit who are serving sentences within the jurisdiction of the court. Outside the Ninth Circuit, such credit can only be obtained by winning a habeas corpus lawsuit.

No court has determined that pre—trial release to home confinement, with or without electronic monitoring, constitutes “official detention.” Similarly, no court has concluded that time spent on pre—trial release with restrictive conditions should be credited.

Nonetheless, there is a way for a defendant to receive credit for such time. For example, if a court orders a defendant detained but recommends detention in a halfway house, at home, or in some other less secure environment as a condition of pretrial detention, the Bureau of Prisons has recognized that, since the place of confinement is merely a recommendation and not an order, if the U.S. Marshal Service honors the court’s recommendation, then the defendant will receive credit for this time in “official detention.”

Regardless of the availability of credit for anything other than pre—trial detention in a jail—type facility, however, the court should have the defendant’s custody history available for other possible uses. As the First Circuit noted in United States v. Zackular, 945 F.2d 423 (1st Cir. 1991), the court may consider time spent under restrictive conditions of pre—trial release to determine where, within the appropriate guideline range, to set a defendant’s sentence.


From the Department of Justice
A study commissioned by the Department of Justice provides support for arguments against long sentences for “low—level” drug law violators. The study found that a substantial number of drug offenders currently in federal prisons can be classified as “low—level” and that two—thirds of them have received mandatory minimum sentences (the average length of which is 81.4 months). The report concludes that shorter sentences would be equally effective in deterring such individuals from future criminal behavior.


Time to Appeal When Also Filing for Correction of Sentence
Federal Rule of Criminal Procedure 35(c) permits a sentencing judge, acting within seven days of imposition of sentence, to correct any arithmetic, clerical, or similar technical error in a “new law” sentence. Rule 4(b) of the Federal Rules of Appellate Procedure requires that a notice of appeal be filed within 10 days of the entry of judgment, which is the recording on the docket of the written judgment reflecting the sentence. As of December 1, 1993, the interplay of these two rules has been clarified, eliminating any confusion about when to appeal in cases where the defendant also seeks a correction of sentence. Under Fed.R.App.P. 4(b), as amended, the filing of a motion to correct sentence under Fed.R.Crim.P. 35(c) does not invalidate a notice of appeal already filed, nor does filing a notice of appeal divest the district court of jurisdiction to act on a Rule 35(c) motion. Similarly, a motion under Rule 35(c) is not included in the list of motions that extend the time for filing a notice of appeal; the notice must still be filed within 10 days of the entry of judgment. Readers of this newsletter should note that this amendment overrules the Tenth Circuit precedent (Corey, summarized on page 3 of the April issue), which is now obsolete and must not be relied upon.

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