§550 Determining the Sentence (Chapter 5)
(for "Safety Valve" see §246)
5th Circuit upholds 20-year statutory maximum for § 1349 fraud and § 1512(c)(1) obstruction of justice. (218)(550) Defendant was convicted of wire and mail fraud conspiracy, 18 U.S.C. § 1349, and obstruction of justice, 18 U.S.C. § 1512(c)(1). Each statute expressly provides that the maximum sentence is 20 years. Nonetheless, defendant argued that the maximum sentence for each was 12 years based on 18 U.S.C. §§ 3559(a) and 3581. Section 3559(a) says an offense not specifically classified by a letter grade is a Class C felony, with a maximum sentence under § 3581 of "not more than twelve years." Neither of defendant's statutes had a letter grade. The Fifth Circuit rejected defendant's argument, holding that the statutory maximum for each conviction was 20 years, because § 3559(b) provides that an offense assigned a letter grade "carries all the incidents assigned to the applicable letter designation, except that the maximum term of imprisonment is the term authorized by the law describing the offense." Moreover, § 3551 says that the provisions in chapter 227, which include § 3581, do not apply when "otherwise specifically provided." Thus, the statutory maximum sentences applied notwithstanding any arguable conflict with § 3581. U.S. v. Simpson, __ F.3d __ (5th Cir. Aug. 12, 2015) No. 14-10932.
Supreme Court says sentence may not be lengthened to foster rehabilitation. (550) At defendant's sentencing for smuggling illegal aliens into the U.S., the district court determined that she had a sentencing range of 41 to 51 months under the Guidelines. The district court imposed a sentence of 51 months because that sentence was long enough to allow defendant to take advantage of the Bureau of Prison's 500-hour Residential Drug Abuse Program (RDAP). On appeal and in the Supreme Court, defendant argued that the court could not lengthen her sentence in order to allow her to participate in RDAP because 18 U.S.C. § 3582(a) provides that a court may not use imprisonment to promote correction and rehabilitation. The Supreme Court held that § 3582(a) does not permit a sentencing court to impose or lengthen a prison term in order to foster a defendant's rehabilitation. Tapia v. U.S., 564 U.S. __, 131 S.Ct. 2382 (2011).
1st Circuit finds court did not impose prohibited suspended sentence. (550) Defendant was convicted twice, in two separate prosecutions, of drug trafficking. He was sentenced to 121 month for the first offense. In order to credit defendant for time already served, the second sentence was deemed to have run concurrently with the first sentence from the date of defendant's incarceration until the date of the second sentencing, about 11 months. The remainder of the second sentence was to run consecutively to the first sentence. The second sentence therefore would start, run for around 11 months concurrently with the first, and then stop for a little more than nine years, only to start again when the first sentence was finished. Defendant argued that the second sentence constituted a “suspended sentence,” expressly forbidden by 21 U.S.C. § 841(b)(1)(A). The First Circuit rejected the argument, holding that a suspended sentence is a definite sentence postponed so that the defendant is not required to serve his time in prison unless he commits another crime or violates a court-imposed condition. Here, defendant would never be out of custody. U.S. v. Jaca-Nazario, 521 F.3d 50 (1st Cir. 2008).
1st Circuit holds that court erred in failing to impose at least five months’ imprisonment. (550) The district court sentenced defendant to five months’ imprisonment but substituted home confinement in lieu of incarceration for that term. The court also imposed three years of supervised release, five months of which were to be served in accordance with the Home Confinement Program. The government argued that the court failed to comply with U.S.S.G. § 5C1.1, which requires that at least one-half of the minimum term of imprisonment (here, 10 months) be satisfied by imprisonment rather than home detention. Defendant argued that the appellate court lacked jurisdiction to consider this issue because the district court did not issue a final order, but simply gave to the Bureau of Prisons a non-binding and non-reviewable “recommendation” that his five months’ imprisonment be served at home. The First Circuit held that the district court issued a final reviewable order. Rather than a recommendation, the district court imposed a sentence of five months of home detention in lieu of imprisonment followed by three years of supervised release, five months of which were also to be served in home detention. This sentence was in error. Because defendant’s sentence was within Zone C, U.S.S.G. § 5C1.1(d) was applicable. Defendant’s sentence had to include at least five months of imprisonment in order to satisfy § 5C1.1(d). U.S. v. Cintron-Fernandez, 356 F.3d 340 (1st Cir. 2004).
1st Circuit says “safety valve” requires giving information to prosecution, not probation office. (550) Defendant argued that his disclosures to the probation office satisfied the requirement of providing information to the “Government” under the “safety valve” provision, § 5C1.2(5) and 18 U.S.C. § 3553(f)(5). The First Circuit held that the “Government” in § 5C1.2(5) and § 3553(f)(5) refers to the prosecuting authority rather than the probation office. Section 5C1.2 is properly understood in conjunction with § 5K1.1, which authorizes downward departures upon the government’s motion. Section 5K1.1’s reference to the government clearly refers to the prosecution, and contemplates the defendant’s providing information useful in criminal prosecutions. The legislative history reinforces the notion that the safety valve requires disclosure of information that would aid prosecutors’ investigative work. U.S. v. Martinez, 83 F.3d 488 (1st Cir. 1996).
1st Circuit rules debriefing desirable but not necessary for safety valve protection. (550) Defendant claimed he provided sufficient information for safety valve protection under 18 U.S.C. § 3553(f) and guideline § 5C1.2 by giving the government an eight‑page letter with information about the crimes charged. The government argued that the letter was insufficient and that safety valve protection requires a debriefing. The First Circuit held that although a debriefing might be desirable, it is not necessary. A defendant must persuade the district court that he has truthfully provided the required information and evidence to the government. A defendant who contents himself with a letter runs the risk that the government will point out omissions at sentencing. Nonetheless, the possibility remains that he could make a full disclosure without a debriefing. Here, defendant failed to provide full disclosure. The letter was drawn almost verbatim from an affidavit filed by a federal agent early in the case, and did not identify defendant’s drug suppliers. U.S. v. Montanez, 82 F.3d 520 (1st Cir. 1996).
1st Circuit refuses to apply “safety valve” amendment retroactively. (550) Defendant pled guilty to drug charges. Since he met all the criteria for the “safety valve” in 18 U.S.C. § 3553(f) and guideline § 5C1.2, the court sentenced him below the applicable mandatory minimum on July 11, 1995. However, defendant sought an additional two levels off, based on an amendment to § 2D1.1(b) that became effective November 1, 1995, after defendant was sentenced. The First Circuit refused to apply the new “two-level” safety valve amendment retroactively because the Sentencing Commission did not list it § 1B1.10 for retroactive application. Although clarifying amendments can be applied retroactively, this was a substantive amendment. U.S. v. Sanchez, 81 F.3d 9 (1st Cir. 1996).
