§145 Statutory Challenges To Guidelines
1st Circuit upholds 10-year mandatory minimum for manufacturing marijuana. (145)(245)(253) Defendant was convicted of manufacturing over 100 marijuana plants. The district court sentenced him under 21 U.S.C. §841(b)(1)(B)(vii) to the mandatory minimum sentence of 120 months applicable to defendants with a prior felony drug conviction. Defendant argued that the ten-year mandatory-minimum sentence violated the Eighth Amendment. He pointed to the public’s evolving views on marijuana, including state-law decriminalization and legalization measures. He also cited the federal government’s general policy of not prosecuting cultivation and distribution activities that were in compliance with “strong and effective [state marijuana] regulatory and enforcement systems.” The First Circuit held that the 120-month mandatory minimum sentence did not violate the Eighth Amendment. Despite the evolving consensus on marijuana policy, manufacturing marijuana remained a serious crime under federal law. Defendant’s arguments were more appropriately directed at Executive and Legislative branches. U.S. v. Ford, 839 F.3d 94 (1st Cir. 2016).
9th Circuit says Commission had authority to promulgate offense level 43. (145)(210) At defendant’s sentencing for murder, the district court found that defendant had an offense level of 43. At every criminal history category, offense level 43 yields a life sentence. Defendant argued that the Sentencing Commission did not have authority under 28 U.S.C. §994(b)(1) to promulgate an offense level that did not proscribe a “range” of sentences. The Ninth Circuit held that level 43 corresponds to the mandatory minimum sentence of life in the federal murder statute, 18 U.S.C. §1111, and that where a single sentence is compelled by statute, a sentencing “range” is properly limited to that sentence. U.S. v. Pete, __ F.3d __ (9th Cir. April 11, 2016) No. 14-10370.
Supreme Court holds that career offender amendment violates the statute. (145) In 28 U.S.C. § 994(h), Congress directed the Sentencing Commission to “assure” that the guidelines specify a prison sentence “at or near the maximum term” for career offenders. Effective November 1, 1994, the Sentencing Commission amended Commentary Note 2 to the career offender guideline, § 4B1.1, to define the phrase “offense statutory maximum” to mean the maximum term “not including any increase in the maximum term under a sentencing enhancement provision that applies because of the defendant’s prior criminal record,” such as 21 U.S.C. § 841(b). This new definition was challenged by the Department of Justice. In a 6-3 opinion written by Justice Thomas, the Supreme Court agreed with the Justice Department and held that the Commission’s interpretation was inconsistent with the plain language of 28 U.S.C. § 994(h). Thus the court held that the “maximum term authorized” must be read to include all applicable statutory sentencing enhancements, including the recidivist enhancements in § 841(b). Justice Breyer dissented at length, joined by Justices Stevens and Ginsburg. U.S. v. LaBonte, 520 U.S. 751, 117 S.Ct. 1673 (1997).
1st Circuit says drug statutes not unconstitutional after Apprendi. (145) Defendants argued that their sentences were unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000) because they were based on factors found by the district judge under a preponderance of the evidence standard rather than on findings made by the jury beyond a reasonable doubt. Because defendants’ 235-month sentences were less that the 240-month statutory maximum sentence for trafficking in even the smallest quantity of cocaine, 21 U.S.C. § 841(b)(1)(C), the First Circuit found no Apprendi violation. The panel also rejected defendants’ argument that, under Apprendi, 21 U.S.C. §§ 841 and 952 are unconstitutional because they do not specifically assign the drug quantity determination to the jury. Many courts have found § 841 constitutional even though it is silent as to who should determine drug quantities. Section 952 is similarly silent. This does not render them unconstitutional. The statute’s test does not conflict with Apprendi’s rule and a sentence remands valid so long as there is no Apprendi violation in the course of its implementation. U.S. v. Lopez-Lopez, 282 F.3d 1 (1st Cir. 2002).
1st Circuit holds that career offender statute did not conflict with guideline. (145) Defendant argued that the guidelines’ career offender provision, § 4B1.1, conflicts with 28 U.S.C. § 994(h). The statute authorizes sentences “at or near the maximum term” for defendants who are convicted of, and have previously been convicted of two or more times of, violations of the Controlled Substances Act, sections 1002(a), 1005, and 1009 of the Controlled Substances Import and Export Act, and the Maritime Drug Law Enforcement Act. He asserted that the convictions must be under all of the listed statutes. In contrast, USSG § 4B1.1 does not require defendants to have violated different controlled substance statutes to be classified as career offenders. The First Circuit rejected defendant’s interpretation of § 994(h). The statute uses “and” in the alternative sense, not in the cumulative sense. The fact that defendant’s charged heroin offenses and two or more of his prior offenses constituted offenses described in 21 U.S.C. § 841 was sufficient under § 994(h). The government was not required to charge him with a violation of each and every statute enumerated in § 994(h) for that section to apply. U.S. v. Frisby, 258 F.3d 46 (1st Cir. 2001).
1st Circuit upholds drug conspiracy as predicate offense for career offender guideline. (145) Defendant was convicted of conspiracy to commit a drug trafficking offense. The 1st Circuit approved the use of the drug conspiracy conviction to sentence defendant as a career offender. Application note 1 to section 4B1.2, which includes conspiracy to commit a drug offense as a controlled substance offense, is not inconsistent with either the guidelines or 28 U.S.C. § 994(h). The legislative history makes clear that section 994(h) is not intended to be an exhaustive list of crimes that qualify as career offender offenses. The Sentencing Commission had the authority to include certain conspiracies within the definition of “crime of violence” and “controlled substance offense.” The same analysis applies whether the offense is a triggering or a predicate offense. The court also held that state court convictions can properly be considered as predicate offenses under the career offender provision. U.S. v. Piper, 35 F.3d 611 (1st Cir. 1994).
1st Circuit upholds using state drug convictions as predicate career offender offenses. (145) Defendant argued that 28 U.S.C. section 994(h) permits the career offender guideline to take account of previous federal drug convictions, but not of convictions under state drug laws. The 1st Circuit rejected this argument. First, although the statute does refer to specific federal statutes, it does not exclude, but rather includes, convictions under state law. Examination of the purpose of the statutory provision supports this literal reading. Defendant’s interpretation would frustrate the purpose of imposing substantial prison terms on repeat violent offenders and drug traffickers. Finally, defendant’s interpretation would create a significant anomaly in the guidelines system. Distinguishing among offenders on the basis of what jurisdiction happened to punish the past criminal behavior would be close to irrational. U.S. v. Beasley, 12 F.3d 280 (1st Cir. 1993).
1st Circuit upholds requirement of consecutive sentences. (145) Defendant argued that section 5G1.3 violated 18 U.S.C. §3854(a) by specifying situations in which consecutive sentences should be imposed. The 1st Circuit disagreed, holding that the statutory statement that sentences “may run concurrently or consecutively” when a sentence is imposed on a defendant already subject to an undischarged term of imprisonment did not limit the Commission’s ability to promulgate guidelines in this area. U.S. v. Flowers, 995 F.2d 315 (1st Cir. 1993).
2nd Circuit affirms Commission’s authority to bar resentencing below amended guideline range. (145) The district court granted defendant’s motion under 18 U.S.C. § 3582(c)(2) for a sentence reduction based on Amendment 750. Defendant challenged the court’s ruling that guideline § 1B1.10 barred it from varying below his amended guideline range, even though, at defendant’s initial sentencing, he received a ten-percent downward variance from the bottom of the applicable guideline range based on his personal history. The Second Circuit found no error. Guideline § 1B1.10 bars variances below the amended guideline range, as was a valid exercise of the Sentencing Commission’s authority. Nor did § 1B1.10 violate the Administrative Procedure Act’s requirements for the promulgation of formal rules. U.S. v. Erskine, 717 F.3d 131 (2d Cir. 2013).
2nd Circuit holds that Sentencing Commission was authorized to expand definition of financial institution. (145) Guideline § 2F1.1(b) (7)(A) provides for a four-level increase for fraud offenses that “substantially jeopardized the safety and soundness of a financial institution.” Application Note 16 defines “financial institution” to include “any state or foreign bank … and any similar entity, whether or not insured by the federal government.” The Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA) directed the Sentencing Commission to increase the penalties for frauds jeopardizing the safety of federally insured financial institutions. The Second Circuit concluded that the Sentencing Commission had the legal authority to adopt a broader definition of a financial institution than in the FIRREA. The FIRREA is not the sole source of the Commission’s authority to define a financial institution. The broad definition was promulgated under the Commission’s general statutory powers in § 994(a) of the Sentencing Reform Act. Under this broad definition, premium finance companies were sufficiently bank-like to qualify as financial institutions under § 2F1.1(b) (7)(A). Premium finance companies offer loans to commercial insurance customers so that they can pay the annual premium on their commercial insurance on its due date. “[W]hen it walks and talks like a financial institution … it is … covered by [§ 2F1.1(b)(7)].” U.S. v. Randy, 81 F.3d 65 (7th Cir. 1996). U.S. v. Ferrarini, 219 F.3d 145 (2d Cir. 2000).
