§132 Ex Post Facto: Continuing Offenses/Conspiracy
First Circuit
Second Circuit
Third Circuit
Fourth Circuit
Fifth Circuit
Sixth Circuit
Seventh Circuit
Eighth Circuit
Ninth Circuit
Tenth Circuit
Eleventh Circuit
D.C. Circuit
1st Circuit applies guidelines to defendant who did not withdraw from conspiracy before November 1, 1987. (132) Defendant argued that the guidelines did not apply to him because the principal evidence against him occurred before November 1, 1987, when the guidelines took effect. The 1st Circuit upheld the application of the guidelines for two reasons. First, defendant waived this claim by failing to make it during the sentencing process. Second, defendant was a member of an ongoing conspiracy that continued past the effective date of the guidelines and he did not withdraw before the effective date. U.S. v. Innamorati, 996 F.2d 456 (1st Cir. 1993).
1st Circuit finds no ex post facto problem where earlier embezzlements were “relevant conduct” for later ones. (132) From 1987 to 1991, defendant embezzled large sums of money from his employer. During this period, section 2B1.1(b)(1) was amended to increase the base offense level. The district court applied the amendment, even though some of the embezzlements occurred earlier. The 1st Circuit affirmed, although it rejected the government’s contention that defendant committed a continuing offense. Defendant was formally sentenced for some offenses which were completed before the guideline increase, but this did not prejudice him, because under the “relevant conduct” section of the guidelines, his sentences for the post-amendment conduct would be based on the full amount embezzled. Even if some of the sentences for the earlier embezzlements could not be supported, this did not affect defendant since all of his sentences were to be served concurrently. U.S. v. Regan, 989 F.2d 44 (1st Cir. 1993).
1st Circuit finds conspiracy ended before guidelines took effect. (132) The district court found that the drug conspiracy ended in 1989, and sentenced defendant under the guidelines. The 1st Circuit reversed, holding that although defendant continued to be involved in a drug conspiracy after November 1, 1987, the effective date of the guidelines, this conspiracy was different from the one with which defendant had been charged. The court identified several factors to consider in deciding whether activity is part of separate conspiracies or a single conspiracy: when the activity occurred, the location of the activity, the identities of the persons involved, the co-conspirators’ ends, the means used to achieve those ends, and the similarity in the evidence used to prove the activities. The court noted that defendant’s post-guidelines activity was generally related to personal use, while the earlier activities were more profit-oriented. Judge Campbell dissented. U.S. v. Cloutier, 966 F.2d 24 (1st Cir. 1992).
1st Circuit holds letters to conceal embezzlement extended scheme past effective date of guidelines. (132) Defendant, in his capacity as guardian for a disabled veteran, embezzled Veterans’ Administration funds. The 1st Circuit upheld the application of the guidelines to the offense, even though all of the acts of embezzlement occurred prior to November 1, 1987, the effective date of the guidelines. Defendant wrote letters to the Veterans Administration in 1988 which the district court concluded were an effort to conceal the embezzlement. Therefore, the embezzlement scheme continued into 1988. U.S. v. Young, 955 F.2d 99 (1st Cir. 1992).
2nd Circuit finds no requirement for jury to find conduct continued after guidelines’ effective date. (132) Defendant was convicted of RICO, CCE and drug conspiracy offenses and sentenced to a mandatory life term under the guidelines. In a 28 U.S.C. § 2255 motion, he argued that the district court erred in sentencing him under the guidelines because the jury made no specific finding that his conduct had continued beyond the effective date of the guidelines. The 2nd Circuit upheld the denial of relief. This claim had been rejected on direct appeal, and could not be relitigated. Moreover, there is no requirement that the jury must find that the conduct occurred after the effective date of the guidelines before a defendant can be sentenced under the guidelines. The case cited by defendant dealt with a substantive criminal statute, rather than the guidelines. A sentencing factor may be found by the sentencing court by a preponderance of the evidence. Underwood v. U.S., 15 F.3d 16 (2nd Cir. 1993).
2nd Circuit holds that acts of concealment did not extend conspiracy beyond guidelines’ effective date. (132) Defendant was convicted of conspiring to bribe a public official. The 2nd Circuit affirmed that this was not a “straddle” conspiracy and defendant was properly sentenced under pre-guidelines law. The conspiracy ended with the $30,000 payment to the public official. The acts which occurred after November 1, 1987, the effective date of the guidelines, were merely acts to cover up the conspiracy and were not done in furtherance of the conspiracy. U.S. v. Crozier, 987 F.2d 893 (2nd Cir. 1993).
2nd Circuit affirms that RICO conspiracy extended beyond effective date of guidelines. (132) Based on a fraudulent mailing on March 29, 1988, the 2nd Circuit affirmed that the RICO conspiracy extended beyond November 1, 1987, the effective date of the guidelines. The determination that the conspiracy “straddled” the effective date of the guidelines was a sentencing factor to be determined by the judge, not the jury. One defendant’s claim that he held a minimal role in the conspiracy was irrelevant to this issue. The court rejected a second defendant’s claim that he should not be sentenced under the guidelines because he did nothing after November 1, 1987. It was reasonably foreseeable to him that the conspiracy would continue. The court also rejected claims that two defendants affirmatively withdrew from the conspiracy. Although one left the firm in 1984, he continued for work on an ad hoc basis. The other resigned his position to practice with an independent firm, but continued to be entitled to a percentage of the recovery in cases in which he had been involved. U.S. v. Eisen, 974 F.2d 246 (2nd Cir. 1992).
2nd Circuit holds that failure to appear for sentencing is a continuing offense. (132) Defendant failed to appear for sentencing on May 27, 1987. On February 24, 1990, he was arrested on unrelated charges, and eventually pled guilty to failing to appear for sentencing. He argued that his offense was completed on May 27, 1987, before the guidelines’ effective date, November 1, 1987. The 2nd Circuit held that failure to appear is a continuing offense, and thus the guidelines were applicable. Although the explicit language of the statute does not indicate whether failure to appear is a continuing offense, the nature of the offense is continuing. Each day that the defendant is absent enhances the dangers of delay in processing the case. Furthermore, no statute of limitations applies to the crime of failure to appear. U.S. v. Lopez, 961 F.2d 1058 (2nd Cir. 1992).
2nd Circuit applies guidelines to defendant who committed no predicate acts after effective date of guidelines. (132) Defendant was convicted of a RICO conspiracy which ran from 1973 to 1989. The 2nd Circuit upheld the application of the guidelines to defendant, even though he committed no predicate acts after November 1, 1987, the effective date of the guidelines. Defendant did not withdraw from the conspiracy, and therefore remained fully liable for the acts of co-conspirators. The RICO conspirators here continued to act after the effective date of the guidelines, with full notice of the consequences. Since defendant did not withdraw from the conspiracy, he could be charged with the notice that his co-conspirators had when they acted. U.S. v. Minicone, 960 F.2d 1099 (2nd Cir. 1992).
