Articles Posted in Federal Sentencing

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In the first U.S. v. Castro decision the Eleventh Circuit initially held that the defendant in this South Florida criminal case could withdraw his federal criminal plea because the district court violated Rule 11(c)(1) by advising Castro about the penal consequences of rejecting his federal criminal plea agreement. In that decision, the court held that Rule 11 creates a bright-line rule and the district court violated the rule against judicial participation in plea discussions by telling Castro he faced a sentence even more severe if he rejected the plea agreement. The Defendant was allowed to automatically withdraw his federal guilty plea and the case was assigned to a different judge. The court of appeals vacated that decision and granted a rehearing in this second U.S. v. Castro decision, after the Supreme Court’s decision in U.S. v. Davila, which abrogated the rule that a plea will be automatically vacated for judicial participation in the plea discussions. Under Davila, the court must consider the full record and determine whether it was reasonably probable that, but for the single comment of the district court, Castro would have exercised his right to go to trial.

Reviewing this record showed the defendant was indicted on five counts of possessing marijuana and cocaine with intent to distribute and several firearms offenses including carrying a firearm during and in relation to a drug trafficking offense. Castro had hired an attorney and entered a not guilty plea at his arraignment. He later negotiated a plea agreement with the government which was reduced to writing and signed by Castro just minutes before his change of plea hearing. The plea agreement called for Castro to plead guilty to seven of his charges including 3 drug counts and 4 firearm counts. At the change of plea hearing Castro told the district court that he did not want to go forward with the change of plea and was not happy with his defense lawyer and wanted the court to appoint a new attorney to represent him. At the request of the defense counsel, the district court advised Castro of the consequences of reneging on his plea agreement with the government. The district court asked Castro if he understood that the government made certain concessions in the plea offer and if he did not plead the government could charge him with other things that will make the sentence more severe. Afterwards, Castro announced that he would take the plea and he withdrew his request for the appointment of a public defender. After the plea but prior to the sentencing Castro hired a new attorney. He was later sentenced to 156 months.

Davila held that when a defendant does not complain to the district court about its participation in plea discussions, a reviewing court should consider whether it was reasonably probable that but for the exhortations of the district court, the defendant would have exercised his right to go to trial. To make that determination, the court of appeals must evaluate the comments of the district court not in isolation but in light of the full record. The 11th Circuit found that Castro’s decision to plead guilty was not a result of the district court’s comments so much as it was from his desire to shorten the duration of his inevitable sentence for crimes he committed. The court of appeals was not convinced that Castro would have rejected the plea agreement had the district court not advised him of the consequences of reneging on his plea agreement. By pleading guilty, he avoided a second charge of carrying a firearm during a drug trafficking offense for which he faced a mandatory 25 year sentence to run consecutively to his other sentences. For this reason his conviction was affirmed. The issue raised here is a common one seen in federal criminal courts where a defendant tries to withdraw the guilty plea after receiving an unexpected severe sentence.

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In U.S. v. Edwards, the defendant was convicted of wire fraud, mail fraud, and money laundering arising out of an investment scheme in which Edwards promised investors astronomical returns of 75% to 800 %. Edwards claimed to own the First National bank of Georgia and he pitched his investment scheme by packaging it as a special investment scheme reserved for high net worth investors. Edwards told his victims that he could allow multiple small investors to pool their money and access these investments through his banking connections. He guaranteed the high yields were completely risk free because the money was only pledged and would never leave the bank he owned. In reality, the investment proceeds were used by Edwards in this federal white collar crime for extravagant personal expenditures including houses, cars and cruises.

Edwards was convicted following trial. His presentence report recommended restitution of $6,820,620 for victims. On appeal Edwards challenges his restitution order claiming the trial court should have asked the court to consider his dependents and financial condition in determining the amount of restitution. Second, he claimed the court should not have included in the restitution amount restitution to victims whose counts were dismissed at trial, and third the trial court should not have included restitution for losses to a victim for an unrelated real estate investment scheme.

The court of appeals held that the trial court did not err in imposing the full restitution without considering Edward’s financial condition. It held the trial court is prohibited from considering Edwards financial resources when determining the amount of restitution under the Mandatory Victim Restitution Act (MVRA), which expressly requires the court to grant the “full amount of restitution.”

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The defendant in U.S. v. McQueen was a corrections officer at the South Florida Reception Center in Doral, Florida who was convicted of conspiracy to deprive several inmates of their constitutional rights in violation of 18 U.S.C. §241, specifically their right to be free from cruel and unusual punishment. McQueen and another corrections officer, Dawkins, were also convicted of obstruction of justice, in violation of 18 U.S.C. §1519. In a cross appeal, the government challenged the McQueen’s 12 month sentence and Dawkins’ one month sentence.