1st Circuit says unwittingly being recorded by government does not satisfy “safety valve’s” information requirement. (550) Under the so-called “safety valve,” defendants can escape the application of a mandatory minimum sentence if they meet certain requirements, including the requirement to truthfully provide to the government all information and evidence they have concerning their offense. Defendant argued that he “provided” such information by unwittingly being record by an undercover agent while discussing his drug distribution plans. The First Circuit held that a defendant has not “provided” information if the sole manner in which the claimed disclosure occurred was through conversations conducted in furtherance of the defendant’s criminal conduct. Congress did not intend the “topsy-turvy” result suggested by defendant. Moreover, defendant did not provide the government with all of the information and evidence he had concerning his offense. For example, in his taped conversations he claimed to have numbers of reliable customers to whom he supplied cocaine, but he did not supply any names to the government. U.S. v. Wrenn, 66 F.3d 1 (1st Cir. 1995).
2nd Circuit finds court mistakenly believed statute required at least one month’s imprisonment. (550) The district judge imposed a sentence of one month of imprisonment, and three years of supervised release, the first five months of which were to be served in home detention. The judge said that he was “constrained by … the statute … [to] sentence defendant to at least one month in custody.” The judge added, “[I]f permitted by law, I would give him six months’ home detention.” The Second Circuit remanded because the judge misunderstood its ability to depart downward to impose a sentence of home detention. Neither the statute of conviction, 18 U.S.C. § 1344, nor the “B-Felony rule,” 18 U.S.C. § 3561, required that the judge to send defendant to prison at all. The only imprisonment requirement was in USSG § 5C1.1(c), which requires a sentence that includes at least one months’ imprisonment for defendants whose total offense level places them in Zone B and who are ineligible for probation. This “constraint” is imposed by the guidelines, not by statute. A court is free to depart from the guidelines requirements if it finds an aggravating or mitigating circumstances of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission. U.S. v. Lahey, 186 F.3d 272 (2d Cir. 1999).
2nd Circuit upholds court’s authority to severely limit defendant’s contact with outside world. (550) Defendant was the leader of a gang of prison inmates and former inmates who engaged in violence, armed robbery, drug trafficking and murder. He directed the gangs’ activities from his jail cell by corresponding with, and receiving visits from various members of the gang. He was convicted of racketeering and murder. In sentencing him to life imprisonment, the district court imposed “special conditions of confinement” that included no contact with other prisoners or any member of the gang, no correspondence to or visits from anyone except his attorney and close family members approved by the court, and no telephone contact with anyone other than his attorney. The Second Circuit held that the sentencing court had the authority to order these special conditions of confinement under 18 U.S.C. § 3582(d). The restrictions did not violate defendant’s constitutional rights because they were reasonably related to the government’s legitimate interest in stopping defendant’s criminal activity. The severity was necessary to ensure the safety of defendant’s potential targets. There were no other readily available alternative means of protecting people from defendant. U.S. v. Felipe, 148 F.3d 101 (2d Cir. 1998).
2nd Circuit says “safety valve” does not apply if there is no mandatory minimum. (550) Defendant contended he was entitled to a sentence reduction under the “safety valve,” 18 U.S.C. § 3553(f), which exempts certain defendants from otherwise applicable statutory minimum sentences. The Second Circuit held that § 3553(f) was not applicable since defendant was not subject to a mandatory minimum. Defendant’s claim that § 3553(f) is limited to conspiratorial conduct for which he could be held accountable was frivolous. There is no disparity resulting from the operation of § 3553(f) for defendants whose offenses involve different quantities of drugs. The statute does not authorize the court to sentence a defendant meeting its criteria to a sentence below the guidelines range. t authorize the court to sentence a defendant meeting its criteria to a sentence below the guidelines range. U.S. v. Thompson, 76 F.3d 442 (2d Cir. 1996).
2nd Circuit says criminal history departure did not make defendant eligible for “safety valve.” (550) Defendant had four criminal history points. The district court found that this overstated his criminal history, and departed downward from category III to I. Category I is reserved for defendants who have zero or one criminal history points. To be eligible for protection from a mandatory minimum under the so-called safety valve” of 18 U.S.C. § 3553(f), a defendant may not have more than one criminal history point. The Second Circuit ruled that defendant had too many criminal history points to qualify under § 3553(f). Although the judge elected to place defendant in category I rather than III, he nonetheless had four criminal history points and was ineligible for the safety valve provision. U.S. v. Resto, 74 F.3d 22 (2d Cir. 1996).
2nd Circuit holds “safety valve” does not permit departure from guidelines. (550) Defendant argued that she deserved a downward departure from the guidelines sentencing range under the “safety valve” provision, 18 U.S.C. § 3553(f), and guideline § 5C1.2. The Second Circuit held that the statute is limited to departures from statutory minimum sentences, and does not authorize downward departures from the guidelines. In fact, the statute directs that where a defendant meets the listed criteria, the sentencing court should impose a sentence pursuant to the guidelines. [Ed. note: Effective November 1, 1995, the Commission amended § 2D1.1(b) to provide a two level decrease for defendants who qualify for the safety valve, if the base offense level is 26 or greater.] U.S. v. Dia, 69 F.3d 291 (9th Cir. 1995).
2nd Circuit says court cannot substitute community confinement for imprisonment. (550) Defendant fell within Zone C of the Sentencing Table with a sentencing range of 10-16 months. Section 5C2.1(d) provides that a sentence for a Zone C defendant can include a term of supervised release on condition of community confinement, if at least half the minimum term is satisfied by imprisonment. The district court sentenced defendant to six months’ community confinement and six months’ supervised release. The Second Circuit held that this was not permitted. Section 5C2.1(d) only permits the term of supervised release, but not the term of imprisonment, to be conditioned on a period of community confinement. However, defendant’s sentence was valid as a downward departure. The district court expressed its intent to depart under either § 5H1.6 (extraordinary family circumstances) or § 5K2.0. The record showed unusual family circumstances and a record of community service. The government did not challenge the grounds for departure. U.S. v. Adler, 52 F.3d 20 (2d Cir. 1995).
2nd Circuit rejects sentence suspended on condition defendant not reenter the country illegally. (550) Defendant was convicted of illegally reentering the country following his deportation as an aggravated felon. The district court imposed a 15-year prison sentence, the execution of which was suspended on condition that defendant not reenter the country illegally. The 2nd Circuit held that the district court exceeded its authority by indefinitely suspending defendant’s prison sentence. Under the sentencing guidelines, suspended sentences are no longer permitted. U.S. v. Polanco, 29 F.3d 35 (2nd Cir. 1994).
2nd Circuit holds downward adjustments are made from highest offense level, not from highest level on sentencing table. (550) Defendant had a base offense level of 42. He received a three level upward adjustment, and a two level reduction for acceptance of responsibility, for an adjusted offense level of 43. This is the highest offense level in the Sentencing Table in Chapter 5, Part A of the guidelines. Application note 2 to the Sentencing Table requires an offense level of more than 43 to be treated as level 43. Defendant argued that the district court erred in adding a three level upward adjustment since that brought his offense level to 45, two levels above the maximum offense level, and rendered his two level downward adjustment valueless. The 2nd Circuit rejected this. Downward adjustments must be made from the total of the base offense level plus upward adjustments, even if that total exceeds 43. U.S. v. Caceda, 990 F.2d 707 (2nd Cir. 1993).
