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Newsletter – Winter 1994 – Issue 6 – The New Crime Bill And Mandatory Minimums

Winter 1994 – Issue 6

Federal Sentencing and Postconviction News

The New Crime Bill And Mandatory Minimums

The Crime Bill which recently passed Congress has a mandatory minimum “safety valve” provision for drug offenders. At first blush, its terms seem very strict. But, in reality, this provision opens the door to many unsentenced drug offenders to receive sentences substantially below the mandatory minimums that their convictions would otherwise demand.

To be eligible for the safety valve provision, a defendant must meet certain criteria:

(1) The defendant cannot have more than one Criminal History point as determined under the Sentencing Guidelines (2) The defendant cannot have used violence or credible threats of violence or possessed a firearm or other dangerous weapon (or induced another participant to do so) in connection with the offense (3) The offense must not have resulted in death or serious bodily injury to any person (4) The defendant must not have been an organizer, leader, manager, or supervisor of others in the offense as determined under the Sentencing Guidelines or guilty of a CCE offense (5) Not later than the time of the sentencing hearing, the defendant must have provided to the Government all information the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information does not preclude a determination by the court that the defendant has complied with this requirement.

The presence of these criteria will be decided by the judge, not the prosecutor. The court may disregard the mandatory minimum without a government motion for substantial assistance. The Government is, of course, entitled to make a recommendation as to what the sentence should be.

Unfortunately, while the safety valve provision was originally intended to be retroactive and this applicable to prisoners currently serving mandatory minimum sentences, this retroactivity provision was deleted by the House in order to gain passage of the bill. Nonetheless, if a defendant through a direct appeal or a 2255 motion is able to be resentenced, the safety valve provision should apply to him or her because it applies on the basis of sentencing date, rather than on the date of commission of the offense, which, of course, would be after the bill becomes law, sometime in September.

Defendants who commit a drug offense that carries a mandatory minimum term but who meet these conditions would be sentenced instead under Sentencing Commission guidelines. However, as in any guideline case where no mandatory minimum applies, the sentencing judge may, under appropriate circumstances, depart downward from the guidelines to whatever sentence he or she chooses. The Commission has been instructed to develop guidelines and policy statements right away to assist judges in following the new provision.

The Crime Bill requires that the guidelines for these cases not be lower than 24 months. I believe, however, that the court has the authority to impose as short a sentence as it wishes, including probation in appropriate cases, when it also uses its departure power.

If you are an attorney representing a defendant subject to the mandatory minimum, please contact me if you wish me to consult with you on this matter at (415) 383-3862, my San Francisco area office. If you are an unsentenced defendant or a defendant who thinks you may have grounds for a resentencing and are represented by counsel, please have your attorney contact me directly. Otherwise, if you are not represented, you may contact me directly yourself. If you are a judge or a U.S. probation officer and wish my views on this subject in expanded form, please do not hesitate to give me a call.


Acceptance of Responsibility
Once a sentencing court grants a two-level downward adjustment for acceptance of responsibility pursuant to §3E1.1(a), it has no discretion to deny an additional level pursuant to 3E1.1(b) if the defendant meets the criteria set by that guideline. United States v. Colussi, 22 F.3d 218 (9th Cir. 1994). Section §3E1.1(b) provides for the additional level where the offense level without any adjustment for acceptance of responsibility is 16 or greater, and where the defendant has assisted authorities in the prosecution of his own misconduct, either by providing timely and complete information concerning his involvement in the offense, or by timely notifying authorities of his intention to plead guilty. In United States v. Kimple,—F.3d—, 1994 WL 278356 (9th Cir., 1994), the Court held that a defendant’s filing pretrial motions prior to pleading guilty did not make his acceptance of responsibility “untimely” for purposes of receiving the additional level reduction where the prosecution had not yet begun any meaningful trial preparation.

The Ninth Circuit has reversed the denial of a 2255 motion based on the sentencing court’s failure to comply with the requirement of Fed.R.Crim.P. 32(a)(2) to inform a defendant who has pled guilty of his right to appeal his sentence. The Court held that the Rule 32 violation required a reversal regardless of whether the defendant knew of his right to appeal. The Court noted that there may be exceptions to this per se reversal rule — such as when a defendant explicitly waives his right to appeal his sentence in a plea agreement. Biro v. United States, 24 F.3d 1140 (9th Cir. 1994).