2nd Circuit affirms that local branches of union were part of same RICO enterprise. (132) Over a 35-year period, defendant held various positions in the General Service Employees International Union (the “International”), including president of Local 200, trustee of several employee funds, and secretary-treasurer of Local 362. He was convicted of a RICO in connection with his embezzlement and improper use of union funds. Defendant contended that the sentencing guidelines did not apply to the RICO charge because the only racketeering act that occurred after the effective date of the guidelines involved Local 362, which he contended was a separate RICO “enterprise” from Local 200 and the employee benefit funds. The 2nd Circuit rejected this argument, ruling that Local 362 was part of the same enterprise as the other entities. An “enterprise” under the RICO statute may consist of more than one entity, so long as those entities have been connected by a defendant’s participation in them through a pattern of racketeering activity. Here, the indictment charged a broad enterprise that included Local 200, the pension funds, and Local 362. There was proof that these entities were all under the umbrella of the International, and that defendant participated in these otherwise lawful organizations through a pattern of racketeering. U.S. v. Butler, 954 F.2d 114 (2nd Cir. 1992).
2nd Circuit applies guidelines to violation of April 1987 injunction. (132) Defendant was convicted of criminal contempt as a result of his violation of an injunction issued in April 1987, before the guidelines became effective. The 2nd Circuit rejected defendant’s claim that the guidelines did not apply to his offense. The crime for which defendant was convicted and sentenced was not the conduct leading to the injunction, but his continuing violations of that injunction from July 1987 through 1988. The guidelines apply to that crime, and their application to it did not constitute an ex post facto application of the law. U.S. v. Lohan, 945 F.2d 1214 (2nd Cir. 1991).
3rd Circuit upholds application of guidelines to RICO violation which began prior to and continued beyond guideline effective date. (132) Defendant argued that it was improper to apply the guidelines to his RICO offense which began prior to and continued after the effective date of the guidelines. The 3rd Circuit agreed with the district court that RICO is a continuing offense “directly analogous to the crime of conspiracy,” and that therefore the guidelines were applicable to defendant’s RICO conviction. The application of the guidelines to defendant’s offense did not violate the ex post facto clause. Defendant elected to continue his illegal pattern of conduct after the effective date of the guidelines, and the guidelines do not prescribe a higher sentence for his RICO offense than that provided by pre-guidelines law. U.S. v. Moscony, 927 F.2d 742 (3rd Cir. 1991).
4th Circuit applies guidelines to conspiracy based on perjury committed October 29, 1987. (132) The 4th Circuit affirmed the application of the sentencing guidelines to a defendant convicted of a RICO conspiracy which straddled the effective date of the guidelines, November 1, 1987. There was no question that the conspiracy was carried on before and after the effective date of the guidelines. A defendant’s membership in a conspiracy is presumed to continue until he withdraws by affirmative action. Here, there was ample evidence that defendant was involved as late as October 29, 1987, when he committed perjury before a federal grand jury. Because this perjury was committed just three days prior to the effective date of the guidelines, and there was no evidence of withdrawal, the finding that defendant’s membership continued past the effective date of the guidelines was not clearly erroneous. U.S. v. Bennett, 984 F.2d 597 (4th Cir. 1993).
4th Circuit affirms that tax conspiracy continued past effective date of guidelines. (132) The 4th Circuit affirmed that defendant’s tax conspiracy continued beyond November 1, 1987, the effective date of the guidelines. Defendant conspired with his co-conspirator to defraud the IRS by creating a $2.1 million false income tax deduction on defendant’s 1984 income tax return. The deduction was based on the payment of that sum by defendant to the co-conspirator in a fraudulent settlement of a sham law suit. In an attempt to have the transaction withstand tax scrutiny, the co-conspirator believed he had to report the income. Because the co-conspirator did not file his 1984 tax return until June 1989, when he reported the $2.1 million as an income item, his conduct in furtherance of the conspiracy occurred during the period when the guidelines were applicable. U.S. v. Hirschfeld, 964 F.2d 318 (4th Cir. 1992).
4th Circuit affirms that conspiracy continued past effective date of guidelines. (132) Defendants were involved in a conspiracy to fraudulently obtain HUD-insured mortgages, which they used to purchase property with a very low down-payment. Although the mortgages were obtained in 1984 and 1985, the district court determined that the conspiracy continued past November 1, 1987, the effective date of the guidelines, and thus sentenced defendants under the guidelines. Defendants argued that since the object of the conspiracy was to obtain the HUD-insured mortgages, once the mortgages were obtained this objective was achieved and the conspiracy ended. The 4th Circuit rejected this contention, finding there were other objectives of the conspiracy. First, one of the objects of the conspiracy was to make money by eventually reselling the property. One conspirator proposed that if they held on to the property for three years, they would make a 40 percent return on the resale. This showed that the conspiratorial agreement contemplated that the agreement would last for at least three years. Second, a partnership formed by the conspirators continued to make mortgage payments well past November 1, 1987. This partnership was intimately involved in the fraudulent scheme. U.S. v. Barsanti, 943 F.2d 428 (4th Cir. 1991).
4th Circuit reaffirms that applying guidelines to “straddle crime” does not violate Ex Post Facto Clause. (132) Defendant was found guilty of a drug conspiracy that continued from 1981 until March 1988. He was sentenced under the guidelines. Without discussion, the 4th Circuit rejected defendant’s argument that applying the guidelines to his crime violated the Ex Post Facto Clause even though it included punishment for conduct prior to November 1, 1987, the effective date of the guidelines. U.S. v. Deigert, 916 F.2d 916 (4th Cir. 1990).
4th Circuit holds that pre-guideline drug transactions were properly considered in RICO case. (132) At sentencing the district court counted as “relevant conduct,” drug transactions that occurred before the effective date of the guidelines. Two uncharged drug transactions before the January 15, 1988 amendments to guidelines sections 1B1.2 and 1B1.3 were also included as relevant conduct. Defendant contended that this violated the ex post facto clause. The 4th Circuit rejected the argument. The RICO offense was a continuing offense. Therefore applying the guidelines to conduct occurring before the effective date of guidelines does not violate the ex post facto clause. The court doubted that § 1B1.3 had a different meaning after its amendment, but in any event, the amended version applied because defendant’s offense continued until January, 1989. U.S. v. Cusack, 901 F.2d 29 (4th Cir. 1990).