2nd Circuit remands for clarification as to whether same sentence would have been imposed for overlapping ranges. (550) Defendant argued that guideline section 4A1.2(c)(1) should be interpreted to exclude from the criminal history calculation a nonfelony offense for which an indefinite term of probation was imposed. The 2nd Circuit declined to rule on the issue because even if he prevailed, his guideline range would overlap the same sentence he received. The court remanded the case to the trial court to determine whether the same sentence would have been imposed in any case. “[S]ince resolution of the instant controversy may not affect [defendant’s] sentence, we decline to render a potentially advisory opinion broadening or narrowing the scope of § 4A1.2(c)(1).” U.S. v. Rich, 900 F.2d 582 (2nd Cir. 1990).
3rd Circuit refuses to reverse erroneous recommendation as to place of imprisonment. (550) The government argued that the district court erred in recommending to the Bureau of Prisons that the imprisonment portion of defendant’s service be served in the Catholic Social Services of Lackawanna County. The Third Circuit agreed that a community confinement sentence would violate the guidelines. See § 5C1.1(d) (if guideline range is in Zone C, a least one-half of minimum term must be satisfied by imprisonment). Under § 5C1.1, community confinement cannot constitute imprisonment for purposes of fulfilling the requirement that one-half of a split sentence be satisfied by imprisonment. Therefore, if the district court had ordered this confinement as satisfying the requirement for imprisonment, it would clearly be reversible error. However, the panel found it unnecessary to reverse a sentencing order that included a recommendation to that effect. The district court recognized that the final decision as to the location of the imprisonment belonged to the Bureau of Prisons’. That recommendation did not amount to the imposition of a community confinement sentence. The sentence the district court imposed, namely five months’ imprisonment, was appropriate and should be affirmed. That part of the order that contained a recommended place of imprisonment, was either beyond the appellate court’s jurisdiction, or, if reviewable, a nullity. U.S. v. Serafini, 233 F.3d 758 (3d Cir. 2000).
4th Circuit says prohibiting defendant from active cooperation with police was abuse of discretion. (550) Defendant pled guilty to possessing child pornography. As a condition of his release pending sentencing, the district court ordered defendant to cease his active cooperation in the police’s undercover investigation. As a result, defendant was unable to assist the government or qualify for a § 5K1.1 departure. The Fourth Circuit held that the prohibition on cooperation with police as a condition of release was an abuse of discretion. Such a prohibition might, in extraordinary circumstances, be appropriate to assure a defendant’s appearance or to protect the public, but there was no genuine argument that the condition was necessary here. The court felt that the prohibition would benefit the rehabilitation of defendant; however, that factor that is not specified in § 3142(c)(1)(B). Further, the court improperly frustrated defendant’s desire to cooperate in order to qualify for a more favorable sentencing treatment, and the government’s hope that he would aid in their investigative efforts. The Sentencing Commission did not consider the possibility that a court might prohibit a defendant from cooperating, and therefore this might be a proper ground for a downward departure. U.S. v. Goossens, 84 F.3d 697 (4th Cir. 1996).
3rd Circuit holds “safety valve” does not apply to “schoolyard” statute. (550) Defendant pled guilty to several drug charges, including distributing methamphetamine within 1000 feet of a school in violation of 21 U.S.C. § 860. The district court held that 21 U.S.C. § 860 required a five year mandatory minimum term of imprisonment, and that the “safety valve” provision in 18 U.S.C. § 3553(f) did not apply to a mandatory minimum sentence under § 860. The Third Circuit agreed, noting that by its terms, § 3553(f) applies only to convictions under 21 U.S.C. § 841, 846, 961 and 963. Contrary to defendant’s claims, § 860 is a separate substantive offense and does not merely enhance the penalty for violations of § 841(a) committed within 1000 feet of a school. U.S. v. McQuilkin, 78 F.3d 105 (3d Cir. 1996).
4th Circuit says “safety valve” defendants must take affirmative steps to provide information. (550) Defendant received a five year mandatory minimum sentence for his role in a marijuana conspiracy. The district court found that defendant did not qualify for “safety valve” protection from the mandatory minimum because he did not provide the government with any truthful information concerning his crime. Defendant argued that he was entitled to a departure because he would have provided the government with truthful information he had been asked. The Fourth Circuit held that the “safety valve” requires defendants to demonstrate, through affirmative conduct, that they have supplied truthful information to the government. Even if the information provided is of no use to the government, the court may depart downward if all other requirements of § 3553(f) are satisfied. Judge Hall dissented. U.S. v. Ivester, 75 F.3d 182 (4th Cir. 1996).
4th Circuit denies safety valve protection to defendant who committed perjury at trial. (550) Defendant argued that the “safety valve” in 18 U.S.C. § 3553(f) and guideline § 5C1.2 applied to him. The Fourth Circuit disagreed, given defendant’s perjury at trial. The district court denied defendant a § 3E1.1(a) reduction because he lied at trial by fabricating an alibi. In light of this ruling, it was logical to assume that the judge also determined that defendant failed to comply with the fifth condition in § 3553(f), i.e., that the defendant truthfully provide to the government all information and evidence he has concerning the offense and others related to it. U.S. v. Fletcher, 74 F.3d 49 (4th Cir. 1996).
5th Circuit says it may review refusal to award split sentence only if court misunderstood authority to impose this sentence. (550) Because defendant’s 10-16 month sentencing range was within Zone C of the sentencing table, he requested a “split sentence” under U.S.S.G. § 5C1.1(d). The district court denied this request, instead imposing a 16-month sentence. Defendant appealed, contending the court mistakenly believed it could not split the sentence simply because he was an illegal alien. The Fifth Circuit held that a district court’s discretionary refusal to impose a split sentence under U.S.S.G. § 5C1.1(d) does not fall under one of the four circumstances in which appeal is permitted under 18 U.S.C. § 3742. Thus, the panel had jurisdiction to review the district court’s refusal to award defendant a split sentence only if the lower court believed it did not have the discretion, under the guidelines, to do so because of defendant’s status as an illegal alien. In addition, the record must demonstrate that the district court misunderstood its authority. In light of the ambiguity in the record, the best course was to remand the case for reconsideration of the sentence. If the court was aware of its discretion to award defendant a split sentence and simply refused to, then the sentence should stand. If the court believed it could not sentence an illegal alien to a split sentence, then defendant should be resentenced with the court’s full awareness of its discretionary authority. U.S. v. Garcia-Ortiz, 310 F.3d 792 (5th Cir. 2002).
5th Circuit holds that court erred in failing to consider applicability of safety valve protection. (550) Defendant argued that the district court erred in failing to consider whether he was eligible for safety valve protection under § 5C1.2. The Fifth Circuit agreed that the court mistakenly believed it was bound by the mandatory minimum without first considering whether defendant qualified for the safety valve protection. There was no indication in the record that defendant failed to meet any of the five § 5C1.2 criteria. U.S. v. Flanagan, 87 F.3d 121 (5th Cir. 1996).