Downward Departures
Extraordinary family circumstances may sometimes justify a downward departure. Two recent examples are noteworthy. In United States v. Monaco, 23 F.3d 793 (3d Cir. 1994), the Third Circuit upheld a departure based, in part, on mental anguish the defendant experienced when his son was convicted as a codefendant in his fraud scheme. The Eighth Circuit upheld a departure where the defendant’s wife, who suffered from a severe psychiatric disorder, needed him to assist with her treatment. United States v. Haversat, 22 F.3d 790 (8th Cir. 1994).

A downward departure may sometimes be based on a defendant’s “extraordinary level of cooperation,” even when the government has not requested a downward departure pursuant to §5K1.1. In United States v. DeMonte, 25 F.3d 343 (6th Cir. 1994), the defendant fully disclosed his involvement in an unrelated and undiscovered offense. Although this disclosure was technically required by his plea agreement, it supported a downward departure since without the defendant’s cooperation, it was unlikely that the government would have ever discovered the offense. The cooperation was not covered by the acceptance of responsibility adjustment since it was with respect to an unrelated offense.

Last year the Sentencing Commission amended §2D1.1 to add application note 17, which provides that a downward departure may be warranted where, in a reverse sting operation, the government sells drugs at lower than market price, thus inducing the defendant to purchase more, and therefore to drive up his offense level. Downward departures based on “sentencing entrapment” are, however, not limited to this situation. The Ninth Circuit recently noted that a departure may be warranted whenever “outrageous official conduct . . . overcomes the will of an individual predisposed only to dealing in small quantities for the purpose of increasing the amount of drugs and the resulting sentence.” United States v. Davis, 15 F.3d 902, 910 (9th Cir. 1994).

When a sentencing court disagrees with the defense on the proper valuation of loss in fraud or theft cases, counsel should consider requesting a downward departure. In United States v. Stuart, 22 F.3d 76 (3d Cir. 1994), the Court upheld the district court’s determination that the face amount of stolen U.S. savings bonds was the proper measure of the loss for guideline calculation purposes, but noted that the resulting guideline level may overstate the defendant’s criminality. The Court suggested that on remand (for an unrelated reason) defense counsel consider moving for a downward departure on that basis.

In fraud cases, the offense level is driven by the loss to the victims. In United States v. Henderson, 19 F.3d 917 (5th Cir. 1994), the defendant, a bank officer, defrauded his own bank by approving two loans to a friend without disclosing his (the defendant’s) interest in property which was the subject of the loan. The Fifth Circuit rejected the district court’s conclusion that the face value of the loans was the “intended” loss, finding that where a defendant intends to repay a fraudulently obtained loan, the “intended” loss is zero.

Mandatory Minimum Sentences
Minimum sentences mandated by 21 U.S.C. 841(b)(1) only apply to quantities of controlled substances which were manufactured, distributed or possessed with the intend to distribute. Controlled substances held only for personal use are criminalized by 21 U.S.C. 844, and do not trigger mandatory minimums, regardless of the quantity involved. Thus, in United States v. Rodriguez-Sanchez, 23 F.3d 1488 (9th Cir. 1994), the Ninth Circuit reversed the imposition of a mandatory minimum where the district court found the triggering quantity only by adding to the methamphetamine the defendant intended to distribute, an additional amount he held for personal use.

When a defendant at sentencing is serving a prison term on a related charge which is factored as relevant conduct in calculating his guideline range, 5G1.3(b) requires the district court under certain circumstances to calculate the term of imprisonment as if it were imposing sentence for both offenses at the same time, give the defendant credit for the time he has already served on the other offense, and then impose a concurrent sentence for the balance. When a statute mandates that a minimum sentence be imposed, the Eighth Circuit has ruled that the statutory requirement is satisfied so long as the sum of the previously served term of imprisonment and the newly imposed concurrent term of imprisonment equals the mandatory minimum. United States v. Kiefer, 20 F.3d 874 (8th Cir. 1994).