4th Circuit holds ex post facto clause is not violated by applying guidelines to conspiracies which began before effective date but continued thereafter, and quantities of drugs throughout course of conspiracy may be aggregated. (132) Relying on decisions from other circuits, the 4th Circuit held that the ex post facto clause is not offended by (1) the application of the guidelines to conspiracies which began before, but continued after the Nov. 1, 1987 date upon which the guidelines became effective; and (2) the aggregation of quantities of drugs which were the subject of the conspiracy prior to the Nov. 1, 1987 with quantities distributed after that date. To exclude part of the aggregate total weight would be inconsistent with the overall quantitative approach of the narcotics guidelines. U.S. v. Sheffer, 896 F.2d 842 (4th Cir. 1990).
5th Circuit applies guidelines to bank fraud where letter was prepared in late 1987 or early 1988. (132) Defendant argued that his bank fraud count should not have been subject to the guidelines because the fraud was complete before November 1, 1987, the effective date of the guidelines. The 5th Circuit upheld the application of the guidelines. There was substantial evidence that a letter dated November 5, 1985 was actually prepared by defendant in late 1987 or early 1988. U.S. v. Henderson, 19 F.3d 917 (5th Cir. 1994).
5th Circuit finds no evidence that defendant withdrew from conspiracy. (132) Defendant argued that because his last overt act in furtherance of a drug conspiracy occurred in July 1987, four months before the guidelines became effective, he should not have been sentenced under the guidelines. The 5th Circuit upheld the application of the guidelines. The jury convicted defendant of a conspiracy that, according to the superseding indictment, continued until 1990. Conspiracy is a continuing offense, and previous cases have upheld the application of the guidelines to a defendant who, while not participating in overt acts of the conspiracy after the guidelines took effect, failed to take affirmative actions to withdraw from it prior to the effective date of the guidelines. Defendant took no such affirmative acts, and therefore remained responsible as a co-conspirator for all the acts charged to the conspiracy. U.S. v. Martinez-Moncivais, 14 F.3d 1030 (5th Cir. 1994).
5th Circuit uses amended guidelines where defendants did not withdraw from conspiracy. (132) Defendants claimed they should not be sentenced under the guidelines effective November 1, 1989, because the conspiracy ended before that date. The 5th Circuit upheld the use of the 1989 guidelines because the conspiracy continued until at least December 1989, when the leader’s house was searched. Although defendants claimed that no acts took place after November 1, 1989, they did not argue that they withdrew from the conspiracy. If a conspirator fails to effectively withdraw from a conspiracy, he will be sentenced under the amendments to the guideline even if he himself did not commit an act in furtherance of the conspiracy after the amendment’s effective date, if it was foreseeable that the conspiracy would continue past this date. U.S. v. Thomas, 12 F.3d 1350 (5th Cir. 1994).
5th Circuit applies guidelines where false statement was made after guidelines’ effective date. (132) Defendant was convicted of perjury and making contradictory declarations before grand jury. In each count, one statement was made before the effective date of the guidelines, and one was made afterward. The 5th Circuit ruled that the applicability of the guidelines depended on whether the post-guideline statement was false. Since a 1990 statement made by defendant was false, it was proper to apply the guidelines. U.S. v. McAfee, 8 F.3d 1010 (5th Cir. 1993).
5th Circuit uses guidelines in effect when alien was discovered, rather than when he entered country. (132) Defendant illegally re-entered the United States in April 1991. Effective November 1, 1991, guideline section 2L1.2 was amended to increase the base offense level. Thereafter, defendant was discovered and arrested on November 21, 1991. The 5th Circuit held it did not violate the Ex Post Facto Clause to sentence defendant under the guidelines in effect when he was found in the country, rather than under the more lenient guidelines in effect when he re-entered the country. There are three separate ways in which a deported alien may commit a violation of 8 U.S.C. section 1326(a); one way is to be a deported alien found within the borders of the U.S. Defendant admitted that he was discovered after the effective date of the amendment. U.S. v. Gonzales, 988 F.2d 16 (5th Cir. 1993).
5th Circuit upholds application of guidelines in effect when conspiracy concluded. (132) Defendant argued that the guidelines in effect in 1988 should have been used in calculating his base offense level, and that the application of the 1990 amendments to the guidelines violated the Ex Post Facto clause. The 5th Circuit affirmed that the application of the guidelines in effect when the conspiracy ended did not violate the Ex Post Facto clause. A conspiracy is a continuing offense. So long as there is evidence that the conspiracy continued after the effective date of the guidelines, there is no ex post facto violation. U.S. v. Buckhalter, 986 F.2d 875 (5th Cir. 1993).
5th Circuit says failure to treat series of embezzlements as “straddle” crimes was not plain error. (132) Defendant pled guilty to a series of 23 embezzlements. 18 occurred prior to the effective date of the guidelines, and five occurred after the effective date of the guidelines. Defendant was sentenced under pre-guidelines law for the first 18 counts, and was sentenced under the guidelines for the last five counts. He objected for the first time on appeal to the district court’s application of pre-guidelines law to the first 18 counts, contending that the series of embezzlements was a continuing “straddle” crime to which the guidelines should be fully applicable. The 5th Circuit found that the failure to treat the embezzlements as a straddle crime was not plain error. Whether a number of embezzlements are continuing offenses depends on the particular facts of the case. If a court concludes that later embezzlements covered up earlier ones, it is entitled to find the offenses are continuing in nature. When a legal conclusion depends in part upon discreet factual findings and the court is never directed to those facts, its legal conclusion is almost never obviously wrong. U.S. v. Gaudet, 966 F.2d 959 (5th Cir. 1992).
5th Circuit rules wire fraud is not a continuing offense. (132) The district court imposed a $1 million fine under the Criminal Fine Enforcement Act of 1984, then codified at 18 U.S.C. section 3623. Section 3623 provided for a fine of $250,000 for any felony committed between January 1, 1985 and November 1, 1987, and $1,000 per count for any wire fraud offense committed before January 1, 1985. All six wire transfers for which defendant was convicted occurred in 1984. The 5th Circuit held that the $1 million fine violated the ex post facto clause, rejecting the government’s claim that although the actual fraudulent wire transfers for which defendant was convicted occurred in 1984, the scheme to defraud continued into 1985 and should be treated as a continuing offense. Each wire transmission in furtherance of a scheme to defraud constitutes a separate crime. It is not the scheme to defraud but the use of the mails or wire that constitutes mail or wire fraud. U.S. v. St. Gelais, 952 F.2d 90 (5th Cir. 1992).
5th Circuit finds no ex post facto violation in application of guidelines to conspiracy that began prior to guidelines’ effective date. (132) The 5th Circuit found no ex post facto violation in the application of the guidelines to a conspiracy which began prior to the enactment of the guidelines. Although defendant contended that his participation in the conspiracy was not shown to have continued past the effective date, he did not argue that he withdrew from the conspiracy by taking affirmative acts inconsistent with the conspiracy and communicated this to his conspirators. U.S. v. Puma, 938 F.2d 151 (5th Cir. 1991).