Defendant McQueen was sergeant and Dawkins was an officer at the jail on February 25, 2009 when a fight broke out between two inmates who were housed in the youthful offender wing of the prison. When McQueen and other corrections officers asked the injured inmate who he fought with, the inmate refused to reveal the other inmate’s name. McQueen then beat the inmate with a broomstick and slammed his head, and by doing so aggravated his wounds. Other inmates were beaten by the officers for not talking, and they forced two inmates to fight with each other. In all, about five inmates were injured from the repeated acts of violence caused by these defendants and other officers. In reporting making his report, McQueen reported that the inmate injured himself while cleaning the shower. Both defendant McQueen and Dawkins were found guilty following trial. Factoring the offense characteristic enhancements, McQueen’s offense level was 34, giving him a range of 151 to 188 months in prison. Dawkins’ range was 15 to 21 months. A third defendant, who was allowed to plead to a misdemeanor, received a 12 month sentence for his conviction. In sentencing McQueen and Dawkins, the trial court found that it could not in good conscience sentence McQueen and Dawkins to far heavier sentences and the court sentenced McQueen to 12 months and sentenced Dawkins to one month imprisonment.

The court of appeals found the district court abused its discretion in imposing substantially unreasonable sentences that varied downward by more than 90% from the bottom of the sentencing guideline range. The district court emphasized only one sentencing factor under 18 U.S.C. § 3553(a) in comparing the codefendant’s sentence. In reviewing the sentence, the court of appeals is not limited to the §3553(a) factors examined by the district court, and the court can find that a sentence may be unreasonable when the sentence is grounded solely only one factor and ignores other relevant factors. The court found the sentencing court “completely failed to reflect the seriousness of the offense, promote respect for the law, and to provide just punishment for the offense.” The court of appeals determined that the conduct of these corrections officers were particularly egregious, especially McQueen who was the sergeant in charge of the youthful offender wing of the prison. The court reviewed in detail the specific acts of violence he carried out and pointed out the statute’s intent was to protect citizens from the abuse of power by those who infringe on rights secured by the Constitution. The sentence also failed to adequately deter criminal conduct, which in this case involves the violent abuse by corrections officers against inmates which may easily go undetected or unpunished.

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In U.S. v Bane, the defendant was convicted of committing federal Medicare fraud and raised three challenges on appeal: 1) his sentencing guidelines calculation, 2) the district court’s calculation of his restitution amount, and 3) the fine. Bane owned companies that provided Medicare patients with durable medical equipment including portable oxygen. Medicare only reimburses the equipment provider if the provider ensures the oxygen is medically necessary and requires that the provider send the patients to an independent laboratory for a “pulse oximetry” test, a non-evasive means of testing oxygen levels in blood. Instead of referring the patients to an independent lab, the defendant had the testing done at his own lab and directed employees to falsely represent they used independent labs and billed as if independent labs performed the exams.

The district court calculated the guidelines loss amount based on the amount of money the defendant billed Medicare for the oxygen equipment, which gave the defendant a 20-level increase because the amount billed exceeded $ 7 million. But the district court found that the oxygen was medically necessary for 80-90% of the patients, and the defendant argued that the dollar amount should be reduced accordingly. The court of appeals disagreed. Applying the special rule in guidelines Application Note 3(F)(v)(III), which states that “in a case involving a scheme in which…goods for which regulatory approval by a government agency was required but not obtained…loss shall include the amount paid for the property, services, or goods transferred…with no credit provided for the value of those items or services,” the majority held that the defendant should not receive credit for the value of oxygen given to patients even if the oxygen was medically necessary.

The court found the sophisticated enhancement was correctly imposed. The court rejected the defendant’s argument that his offense was not sophisticated because it involved a simple misstatement that an independent lab conducted the pulse oximetry test in order to qualify for Medicare reimbursement. The court found the offense met the guidelines commentary the defined sophisticated as “especially complex or especially intricate conduct pertaining to the execution or concealment of an offense.” The defendant created multiple corporations that appeared to be independent labs, created a paper trail to mask the fraud, and involved repetitive conduct designed to execute the fraud and evade detection.

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In U.S. v. Philador the two defendants pled guilty to conspiracy to steal government funds in violation of 18 U.S.C. §371 and to the charge of theft of government funds in violation of 18 U.S.C. §641. Their offenses involved a scheme to submit fraudulent tax returns to the Internal Revenue Service using stolen social security numbers. They then received refund checks from the government and deposited the funds into various corporate accounts of companies they controlled. The presentence investigation report recommended a six-level enhancement to their offense level pursuant to guidelines section §2B1.1(b)(2)(c) because it claimed the offense involved 250 or more victims. Only twenty-six of the taxpayer victims had been positively identified by the government. The defendants objected to the enhancement, and while they conceded there were more than 250 social security numbers used to file over 250 fraudulent tax returns, the defendants argued that the government failed to meet its burden because the government failed to show by a preponderance of the evidence that 250 of the social security numbers were authentic and belonged to living people.