5th Circuit says defendant has burden to provide “safety valve” information to government. (550) The government argued that defendant’s failure to provide any information to the government precluded him from being eligible for the application of the “safety valve,” 18 U.S.C. § 3553(f) and guideline § 5C1.2. The district court applied the provision, stating that the government “can’t complain about his lack of answering questions if [it does not] ask him the questions.” The Fifth Circuit held that the defendant has the burden of ensuring that he has provided all the information regarding the offense to the government. He must do this by the time of sentencing regardless of whether the government asks for it. The district court erroneously placed the burden on the government. On remand, if the court finds that defendant failed to provide the government with all information, it shall allow him to comply with the provision. U.S. v. Flanagan, 80 F.3d 143 (5th Cir. 1996).
5th Circuit allows court to withdraw leadership finding to permit defendant to qualify for “safety valve.” (550) The district court originally found defendant was a leader of a drug conspiracy. Because the amount of drugs involved was incorrectly determined, the appellate court remanded for resentencing. By the time of resentencing, Congress had enacted the “safety valve” provision allowing a sentence below a mandatory minimum for defendants who meet five requirements. One requirement is that the defendant cannot be a leader. The district court withdrew its previous finding that defendant was a leader so he could qualify for the safety valve. The court explained that it had found defendant was a leader to establish a disparity in culpability between defendant and a co‑defendant, but it did not intend to establish a five hundred percent disparity. The Fifth Circuit affirmed because the remand was a general remand, and any findings previously made were not binding. A defendant’s relative culpability is relevant to the application of the safety valve provision. U.S. v. Flanagan, 80 F.3d 143 (5th Cir. 1996).
5th Circuit denies “safety valve” protection to defendant who lied about drug quantity. (550) Defendant testified that he received ten ounces of methamphetamine. Three informants contradicted this testimony, stating that the bag contained at least one pound. The district court held defendant accountable for one pound, crediting the informants’ reports over defendant’s testimony. The Fifth Circuit agreed that defendant did not qualify for the “safety valve” provision in § 5C1.2 because he did not provide truthful information about drug quantity. Section 5C1.2 allows defendants to escape an applicable mandatory minimum if they meet certain criteria, including truthfully providing the government with all information about the offense. Defendant did not merely challenge the PSR’s factual findings. He offered testimony at sentencing that directly contradicted information gathered by the government. U.S. v. Ewards, 65 F.3d 430 (5th Cir. 1995).
6th Circuit holds that court’s failure to impose “split sentence” was not error. (550) Because defendant’s base offense level was 11 and his criminal history category was I, defendant’s sentencing guideline range was eight to 14 months, and thus he could have received a “split sentence” under § 5C1.1(d). Defendant argued for the first time on appeal that the district court erred in failing to apply the split-sentence guideline at sentencing. Since § 5C1.1(d) gives the court the discretion to impose either a term of imprisonment or a split term of imprisonment and community confinement, the Sixth Circuit found that the court’s failure to impose a split sentence could not constitute error, much less plain error. U.S. v. Butler, 297 F.3d 505 (6th Cir. 2002).
6th Circuit holds that § 3553(f) does not authorize further departure to 24‑month sentence. (550) Defendant had a guideline range of 57‑71 months, but pled guilty to an offense carrying a statutory minimum sentence of 60 months. The district court found her eligible for safety valve protection under 18 U.S.C. § 3553(f), and imposed a 57‑month sentence. Defendant argued that the court failed to recognize that § 3553(f) gave it authority to sentence her to as little as 24 months. The Sixth Circuit held that neither § 3553(f) nor § 5C1.2 authorized a downward departure from the applicable guideline range without an independent basis for the departure. The language defendant relied on, in 28 U.S.C. § 994, states that where the mandatory minimum is five years, the guidelines shall call for a guideline range in which the lowest term of imprisonment is at least 24 months. This merely establishes a floor below which the Sentencing Commission cannot lower the sentencing range. It does not provide a basis for departure. U.S. v. Pratt, 87 F.3d 811 (6th Cir. 1996).
6th Circuit requires more information for “safety valve” than acceptance of responsibility. (550) The Sixth Circuit held that the information requirement for safety valve protection is greater than for a reduction under § 3E1.1 for acceptance of responsibility. Here, defendant’s statement that he gave the government “all they asked,” if true, did not satisfy his burden under 18 U.S.C. § 3553(f)(5) and guideline § 5C1.2(5). These provisions require an affirmative act by the defendant truthfully disclosing all the information he possesses that concerns his offense or related offenses. Where the government challenges a defendant’s claim of complete and timely disclosure and the defendant does not produce evidence that demonstrates such disclosure, a district court’s denial of a motion under § 3553(f) and § 5C1.2 is not clearly erroneous. Where a defendant produces specific evidence as a basis for a safety valve treatment, the district court should make specific findings by reference to the criteria of the statute and the guideline. U.S. v. Adu, 82 F.3d 119 (6th Cir. 1996).
6th Circuit prohibits safety valve protection for organizers and continuing criminal enterprise. (550) One of the requirements to receive “safety valve protection” under 18 U.S.C. § 3553(f) and guideline § 5C1.2 is that the court must find that “the defendant was not an organizer, leader, manager or supervisor of others . . . and was not engaged in a continuing criminal enterprise.” Defendant argued that to deny him protection, the government must prove that defendant was both an organizer, leader, manager or supervisor and was engaged in a continuing criminal enterprise. The Sixth Circuit disagreed; a defendant who is either an organizer, leader or manager or engaged in a continuing criminal enterprise may not receive safety valve protection. U.S. v. Bazel, 80 F.3d 1140 (6th Cir. 1996).
6th Circuit finds no requirement to state reasons for imprisonment rather than home confinement. (550) Defendant argued that the district court abused its discretion in failing to state the precise reasons why it sentenced defendant to a term of imprisonment, rather than a term of home confinement, as was permitted under section 5C1.1(c). The 6th Circuit held that because the guideline range was less than 24 months, and defendant was sentenced within that guideline range, the district court was not required to state its reasons on the record. U.S. v. Lively, 20 F.3d 193 (6th Cir. 1994).
6th Circuit upholds decision to impose imprisonment rather than home confinement. (550) Defendant had a guideline range of six to 12 months, and because her offense was in Zone B, under section 5C1.1(c) the minimum term could be satisfied in part by home detention. Defendant challenged the district court’s decision to impose imprisonment rather than home confinement, contending that the court violated the mandate in 18 U.S.C. section 3582(a) that “imprisonment is not an appropriate means of promoting correction and rehabilitation.” The 6th Circuit found this issue appealable because defendant was claiming her sentence was imposed in violation of law; however, the claim was rejected. The guidelines themselves take into account the congressional mandate found in section 3582(a). Here, the district court followed the options available to it under section 5C1.1 with respect to the kind of sentence a defendant is to receive. Defendant’s claim that the district court abused its discretion in imposing imprisonment rather than home confinement was not appealable. Moreover, even if it was appealable, it lacked merit. U.S. v. Lively, 20 F.3d 193 (6th Cir. 1994).