5th Circuit applies guidelines to conspiracies which began before, but continue after November 1, 1987. (132) Relying on its earlier decision in U.S. v. White, 869 F.2d 822 (5th Cir. 1989), the 5th Circuit held that the guidelines apply to a defendant who joined a conspiracy to manufacture methamphetamine which was already in existence on November 1, 1987, but continued thereafter. No ex post facto violation occurred from the application of the guidelines to this offense. U.S. v. Boyd, 885 F.2d 246 (5th Cir. 1989).
5th Circuit holds that conspiracy which continued after November 1, 1987 falls within guidelines. (132) Defendant argued that because she had joined the conspiracy before the effective date of the guidelines, it violated the ex post facto clause to impose a guideline sentence. The 5th Circuit disagreed. Because conspiracy is a continuing offense, and the evidence showed that her role continued after November 1, 1987, it was proper for her to be sentenced under the guidelines. U.S. v. White, 869 F.2d 822 (5th Cir. 1989).
6th Circuit holds that fraudulent activity was a continuing offense. (132) Defendant used the names and social security numbers of her family and customers to obtain bank loans. She contended that her sentence violated the ex post facto clause because some of the loans were obtained prior to November 1, 1989, when the fraud guideline was amended to increase the offense level for losses of between $200,000 and $500,000. The 6th Circuit rejected this claim, holding that the fraudulent activity was a continuing offense. Although there were multiple victims, they were defrauded through a single scheme. The character of their losses did not change when the guidelines were amended. The guidelines in effect when defendant was sentenced applied to the entire scheme of bank fraud. U.S. v. Buckner, 9 F.3d 452 (6th Cir. 1993).
6th Circuit applies guidelines to conspiracy even though no overt acts occurred after November 1, 1987. (132) The 6th Circuit held that it was error not to apply the guidelines to defendants’ conspiracy convictions even though no overt acts in furtherance of the conspiracy occurred after the guidelines became effective. Because of the ongoing nature of conspiracies, the guidelines apply to conspiracies which begin before but continue beyond the effective date of the guidelines. Here, the tax evasion conspiracy described in the indictment began in April 1983 and continued until June 1988. U.S. v. Alt, 996 F.2d 827 (6th Cir. 1993).
6th Circuit holds that unsuccessful attempts to collect drug money after guidelines’ effective date were acts of conspiracy. (132) The 6th Circuit rejected defendant’s claim that this was a pre-guideline case because his drug conspiracy ended before November 1, 1987. Twice in November 1987, a co-conspirator traveled to Detroit for the purpose of collecting money for heroin delivered in October 1987. The two trips, while unsuccessful, were acts in furtherance of the conspiracy. Thus, defendant was involved in a continuing offense that straddled the effective date of the guidelines, and could be sentenced under the guidelines without violating the ex post facto clause. U.S. v. Markarian, 967 F.2d 1098 (6th Cir. 1992).
6th Circuit holds that guidelines apply to conspiracies which begin before, but continue after effective date of guidelines. (132) Several drug defendants contended that they were sentenced in violation of the ex post facto clause because their conspiracy began before the effective date of the guidelines, but continued thereafter. The 6th Circuit disagreed, holding that one who commits a continuing offense beginning before the effective date of the guidelines and ending after the effective date of the guidelines can be sentenced under the guidelines without violating the ex post facto clause. Furthermore, it is not necessary for the government to prove that the defendants committed an act in furtherance of the conspiracy or knew of acts committed after the effective date of the guidelines in order to be sentenced under the guidelines. Under the Pinkerton rule, conspirators are held liable for foreseeable acts of their coconspirators committed in furtherance of the conspiracy. In order to escape liability for acts committed after the effective date of the guidelines, defendants must prove that they affirmatively withdrew from the conspiracy before the effective date. U.S. v. Walton, 908 F.2d 1289 (6th Cir. 1990).
6th Circuit holds offenses which continue after amendment of statute are subject to punishment under it. (132) A prison escapee claimed that the district court erred in sentencing him to a three year term of supervised release because 18 U.S.C. § 3583(b)(2) only provided for two years of supervised release at the time of his escape. However, the statute was amended effective December 7, 1987, to provide for a three year term, and the defendant was captured on April 20, 1988. Escape is a continuing offense, and is therefore punishable under statutes which are amended while the offense is still continuing. U.S. v. Vanover, 888 F.2d 1117 (6th Cir. 1989).
7th Circuit holds that old Rule 35 did not permit court to resentence defendant under guidelines. (132) Defendant was sentenced to 20 years under pre-guidelines law for a RICO conspiracy. Over two years later, the government asked the court to resentence defendant, arguing that his original sentence was illegal because the conspiracy continued beyond November 1, 1987 (the effective date of the guidelines). The district court granted the motion and resentenced defendant to 20 years under the guidelines, which effectively increased defendant’s sentence. The 7th Circuit reversed, holding that the district court was without authority to resentence defendant. The court agreed that old Rule 35(a), rather than the amended Rule 35, was applicable. But the court had authority only to correct an illegal sentence. Defendant’s sentence was legal when imposed. U.S. v. Corbitt, 13 F.3d 97 (7th Cir. 1993)
7th Circuit applies guidelines to defendant who did not prove he withdrew from conspiracy. (132) The 7th Circuit upheld applying the guidelines to a defendant who did not prove that he withdrew from a drug conspiracy before November 1, 1987, the effective date of the Sentencing Guidelines. In fact, there was evidence that he participated in the activities of the conspiracy as late as August 31, 1990. U.S. v. DePriest, 6 F.3d 1201 (7th Cir. 1993).
7th Circuit holds that defendant waived challenge to application of guidelines. (132) Defendant argued that he should not have been sentenced under the guidelines because his involvement in the conspiracy ended before November 1, 1987. The 7th Circuit held that defendant waived this argument because he failed to timely object either to the recommendation in the presentence report or to the district court’s finding at the sentencing hearing that the guidelines were applicable. Moreover, the argument was meritless. Even if defendant committed no act in furtherance of the conspiracy after November 1, 1987, mere cessation of activity is insufficient for withdrawal. Defendant did not make an affirmative act to either defeat or disavow the purposes of the conspiracy. U.S. v. Price, 988 F.2d 712 (7th Cir. 1993).
7th Circuit upholds application of guidelines to “straddle” conspiracy. (132) The 7th Circuit affirmed that there was no ex post facto violation in applying the sentencing guidelines to defendant, who pled guilty to a conspiracy that began in January 1986 and ended in June 1989. The effective date of the guidelines was November 1, 1987. Defendant could have avoided the guidelines by ceasing the criminal conspiracy prior to November 1987. However, defendant continued, and the new sentencing provisions justly applied. U.S. v. Jackson, 983 F.2d 757 (7th Cir. 1993).