In rejecting the defendant’s argument, the 11th Circuit found the district court did not err in finding there 250 victims. There was no dispute that over 250 social security numbers were used to cause the Internal Revenue Service to issue fraudulently submitted returns. Because the Internal Revenue Service issued refunds for tax returns associated with those numbers, the district court made the “legitimate” inference that social security numbers corresponded to actual persons. The 11th Circuit has stated in prior cases that it is not necessary for the government to show that in the context of a government issued identification the government verifies an individual’s identity before it issues a driver’s license or a passport. It is reasonable to conclude that the government routinely obtains an applicant’s identity to verify the authenticity of that identity. Here the district court could infer, based on common sense and ordinary human experience that the Internal Revenue Service verifies identifying information, like social security number, before issuing a tax refund. The fact that the Internal Revenue Service paid the refund to the defendants indicates that the social security number used to procure the refunds are associated with real people and the district court’s conclusion was not erroneous.

Additionally, the district court did not err in applying the six-level enhancement without first finding the victims were living. A victim in this context under the sentencing guidelines a victim is a person whose means of identification was used unlawfully. A means of identification is limited to an actual, and not fictitious, individual. The 11th Circuit found the plain meaning of the phrase “actual” does not distinguish between living and deceased persons. Therefore it was not necessary for the district court to make this finding.

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In U.S. v. Whatley, the defendant was charged with four armed bank robberies that took place from 2003 through 2006. He was arrested following an aborted robbery attempt in 2007, to which he pled guilty. At his federal criminal trial on the earlier four bank robberies, the government called 14 different bank employees as witnesses who identified Whatley. The defendant challenged the admission of the in-court identifications by the 14 bank employees claiming a violation of the Due Process Clause. Whatley relied on 11th Circuit precedent which held that the admission of an in-court identification may violate a defendant’s federal right to due process if the identification procedure is so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. (Code v. Montgomery) Whatley argued the in-court identification was unnecessarily suggestive because he was the only African American in the courtroom other than courtroom personnel, he had never been identified in a line-up or photo array before trial, and he was first seen by the witnesses during their testimony.

The panel held that in Perry v. New Hampshire the Supreme Court abrogated the 11th Circuit’s in-court identification precedent. Perry held that the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not arranged by law enforcement officers. Perry rejected the argument that due process requires judicial prescreening of all identifications obtained under suggestive circumstances. Because the identification was not the result of improper police conduct, there was no due process violation. The 11th Circuit ruled that the defendant’s right to due process was protected byt the right to confront all eyewitnesses who identified him in court, the right to offer impeachment evidence, and the limiting instructions given by the district court given before each in-court identification.

Prior attempted bank robbery was admissible

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In U.S. v. Hamilton, the defendant appeal the denial of his motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2), which authorizes a court to modify or reduce a sentence for an amendment to the guideline range. The defendant pled guilty to drug offenses including conspiracy to possess and distribute 50 grams or more of cocaine base (crack cocaine). The defendant’s presentence investigation report (PSR) stated that the defendants in the conspiracy received at least one kilogram of powder cocaine that was cooked into crack cocaine. He was assigned a base offense level of 38 based on the drug offense involving at least 1.5 kilograms of crack cocaine. The defendant objected to this base offense recommendations by the PSR. In response to the defendant’s objections, the PSR said that at least two weeks of activities by the conspiracy would have been sufficient to make at least 1.5 kilograms of crack cocaine. The addendum implicitly used the conversion rate of 75% of powder cocaine to powder. At sentencing the district court adopted the addendum’s calculation that the defendants received on kilogram of powder per week and operated for at least 2 months.

The defendant filed a motion for sentence reduction pursuant to 3582(c)(2) in light of amendment 750 to the guidelines which raised to 8.4 kilograms the minimum amount of crack cocaine necessary to establish a base offense level of 38. In response to the motion to reduce, the probation officer found the defendant was responsible for 12 kilograms of crack cocaine and fell under the offense level of 38. The defendant’s response was that at sentencing the district court initially only found him responsible for at least 1.5 kilograms of cocaine.

The 11th Circuit held that the district court may reduce a defendant’s sentence based on a subsequently enacted amendment if the sentencing Guidelines make the amendment retroactively applicable. In determining the amended guideline range, the district court may not reconsider any guideline application decisions and must leave all previous factual decisions intact. The district court is limited to considering the sentence that it would have imposed had the amendment been in effect at the time of the original sentencing and must leave all its previous factual decisions intact.