6th Circuit affirms that defendant was not eligible for home and community confinement. (550) The 6th Circuit upheld the district court’s refusal to fashion a sentence that included home and community confinement. Defendant was not eligible for substitute punishment. Section 5C1.1(f) provides that if the applicable guideline range is in Zone D of the Sentencing Table, the minimum term shall be satisfied by a sentence of imprisonment. Defendant’s guideline range fell within Zone D. Moreover, even if defendant were eligible for substitute punishment, the failure to impose such a sentence would not be an abuse of discretion. U.S. v. Morgan, 986 F.2d 151 (6th Cir. 1993).
6th Circuit finds language designating place of imprisonment was surplusage which did not invalidate sentence. (550) The district court originally sentenced defendant to 10 months imprisonment and ordered that he serve his sentence at the Community Treatment Center. On defendant’s petition for habeas corpus after being transferred to a different facility, the district court determined that it did not have authority to make a binding designation of defendant’s place of confinement, and vacated defendant’s sentence as being not authorized by law. The court then departed downward and sentenced defendant to five years probation. The 6th Circuit found that the original 10-month sentence was lawful and that the language in the order regarding the place of confinement constituted “mere surplusage.” The district court did not have jurisdiction under 28 U.S.C. § 2255 to hear defendant’s challenge, since defendant was attacking the execution of his sentence, rather than the validity of the sentence. Therefore, the district court was not authorized to vacate the original sentence. U.S. v. Jalili, 925 F.2d 889 (6th Cir. 1991).
7th Circuit holds that Blakely does not apply to forfeiture proceedings. (550) Relying on Blakely, defendant argued that the court used the wrong burden of proof for his forfeiture proceedings – a preponderance of the evidence standard as opposed to the beyond a reasonable doubt standard. The Seventh Circuit rejected this argument, concluding that Blakely, like Apprendi, does not apply to forfeiture proceedings. This circuit has previously held that Apprendi has no effect on criminal forfeiture proceedings because forfeiture provisions have no statutory maximum. U.S. v. Vera, 278 F.3d 672 (7th Cir. 2002). Apprendi’s statutory maximum is found in the statute of conviction; Blakely’s is found in the Sentencing Guidelines. However, the criminal forfeiture provisions in the guidelines do not include a statutory maximum; they are open ended in that all property representing proceeds of illegal activity is subject to forfeiture. U.S.S.G. § 5E1.4. U.S. v. Messino, 382 F.3d 704 (7th Cir. 2004).
7th Circuit says court cannot restrict defendant’s communication in prison. (550) While in prison, defendant developed a pen‑pal relationship with an elderly woman. When she refused to continue sending him money and other items, he began threatening her and her family and was convicted of multiple counts of mailing threatening and extortionate communications. As part of his sentence, the district court restricted the persons with whom defendant could communicate while incarcerated to family members, legal counsel, and persons who contacted the Bureau of Prisons and assented to receiving communications from defendant. The Seventh Circuit held that the district court lacked authority to restrict defendant’s communications while incarcerated. A district court cannot impose a sentence that is not specifically authorized by statute. Section 3582(d) only authorizes a court to restrict an inmate’s communication if he was convicted of certain racketeering and drug offenses. However, the Bureau of Prisons can impose such a restriction, and therefore the court’s order must be modified to make the restriction a recommendation to the Bureau. U.S. v. Sotelo, 94 F.3d 1037 (7th Cir. 1996).
7th Circuit applies “safety valve” to defendant who was forthright to extent of her abilities. (550) Defendant was convicted of conspiracy to possess with intent to distribute cocaine. The Seventh Circuit agreed that defendant met the “safety valve” standards in § 5C1.2 for a sentence below the mandatory minimum. Before sentencing, defendant provided the government all information and evidence she had concerning the offense. The district court, relying on expert testimony presented at the sentencing hearing concerning defendant’s perceptual and analytical abilities, concluded that defendant was forthright within the range of her ability. U.S. v. Thompson, 76 F.3d 166 (7th Cir. 1996).
7th Circuit denies “safety valve” protection to defendant who stipulated to offense but made no effort to cooperate. (550) Defendant pled guilty to conspiring to distribute crack cocaine. He stipulated in his plea agreement to the basic details of the offense, but made no further attempt to cooperate. The Seventh Circuit held that defendant was not entitled to protection from the mandatory minimum because he did fulfill the requirements of the “safety valve,” § 3553(f)(5). Defendant failed to respond to a proffer letter sent by the government outlining the terms that would apply if he provided additional information. He could have at least provided the name of the source who sold him crack cocaine. A court may reasonably require a defendant to reveal information regarding his chain of distribution. It was not inconsistent to hold that defendant’s stipulation qualified him for an acceptance of responsibility reduction under § 3E1.1. Section 3553(f) requires more cooperation than § 3E1.1. It did not violate the Fifth Amendment to require defendant to volunteer information about his conduct beyond the offense of conviction. U.S. v. Arrington, 73 F.3d 144 (7th Cir. 1996).
7th Circuit defers to finding that defendant did not provide sufficient information under “safety valve.” (550) Defendant was arrested after landing at the airport carrying two kilograms of cocaine in his suitcase. The district court refused to sentence him below the five year mandatory minimum, finding defendant had not provided the government with all the information he had concerning his offense. The Seventh Circuit, applying the clearly erroneous standard to this determination, affirmed that defendant was not eligible for the § 5C1.2 reduction. The district court’s determination is fact-specific and will often depend on credibility determinations that cannot be replicated with the same accuracy on appeal. Here, the district court believed defendant did not furnish all the information that was within his knowledge, and sentenced him to the statutorily mandated five-year sentence. There was no legal error. U.S. v. Rodriguez, 69 F.3d 136 (7th Cir. 1995).
8th Circuit holds that court lacked authority to impose suspended sentence. (550) Defendant pled guilty to drug charges, resulting in an advisory guideline range of 46-57 months' imprisonment. The district court sentenced defendant to 24 months, but then “suspended the execution” of that sentence, and placed her on three years' probation. The Eighth Circuit reversed. The statutory authority to “suspend” the imposition or execution of a sentence in order to impose a term of probation was abolished upon implementation of the Sentencing Guidelines. Although the Guidelines have been declared effectively advisory as a remedy for Sixth Amendment violations caused by the mandatory nature of the Guidelines, that remedial action did not restore a district court's authority to “suspend” terms of imprisonment. U.S. v. Wysong, 516 F.3d 666 (8th Cir. 2008).
8th Circuit holds that court's suspension of sentence was illegal. (550) Defendant pled guilty to drug charges. The district court sentenced defendant to 60 months' imprisonment, but immediately suspended the sentence and placed defendant on five years' probation. The Eighth Circuit reversed, holding that the court's imposition of a suspended sentence constituted an illegal sentence. It is error for a district court to suspend a sentence in the absence of the statutory authority to do so. U.S. v. Ross, 487 F.3d 1120 (8th Cir. 2007). The authority to suspend federal sentences has been abolished. U.S. v. Foster, 514 F.3d 821 (8th Cir. 2008).