7th Circuit finds no withdrawal from conspiracy before effective date of guidelines. (132) Defendant was originally sentenced under pre-guidelines law. In his first appeal, he adopted all of the arguments of his co-conspirator, who claimed he should have been sentenced under the guidelines because the conspiracy continued past the effective date of the guidelines. At resentencing, defendant saw his co-conspirator receive a much harsher sentence under the guidelines, and attempted to withdraw his request for resentencing. The 7th Circuit affirmed resentencing defendant under the guidelines. Defendant’s request not to be resentenced came too late. He should have asked the first panel to rescind the portion of the judgment remanding his case. Defendant was properly sentenced under the guidelines because he conceded that the criminal enterprise continued past the effective date of the guidelines, and there was no evidence that he withdrew from the conspiracy. U.S. v. Masters, 978 F.2d 281 (7th Cir. 1992).
7th Circuit remands to determine whether conduct continued beyond effective date of guidelines. (132) As a result of defendant’s involvement in a conspiracy, he was convicted of possessing with intent to distribute 10 kilograms of cocaine. Although it was undisputed that the conspiracy continued beyond the effective date of the guidelines, the district court sentenced defendant under the guidelines without expressly determining whether defendant’s conduct charged in the indictment occurred after such effective date. The 7th Circuit remanded for the limited purpose of making such a determination. U.S. v. Centracchio, 977 F.2d 1061 (7th Cir. 1992).
7th Circuit remands for resentencing on all counts where sentence for one count was improper under pre-guidelines law. (132) Defendant was convicted of 19 different fraud related counts, including one count of conspiracy to commit mail fraud. He was sentenced under pre-guidelines law on all counts to 27 years’ imprisonment. The 7th Circuit agreed with defendant that he should have been sentenced under the guidelines for his conspiracy conviction, since the conspiracy “straddled” the guidelines’ effective date. It found that resentencing was necessary for all counts, not just the conspiracy count, because the district court had an overall sentencing plan in mind when it imposed its sentence on each count. In order to allow the district court to reconsider its plan as a whole in sentencing defendant, resentencing on all counts was necessary. U.S. v. Lowry, 971 F.2d 55 (7th Cir. 1992).
7th Circuit upholds application of guidelines where defendant did not prove withdrawal from conspiracy prior to guidelines’ effective date. (132) The 7th Circuit affirmed the applicability of the guidelines to defendant since the government established that the conspiracy extended beyond November 1, 1987. One conspirator testified that he received a total of three or four separate kilogram deliveries of cocaine from another co-conspirator, and that the last delivery occurred sometime in the late fall of 1987 or early winter of 1988. After examining the co-conspirator’s telephone toll records at trial, the conspirator stated that his beeper number appeared on the record four times in 1988. This evidence supported the conclusion that the conspiracy continued after November 1, 1987, the effective date of the guidelines. Moreover, defendant alleged, but failed to present evidence, that he had withdrawn from the conspiracy prior to November 1, 1987. U.S. v. Agrell, 965 F.2d 222 (7th Cir. 1992).
7th Circuit affirms that conspiracy continued past effective date of guidelines. (132) The 7th Circuit affirmed the application of the guidelines to defendant, finding sufficient evidence to support the district court’s conclusion that the conspiracy continued past November 1, 1987. Calls were made from defendant’s phone to a co-conspirator’s beeper number after November 1, 1987. Further, the co-conspirator testified that his last transaction with the conspiracy occurred sometime in the late fall of 1987 or early winter 1988. Defendant presented no evidence that he withdrew from the conspiracy. Although a defendant does not bear the burden of proving withdrawal from a conspiracy, he does have the burden of presenting sufficient affirmative evidence to raise the issue for the jury. U.S. v. Rossy, 953 F.2d 321 (7th Cir. 1992).
7th Circuit rules defendant did not withdraw from conspiracy. (132) The 7th Circuit upheld the district court’s determination that defendant did not withdraw from a drug conspiracy prior to the effective date of the guidelines. Although defendant testified that he told the conspiracy’s leader that he no longer wished to participate, the district court was entitled to disbelieve that testimony and rely on the testimony of another cocaine purchaser and federal undercover agents who described defendant’s involvement after his alleged withdrawal. U.S. v. Bafia, 949 F.2d 1465 (7th Cir. 1991).
7th Circuit rules defendant who ceased selling drugs after smashing co-conspirator’s car did not withdraw from conspiracy. (132) The 7th Circuit rejected defendant’s claim that he committed no acts in furtherance of the conspiracy after the effective date of the guidelines. His acts were not part of a separate conspiracy as he contended. However, even if they were, and defendant committed no acts in furtherance of the conspiracy after the guidelines’ effective date, he was still liable because he did not withdraw from the conspiracy. Although defendant demolished a co-conspirator’s car and stopped selling cocaine for him because they were no longer on good terms, defendant did not perform an affirmative act renouncing the goals of the conspiracy. U.S. v. Bafia, 949 F.2d 1465 (7th Cir. 1991).
7th Circuit holds failed attempt to smuggle drugs was in furtherance of conspiracy. (132) All of the marijuana imported by a drug conspiracy came into the country prior to November 1, 1987, the effective date of the guidelines. However, the drug ring unsuccessfully attempted to smuggle two additional drug shipments into the country after November 1, 1987. The 7th Circuit held that the failed attempts to smuggle drugs were in furtherance of the importation conspiracy. Therefore, the conspiracy was a straddle crime, and the guidelines were applicable to the offense. U.S. v. Morrison, 946 F.2d 484 (7th Cir. 1991).
7th Circuit upholds application of guidelines to “straddle” conspiracy. (132) Defendant contended that since his conspiracy began prior to the effective date of the guidelines, it violated the ex post facto clause to apply the guidelines to the offense. The 7th Circuit rejected this contention, since the conspiracy continued past the effective date of the guidelines. Moreover, the constitutional prohibition against ex post facto punishment is directed principally toward punishment for acts not illegal at the time of their commission or an unexpected punishment. Defendant’s participation in the distribution of cocaine and heroin was at no time legal. U.S. v. Rosa, 946 F.2d 505 (7th Cir. 1991).
7th Circuit affirms application of guidelines to conspiracy that began prior to effective date of guidelines. (132) Defendant contended that it violated the ex post facto clause to apply the guidelines to his conspiracy offense since he engaged in acts before, as well as after, the effective date of the guidelines. The 7th Circuit, following recent Circuit precedent, found no ex post facto violation. U.S. v. McKenzie, 922 F.2d 1323 (7th Cir. 1991).