2nd Circuit upholds consecutive sentences for conspiracy and substantive offense. (145) Defendant was convicted of traveling in interstate commerce with intent to commit a murder for hire and of conspiracy to do so, both in violation of 18 U.S.C. § 1958. The judge sentenced defendant to consecutive terms under USSG § 5G1.2 (d). Defendant argued that § 5D1.2(d) conflicted with 28 U.S.C. § 994(l)(2), which mandates that the guidelines reflect “the general inappropriateness of imposing consecutive terms of imprisonment for an offense of conspiring to commit an offense … and for an offense that was the sole object of the conspiracy.” The Second Circuit held that § 5G1.2(d) is not inconsistent with § 994(l)(2). The guidelines comport with § 994(l) (2) by aggregating as a single offense a charge of conspiring to commit a crime and a charge for the underlying offense that was the sole object of the conspiracy. See § 3D1.2(b) and note 4. Section 3D1.3(a) then prescribes the sentencing range applicable to the most serious offense. Thus, the guidelines for combining multiple counts avoid double punishment for a conspiracy offense and the underlying substantive offense. U.S. v. Kapaev, 199 F.3d 596 (2d Cir. 1999).
2nd Circuit reaffirms that drug conspiracy can be predicate career offender crime. (145) Defendant argued that the Sentencing Commission lacked authority to make drug conspiracies predicate career offender crimes. The Second Circuit rejected the claim based on its recent opinion in U.S. v. Jackson, 60 F.3d 128 (2d Cir. 1995). That case held that the Sentencing Commission’s authority to promulgate § 4B1.1 was not confined to 28 U.S.C. § 994(h), but could also be found in § 994(a). Therefore, a narcotics conspiracy conviction can be a predicate career offender crime. U.S. v. Nutter, 61 F.3d 10 (2d Cir. 1995).
2nd Circuit holds that drug conspiracy is a “controlled substance offense.” (145) Defendant was convicted of conspiring to distribute narcotics, and was sentenced as a career offender based on two prior crimes of violence. He argued that the Sentencing Commission exceeded its statutory mandate under 28 U.S.C. § 994(h) by including drug conspiracies as controlled substance offenses in note 1 to § 4B1.2. The Second Circuit held that the Sentencing Commission was authorized to make include aiding and abetting, conspiring and attempting to commit drug offenses as controlled substance offenses. First, § 994(h) is not the sole basis for the Commission’s authority to devise the career offender guidelines–§ 994(a) also provides such authorization. Second, even if § 994(h) were the sole authority, the statute does not contain an exclusive list of offenses that would subject a defendant to a career offender sentence. Finally, Congress has elsewhere manifested its intent that drug conspiracies and underlying offenses should be treated the same. U.S. v. Jackson, 60 F.3d 128 (2d Cir. 1995).
2nd Circuit upholds validity of armed career criminal guideline. (145) Defendant was classified as an armed career criminal under 18 U.S.C. § 924(e), which provides for a minimum sentence of 15 years. Under § 4B1.4, the guidelines’ implementation of § 924(e), defendant had a minimum guideline sentence of 188 months. The Second Circuit, relying on its recent decision in U.S. v. McCarthy, 54 F.3d 51 (2d Cir. 1995), affirmed the validity of § 4B1.4. The Sentencing Commission had the authority to promulgate § 4B1.4. Moreover, the guideline range under § 4B1.4 is lawful, notwithstanding the lower statutory minimum set by § 924(e). The Sentencing Commission was not obligated to set minimum guideline ranges that coincided with the minimum punishments prescribed by the statute for such offense. U.S. v. Muniz, 60 F.3d 65 (2d Cir. 1995).
2nd Circuit upholds statutory authority for armed career criminal guideline. (145) The Second Circuit held that the Sentencing Commission acted within its statutory authority in promulgating § 4B1.4, the armed career criminal guideline. The minimum sentence under § 4B1.4 does not exceed the statutory minimum of 180 months. If an armed career criminal receives a three level acceptance of responsibility reduction, the minimum sentencing range would be 135-168 months. Moreover, a district court has the discretion to depart downward to the statutory minimum, or even below the statutory minimum in the event of a § 5K1.1 motion. U.S. v. McCarthy, 54 F.3d 51 (2d Cir. 1995).
2nd Circuit holds that guideline range is binding unless departure is appropriate. (145) Defendants all had a guideline range of 24-30 months. The district court sentenced them to terms well below the guideline range, stating that the guidelines are only one factor to be considered in imposing a sentence, and that 24-30 months imprisonment was greater than necessary to achieve the general punishment purposes in 18 U.S.C. § 3553(a). The Second Circuit held that § 3553 requires a court to sentence within the applicable guideline range unless a departure is appropriate. The language of subsection (b), which directs a court to impose a guideline sentence, is mandatory, not precatory. This interpretation does not render subsection (a) immaterial. The factors listed in (a) inform the court’s determination of the appropriate sentence within a guideline range. U.S. v. Deriggi, 45 F.3d 713 (2d Cir. 1995).
2nd Circuit approves cost of imprisonment fine under § 5E1.2(i). (145) Defendants, relying on U.S. v. Spriropoulos, 976 F.2d 155 (3rd Cir. 1992), argued that the Sentencing Commission exceeded the scope of its statutory authority by promulgating § 5E1.2(i) (authorizing cost of imprisonment fines). The 2nd Circuit disagreed, persuaded by the 7th Circuit’s decision in U.S. v. Turner, 998 F.2d 534 (7th Cir. 1993). Section 5E1.2(i) serves to deter criminal conduct, and thus is authorized by 28 U.S.C. § 994(c)(3) and (6), and by 18 U.S.C. 3553(a)(2)(A) and (B). The § 5E1.2(i) fine was not an upward departure, even though defendant already received the maximum guideline fine under § 5E1.2(c). The guidelines do not limit the accumulated fines under sections 5E1.2(c) and 5E1.2(i) to the maximum fine under § 5E1.2(c). U.S. v. Leonard, 37 F.3d 32 (2nd Cir. 1994).
2nd Circuit applies same enhancements to conspirators as to those convicted of the substantive offense. (145) Defendant was convicted of conspiracy to counterfeit, and his base offense level was enhanced 15 levels because his offense involved more than $10 million. The 2nd Circuit rejected defendant’s argument that the Sentencing Commission acted irrationally or in excess of its power in applying the same enhancements to conspirators under 2X1.1(a) as would apply to those convicted of the target offense. U.S. v. Boothe, 994 F.2d 63 (2nd Cir. 1993).
3rd Circuit says that statute barring imprisonment for rehabilitation allows consideration of rehabilitation. (145) Under 18 U.S.C. § 3582(a), a court imposing sentence must consider the factors set forth in 18 U.S.C. § 3553(a), but must recognize that “imprisonment is not an appropriate means of promoting correction and rehabilitation.” When sentencing defendant for bank robbery, the district court explained that it wished to ensure that defendant received medical care and drug treatment as part of his sentence. The court also said that the sentence imposed was necessary to achieve other sentencing goals, including punishment, respect for the law, deterrence, and community protection. The Third Circuit held that § 3582(a) bars a court from imposing or lengthening a sentence of imprisonment for the purpose of providing correction or rehabilitation, but that the district court could consider rehabilitation as part of a larger sentence. U.S. v. Watson, 482 F.3d 269 (3d Cir. 2007).
3rd Circuit holds career offender amendment conflicts with § 994(h). (145) A career offender’s offense level under § 4B1.1 is based on the “Offense Statutory Maximum” for the offense of conviction. Note 2 to § 4B1.1 defines this as “the maximum term of imprisonment authorized for the offense of conviction.” Courts uniformly held that “Offense Statutory Maximum” referred to the statutory maximum as increased by any enhancement based on a defendant’s prior convictions. In November 1994, the Sentencing Commission promulgated Amendment 506, which directed the sentencing court to ignore any increases in the offense statutory maximum based on the defendant’s prior criminal record. The Third Circuit, joining Sixth, Seventh, Eighth, and Tenth Circuits, and disagreeing with the First and Ninth Circuits, held that the Sentencing Commission exceeded its authority in enacting Amendment 506. Note 2’s use of the term “maximum” to refer to unenhanced sentences “relegates the enhanced penalties Congress provided for . . . to the dust bin.” The Supreme court in U.S. v. LaBonte, 116 S.Ct. 2545 (1996), recently granted certiorari to resolve this inter-circuit conflict. U.S. v. McQuilkin, 97 F.3d 723 (3d Cir. 1996).