Positions of Trust
A time and attendance clerk with the Federal Trade Commission did not abuse a “position of public or private trust” when she fraudulently obtained credit cards with information to which her position gave her access. In reversing the two level upward adjustment imposed pursuant to 3B1.3, the DC Circuit commented that to apply the enhancement in this case would make the definition “so boundless as to be meaningless.” Application Note 1 to 3B1.3 provides that positions of “public or private trust [are] characterized by professional or managerial discretion.” United States v. Smaw, 22 F.3d 330 (DC Cir. 1994). The Third Circuit recently found the enhancement inappropriate where a defendant used his friendship with a bank manager to defraud the bank. The Court noted that the purpose of the enhancement is to punish insiders who abuse positions of trust — not friends of insiders. United States v. Pardo, 25 F.3d 1187 (3d Cir. 1994). The Seventh Circuit reversed the position of trust enhancement in the case of a car dealer who defrauded his bank. The Court noted that the relationship between the bank and the dealer was simply a “standard commercial agreement,” and thus did not involve a position of trust. United States v. Dorsey, — F.3d —, 1994 WL 265167 (7th Cir. 1994).

Quantity of Controlled Substance
When a defendant negotiates to sell a controlled substance, the guideline offense level is determined by the quantity of drugs he intended to produce — not by the amount under negotiation. The Second Circuit held in United States v. Hendrickson, 26 F.3d 321 (2d Cir. 1994), that this is so despite the contrary suggestion by Application Note 1 to §2D1.4. Although the amount under negotiation is important, it is not determinative. To discern the quantity the defendant intended to produce, the Court must look to whether the defendant had a plan and the means to acquire the negotiated amount. The Court must also look to whether the negotiations were sufficiently specific with respect to price and delivery to show a firm agreement.

When a defendant in a conspiracy to distribute marijuana purchased harvested plants from his supplier, his offense level is set by the weight of the marijuana he conspired to sell — not by the number of plants his supplier grew. The guideline provision, §2D1.1(c) fn*, which equate a marijuana plant with 1 kilogram of marijuana in offenses involving more than 50 marijuana plants, applies only to growing plants — not harvested ones. United States v. Stevens, 25 F.3d 318 (6th Cir. 1994); United States v. Blume, 967 F.2d 45 (2d Cir. 1992); United States v. Osburn, 955 F.2d 1500 (11th Cir. 1992). But see United States v. Haynes, 969 F.2d 569 (7th Cir. 1990) (reaching contrary result).


Changes to the Criminal Rules
In April, the United States Supreme Court sent to Congress proposed amendments to the Federal Rules of Criminal Procedure. The changes will become law on December 1, 1994, unless Congress amends them before then. Most noteworthy are the changes to Rule 32 concerning sentencing. These include: (1) giving defense counsel the right, on request, to be notified of and to be present at the probation officer’s interview of the defendant as part of the preparation of the Presentence Investigation Report; (2) requiring PSIs, in appropriate cases, to provide information on non-prison programs and resources available to the defendant; (3) prohibiting PSIs from including information which might result in harm, physical or otherwise, to the defendant or other persons; (4) setting a timetable for the Probation Office to complete the PSI, for the parties to file objections, and for the PO to submit an addendum summarizing unresolved objections; (5) requiring a written record of the court’s rulings on objections to the PSI to be appended to any copy of the PSI made available to the BOP; and (6) prohibiting the sentencing court from relying on harmful information excluded from the PSI unless it first provides the defense with a written summary of the information and allows the defense to comment on it. In addition, the revised rule establishes a presumption that the probation officer’s sentencing recommendation will be disclosed.

We believe that whenever possible, attorneys should accompany their clients to presentence interviews with probation officers. The Eighth Circuit recently affirmed the denial of acceptance of responsibility credit where counsel was not present at such an interview, based on the client’s statements in the interview. The Court noted that there was no evidence that the defendant had requested his attorney’s presence or that his attorney had been excluded from the interview. United States v. Eagle, 997 F.2d 1234 (8th Cir. 1993).

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