8th Circuit says offenses that are part of common scheme are like continuing offenses. (132) Defendant pled guilty to a mail fraud that occurred in March and April of 1989. The conduct consisted of defendant, in his position as investment advisor, defrauding a client of investment funds. He also pled guilty to transporting money stolen from another one of his clients, from March 1989 through at least January 1990. The 8th Circuit held that it did not violate the ex post facto clause to apply the November 1989 guidelines to the mail fraud count, since it was part of the same common scheme or plan as the stolen money count. Some offenses, such as conspiracy, are “continuing offenses” for which the completion date controls which version of the guidelines should apply. A “common scheme or plan” or “same course of conduct” by an individual is the unilateral equivalent of the continuing offense of conspiracy. Therefore, the district court’s application of the guideline in effect at the time of sentencing did not violate the ex post facto clause. U.S. v. Reetz, 18 F.3d 595 (8th Cir. 1994).
8th Circuit upholds application of guidelines to “straddle” conspiracy. (132) The 8th Circuit affirmed the application of the guidelines to defendant’s conspiracy, since although it began before the effective date of the guidelines, it ended after such date. All other counts against defendant occurred after the guidelines’ effective date. U.S. v. Davila, 964 F.2d 778 (8th Cir. 1992).
8th Circuit affirms that defendant did not withdraw from conspiracy prior to guidelines’ effective date. (132) The 8th Circuit upheld the application of the guidelines to a defendant convicted of drug conspiracy, ruling that defendant did not prove that he withdrew from the conspiracy prior to the guidelines’ effective date. Moreover, the government presented evidence showing defendant’s involvement in the conspiracy after the guidelines’ effective date. On November 1, 1987, defendant called the co-conspirator’s sister and asked when the co-conspirator would be returning from California. Since California was the source of the conspiracy’s cocaine, and the co-conspirator did return from California with cocaine, it was reasonable to assume that the telephone call was in furtherance of the conspiracy. In addition, testimony by another conspirator linked defendant to the conspiracy as late as October, 1988. U.S. v. Granados, 962 F.2d 767 (8th Cir. 1992).
8th Circuit upholds inclusion of drugs distributed by conspiracy after defendant moved to California. (132) From January to September 1987, defendant and three co-conspirators were involved in drug-related activities in Lincoln, Nebraska. In September 1987, defendant and his fiancée abruptly moved to California. At trial defendant testified that they moved to escape the drug scene in Lincoln and to avoid a debt he had incurred. After the move, he made occasional phone calls to his co-conspirators in Lincoln, but did not actively participate in the distribution of cocaine. The 8th Circuit upheld the application of the guidelines to his offense, and held him accountable for certain amounts of cocaine distributed by the conspiracy after he left for California. Conspiracy is a continuing offense, and a defendant may be sentenced under the guidelines for his participation in any conspiracy that continued past November 1, 1987, even if the defendant performed no overt act in furtherance of the conspiracy after this date. The district court found that although the exact amount of cocaine distributed after defendant’s move was not foreseeable, it was reasonably foreseeable that the conspiracy would continue to receive cocaine after defendant’s move, and that such amounts would be equal to at least three times the amounts previously transferred by the conspiracy. U.S. v. Olderbak, 961 F.2d 756 (8th Cir. 1992).
8th Circuit upholds application of guidelines to “straddle” conspiracy. (132) Defendant was convicted of a conspiracy that “straddled” the effective date of the guidelines, thus making the guidelines applicable to the offense. Defendant argued that a government agent who was a professional hypnotist used his skills as a hypnotist, improperly inducing defendant to sell the agent some cocaine in 1988. This caused the guidelines to apply to defendant’s offense. The 8th Circuit found no due process violation in the use of the hypnotist as a government agent. The hypnotist was a friend of defendant’s and defendant testified at his sentencing that once he was presented with an opportunity to sell cocaine, he went along with it. He did not raise an entrapment defense or allege that the hypnotist unduly influenced him. U.S. v. Pregler, 925 F.2d 268 (8th Cir. 1991).
8th Circuit rules that guidelines apply to conspiracy that ended after Nov. 1, 1987. (132) Defendant argued that sentencing him under the guidelines violated the ex post facto clause of the Constitution because there was no evidence of conspiratorial activity after Nov. 1, 1987 — the effective date of the guidelines. The 8th Circuit rejected the argument, noting that the jury found in a special interrogatory that the conspiracy continued beyond Nov. 1, 1987. In addition, the district court found that the conspiracy continued until May 12, 1988. The court upheld the district court’s finding as not clearly erroneous. U.S. v. Wayne, 903 F.2d 1188 (8th Cir. 1990).
8th Circuit holds that consideration of drugs possessed prior to November 1987 does not violate ex post facto clause. (132) The 8th Circuit held that because drug sales prior to the effective date of the guidelines were part of a continuing course of conduct, the district court did not violate the ex post facto clause when it aggregated those uncharged quantities in determining the defendant’s offense level. No ex post facto violation occurs when the defendant is sentenced for a crime which occurred after November 1, 1987, as was the case here. U.S. v. Allen, 886 F.2d 143 (8th Cir. 1989).
8th Circuit rules that guidelines in effect on date conspiracy ends are to be used to determine range. (132) The 8th Circuit held that there is no violation of the ex post facto clause when a defendant is sentenced under guidelines which become effective while the conspiracy was still continuing. Thus, it was proper to sentence a defendant under the initial guidelines when the conspiracy continued until January 1988 even though it may have begun before the guidelines became effective. U.S. v. Walker, 885 F.2d 1353 (8th Cir. 1989).
8th Circuit holds that guidelines apply to conspiracies beginning before, but continuing after effective date of guidelines. (132) Drug defendant appealed the application of the guidelines to his conviction for a drug conspiracy. The 8th Circuit rejected his challenge. The defendant and the government had stipulated that the conspiracy occurred during the first week of October and continued until his arrest on November 24, 1987. The court held that application of the guidelines to the conspiracy would not violate the ex post facto clause, and the enabling statutes mandated application of the guidelines to continuing offenses. U.S. v. Tharp, 884 F.2d 1112 (8th Cir. 1989).
9th Circuit upholds considering acts of bribery and losses after guidelines amended. (132) Defendant was convicted of conspiracy to defraud the United States, bribery, and other crimes arising out of corrupt practices as an employee of the IRS. He argued that the district court erred in applying a two level increase under an amended guideline provision because there was only one bribe after the provision was amended. In a 2-1 opinion, the Ninth Circuit disagreed, finding there were multiple criminal acts after the amendment and that it was properly applied. The district court did not “pour over” the loss from one count to another but correctly and separately considered the pre- and post-guideline conduct for each of the counts. The doctrine of “continuing offense” does not apply where the charged criminal conduct itself extends over a period of time. Here the conduct was a scheme that extended over a period of time. U.S. v. Morales, 11 F.3d 915 (9th Cir. 1993).