3rd Circuit upholds Commission’s authority to promulgate Armed Career Criminal guideline. (145) Defendant argued that the Sentencing Commission was only authorized to promulgate guidelines for categories of offenses, and could not issue guidelines for sentencing enhancement statutes such as the Armed Career Criminal Act. The Third Circuit upheld the Commission’s authority to promulgate § 4B1.4, the Armed Career Criminal guideline. Section 4B1.4 defines a particular category of defendants, armed career offenders, and sets out special rules for calculating their offense levels and criminal history categories. Thus, in every case in which it applies, this guideline, together with other applicable guidelines, establishes a sentencing range for the relevant offense and the relevant category of defendants. Thus, it falls squarely within the Commission’s authority. U.S. v. Jacobs, 44 F.3d 1219 (3d Cir. 1995).
3rd Circuit approves conspiracy to sell drugs as predicate career offender offense. (145) Defendant argued that only offenses listed in 28 U.S.C. section 994(h)(1) can be “controlled substance offenses” under the career offender guideline. Thus, he claimed that the Sentencing Commission exceeded its authority in expanding the definition under note 1 to section 4B1.2 to include conspiracy to distribute a controlled substance. The 3rd Circuit held that the commentary’s expansion of the definition of a controlled substance offense was binding, since it was not inconsistent with § 4B1.2(2), did not violate the constitution or a federal statute, and explained how the guideline should be applied. Section 994(h) is a floor for the career offender category, not a ceiling. It does not bar the Sentencing Commission from including additional predicate offenses for career offender status. U.S. v. Hightower, 25 F.3d 182 (3rd Cir. 1994).
3rd Circuit holds that SRA does not authorize fine for cost of imprisonment. (145) The 3rd Circuit held that a fine under section 5E1.2(i) to pay to the government the costs of imprisonment was not authorized by the Sentencing Reform Act (SRA). Neither 18 U.S.C. section 3553(a), which sets forth the purposes in sentencing, nor section 3572(a), which details the factors to consider in imposing a fine, authorize fines to pay for the costs of incarceration. Although the fines collected under section 5E1.2(i) are actually used to provide restitution to crime victims, the court rejected restitution as a purpose of the fine. The plain language of the guideline, rather than the ultimate manner in which the money is spent, controls the analysis of the guideline. Moreover, if the purpose of the guideline were restitution, it might be irrational, because the cost of a victim’s incarceration bears no apparent relationship to the amount that a particular victim has been injured. U.S. v. Spiropoulos, 976 F.2d 155 (3rd Cir. 1992).
4th Circuit upholds Commission’s authority to apply increase for “using minor” to defendants under 21. (145) In the Violent Crime Control and Law Enforcement Act of 1994, Congress directed the Sentencing Commission to promulgate guidelines to provide for a sentence enhancement for “a defendant 21 years of age or older” who involved a minor in the commission of an offense. Guideline § 3B1.4, however, provides for the sentence enhancement for all defendants, including those less than 21 years old. The Fourth Circuit, agreeing with the Seventh Circuit in U.S. v. Ramsey, 237 F.3d 853 (7th Cir. 2001), held that the Sentencing Commission was within its discretion to broaden the category of defendants eligible for the sentence enhancement. The court rejected U.S. v. Butler, 207 F.3d 839 (6th Cir. 2000), which held that the Commission failed to comport with a clear Congressional directive when it eliminated the requirement that the defendant be at least 21 years old to be subject to the enhancement. Because Congress did not direct that only defendants over age 21 receive the sentence enhancement, it actually did not require the Commission to limit § 3B1.4 to defendants of a certain age. The district court here properly found that defendant used a juvenile in the carjacking. Defendant repeatedly directed the juvenile to get into the back seat of the victim’s car, and directed the juvenile to hold the gun on the victim during the high-speed chase with police officers. U.S. v. Murphy, 254 F.3d 511 (4th Cir. 2001).
4th Circuit upholds use of state offenses as predicate drug crimes for career offender status. (145) Defendant argued that the Sentencing Commission exceeded its congressional mandate by including state offenses in the definition of controlled substance convictions under the career offender guideline. Noting that three other circuits have rejected this argument, the 4th Circuit also rejected the argument for the reasons stated by the other circuits. U.S. v. Brown, 23 F.3d 839 (4th Cir. 1994), abrogation on other grounds recognized by U.S. v. Hairston, 96 F.3d 102 (4th Cir. 1996).
4th Circuit rules environmental guideline did not exceed Congressional authority. (145) The 4th Circuit rejected defendant’s claim that the guidelines for environmental offenses, particularly section 2Q1.3, exceeded the authority granted to the Sentencing Commission by imposing prison terms on first time offenders. The Commission acted well within its discretion in classifying the instant offense as a serious one. Even absent imminent threat to the public, the discharge of pollutants into the nation’s waters is a matter of great magnitude. U.S. v. Strandquist, 993 F.2d 395 (4th Cir. 1993).
5th Circuit says restitution for all losses was not disproportionate. (145) Defendant, an attorney, was convicted of conspiracy and fraud for his involvement in filing fraudulent claims to recover from the settlement funds set up for victims of the diet drug Fen Phen. He argued that the restitution award (over $5.8 million) violated the Eighth Amendment, because it was disproportionate to require him to pay the full amount of the calculated loss attributable to the fraud when he received only about 12.5% of the total attorney’s fees. The Fifth Circuit held that because the restitution order was tied directly to losses sustained by the victim, it was proportional. The amount of restitution must be tied to the losses suffered by victims of the defendant’s crime, not the defendant’s gain from his illegal conduct. Further, the court ordered defendant’s restitution to be “joint and several” with 11 other persons who had already been convicted of fraud related to the Fen Phen settlements. Thus, defendant could seek contribution from his co-conspirators to pay off the restitution order and reduce the amount he personally owes. U.S. v. Arledge, __ F.3d __ (5th Cir. Dec. 22, 2008) No. 07-60825.
5th Circuit upholds career offender status based on drug conspiracy. (145) Defendant pled guilty to a drug conspiracy. He argued that sentencing him as a career offender was contrary to U.S. v. Bellazerius, 24 F.3d 698 (5th Cir. 1994). which held that the Sentencing Commission exceeded its authority under 28 U.S.C. § 994(h) when it included drug conspiracies as predicate career offender crimes. The Fifth Circuit rejected the argument, relying on a November 1995 guideline amendment which stated that the source of authority for § 4B1.1 was the general guideline promulgating authority found in 28 U.S.C. § 994(a)-(f), not § 994(h). The Sentencing Commission has now lawfully included drug conspiracies in the category of crimes triggering career offender status. U.S. v. Lightbourn, 115 F.3d 291 (5th Cir. 1997).
5th Circuit says guidelines are not inconsistent with 18 U.S.C. §§ 3553(a) and 3661. (145) Defendant argued that the guidelines are inconsistent with 18 U.S.C. ‘§ 3553(a) and 3661. These statutes specify the factors that a district court should consider in sentencing a defendant. The Fifth Circuit held that §§ 3553(a) and 3661 are not inconsistent with the guidelines, but rather set out factors that courts should consider when sentencing within the guidelines. U.S. v. Fields, 72 F.3d 1200 (5th Cir. 1996).
5th Circuit rules § 5K1.1 is not ultra vires act of Sentencing Commission. (145) Defendant claimed the Sentencing Commission exceeded its authority when it promulgated § 5K1.1 as a policy statement, arguing that 28 U.S.C. § 994(n) mandates the creation of a guideline. The Fifth Circuit upheld the validity of § 5K1.1. Congress’ instructions to the Sentencing Commission fall into four general categories. Congress can instruct the Commission to issue guidelines, policy statements, or either a guideline or a policy statement, or it can instruct the Commission to implement a Congressionally determined policy in the guidelines as a whole. In § 994(n), Congress was not mandating a specific guideline for substantial assistance departures, it was instructing that the guidelines as a whole “reflect” the appropriateness of such a departure. Thus, § 5K1.1 is a proper response to Congress’ mandate. Moreover, even if § 994(n) does require a guideline, the Sentencing Commission promulgated such a guideline. In guideline § 1B1.1(i), the Commission specifically referred to part K of Chapter Five regarding departures, which includes § 5K1.1. Thus, § 5K1.1, in conjunction with § 1B1.1(i), would satisfy the directive for a guideline. U.S. v. Underwood, 61 F.3d 306 (5th Cir. 1995).