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In U.S. v Washington the defendant pleaded guilty to conspiracy to traffic in unauthorized credit cards and using and trafficking in unauthorized credit card numbers in violation of 18 U.S.C. § 1029. The presentence investigation report recommended an enhancement under sentencing guidelines § 2B1.1(b)(2)(C) because the number of victims exceeded 250, the threshold number for a 6-level enhancement. Washington disputed the number of victims and requested that the government identify the victims by name. The defendant noted the government only identified 70 banks and financial institutions and requested hard evidence of the 250 or more victims. He also disputed the length of time he was involved in the conspiracy.

At the sentencing hearing, the government did not present any evidence identifying 250 or more victim and only argued that there were thousands of individuals who had their credit cards stolen. The district court ruled for the enhancement noting that it previously applied the enhanced the codefendants’ sentences.

The 11th Circuit held that the government has the burden of introducing sufficient and reliable evidence to prove the necessary facts by a preponderance of the evidence. The government did not meet its burden because it did not introduce any evidence to support the enhancement. While the government told the sentencing court there were over 250 individuals who have been victims of stolen credit card information and other related account information during the time the defendant was involved in the scheme, the representation was insufficient. Absent a stipulation by the parties, an attorney’s factual assertions at a sentencing hearing do not constitute evidence that the district court can rely upon in the face of challenged conclusions of the presentence investigation report. Even though the district court had applied the enhancement to the coconspirators, those findings could not serve as a basis for applying the enhancement to the defendant because the defendant objected. The defendant should have been given an opportunity to rebut the evidence or to generally cast doubt on its reliability. Furthermore, the defendant was not a participant of the conspiracy during the entire duration and without the information about the identities of the victims and the dates of the theft of their credit card information, the government failed to meet its burden of showing that the fraud scheme involved more than 250 victims during the time of the defendant’s involvement.

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In U.S. v. Diaz Calderone, the defendant was convicted and sentenced for the federal crime of being found in the United States after having been deported. The issue here is whether a prior Florida aggravated battery conviction should be classified as a “crime of violence” under the sentencing guidelines to warrant a sentence enhancement. The 11th Circuit found it was, and in this appeal the defendant challenged the district court’s application of the “modified categorical” approach in determining that Diaz Calderone’s prior was a crime of violence.

The defendant’s aggravated battery conviction, he was specifically charged with the battery on a pregnant victim whom the perpetrator knew or should have known was pregnant. Under the Florida statute for battery, an aggravated battery upon a pregnant woman need not be violent and can be committed merely by intentional touching the pregnant victim against her will by committing a simple battery. Simple battery occurs when a person intentionally touches or strikes another person against their will, or intentionally causes bodily harm to another person. Therefore under Florida law, aggravated battery upon a pregnant woman can be accomplished by: 1) intentional touching, including slight contact; 2) striking; or 3) intentionally causing bodily harm. The 11th Circuit determined that a conviction for aggravated battery on a pregnant woman is not a categorical crime of violence because the slightest contact could be an aggravated felony under the Florida statute but not a crime of violence under the federal sentencing guidelines for sentencing guidelines purposes. The district court correctly applied the modified categorical approach.

The charges and conviction did not establish what Diaz-Calderone did because he pleaded nolo contendere to an information which charged him in the disjunctive with intentionally touching or striking the victim against the person’s will or intentionally causing bodily harm to the victim. Standing alone the charges are consistent with either mere touching, which would not be a crime of violence, or with causing bodily harm, which would be a crime of violence.

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In U.S. v. Hall, the defendant pled guilty to the charge of possession of a handgun by a convicted felon. The district court enhanced his sentence after the court determined that a prior felony conviction for possession of an unregistered shotgun qualified as a crime of violence under the sentencing guidelines. The guidelines require an enhancement for a defendant who commits any part of the offense subsequent to sustaining one felony conviction of a crime of violence. The guidelines commentary states that the unlawful possession a firearm, such as a sawed off shotgun as described in Title 26 U.S.C. § 5845, is a crime of violence and inherently dangerous when possessed unlawfully.

Citing the Supreme Court’s decision in Stinson v United States, the 11th Circuit affirmed that a commentary in the sentencing guidelines manual which interprets or explains a guideline is authoritative, unless it violates the constitution, a federal statute, or is inconsistent with or a plainly erroneous reading of that guideline.

The sentencing guidelines defines a crime of violence as follows: an offense that has as an element the use, threatened use, or attempted use of violence or physical force; a burglary of a dwelling, arson, or extortion, involves the use of explosives; or otherwise involves conduct that presents a serious risk of physical injury to another. The court in recent precedent has elaborated on this “crime of violence” definition. An offence can be a crime of violence if it fits into one of three categories. The first is referred to the elements clause crimes, the second category includes the enumerated crimes of burlary of a dwelling, arson, etc. The third category is the “residual clause”, included those crimes that “otherwise involve conduct that presents a serious potential risk of physical injury to another.”

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