9th Circuit finds no need to apportion loss between pre- and post-guideline dates where sentences were concurrent. (132) Although mail and wire fraud sentences that straddle the sentencing guidelines effective date of November 1, 1987 are not deemed to be continuing offenses and must be sentenced separately, the district court can avoid the risk of double counting losses by sentencing concurrently on the pre- and post-guideline counts. Here, the district court properly imposed concurrent sentences, and therefore there was no need to apportion the loss calculations between pre- and post-guideline dates. U.S. v. Mullins, 992 F.2d 1472 (9th Cir. 1993).
9th Circuit holds that 1987 amendment to Rule 35(a) limits court’s power to correct sentence. (132) Prior to November 1, 1987, Rule 35(a), Fed. R. Crim. P. permitted the district court to “correct an illegal sentence at any time.” On November 1, 1987, however, the rule was amended to permit a district court to correct a sentence only on remand from an appellate court which has determined that the sentence was “imposed in violation of the law [or] the sentencing guidelines, or [was] unreasonable.” Here, the defendant was convicted of a conspiracy that ended in March, 1988. Thus, it did not violate the prohibition against ex post facto laws to apply the new rule to him. Under the new rule, the district court had no power to correct his sentence. U.S. v. Henrique, 988 F.2d 85 (9th Cir. 1993).
9th Circuit reiterates that mail fraud is not a continuing offense under guidelines, despite contrary ruling as to restitution. (132) In U.S. v. Niven, 952 F.2d 289, 293 (9th Cir. 1991), the 9th Circuit held that mail and wire fraud are not continuing offenses: “Each offense is complete when the fraudulent matter is placed in the mail or transmitted by wire, respectively.” Defendant argued that Niven conflicted with U.S. v. Angelica, 859 F.2d 1390, 1393 (9th Cir. 1988) which held that a defendant could be required to pay restitution under the Victim and Witness Protection Act for all losses caused by his mail fraud scheme even though most of the fraudulent transactions occurred prior to the effective date of the act. The 9th Circuit found no conflict between the two cases, noting that Angelica was interpreting the Victim and Witness Protection Act, whereas Niven was interpreting the Sentencing Guidelines. Accordingly, the district court did not err in sentencing the defendant without resort to the guidelines. U.S. v. Scarano, 975 F.2d 580 (9th Cir. 1992).
9th Circuit applies amended guideline to conspiracy, but application to substantive counts was ex post facto. (132) Agreeing with every other circuit that has addressed the issue, the 9th Circuit held that the amended guidelines applied to the conspiracy that continued after the date of the amendment. However, the court held that it was error to apply the amended guidelines to the substantive drug possession offenses which occurred prior to the effective date of the amended guidelines. The court held that this violated the ex post facto clause, and the case was remanded to the district court to resentence the defendant under the 1988 guidelines on the substantive counts. U.S. v. Castro, 972 F.2d 1107 (9th Cir. 1992).
9th Circuit holds that mail and wire fraud are not continuing offenses. (132) The 9th Circuit held that 18 U.S.C. section 1341 and 1343, mail and wire fraud, are not continuing offenses because “each offense is complete when fraudulent matter is placed in the mail or transmitted by wire.” Thus the district court did not err in sentencing the defendant under pre-guidelines law for those counts committed prior to November 1, 1987. U.S. v. Niven, 952 F.2d 289 (9th Cir. 1991), overruling on other grounds recognized by U.S. v. Ortland, 109 F.3d 539 (9th Cir. 1997).
9th Circuit states that guidelines apply to “continuing offenses” that continue after November 1, 1987. (132) Relying on U.S. v. Frank, 864 F.2d 992, 1008 (3rd Cir. 1988), the 9th Circuit stated that the “Sentencing Guidelines apply to offenses initiated before November 1, 1987, but not completed until after November 1, 1987.” Thus the guidelines applied to defendant’s “continuing” offense of failure to appear in violation of 18 U.S.C. § 3146(a). U.S. v. Gray, 876 F.2d 1411 (9th Cir. 1989).
9th Circuit holds applying increased penalty provisions to conspiracy which ended shortly after amendment did not violate ex post facto clause. (132) The increased penalties of the comprehensive Crime Control Act of 1984 became effective on October 12, 1984. The indictment charged that the methamphetamine conspiracy ended November 2, 1984, and there was evidence that it did in fact continue to that date. Accordingly, Circuit Judges Hall and Sneed and District Judge Stephens held that applying the increased penalty provisions of the new Act did not violate the ex post facto clause. U.S. v. Calabrese, 825 F.2d 1342 (9th Cir. 1987).
10th Circuit rules defendants did not withdraw from conspiracy before guidelines’ effective date. (132) The 10th Circuit rejected three defendants’ claim that they withdrew from their drug conspiracy prior to November 1, 1987, the effective date of the guidelines. Although the partnership of two of the defendants may have ended prior to November 1, 1987, the conspiracy continued in spite of the partnership breakup. The district court found that the conspiracy continued into early 1991, and there was considerable evidence of one defendant’s drug activity until his arrest in 1989. Although the second defendant contended that he stopped distributing marijuana for the conspiracy in October 1987, at trial he testified that he was not sure of the date, and other witnesses testified that he was involved at least through 1988. There was overwhelming evidence that the third defendant was involved in drug distribution activities through 1991. U.S. v. Powell, 982 F.2d 1422 (10th Cir. 1992).
10th Circuit refuses to review alternate sentence under 1988 guidelines since defendant was properly sentenced under 1990 guidelines. (132) The 10th Circuit refused to review defendant’s claim that the court erred in imposing a 12-year alternate sentence under the 1988 guidelines. Since the district court properly sentenced defendant under the 1990 guidelines, the propriety of the alternate sentence under the 1988 guidelines was not necessary. The application of the 1990 guidelines did not violate the ex post facto clause. Defendant pled guilty to a conspiracy commencing at least as early as 1984 and continuing until the return of the indictment on January 10, 1991. U.S. v. Burger, 964 F.2d 1065 (10th Cir. 1992).
10th Circuit rules defendant did not withdraw from conspiracy prior to effective date of amended guidelines. (132) The 10th Circuit found sufficient evidence that defendant was part of a drug conspiracy after November 1, 1989, the date the offense level for conspiracy was increased. In 1988, a co-conspirator told an undercover agent that his source of methamphetamine was in California and that he sometimes received as much as two pounds from California. A package sent to the co-conspirator in August, 1990 contained one pound of methamphetamine and had been mailed from California. In addition, the items seized from the co-conspirator in 1990 were the same items used by the co-conspirator in 1988 in defendant’s presence to conceal, package and distribute methamphetamine. This evidence was sufficient for the district court to conclude that the conspiracy continued until August, 1990. U.S. v. Russell, 963 F.2d 1320 (10th Cir. 1992).