5th Circuit rejects drug conspiracy as predicate offense for career offender guideline. (145) Defendant argued that he should not have been sentenced as a career offender, because he was only convicted of conspiracy to possess marijuana, rather than a substantive drug offense. The 5th Circuit agreed, relying on its recent decision in U.S. v. Bellazerius, 24 F.3d 698 (5th Cir. 1994). Drug conspiracies are not included in the list of controlled substance offenses in 28 U.S.C. § 994(h), from which the Sentencing Commission drew its authority to punish career offenders. U.S. v. Wallace, 32 F.3d 921 (5th Cir. 1994).
5th Circuit upholds validity of career offender guideline. (145) Defendant challenged the validity of the career offender guideline, § 4B1.1, arguing that Congress authorized increases in career offender criminal history scores, but did not empower the Sentencing Commission to increase offense levels. The 5th Circuit upheld the validity of § 4B1.1, finding defendant’s claim resting on a too narrow reading of 28 U.S.C. § 994(h). U.S. v. Gardner, 18 F.3d 1200 (5th Cir. 1994).
5th Circuit upholds cost of imprisonment fine against constitutional and statutory challenges. (145) The 5th Circuit rejected defendant’s claim that the cost of imprisonment fine imposed under guideline section 5E1.2(i) was inconsistent with the purposes of sentencing under 18 U.S.C. section 3553(a)(2) and that it violated the due process clause. The court disagreed with defendant’s argument that the sentencing purposes set forth in section 3553(a)(2) were wholly realized by the fine table and that the additional fine under section 5E1.2(i) rendered defendant’s overall fine excessive. The fact that the fine is calculated by reference to the cost of imprisonment but the money collected is actually spent on unrelated functions did not render the fine irrational. U.S. v. Hagmann, 950 F.2d 175 (5th Cir. 1991).
5th Circuit finds no inconsistency between statute and guideline regarding consecutive sentencing. (145) The 5th Circuit noted that at least four courts of appeals have addressed the possible conflict between § 3584(a) which gives the district court discretion as to whether to impose consecutive or concurrent sentences and § 5G1.3, which seemingly does not permit such discretion. All courts appear to agree that the district court under the text of § 3584(a) must retain some discretion as to whether to impose consecutive or concurrent sentences. The courts diverge, when they reach the question of whether the grant of discretion made by § 3584(a) is sufficiently unambiguous that any limitation upon that discretion imposed by § 5G1.3 is contrary to law. The 5th Circuit chose to follow the position of the 5th and 11th Circuit rather than that of the 3rd and 9th Circuits and held that “absent a departure from the guidelines, the facts of the instant case required consecutive sentences.” U.S. v. Miller, 903 F.2d 341 (5th Cir. 1990).
5th Circuit holds that defendant had no standing to challenge imposition of fine under the guidelines. (145) Defendant argued that the Commission violated its statutory mandate by making the imposition of minimum fines and minimum terms of supervised release mandatory under the guidelines. The 5th Circuit held that defendant had no standing to make this argument because he was not fined since he had no assets. The court held that the imposition of the special assessment under 18 U.S.C. § 3013 was not a fine within the meaning of the guidelines. U.S. v. Hurtado, 899 F.2d 371 (5th Cir. 1990).
5th Circuit upholds imposition of minimum terms of supervised release against statutory challenge. (145) Defendant argued that the Commission violated its statutory mandate by requiring minimum terms of supervised release for felonies. The 5th Circuit rejected the argument, holding that the Commission was given broad authority to implement Congress’ specific goals and policies. The Commission’s decision to mandate minimum terms of supervised release for felony convictions was “entirely consistent” with the statutory mandate. U.S. v. Hurtado, 899 F.2d 371 (5th Cir. 1990).
5th Circuit rules that drug guideline’s method of calculating offense level did not violate statutory directive. (145) Defendant argued that because the guidelines calculation of offense level allows for consideration of the total weight of a mixture in which a controlled substance is found, it promotes unwarranted sentencing disparities in violation of Congressional directive. The 5th Circuit rejected the challenge, holding that the guidelines method of calculating offense levels based upon quantity rather than purity was fully consistent with past Congressional actions which classify drugs without reference to purity. Furthermore, to minimize the risk of unwarranted sentence disparity, § 2D1.1 application note 9 allows for upward departure in the event of unusually high purity. Finally, purity can always be considered when making the determination where in the appropriate range the sentence should actually be set. U.S. v. Baker, 883 F.2d 13 (5th Cir. 1989).
5th Circuit holds that the Sentencing Commission did not violate its statutory mandate. (145) Several defendants appealed their sentences, claiming that the guidelines were illegal. They asserted that the Commission had violated the statutory mandate of the Sentencing Reform Act of 1984 by enacting guidelines which (1) improperly restrict the availability of probation; (2) compute a defendant’s criminal history in a manner which perpetuates sentencing disparity; (3) improperly increase the prison population; and (4) allow the Government to control the rewards granted for cooperation. The 5th Circuit disagreed, and rejected each of these arguments in turn. U.S. v. White, 869 F.2d 822 (5th Cir. 1989).
5th Circuit holds that Commission’s untimely report to Congress did not render guidelines invalid. (145) Under the Sentencing Reform Act, the Commission and the General Accounting Office were to submit a report to Congress prior to the effective date of the guidelines. However these reports were late. The 5th Circuit held that this fact would not entitle a defendant to relief. Because the reports were submitted solely for Congressional review of the guidelines, any question as to the merits and timeliness of the reports was beyond judicial review under the political question doctrine. U.S. v. White, 869 F.2d 822 (5th Cir. 1989).
6th Circuit upholds validity of enhancement for using minor in offense, despite removal of age limit. (145) Section 14008 of the Violent Crime Control and Law Enforcement Act of 1994 directs the Sentencing Commission to promulgate a guideline enhancement for a defendant 21 years of age or older who involves a minor in the commission of an offense. In response, the Sentencing Commission promulgated USSG § 3B1.4, which provides for a two-level enhancement if the defendant used a minor to commit the offense. The guideline does not contain the age restriction in § 14008. The Sixth Circuit held that the enactment of § 3B1.4 was valid and the Sentencing Commission did not overstep its authority in removing the age restriction. The Sentencing Commission submitted Amendment 527, which contained § 3B1.4, to Congress on May 1, 1995, and specified an effective date of November 1, 1995. The Commission expressly stated that Amendment 527 implemented the directive of § 14008 “in a slightly broader form.” Congress considered and rejected some of the May 1, 1995 amendments, but did not modify or disapprove of Amendment 527. By failing to modify or disapprove of Amendment 527 even when notified that it was different from § 14008, Congress, in effect, approved Amendment 527 as an appropriate reflection of its sentencing policy. U.S. v. Butler, 207 F.3d 839 (6th Cir. 2000).
6th Circuit holds environmental guideline is consistent with enabling legislation. (145) Defendant was convicted of knowingly storing and disposing of hazardous waste without a permit. He argued for the first time on appeal that § 2Q1.2 was inconsistent with the Sentencing Guidelines’ enabling legislation because it violated the mandate in 28 U.S.C. § 994(m) that, as a starting point, the Commission ascertain the average sentence imposed in each category of cases before creating the guideline. The Sixth Circuit rejected this challenge. Defendant did not identify a single court that has questioned the validity of this guideline as applied to a conviction under any environmental statute. There is no requirement that the Sentencing Commission keep records of the “average sentences.” Although the Commission is required to ascertain the average sentences imposed in different categories of cases, the Commission is not bound by such averages. Congress and the Sentencing Commission have determined that the environmental offenses covered by § 2Q1.2 are serious offenses. U.S. v. Kelley Technical Coatings, 157 F.3d 432 (6th Cir. 1998).
6th Circuit holds career offender amendment conflicts with 28 U.S.C. § 994(h). (145) Under § 4B1.1, a career offender’s offense level is based on the “Offense Statutory Maximum” for the offense of conviction. On November 1, 1994, the Commission promulgated Amendment 506, which amended note 2 to define “Offense Statutory Maximum” as the penalty without enhancements for repeat offenders, such as in 21 U.S.C. § 841(b). In this cases, the Sixth Circuit joined the Seventh, Eighth, and Tenth Circuits, and disagreed with the First and Ninth Circuits, holding that Amendment 506 conflicts with the Congressional mandate in 28 U.S.C. § 994(h). That section expresses Congress’ intent that, for certain repeat offenders, the guideline range be “at or near the maximum term authorized” by the applicable statute. The plain language of § 994(h) dictates that “maximum term authorized” refers to the enhanced statutory maximum. The Commission’s interpretation effectively nullifies the criminal history enhancements in statutes like 21 U.S.C. § 841(b). U.S. v. Branham, 97 F.3d 835 (6th Cir. 1996).
