§400 Adjustments, Generally (Chapter 3).
4th Circuit holds that defendant has burden to show by a preponderance that he is entitled to a mitigating factor. (400) Pre-guidelines cases indicate that the government bears the burden of proof where the disputed material has the “potential effect of increasing the defendant’s sentence.” However, the Fourth Circuit, in an opinion by Judge Wilkins, the Chairman of the Sentencing Commission, held that where the defendant seeks a decrease in his offense level, he “has the burden of establishing by a preponderance of the evidence the applicability of the mitigating factor in question.” U.S. v. Urrego-Linares, 879 F.2d 1234 (4th Cir. 1989).
6th Circuit applies enhancement where underage girlfriend cleaned dye from stolen money. (400) Two defendants robbed a bank while their girlfriends, one of whom was only 17, waited in the car. Two dye packs hidden in the money exploded in the back seat of the car as defendants made their getaway. The four drove to the home of a cousin, where they attempted to launder the dye-stained currency. The women cleaned up the car, and used air freshener to try to mask the smell left by the dye packs. Section 3B1.4 provides for a two-level enhancement where defendant used a person younger than 18 “to commit the offense or assist in avoiding detection of, or apprehension for, the offense.” Defendants claimed the enhancement was improper since the juvenile testified that she had no knowledge of the robbery until defendants returned to the car. The Sixth Circuit affirmed the enhancement. The PSR recommended the enhancement based on the juvenile’s assistance in bleaching and removing the red stains from the stolen money. Defendants did not object to the court’s acceptance of the probation officer’s recommendation, thereby waiving any challenge they might otherwise have had. Moreover, the enhancement could have been justified because of the girl’s assistance in cleaning up the getaway vehicle. U.S. v. Harris, 165 F.3d 1062 (6th Cir. 1999).
8th Circuit applies rule to lenity to reject enhancement for using minor to commit offense. (400) Defendant was convicted of distributing child pornography based on various pictures he sent via the Internet to a person he believed was a 13-year old girl named Wendy. “Wendy” was in fact not a 13-year old girl, but two different adults working for authorities. Section 3B1.4 provides for a two-level increase for using a minor to commit the crime. The government argued that this provision was applicable because defendant believed that he was transferring child pornography to a 13-year old girl; defendant argued that the section was inapplicable because the person he attempted to use was in fact not less than 18 years old. The Eighth Circuit found § 3D1.4 contained a patent ambiguity, and applying the rule of lenity, resolved in it defendant’s favor. Thus, the district court was correct in finding § 3B1.4 inapplicable. U.S. v. Pharis, 176 F.3d 434 (8th Cir. 1999).
8th Circuit applies enhancement for using a minor in drug offense. (400) The district court applied a § 3B1.4 enhancement for using a minor to commit the current drug offense. The Eighth Circuit affirmed based on testimony that the minor sold crack for defendant, and that he was aware of her age because she had told him about it when he helped secure her release from a juvenile detention facility. U.S. v. Johnson, 169 F.3d 1092 (8th Cir. 1999).
9th Circuit says adjustment can be upheld if one of alternative grounds is proper. (400) The district court justified its sentence alternatively on adjustments to the base offense level and departure from the guideline range. The 9th Circuit held that “where the district court gives alternative grounds for the base level adjustment, its sentence can be affirmed as long as one of the alternatives properly supports the adjustment, without regard to whether the other ground is proper. See, e.g., U.S. v. Hernandez-Valenzuela, 932 F.2d 803 (9th Cir. 1991).” U.S. v. Fontenot, 14 F.3d 1364 (9th Cir. 1994).
9th Circuit reverses obstruction enhancement where conduct may not have been willful. (400) The Sentencing Reform Act does not require a district court to give a statement of reasons for sentencing guideline adjustments. Thus, “[a]lthough the section 3C1.1 enhancement must be premised on willful conduct that has the purpose of obstructing justice, the district court need not specify the reasons for its factual finding of obstruction of justice.” However, in this case, the district judge expressly stated that his finding of obstruction was based on the defendant’s assault on the officer without regard to whether he acted “knowingly or not.” The 9th Circuit held that this conclusion was erroneous and vacated the conviction. U.S. v. Gardner, 988 F.2d 82 (9th Cir. 1993).
11th Circuit finds defendant's claimed motives not relevant for terrorism enhancement. (400) Defendants were convicted of offenses relating to their support for Islamist violence overseas. They challenged the application of the § 3A1.4(a) terrorism enhancement, which applies to felonies that involve, or are intended to promote, a federal crime of terrorism. A federal crime of terrorism must be "calculated to influence or affect the conduct of government by intimidation or coercion …" Defendants argued that their benign motive was to assist oppressed Muslims. The Eleventh Circuit ruled that defendants' conduct met the standard for the terrorism enhancement; their claimed motivation was not relevant. The guideline's precise language focuses on the intended outcome of the defendants' unlawful acts – i.e., what the activity was calculated to accomplish, not what the defendants' claimed motivation behind it was. Here, defendants' supported activities were intended to displace "infidel" governments that opposed radical Islamist goals. They spoke expressly about their desire to impose Sharia, toppling existing governments in the process. U.S. v. Jayyousi, 657 F.3d 1085 (11th Cir. 2011).
Tennessee District Court holds burden of proof for adjustments in offense level rests with defendant. (400) The Western District Court of Tennessee held that when the facts are in dispute, a defendant seeking an adjustment in his base offense level must establish by a preponderance of the evidence that an adjustment is appropriate. If the defendant establishes a prima facie case, the burden then shifts to the government to rebut the evidence. However, if the evidence does not preponderate in favor of either side, the government has the burden of persuasion that adjustment is not appropriate. U.S. v. Lovell, 715 F.Supp. 854 (W.D. Tenn. 1989).
Commission creates Chapter Three adjustment for serious human rights offenses. (400) In the Human Rights Enforcement Act of 2009, Pub. L. 111–122 (Dec. 22, 2009), Congress defined “serious human rights offenses” as “violations of Federal criminal laws relating to genocide, torture, war crimes, and the use or recruitment of child soldiers under sections 1091, 2340, 2340A, 2441, and 2442 of title 18, United States Code.” In response, the Commission established a new Chapter Three adjustment at §3A1.5 if the defendant was convicted of a serious human rights offense. The adjustment generally provides a four-level increase if the defendant was convicted of a serious human rights offense, and a minimum offense level of 37 if death resulted. If the defendant was convicted of an offense under 18 U.S.C. §1091(c) for inciting genocide, however, the adjustment provides a two-level increase in light of the lesser statutory maximum penalty such offenses carry compared to the other offenses covered by this adjustment. Amendment 765, effective Nov. 1, 2012.
Commission adopts guideline for crimes involving the use of body armor. (400) In response to a Congressional directive, the Commission created a new adjustment at § 3B1.5 providing for a two-level adjustment if the defendant was convicted of a crime of violence or a drug trafficking crime and the offense involved the use of body armor, or a four-level adjustment if the defendant used body armor in preparation for, during the commission of, or in an attempt to avoid apprehension for, the offense. An application note makes it clear that the body armor must be actively employed in a manner to protect the person from gun fire or as a means of bartering. Mere possession is insufficient to trigger the adjustment. Amendment 659, effective November 1, 2003.