10th Circuit applies guidelines in effect when conspiracy ended rather than when it began. (132) The offense level specified in the 1988 guidelines was four levels lower than the offense level effective November 1, 1989. The 10th Circuit upheld the district court’s decision to apply the 1989 guidelines, which were in effect when the conspiracy ended, rather than the 1988 guidelines, which were in effect when the conspiracy began. There is no violation of the ex post facto clause in applying the guidelines in effect at the time of the last act of the conspiracy. U.S. v. Stanberry, 963 F.2d 1323 (10th Cir. 1992).
10th Circuit affirms that defendant committed acts in furtherance of conspiracy after his 18th birthday. (132) Defendant became involved in a drug conspiracy as a juvenile. Although he turned 18 during the course of the conspiracy, he contended that there was no evidence that he remained involved in the conspiracy after his 18th birthday, and therefore the district court had no jurisdiction over him because he was a juvenile. The 10th Circuit rejected the argument, noting that even though defendant moved out of state on his 18th birthday, he came back for a visit. Two police officers testified that several weeks after defendant moved, they observed him and a co-defendant apparently selling cocaine. This testimony was corroborated by a statement that a co-defendant made to an undercover police officer. U.S. v. Harris, 944 F.2d 784 (10th Cir. 1991).
10th Circuit rejects ex post facto challenge to aggregation of losses from pre-guidelines and post-guidelines offenses. (132) Counts 1 through 7 were pre-guidelines offenses and counts 8 through 10 were post-guidelines offenses. The 10th Circuit rejected defendant’s claim that it violated the ex post facto clause to calculate the loss caused by his crime under guideline sections 2B1.1 and 2F1.1 based upon the total loss involved in both the pre- and post-guidelines offenses. Enhancement of a guidelines sentence based on losses associated with pre-guidelines offenses does not violate the ex post facto clause. U.S. v. Haddock, 956 F.2d 1534 (10th Cir. 1992), unaffected on rehearing, 961 F.2d 933 (10th Cir. 1992), abrogated on other grounds by U.S. v. Wells, 519 U.S. 482, 117 S.Ct. 921 (1997).
10th Circuit rules government failed to establish that conspiracy continued past guidelines’ effective date. (132) The 10th Circuit found that the government failed to offer any evidence that the conspiracy of which defendant was a member continued past November 1, 1987, the effective date of the guidelines. The only evidence offered by the government to show conspiratorial activity by anyone beyond this date was testimony that a cocaine buyer of a co-defendant sold the cocaine in 1988. The co-defendant had sold the cocaine to the buyer in December 1987. However, this was after the co-defendant terminated his conspiracy with defendant and began a new conspiracy. Thus, defendant was improperly sentenced under the guidelines. U.S. v. Harrison, 942 F.2d 751 (10th Cir. 1991).
10th Circuit applies guidelines to conspiracy beginning before effective date. (132) Relying on past circuit precedent, the 10th Circuit rejected defendant’s claim that the ex post facto clause was violated by applying the guidelines to a conspiracy that began before their effective date but continued after that time. U.S. v. Shewmaker, 936 F.2d 1124 (10th Cir. 1991).
11th Circuit holds that escape from custody is a continuing offense. (132) Defendant escaped from federal custody July 11, 1986, prior to the effective date of the guidelines. He was arrested and charged with escape on April 30, 1991, after the effective date of the guidelines. The 11th Circuit affirmed that applying the guidelines to defendant did not violate the ex post facto clause, even though the guidelines imposed a harsher punishment than the law in effect when defendant escaped from custody. Escape is a continuing offense and an escapee can be held liable for failing to return to custody as well as for the initial departure. Although defendant did not speak or read English, the court rejected defendant’s claim that he was never adequately warned of the changes in the way escape was treated under the guidelines. The government is not required to take special steps to apprise the public of the existence of newly enacted penal laws. U.S. v. Tapia, 981 F.2d 1194 (11th Cir. 1993).
11th Circuit finds defendant did not withdraw from conspiracy prior to effective date of guidelines. (132) Defendant argued that he should not have been sentenced under the guidelines for his conspiracy conviction because he engaged in no criminal activity after the effective date of the guidelines. The 11th Circuit rejected this contention. The ex post facto clause does not bar application of the guidelines to conspiracies that began before and continued after the effective date of the guidelines. In order to avoid sentencing under the guidelines, a conspirator must prove that he withdrew from the conspiracy prior to the effective date. Defendant alleged that he refused to make any further drug courier trips prior to the effective date. However, mere cessation of criminal activity does not constitute withdrawal. Defendant continued to demand payment for his earlier trips. His assertion that he refused to act as a courier was irrelevant if he continued to demand that he be paid for his prior illegal activity. U.S. v. Nixon, 918 F.2d 895 (11th Cir. 1990).
11th Circuit holds that consideration of conduct before effective date of guidelines is proper in a conspiracy offense. (132) Defendant argued that the court improperly relied on drug deliveries before the guidelines’ effective date when it imposed sentence on his conspiracy conviction. The 11th Circuit disagreed, holding that Congress did not intend to prohibit reliance on conduct prior to the guidelines’ effective date when it affirmatively directed the sentencing courts to include relevant conduct in furtherance of a conspiracy when calculating guideline ranges. Since conspiracy is a continuing crime, the increase in penalty for a conspiracy beginning before the date of enactment but continuing afterwards did not violate the ex post facto clause. U.S. v. Terzado-Madruga, 897 F.2d 1099 (11th Cir. 1990).
D.C. Circuit concludes that conspiracy continued beyond effective date of guidelines. (132) Defendant and his brother conspired to make false claims against a government fund to be used to reimburse certain victims of discrimination. The D.C. Circuit upheld the application of the sentencing guidelines, concluding that the conspiracy continued beyond the guidelines’ effective date. The conspiracy continued at least until February 1988, when defendant’s brother sent a check to the some of the fraudulent claimants. An act of a co-conspirator may extend the conspiracy so long as the act was done in furtherance of the conspiracy, was within the scope of the unlawful project, and could be reasonably foreseen as a necessary or natural consequence of the unlawful agreement. U.S. v. Milton, 8 F.3d 39 (D.C. Cir. 1993).
D.C. Circuit applies guidelines to “straddle” conspiracy. (132) Defendants were convicted of various counts relating to a conspiracy to commit tax fraud against the United States. The D.C. Circuit affirmed the application of the guidelines to the conspiracy, even though it occurred before and after November 1, 1987, the effective date of the guidelines. It was not material that the jury did not specify whether the purpose of the conspiracy was to make false statements or to evade taxes, since the district court itself determined that both objects of the conspiracy continued after November 1, 1987. Since the timing of the conspiracy implicated sentencing only, the district court was entitled to make a factual determination under the preponderance of the evidence standard. The jury was not required to find that each defendant continued to participate in the conspiracy after November 1, 1987. Defendants had the burden of proving that they affirmatively withdrew from the conspiracy before that date, and they failed to do so. U.S. v. Dale, 991 F.2d 819 (D.C. Cir. 1993).