8th Circuit rules defendant did not provide sufficient information to qualify for “safety valve.” (550) Under 18 U.S.C. § 3553(f)(5) and guideline § 5C1.2, a defendant who meets certain criteria may be sentenced below the mandatory minimum. One of the requirements for “safety valve” protection is that defendant provide to the government all information and evidence he has concerning the offenses that were part of the same course of conduct or common scheme or plan. The Eighth Circuit ruled that defendant did not provide sufficient information to qualify for the safety valve. Although defendant gave the government some limited information about his crime, he did not tell the government the whole story about his role in the distribution chain and his gang’s involvement. Defendant failed to respond to the government’s initial request for a written chronological summary of his drug trafficking activities. He also did not respond to the government’s presentence letter expressing concern about his failure to give accurate and specific information about his drug activities. U.S. v. Romo, 81 F.3d 84 (8th Cir. 1996).
8th Circuit denies “safety valve” relief where defendant misstated relevant conduct. (550) Defendant was arrested with a companion at the Minneapolis airport after attempting to discard ten ounces of crack she had carried on a flight from Chicago. The companion was posing as defendant’s husband and carried the husband’s identification. The Eighth Circuit held that defendant did not qualify for “safety valve” relief under 18 U.S.C. § 3553(f) because of misstatements she made about relevant conduct. As an airline employee, defendant could obtain employee non‑revenue airline tickets for family members. When asked why her companion had her husband’s identification, defendant denied that it was so she could obtain an employee ticket for him. However, when confronted with several non-revenue tickets purchased by defendant for travel by her companion between Chicago and Minneapolis. Defendant admitted she had provided her companion with non‑revenue tickets on at least four occasions. Giving airline tickets to a co‑conspirator was clearly part of the same course of conduct as the drug trafficking offense. U.S. v. Long, 77 F.3d 1060 (8th Cir. 1996).
8th Circuit finds no need to consider “safety valve” where court departed below mandatory minimum. (550) Defendant argued that the district court erroneously failed to consider the “safety valve” provision in 18 U.S.C. ‘3553(f). The Eighth Circuit found no error. The “safety valve” would not have provided any relief in light of the district court’s departure below the mandatory minimum and the applicable guideline range. U.S. v. Goodwin, 72 F.3d 88 (8th Cir. 1995).
8th Circuit says “safety valve” does not authorize departure from guidelines. (550) The mandatory minimum for defendant’s drug crime was five years, but his guideline range was 63-78 months. Defendant challenged his 63-month sentence, arguing that 18 U.S.C. § 3553(f), which provides a “safety valve” from mandatory minimums in certain situations, allowed the court to depart from the guidelines. The Eighth Circuit disagreed, holding that § 3553(f) and guideline § 5C1.2 only authorize a downward departure from the statutory mandatory minimum, not from the guidelines. [Ed. Note: Effective November 1, 1995, the Commission amended § 2D1.1(b) to provide a two level decrease for defendants who qualify for the safety valve, if the base offense level is 26 or greater.] U.S. v. Collins, 66 F.3d 984 (8th Cir. 1995).
9th Circuit finds no jurisdiction to review judge's BOP housing recommendation. (550) Prior to sentencing on defendant’s drug-trafficking conviction, defendant requested that the court recommend that the Bureau of Prisons house him in Southern California. At sentencing, neither the court nor counsel addressed the request, and the court did not include a recommendation in the Judgment and Commitment order. Eight days after sentencing, defendant and the government jointly recommended that the court amend the J&C to include the requested recommendation. The district court denied the request on the ground that the decision where to house an inmate belonged to the BOP. On defendant’s appeal, the Ninth Circuit held that the district court had no jurisdiction to amend the J&C eight days after judgment and the court of appeals had no jurisdiction to review a district court’s nonbinding housing recommendation. U.S. v. Ceballos, 671 F.3d 852 (9th Cir. 2011).
9th Circuit holds that courts cannot suspend sentence. (550) After defendant pleaded guilty to being an illegal alien found in the United States, in violation of 8 U.S.C. § 1326, the district court imposed a suspended sentence and placed defendant on probation for five years on condition that he spend 12 months in custody during the probationary period. In a short order, the Ninth Circuit held that "district courts do not have the power to suspend the imposition of sentence" and that "a district court may not impose a constant period of imprisonment during a period of probation." The court of appeals reversed and remanded for sentencing before a different district judge. U.S. v. Murillo, 548 F.3d 1256 (9th Cir. 2008).
9th Circuit says that government was not estopped from arguing loss amount based on codefendant's plea agreement. (550) Defendant was convicted of conspiracy and bankruptcy fraud. At sentencing, the district court determined the loss based on the amount of debt that defendant discharged in the fraudulent bankruptcy. Her codefendant pleaded guilty to conspiracy and attempted tax evasion. In the codefendant's plea agreement, the parties stipulated that the court should use the Sentencing Guideline for tax offenses, and that guideline resulted in a lower loss amount. Defendant argued that the government's agreement to the lower loss amount in the codefendant's plea agreement should estop the government from arguing that the same conspiracy resulted in a greater loss for defendant. The Ninth Circuit rejected this argument, holding that the government did not make any factual assertion in the codefendant's plea agreement that directly contradicted a position it took at defendant's sentencing. U.S. v. Bussell, 504 F.3d 956 (9th Cir. 2007).
9th Circuit finds no plain error in judge’s participation in “sentencing council.” (550) In the District of Oregon, the district judges hold a “sentencing council” to discuss sentences to be imposed on individual defendants. At defendant’s sentencing, the court mentioned that he had discussed defendant’s sentencing at the council. Defendant did not object to the court’s participation in the sentencing council. The Ninth Circuit held that a judge’s discussion of defendant’s sentence at a sentencing council did not rise to the level of plain error. U.S. v. Brigham, 447 F.3d 665 (9th Cir. 2006).
9th Circuit says provision allowing longer community confinement does not allow offense level departure. (550) Application Note 6 to Guideline § 5C1.1 says that a court may depart by substituting a longer period of community confinement for an equivalent period of imprisonment in order to accomplish a specific treatment purpose. The Ninth Circuit held that this provision does not authorize a district court to depart downward in the defendant’s offense level or otherwise to reduce the length of the sentence imposed. U.S. v. Malley, 307 F.3d 1032 (9th Cir. 2002).
9th Circuit finds unambiguous oral pronouncement of sentence controls over written judgment. (550) In orally pronouncing sentence, the district court imposed a term of 10 years on a pre-guidelines count and 10 years on several guidelines counts. The court orally specified that the terms imposed on the guidelines counts were to run consecutively with the pre-guidelines count but concurrently with each other. The written judgment stated that the 10 year pre-guideline term was to run consecutive to the entire sentence imposed on the other counts, amounting to a 30 year term. The Ninth Circuit remanded so the district court could make the written judgment consistent with the oral pronouncement. Where there is a direct conflict between an unambiguous oral pronouncement of sentence and the written judgment, the oral pronouncement controls. U.S. v. Hicks, 997 F.2d 594 (9th Cir. 1993).