6th Circuit upholds drug conspiracies as predicate career offender crimes. (145) Defendant pled guilty to conspiring to possess with intent to distribute cocaine. He argued for the first time on appeal, that the Sentencing Commission exceeded its authority in making drug conspiracies a “controlled substance offense” under the career offender guideline. The Sixth Circuit disagreed, holding that the Commission properly used its general authority under 28 U.S.C. § 994(a) to include conspiracy as a predicate or triggering offense for career offender status. Moreover, even if this were not true, the circuit split on this issue would preclude a finding of plain error. U.S. v. Williams, 53 F.3d 769 (6th Cir. 1995).
6th Circuit holds that November 1, 1987 was effective date of guidelines. (145) Defendant argued that the guidelines were not in effect on November 23, 1987, the date he committed the instant offense. The Sixth Circuit disagreed, holding that the guidelines became effective November 1, 1987. The guidelines could not become effective until six months after the Sentencing Commission submitted its report to Congress. The Commission submitted the guidelines and policy statements to Congress on April 13, 1987. A later supplement sent June 18, 1987 did not restart the statutory waiting period. It was merely a supplement to the original submission. Nor was the effective date delayed when the President signed the Sentencing Act of 1987 on December 7, 1987. Prince v. U.S., 46 F.3d 17 (6th Cir. 1995).
6th Circuit says court need not review mitigating circumstances surrounding predicate career offender felonies. (145) Defendant argued that by basing career offender status under §4B1.1 on the fact of prior convictions without taking into account the circumstances surrounding them, the Sentencing Commission failed to follow the statutory requirements in 28 U.S.C. §994. The 6th Circuit rejected the argument. There is no inconsistency between sections 994(c)(2) and 994(h). Section 994(c)(2)’s direction to consider the circumstances under which an offense was committed refers to the offense of conviction, not to the prior offenses that form the basis for the career offender determination. U.S. v. Garza, 999 F.2d 1048 (6th Cir. 1993).
6th Circuit, en banc, says guidelines are mandatory. (145) In U.S. v. Davern, 937 F.2d 1041 (6th Cir. 1991), a 6th Circuit panel held courts should take a “flexible approach” to the guidelines by considering the facts in light of qualitative standards set forth in 18 U.S.C. section 3553(a). The 6th Circuit granted rehearing en banc, and rejected this flexible approach, finding that under 18 U.S.C. section 3553(b), the guidelines are a sentencing imperative. A district court must first determine a guideline sentence, and then consider whether there is an aggravating or mitigating circumstance not taken into account in setting the guideline sentence. Until the judge has determined a sentence under the guidelines, it is impossible to determine whether the mitigating or aggravating circumstances have in fact been taken into account in the guidelines. Judge Nelson, joined by Judges Guy, Suhrheinrich and Batchelder, concurred. Chief Judge Merrit, joined by Judges Martin and Jones, dissented. U.S. v. Davern, 970 F.2d 1490 (6th Cir. 1992) (en banc).
7th Circuit says disparity in co-conspirators’ sentences was not cruel and unusual punishment. (145) Three defendants were convicted of assorted drug offenses. The Seventh Circuit rejected one defendant’s argument that the disparity between his 180-month sentence and that of his co-conspirators (80 months and 181 months) constituted cruel and unusual punishment. This defendant’s PSR recommended a sentencing range of 262-327 months. The district court accepted the probation office’s recommendation, but then in its discretion, sentenced defendant below the minimum to 180 months. The district court indicated that it considered the disparity defendant complained of, but found it warranted in light of the seriousness of the offenses, defendant’s history, and the fact that he, unlike his co-defendants, had little to offer the government in terms of cooperation. The district court did not abuse its discretion. U.S. v. Jones, 696 F.3d 695 (7th Cir. 2012).
7th Circuit says definition of “crime of violence” did not exceed Sentencing Commission’s authority. (145) Defendant argued for the first time on appeal that the Sentencing Commission exceeded its authority when it defined “crime of violence” in U.S.S.G. § 4B1.2 (a) differently from the definition supplied by Congress. The Seventh Circuit disagreed. In U.S. v. Rutherford, 54 F.3d 370, 374 n. 11 (7th Cir. 1995), abrogated on other grounds by Begay v. U.S., 553 U.S. 137 (2008), the court held that the Sentencing Commission had the authority to adopt the current definition of “crime of violence” in § 4B1.2. The Commission was directed by 28 U.S.C. § 994(i) to ensure that the guidelines specify a sentence for a substantial term of imprisonment for defendants with a history of two or more felony convictions. The legislative history of 28 U.S.C. § 994(h), the statute directing the Sentencing Commission to create the career offender guideline, was “not necessarily intended to be an exhaustive list of the types of cases in which the guidelines should specify a substantial term of imprisonment, nor of types of cases in which terms at or close to authorized maxima should be specified.” U.S. v. Tichenor, 683 F.3d 358 (7th Cir. 2012).
7th Circuit upholds consecutive sentences where court was aware of authority to ignore § 5G1.2(d). (145) The district court sentenced defendant to 60 months on each of the two counts of conviction, to run consecutively, which was less than the total punishment of 151-188 months permissible under the guidelines. In imposing consecutive sentences, the court followed USSG § 5G1.2(d), which provides that if the sentence carrying the highest statutory punishment is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively to the extent necessary to produce a combined sentence equal to the total punishment. Defendant argued that § 5G1.2(d) conflicts with 18 U.S.C. § 3584(a), which creates a presumption in favor of concurrent sentences that can only be rebutted by applying a series of factors set forth in 18 U.S.C. § 3553(a). The Seventh Circuit found no error. In U.S. v. Schaefer, 107 F.3d 1280 (7th Cir. 1997), it held that where there is a conflict between the imposition of consecutive sentences under the guidelines and the possibility of concurrent terms under §§ 3584 and 3553, that conflict is resolved by allowing the sentencing court to maintain discretion to depart downward. Where, as here, the record indicates that the court was well aware of its discretion to disregard the mandates of § 5G1.2(d) and impose a concurrent sentence, but chose not to do so after evaluating the circumstances of the case, there was no reversible error. U.S. v. O’Hara, 301 F.3d 563 (7th Cir. 2002).
7th Circuit says enhancement for using minor may be applied to defendants under age 21. (145) In the Violent Crime Control and Law Enforcement Act of 1994, Congress directed the Sentencing Commission to promulgate guidelines to provide that defendants 21 years of age or older “shall receive an appropriate sentence enhancement if the defendant involved a minor in the commission of the offense.” Pub.L. No. 103-22, § 140008. In response, the Commission promulgated § 3B1.4, which eliminated the requirement that the defendant be at least 21 to be subject to the enhancement. Thus, in U.S. v. Butler, 207 F.3d 839 (6th Cir. 2000), the Sixth Circuit found § 3B1.4 inapplicable to defendants under the age of 21. The Seventh Circuit rejected Butler and upheld the validity of § 3B1.4 as written, finding the Sentencing Commission exercised reasonable discretion in promulgating a guideline that reaches defendants under age 21. The issue was whether the Commission obeyed the specific directive of Congress. Here, the Commission promulgated a guideline that encompassed the directive of Congress, but expanded the provision to encompass a greater number of defendants. It is within the Commission’s statutory mandate to legislate more broadly than Congress. See U.S. v. Lauer, 148 F.3d 766 (7th Cir. 1998). As long as the Commission’s guideline is not “at odds” with the congressional directive, the Commission has discretion to enlarge the category of defendants to whom an enhancement will apply. U.S. v. Ramsey, 237 F.3d 853 (7th Cir. 2001).
7th Circuit rejects financial institution increase after Commission refuses to clarify intent. (145) In U.S. v. Tomasino, 206 F.3d 739 (7th Cir. 2000), the Seventh Circuit found that a 1991 amendment to § 2F1.1(b) defining the term “financial institution” to include pension funds may have been based on the Sentencing Commission’s misreading of the underlying statute. The panel remanded the case for resentencing “after giving the Commission a reasonable opportunity to clarify its intentions in promulgating” § 2F1.1(b) (7)(B). The Sentencing Commission refused to clarify its intent out of fear that it “could cause the Commission to be burdened by a stream of judicial requests for clarification. Such a burden would impact negatively on the ability of the Commission to respond to legislative directives, resolve circuit conflicts, and promulgate other amendments pursuant to its mandate from Congress.” Thus, the Seventh Circuit withdrew the last two paragraphs of the opinion, which solicited the Commission’s view. For the reasons stated elsewhere in the original opinion, the panel still believed that § 2F1.1(b)(7)(B) may have been based on a misunderstanding and therefore did not support the enhanced punishment for defendant. Judge Easterbrook dissented from the denial of rehearing, believing it improper to depart from what the Commissioners promulgated. U.S. v. Tomasino, 230 F.3d 1034 (7th Cir. 2000).