9th Circuit vacates sentence for mathematical error. (550) The district court’s grant of an eight- rather than a nine-level increase based on amount of loss, should have resulted in a reduction in offense level from 21 to 20. Because this mathematical error resulted in a sentence slightly beyond the upper range for the defendant’s criminal history category and offense level, the 9th Circuit vacated the sentence and remanded for resentencing. U.S. v. Mullins, 992 F.2d 1472 (9th Cir. 1993).
10th Circuit rejects denial of federal benefits because defendant cooperated with authorities. (550) After defendant was convicted of drug charges, the district court ordered that defendant be denied all federal benefits for five years, pursuant to 21 U.S.C. § 862(a) (granting court discretion to deny federal benefits for varying lengths of time to certain drug defendants). However, § 862(e) provides that these penalties “shall not apply to any individual who cooperates or testifies with the Government in the prosecution of a Federal or State offense.” The district court found that defendant was entitled to benefits only if it had granted the government § 5K1.1 motion. The Tenth Circuit rejected this interpretation, and ruled that the court erred in ordering the denial of defendant’s federal benefits. As the district court acknowledged, defendant cooperated and assisted authorities in two state prosecutions U.S. v. Busekros, 264 F.3d 1158 (10th Cir. 2001).
10th Circuit upholds one-year sentence on one count where total punishment exceeded one-year statutory maximum for that count. (550) Defendant pled guilty to attempt to possess decadurobolin, a steroid, and was convicted of four marijuana-related counts. He argued that the district court improperly sentenced him to one year in prison for the steroid charge. The Tenth Circuit held that the district court properly calculated the one-year sentence on the steroid conviction. Because defendant was convicted of more than one drug count, the district court properly grouped all of the offenses together for purposes of determining his total punishment. Defendant’s combined offense level corresponded to a total punishment of 26 months. The 26-month sentence for the steroid possession count was higher than the one-year statutory maximum sentence. Accordingly, § 5G1.1(a), through operation of § 5G1.2(b), required that the statutory maximum be the sentence on that particular count. U.S. v. Johnston, 146 F.3d 785 (10th Cir. 1998).
10th Circuit reviews jury’s non‑unanimous findings regarding absence of mitigating factors in death penalty case. (550) Defendant received the death penalty for his conviction of murder in furtherance of a continuing criminal enterprise under 21 U.S.C. § 848(e). He argued that the jurors erred in failing to find three mitigating factors. The Tenth Circuit held that it could review the non-unanimous jury findings. One juror refused to find that defendant’s I.Q. was 80. This was reasonable in light of the anomalous test results and defendant’s incentive to distort his abilities. The finding of four jurors that defendant did not suffer from a brain dysfunction was also reasonable since the defense expert lacked “hard medical evidence” to support his theory and was relying on neuropsychological evidence. The finding of ten jurors that defendant did not prove he suffered from attention‑deficit disorder was also reasonable. U.S. v. McCullah, 76 F.3d 1087 (10th Cir. 1996).
10th Circuit upholds statutory aggravating factors for death penalty under 848(e). (550) Defendant was convicted of murder in furtherance of a continuing criminal enterprise under 21 U.S.C. § 848(e) and was sentenced to death. The district court submitted four statutory aggravating factors to the jury under 21 U.S.C. § 848(n)(1)(C) and the jury found all four. In reversing on other grounds, the Tenth Circuit held that the statutory factors were properly submitted to the jury. The (n)(1) factors were not merely eligibility factors, but were aggravating factors to be weighed against mitigating factors in the selection phase of sentencing. The factors adequately narrowed the class of death‑eligible defendants. The jury properly found that defendant committed the offense after substantial planning and premeditation. “Substantial planning” does not require “considerably more planning than is typical,” but rather means “considerable” or “ample for commission of the crime.” The jury also properly found that defendant committed the offense for compensation, even though defendant killed the wrong victim. U.S. v. McCullah, 76 F.3d 1087 (10th Cir. 1996).
10th Circuit upholds reliance on non‑statutory aggravating factors in death penalty under 848(e). (550) In imposing the death penalty under 21 U.S.C. § 848(e), the district court submitted four non‑statutory aggravating factors to the jury: (1) use of a deadly weapon, (2) defendant’s two or more prior convictions, (3) defendant’s commission of the charged offense, and (4) repeated attempts to rehabilitate defendant had been unsuccessful. The Tenth Circuit reversed on other grounds, but held that the prosecutor’s power to promulgate non‑statutory aggravating factors did not amount to an unconstitutional delegation of power to the Executive Branch. The statutory aggravating circumstances circumscribe the class of persons eligible for the death penalty. But the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death. U.S. v. McCullah, 76 F.3d 1087 (10th Cir. 1996).
10th Circuit reverses death penalty where jury may have relied on duplicative aggravating factors. (550) Defendant was convicted of murder in furtherance of a continuing criminal enterprise under 21 U.S.C. § 848(e) and was sentenced to death. The Tenth Circuit held that the district court erred in submitting duplicative and cumulative aggravating factors to the jury. The court submitted to the jury the § 848(n)(1)(C) statutory aggravating factor “intentionally engaged in conduct intending that the victim be killed or that legal force be employed against the victim, which resulted in the death of the victim.” It also submitted the non‑statutory aggravating factor “committed the offenses as to which he is charged in the indictment.” These two factors substantially overlap each other. Such double counting of aggravating factors, especially under a weighing scheme, has a tendency to skew the weighing process and create the risk that the death sentence will be imposed arbitrarily and thus, unconstitutionally. U.S. v. McCullah, 76 F.3d 1087 (10th Cir. 1996).
10th Circuit reverses “safety valve” relief where defendant did not reveal identities and acts of others. (550) Defendant pled guilty to drug charges, but refused to cooperate with the government. He did, however, provide the government with a letter describing his own involvement in the conspiracy. The district court found that defendant qualified for relief from the mandatory minimum sentence, under the “safety valve,” 18 U.S.C. § 3553(f). The Tenth Circuit reversed, holding that § 3553(f)(5) requires a defendant to tell the government all he knows about the offense of conviction and relevant conduct, including the identities and participation of others. The phrase “all information and evidence” is broad, and includes the acts of others if the offense of conviction is a conspiracy or other joint activity. This interpretation does not make § 5K1.1 redundant. Section 5K1.1 requires a government motion and the government’s evaluation of defendant’s assistance. In contrast, under § 3553(f), and § 5C1.2, the court determines whether a defendant has complied with its provisions. U.S. v. Acosta-Olivas, 71 F.3d 375 (10th Cir. 1995).