7th Circuit holds that pension plan qualified as financial institution. (145) Defendant, an employee benefits manager, diverted $15 million in pension fund money to con men running a Ponzi scheme. Section 2F1.1(b)(6)(B) provides for enhancement if the offense “affected a financial institution.” The enhancement was adopted in response to Congress’s directive to the Commission in the 1990 Crime Control Act to enhance the punishment for offenses affecting a financial institution, as defined in 18 U.S.C. § 20. Section 20 defines a financial institution as any of nine different types of institutions, which are mainly banks, but not pension funds. However, note 14 to guideline § 2F1.1 defines “financial institution” to include a host of other institutions, including insurance companies, mutual funds, broker-dealers and union or employee pension funds. The Seventh Circuit held that a pension plan qualified as a financial institution and therefore the court should have applied a § 2F1.1(b)(6)(B) enhancement. U.S. v. Lauer, 148 F.3d 766 (7th Cir. 1998).
7th Circuit says career offender amendment exceeded Sentencing Commission’s authority. (145) Under 28 U.S.C. § 994(h), the Sentencing Commission is required to set the sentence for a career offender at or near the “offense statutory maximum.” Circuit courts have interpreted “offense statutory maximum” to mean the statutory maximum as enhanced by a defendant’s prior criminal record [e.g. 21 U.S.C. § 841(b)]. However, effective November 1994, the Sentencing Commission adopted Amendment 506, which amends note 2 to § 4B1.1 to provide that the term does not include any increase in the maximum term under a sentencing enhancement provision that applies because of a defendant’s criminal record. The Seventh Circuit, disagreeing with U.S. v. LaBonte, 70 F.3d 1396 (1st Cir. 1995), cert. granted, 518 U.S. 1016, 116 S.Ct. 2545 (1996), held that the Sentencing Commission exceeded its authority in enacting Amendment 506, and therefore it was invalid. The Seventh Circuit felt that the mandate of § 994(h) was plain, and the Commission’s amended commentary was in contravention of it.
7th Circuit reaffirms Commission’s authority to make drug conspiracy a career offender offense. (145) Defendant argued that the Sentencing Commission exceeded its authority in making conspiracy a predicate career offender crime since conspiracy is not one of the offenses specifically listed as a controlled substance in the enabling legislation. The Seventh Circuit, relying on its recent decision in U.S. v. Damerville, 27 F.3d 254 (7th Cir. 1994) rejected the argument. Defendant was properly sentenced as a career offender. U.S. v. Garrett, 45 F.3d 1135 (7th Cir. 1995).
7th Circuit upholds conspiracy as predicate career offender offense. (145) Defendant challenged the Sentencing Commission’s authority to include conspiracy to commit a controlled substance offense as a predicate offense for career offender purposes. The 7th Circuit held that the Commission had such authority under 28 U.S.C. § 994(a). Although the commentary referred to § 994(h) as the authorizing statute, this did not preclude reliance on § 994(a). Section 994(h) does not limit the crimes that require career offender treatment, but merely states that those recidivists convicted of the enumerated crimes must receive a sentence at or near the maximum. U.S. v. Damerville, 27 F.3d 254 (7th Cir. 1994).
7th Circuit affirms that career offender status may be based on one prior crime of violence and one prior drug crime. (145) Defendant argued that section 4B1.1, the career offender guideline, exceeds the authority of 28 U.S.C. section 994(h)(2) by imposing career offender status on defendants with only one prior crime of violence and one prior drug crime. The 7th Circuit rejected this reading of section 994(h)(2). Such a construction ignores the plain language of section 994(h). U.S. v. Saunders, 973 F.2d 1354 (7th Cir. 1992).
7th Circuit finds perjury and obstruction guidelines consistent with enabling legislation. (145) Defendant argued that the sentencing guidelines are inconsistent with their enabling legislation and are therefore invalid to the extent they preclude, absent a downward departure, a probationary sentence for a first offender who has committed the nonviolent offenses of perjury and obstruction of justice. Enabling language for the guidelines provide that the sentencing guidelines should “reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or otherwise serious offense.” The 7th Circuit found that the guidelines are consistent with the enabling legislation and rejected defendant’s argument that perjury and obstruction of justice were not “serious” offenses. U.S. v. Leuddeke, 908 F.2d 230 (7th Cir. 1990).
8th Circuit says mandatory life sentence for drug offense was not cruel and unusual punishment. (145) Defendant argued that the imposition of a mandatory life sentence was cruel and unusual punishment because it was “grossly disproportionate” to his crime, a “simple drug conspiracy.” However, the Eighth Circuit has previously held that mandatory minimum penalties for drug offenses do not violate the Eighth Amendment. See U.S. v. Mendoza, 876 F.2d 639 (8th Cir. 1989). It is well settled that a sentence within the range provided by statute is generally not reviewable by an appellate court. U.S. v. Richard, 872 F.2d 253 (8th Cir. 1989). Furthermore, such a sentence that falls within the range prescribed by statute has never been found to be an Eighth Amendment violation. In U.S. v. Prior, 107 F.3d 654 (8th Cir. 1997), the court found that a life sentence for possessing with intent to distribute 1147 grams of methamphetamine did not violate the Eighth Amendment. As in Prior, defendant here had prior drug felonies that were used to enhance his sentence. The Eighth Circuit found no Eighth Amendment violation here. U.S. v. Collins, 340 F.3d 672 (8th Cir. 2003).
8th Circuit says statute requires consecutive sentence for failure to appear, despite commentary. (145) Defendant pled guilty to one count of arson and one count of failure to appear. The statute, 18 U.S.C. § 3146(b)(2), requires a consecutive sentence for failure to appear. However, Application Note 3 to § 2J1.6 suggests that a sentencing court might determine a total sentence for the underlying offense and the failure to appear and then divide the sentence among the convictions. To avoid double counting, the district court did not use the failure to appear conviction to adjust the base offense level upward. Instead, it treated the convictions separately and imposed consecutive sentences of 37 months for the arson and 12 months for the failure to appear. The Eighth Circuit held that the district court properly followed § 3146(b)(2) and guideline § 2J1.6 in imposing separate and consecutive sentences. The suggested “grouping” calculation in Application Note 3 to § 2J1.6 conflicts with the statute’s consecutive sentencing requirement, and the statute prevails over the Sentencing Guidelines. U.S. v. Crow Dog, 149 F.3d 847 (8th Cir. 1998).
8th Circuit rejects use of career offender amendment in light of LaBonte. (145) Defendant was convicted of a drug conspiracy and sentenced as a career offender to 360 months. At the time of sentencing, the district court based his career offender sentence on the maximum of the enhanced sentencing range, not the unenhanced range. Thereafter, the Sentencing Commission amended the definition to state that “offense statutory maximum” meant the statutory maximum exclusive of any enhancement based on a prior record. Based on this amendment, defendant filed a motion to reduce his sentence. The district court applied the amendment and reduced the sentence to 262 months. Thereafter, in U.S. v. LaBonte, 520 U.S. 751, 117 S.Ct. 1673 (1997) the Supreme Court held that the Commission’s amendment was invalid because it was contrary to 18 U.S.C. § 994(h). Based on Labonte, the Eighth Circuit reversed the sentence reduction here. U.S. v. Arnold, 115 F.3d 621 (8th Cir. 1997).
8th Circuit holds that career offender amendment 506 is invalid. (145) A career offender sentence is based on the “offense statutory maximum.” Until recently, courts addressing the issue have held that where a statute (such as 21 U.S.C. § 841), provides for an enhanced penalty based on a defendant’s criminal record, the “offense statutory maximum” is the enhanced statutory maximum. In Amendment 506, the Sentencing Commission defined “offense statutory maximum” as the unenhanced maximum sentence. The Eighth Circuit, agreeing with the Seventh and Tenth Circuits, and disagreeing with the First and Ninth Circuits, held that the amendment was inconsistent with 28 U.S.C. § 994(h), and thus invalid. Section 994(h) requires a sentence “at or near the maximum term authorized for categories of defendants” who have two convictions that are either drug offenses of crimes of violence. The language is unambiguous. The category is repeat offenders. Moreover, the Commission’s interpretation is implausible because it effectively nullifies the criminal history penalties carefully enacted in statutes like § 841. U.S. v. Fountain, 83 F.3d 946 (8th Cir. 1996).