10th Circuit says failure to delay sentencing until “safety valve” became law was not ineffective assistance. (550) At the time of sentencing, defendant was subject to a mandatory minimum 20-year sentence. He argued that his counsel was ineffective in not seeking a continuance until the effective date of the “safety valve,” 18 U.S.C. § 3553(f), [guideline § 5C1.2], which permits a sentence below the statutory minimum if the defendant meets certain criteria. The Tenth Circuit held that counsel’s failure to seek the continuance was not unreasonable. At the time of sentencing, it was unclear whether the “safety valve” would be enacted by Congress. Clairvoyance is not a required attribute of effective representation. Defendant’s theory would require attorneys to attempt to delay sentencing each time lawmakers debate a new statute or amendment. U.S. v. Gonzalez-Lerma, 71 F.3d 1537 (10th Cir. 1995), overruled on other grounds by U.S. v. Flowers, 464 F.3d 1127 (10th Cir. 2006).
11th Circuit holds that district court had no authority to order deportation. (550) Effective April 1, 1997, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) provides that a hearing before an immigration judge is the exclusive procedure for determining whether an alien may be deported from the U.S. See 8 U.S.C. § 1229(a)(3). This legislation eliminated any jurisdiction that district courts had to order deportation. The IIRAIRA applies to all cases pending on appeal as of September 19, 1997. U.S. v. Romeo, 122 F.3d 941 (11th Cir. 1997). Because the district court in this case lacked jurisdiction to order defendant deported, the Eleventh Circuit vacated the portion of the district court’s judgment ordering deportation and remanded for further proceedings. U.S. v. Mignott, 184 F.3d 1288 (11th Cir. 1999).
11th Circuit says “safety valve” does not authorize sentence below guideline range. (550) Defendant’s offense carried a mandatory minimum of 60 months. The district court found defendant eligible for “safety valve” protection in § 5C1.2, and imposed a sentence of 57 months, the bottom of the otherwise applicable guideline range. Defendant argued that the district court erroneously believed that it did not have authority to sentence him below the guideline range after applying § 5C1.2. He argued that Congress intended to give first‑time offenders who meet the statutory criteria a two level reduction in offense level, pointing to an amendment to § 2D1.1(b)(4) that directs the sentencing court to decrease a drug defendant’s offense level by two if the defendant meets the criteria in § 5C1.2 and has an offense level greater than 26. The Eleventh Circuit held that the two level decrease is limited to defendants who come within § 2D1.1(b)(4). U.S. v. McFarlane, 81 F.3d 1013 (11th Cir. 1996).
D.C. Circuit rejects restriction on defendant’s telephone and computer use in prison. (550) Both parties agreed that the district court lacked statutory authority to restrict defendant’s computer and telephone use during confinement in prison. See U.S. v. Sotelo, 94 F.3d 1037 (7th Cir. 1996) (district court lacked authority to restrict communication during incarceration). Accordingly, the D.C. Circuit vacated that portion of defendant’s sentence imposing restrictions on defendant’s telephone and computer use in prison. U.S. v. Ginyard, 215 F.3d 83 (D.C. Cir. 2000).
D.C. Circuit says prosecutor made admission of personal ignorance rather than concession. (550) Defendant and his girlfriend pled guilty to distributing 50 grams or more of cocaine base. The court found that the girlfriend satisfied the five criteria for the “safety valve” in § 5C1.2 and 18 U.S.C. § 3553(f) and sentenced her below the mandatory minimum of 120 months. Defendant filed a memorandum asking the judge to do the same for him. The government filed an opposition memo because defendant did not cooperate with authorities and lied about his true identity. However, when the judge later asked whether defendant had satisfied § 3553(f)(5), the prosecutor (who had not signed the plea agreement or filed the sentencing memo) said “I don’t know.” The judge then sentenced defendant to the mandatory minimum 120 months. The D.C. Circuit held that the court properly denied “safety valve” protection to defendant. The prosecutor’s statement was not a concession by the government, but merely an admission of personal ignorance. The government, in its sentencing memoranda, expressed in the strongest possible terms that defendant had been neither truthful nor cooperative. U.S. v. DeJesus‑Gaul, 73 F.3d 395 (D.C. Cir. 1996).
D.C. Circuit rules suspended sentences are not permitted under the guidelines. (550) Defendant contended that the six-month suspended sentence imposed upon her was not authorized by law. The D.C. Circuit agreed, ruling that the sentencing guidelines no longer permit suspended sentences. Accordingly, defendant’s suspended sentence was vacated. U.S. v. Mastropierro, 931 F.2d 905 (D.C. Cir. 1991).
Commission expands Zones B and C of Sentencing Table. (550) As a result of the Commission's continued multi-year study of alternatives to incarceration, the Commission amended the Sentencing Table in § 5A to expand Zones B and C by one level for each criminal history category. Defendants in Zone C with a guideline range of 8-14 months or 9-15 months are moved to Zone B, and defendants in Zone D with a guideline range of 12-18 months are moved to Zone C. This increases the number of defendants who are eligible for an alternative to incarceration, such as probation, intermittent confinement, community confinement, or home detention. In addition, the Commission amended Application Note 6, to § 5B1.1, to state that a departure from the sentencing options authorized for Zone C to accomplish a specific treatment purpose should be considered only where the court finds that (a) the defendant is an abuser of narcotics, other controlled substances, or alcohol, or suffers from a significant mental illness, and (b) the defendant's criminality is related to the treatment problem to be addressed. Amendment 1, effective November 1, 2010).
Commission proposes to expand Zones B and C in the Sentencing Table. (550) The proposed amendment would change the Sentencing Table in Chapter 5 by expanding each of Zones B and C by two levels in criminal history categories I and II. A second part of the amendment – intended as an alternative to the Sentencing Table amendment – proposes a new guideline, providing a two-level reduction in offense level for certain less serious economic offenses, in furtherance of the statutory command in 28 U.S.C. § 994(j). The eligibility criteria generally parallel those determined by Congress under the “safety valve” in 18 U.S.C. § 3553(f). 2001 Proposed Amendment 14.
Commission reduces two offense levels and designates four zones in sentencing table. (550) In a proposed amendment effective November 1, 1992, the Commission amended the sentencing table for criminal history category I to reduce offense level 7 from 1-7 to 0-6 months, and level 8 from 2-8 to 0-6 months. In addition, the Commission designated four zones: zone A contains all ranges having a minimum of 0 months; zone B, a minimum of at least 1 but not more than 6 months; zone C a minimum of 8, 9, or 10 months, and zone D, all guideline ranges having a minimum of twelve months or more.
Article urges simplifying sentencing grid to reveal policy choices. (550) Professor Marc Miller, co-editor of the Federal Sentencing Reporter, argues that the guidelines’ 258-box sentencing grid is unnecessarily complex, and obscures the Sentencing Commission’s policy choices. He offers an experimental grid that collapses the 43-level grid to 7 levels in an effort to encourage the Commission to develop “a simpler and more meaningful array.” He argues that the grid “highlights the obsessive focus of the federal system on harm and the trivialization of considerations of blameworthiness.” Marc Miller, True Grid -- Revealing Sentencing Policy, 25 U.C. Davis L. Rev. 587-615 (1992).