8th Circuit, en banc, upholds drug conspiracy as predicate career offender crime. (145) In U.S. v. Mendoza-Figueroa, 28 F.3d 766 (8th Cir. 1994), an Eighth Circuit panel held that the Sentencing Commission exceeded its authority by providing in Note 1 to § 4B1.2 that drug conspiracies are “controlled substance offenses” for career offender purposes. On rehearing en banc, the Eighth Circuit agreed with a majority of circuits that have upheld the use of drug conspiracies as predicate career offender crimes. Courts that have invalidated note 1 point out that § 994(h), listed in the background commentary as the Commission’s motivation for § 4B1.1, does not list drug conspiracies as offenses that require harsher sentences. However, the Commission’s intent in defining career offender cannot be derived solely from the background commentary to § 4B1.1. The Commission declared in Chapter 1, Part A, § 1 that the guidelines and policy statements are issued pursuant to § 994(a). Senior Judge Gibson, joined by Judges McMillian and Arnold, dissented. U.S. v. Mendoza-Figueroa, 65 F.3d 691 (8th Cir. 1995) (en banc).
8th Circuit allows state drug convictions to be counted towards career offender status. (145) Under 28 U.S.C. §994(h), the Sentencing Commission is authorized to establish higher sentences for career offenders, if the offender has already been convicted of two or more offenses “described in” certain federal drug trafficking statutes. Defendant argued that the Commission exceeded its congressional direction by counting convictions for state drug offenses as predicate convictions for career offender status under §§4B1.1 and 4B1.2. The 8th Circuit rejected the argument. Although §994(h)(2)(B) refers only to specific federal statutes, it directs the Commission to ensure maximum sentences for defendants with at least two convictions “described in” the listed statutes, not with two convictions under the listed statutes. Thus, §994(h)(2)(B) covers drug trafficking conduct that could have been charged under the specified federal laws, but instead, was charged under state law. U.S. v. Consuegra, 22 F.3d 788 (8th Cir. 1994).
8th Circuit says Failure to Appear guideline complies with statutory directive. (145) The November, 1988, version of guideline section 2J1.6 (Failure to Appear) provided for the base offense level of six to be increased according to the maximum statutory penalty for the underlying offense. In U.S. v. Lee, 887 F.2d 888 (8th Cir. 1989), the 8th Circuit concluded that this guideline did not comply with Congress’ statutory directive because it failed to differentiate between defendants who fail to appear to serve a sentence already imposed and defendants who fail to appear for trial, appeal, or sentencing. The 8th Circuit held that the November, 1990, amendment adequately addressed the issues raised in Lee. Section 2J1.6 now differentiates between failure to report cases on the basis of the amount of time the defendant is delinquent in reporting and on the type of facility to which the sentenced defendant is to report. U.S. v. Marion, 977 F.2d 1284 (8th Cir. 1992).
8th Circuit, en banc, considers uncharged property crimes as relevant conduct. (145) Defendant pled guilty to one count of theft from an interstate shipment. The government sought to include seven uncharged thefts in the sentencing calculation, pursuant to the relevant conduct guideline, section 1B1.3. The district court refused, holding section 1B1.3 unconstitutional. A panel of the 8th Circuit found it unnecessary to reach the constitutional issues, ruling that consideration of the uncharged thefts under the relevant conduct guideline exceeded the statutory authority granted to the Sentencing Commission. On rehearing en banc, the 8th Circuit reversed and held that section 1B1.3(a)(2) is authorized by statute and is not unconstitutional. The broad grants of authority in 28 U.S.C. section 994(c)(2) gave the Sentencing Commission full authority to adopt a relevant conduct guideline. The court also held that consideration of uncharged conduct at sentencing does not violate constitutional rights to indictment, jury trial or proof beyond a reasonable doubt. The guidelines’ use of relevant conduct does not effectively transform the sentencing phase into a new guilt phase: uncharged conduct is a sentencing factor, not a new element of the offense. Judges Beam, Bright, Lay and McMillian dissented. U.S. v. Galloway, 976 F.2d 414 (8th Cir. 1992) (en banc).
8th Circuit upholds mandatory nature of guidelines. (145) Defendant argued that instead of automatically applying the sentencing guidelines, as 18 U.S.C. section 3553(b) requires, the sentencing court must first apply section 3553(a), which counsels the sentencing court to impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in this section. Thus, defendant contended that the district court was not bound by the guidelines, but instead should have treated them as one factor to consider in determining the appropriate sentence. The 8th Circuit upheld the mandatory nature of the guidelines, noting that in this line of argument was rejected in earlier Circuit cases. U.S. v. Johnston, 973 F.2d 611 (8th Cir. 1992).
8th Circuit rules guidelines are consistent with Sentencing Reform Act. (145) Defendant contended that the sentencing guidelines applicable to his case were inconsistent with the Sentencing Reform Act of 1984, which requires a sentencing court to consider the “history and characteristics of the defendant” and alternatives to imprisonment. The 8th Circuit rejected this claim. The district court had the benefit of the pre-sentence report on defendant, which detailed his history and characteristics. This was sufficient to fulfill the mandate in the Sentencing Reform Act. While Congress authorized the Sentencing Commission and the courts to make probation available for some crimes, it did not require probation to be made available. U.S. v. Barrett, 937 F.2d 1346 (8th Cir. 1991).
8th Circuit holds that guidelines’ equating one marijuana plant with 100 grams in cases involving fewer than 50 plants violated statute. (145) 21 U.S.C. § 841(b)(1)(D) provides for a sentence of up to 5 years for “less than 50 kilograms of marijuana, except in the case of 50 or more marijuana plants regardless of weight.” The 8th Circuit agreed with the defendant that this language “indicates the desire of Congress that the actual weight of marijuana be the determining factor in sentencing, except when 50 or more plants are involved.” The Drug Quantity Table incorporated at § 2D1.1(a)(3), however, presumes an equivalency of 100 grams per plant in almost every instance. Accordingly, the 8th Circuit found the guideline was in conflict with the statute, and “the statute must prevail.” The sentence was reversed and remanded to consider the actual weight of the plants. The court suggested, but did not decide, that the court should use the weight of the plants after processing. U.S. v. Streeter, 907 F.2d 781 (8th Cir. 1990), overruled on other grounds by U.S. v. Wise, 976 F.2d 393 (8th Cir. 1992).
8th Circuit holds that Sentencing Commission complied with statutory requirement to consider guidelines’ effect on prison population. (145) Defendants argued that the sentencing guidelines were invalid because the Commission did not comply with the statutory requirement to consider the capacity of the federal correctional facilities in formulating the guidelines. The 8th Circuit rejected the argument. Congress “did not intend to prohibit any increase in the federal prison population” but simply directed the Commission to study the guidelines impact on available prison resources. “The Commission has complied with this mandate. It studied the effect of the proposed sentencing guidelines on the federal prison population and projected the impact would be minor.” U.S. v. Foote, 898 F.2d 659 (8th Cir. 1990).
8th Circuit upholds Sentencing Commission’s authority to consider misdemeanors in criminal history. (145) Defendant argued that Congress did not clearly permit misdemeanors to be counted as criminal history, and that counting his prior misdemeanor conviction under U.S.S.G. 4A1.2(c) violated double jeopardy because Congress had not authorized this “multiple punishment.” The 8th Circuit found no multiple punishment and ruled that regardless of whether Congress expressly permitted misdemeanors to be considered, “Congress, in 18 U.S.C. § 994(d)(10), gave the Sentencing Commission the general authority to take relevant ‘criminal history’ into account in developing the sentencing guidelines.” U.S. v. Thomas, 895 F.2d 1198 (8th Cir. 1990).
8th Circuit holds that guidelines for escape did not violate Congressional directive. (145) Defendant argued that the guidelines for the offense of escape violated the governing statute because the Commission “irrationally failed to consider and adjust” the offense level according to the method of escape or the kind of facility from which the defendant escaped. The 8th Circuit rejected the argument, holding that the Commission’s failure to include “some of the finer distinctions,” did not render U.S.S.G. § 2P1.1 an unreasonable response to the Congressional directive. U.S. v. Evidente, 894 F.2d 1000 (8th Cir. 1990).
8th Circuit holds guideline for failure to report for service of sentence violates Congressional directive. (145) A drug defendant was convicted of failing to report for service of her sentence. Under § 2J1.6, the base offense level of 6 is increased based upon the statutory maximum of the underlying penalty. In this case, the 15 year maximum for drug distribution resulted in an additional 9 points, resulting in a sentence range of 18-24 months. The defendant received an 18 month sentence. The 8th Circuit vacated the sentence, holding that § 2J1.6 violated 28 U.S.C. § 994(c)(2) by failing to consider the actual sentence imposed. That section requires the Commission to consider “all circumstances which would aggravate or mitigate the seriousness of the offense. It also violated § 991(b)(1), which requires certainty and fairness in sentencing. Here, the sentence was not fair because the defendant had received a sentence (18 months) for her drug distribution which was substantially below the statutory maximum (15 years). U.S. v. Lee, 887 F.2d 888 (8th Cir. 1989).
9th Circuit upholds policy statement limiting resentencing after Guidelines amendment. (145) Under 18 U.S.C. § 3582(c), a court may reduce a sentence based on a Guidelines range if the Sentencing Commission later reduces the range for the defendant’s offense. A policy statement, § 1B1.10 provides, however, that when a court reduces a sentence under § 3582(c), the court should not engage in a full resentencing of the defendant, may only adjust the sentence in light of the Guidelines amendment, and may not impose a sentence below the amended Guidelines range. The Ninth Circuit held that the Commission did not engage in procedural error in promulgating § 1B1.10. U.S. v. Fox, 631 F.3d 1128 (9th Cir. 2011).
9th Circuit upholds Commission’s authority to promulgate aggravated felony guideline. (145) Defendant, convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326, argued that the Sentencing Commission lacked authority to make a defendant’s prior aggravated felony a basis for enhancing his sentence, because the aggravated felony is not an element of the offense defined by § 1326. The Ninth Circuit rejected this contention, finding that “Congress made it abundantly clear” that it wished to enhance the penalties for aliens with prior felonies and that the Commission simply carried out Congress’s wishes when it promulgated § 2L1.2(b). U.S. v. Ramirez-Garcia, 269 F.3d 945 (9th Cir. 2001).
9th Circuit says prison overcrowding does not mean guidelines violate the statute. (145) Defendant argued that the court erred in sentencing him because the guidelines are not in compliance with the federal statute requiring the Commission to minimize the likelihood of overcrowding federal prisons. See 28 U.S.C. § 994(g). He cited a report indicating that federal prisons were 127% over capacity in 1998. However, the Ninth Circuit addressed the same issue in U.S. v. Martinez-Cortez, 924 F.2d 921, 923 (9th Cir. 1991), noting that every court that has addressed this argument has rejected it. In this case, the Ninth Circuit noted that § 994(g) mandates the Commission to formulate guidelines “to minimize the likelihood that the federal prison population will exceed the capacity of the federal prisons,” but it does not forbid increased federal prison population. “Rather, it authorized the Commission to recommend change or expansion of correctional facilities and services that may become necessary as a result of the Sentencing Guidelines.” U.S. v. Williams, 185 F.3d 945 (9th Cir. 1999).
9th Circuit invalidates firearms guideline that counts prior convictions despite restoration of civil rights. (145) The district court set defendant’s base offense level at 20 under § 2K2.1(a)(4)(A) because of his prior Washington state marijuana conviction, even though the state had restored his civil rights. The court relied on application note 5 to § 2K2.1, which counts any prior conviction that receives points under the criminal history guideline, § 4A1.1. In turn, the commentary to § 4A1.1 says the definitions in § 4A1.2 govern, and application note 10 to § 4A1.2 says that convictions on which civil rights have been restored must be counted where the restoration was “for reasons unrelated to innocence or errors of law. The Ninth Circuit held that § 2K2.1’s reliance on the criminal history guideline conflicted with 18 U.S.C. § 921(a)(20), which directs that any conviction for which a person has had civil rights restored “shall not be considered” unless the “restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” Because the statute controls, the district court erred in including defendant’s prior conviction in his offense level for his firearms conviction. U.S. v. Palmer, 183 F.3d 1014 (9th Cir. 1999).
9th Circuit says basing sentence on conduct already punished in Serbia did not violate extradition treaty. (145) Dutch officials granted extradition on charges that defendant had made false statements on the passport applications of his two children. However, they refused extradition on charges of child abduction on the ground that defendant had already been tried and convicted on similar charges in Serbia. Nevertheless, in sentencing defendant for the passport conviction the district judge departed upward pursuant to § 5K2.9 after finding that the offense was committed to facilitate another offense: the abduction of defendant’s children. Also, the court increased defendant’s criminal history category based upon the conviction in Serbia. On appeal, the Ninth Circuit rejected defendant’s argument that the sentence violated the extradition treaty. The fact that this case involved extradition did not remove it from the reach of the Supreme Court’s holdings in Witte v. U.S., 515 U.S. 389, 399 (1995) and U.S. v. Watts, 519 U.S. 148, (1997) which held that using evidence of related conduct to enhance a defendant’s sentence for a separate crime does not violate the double jeopardy clause even if the defendant has been acquitted of the related charges. U.S. v. Lazarevich, 147 F.3d 1061 (9th Cir. 1998).
9th Circuit says unamended statute did not mean the opposite of the amendment. (145) Defendant argued that because Congress created an explicit authorization for cost of imprisonment fines under U.S.S.G. §5E1.2(i) in 1994, there must not have been any such authorization before that date. The Ninth Circuit found no support for this proposition. “Congress may amend a statute simply to clarify existing law, to correct a misinterpretation, or to overrule wrongly decided cases. Thus an amendment to a statute does not necessarily indicate that the unamended statute meant the opposite.” U.S. v. Zakhor, 58 F.3d 464 (9th Cir. 1995).
9th Circuit finds sentencing classification statute did not restrict career offender penalty. (145) Defendant was convicted of bank robbery and sentenced to 168 months as a career offender. He argued the maximum sentence should have been 12 years because the bank robbery was a Class C felony under 18 U.S.C. §3559(a) and the maximum term for a Class C felony under 18 U.S.C. §3581(b) is 12 years. Because the Sentencing Commission was directed to insure that career offenders receive a sentence “at or near the maximum” authorized, defendant argued the limit should be the 12 years. The 9th Circuit rejected the argument, finding that the bank robbery statute, which authorizes a sentence up to 20 years, was controlling, not the classification provisions of §3559(a). Subsection (b) of §3559 provides that the maximum term of imprisonment is that authorized by the law describing the offense. U.S. v. Avery, 995 F.2d 142 (9th Cir. 1993), amended, 15 F.3d 816 (9th Cir. 1994).
9th Circuit says basing career offender status on state priors does not violate authorizing statute. (145) Defendant argued that the Sentencing Commission exceeded its delegated authority by permitting prior state convictions to serve as predicate offenses for career offender status. He argued that because prior state convictions were not specifically enumerated in 28 U.S.C. section 994(h), the Commission did not respect the “plain unambiguous language” of the statute. Relying on U.S. v. Whyte, 892 F.2d 1170 (3rd Cir. 1989), a majority of the 9th Circuit panel rejected the argument. The majority found that the statutory language suggested that predicate offenses are not limited to federal offenses, but rather include conduct that could have been charged federally. Judge Poole dissented. U.S. v. Rivera, 996 F.2d 993 (9th Cir. 1993).
9th Circuit finds Sentencing Commission exempt from FOIA. (145) Petitioner brought an action under the Freedom of Information Act (FOIA) seeking to compel the Sentencing Commission to release certain records. The 9th Circuit found that the language of the statute that established the Sentencing Commission made clear that Congress intended the Commission to be exempt from FOIA. In 28 U.S.C. section 994(x), Congress directed the Commission to comply with certain provisions of the Administrative Procedures Act, not including FOIA, implicitly directing that the Commission should be exempt from other provisions of the statute. Andrade v. U.S. Sentencing Commission, 989 F.2d 308 (9th Cir. 1993).
9th Circuit does not decide whether Commission can expand definition of “crimes of violence.” (145) When Congress enacted the Sentencing Reform Act of 1984, it did not include attempted burglary of a residence as a crime of violence within the list of crimes of violence specified in 18 U.S.C. section 924(c). The 3rd Circuit in U.S. v. Parson, 955 F.2d 858 (3rd Cir. 1992), held that in adopting the guidelines, the Sentencing Commission had authority to expand the definition of crimes of violence to include “first degree reckless endangering,” a felony under Delaware law. In the present case, the appellant did not raise the issue of whether the Commission had authority to expand the statutory definition of crimes of violence to include attempted burglary of a residence. Accordingly the 9th Circuit did not decide that question. U.S. v. Jackson, 986 F.2d 312 (9th Cir. 1993).
9th Circuit rejects statutory challenges to the guidelines. (145) Defendant argued that the sentencing guidelines were inconsistent with the first sentence of 18 U.S.C. section 3553 which requires the court to “impose a sentence, sufficient but not greater than necessary, to comply with the purposes set forth in paragraph 2 of this subsection.” He also argued that the “just punishment” specified by section 3553 is different from the “just deserts” referred to in the introduction to the guidelines, section 1A3. Moreover, defendant argued that it was improper for the Commission to impose sentences in drug cases based simply on the quantity of the drugs, rather that “the community view of the gravity of the offense.” See 28 U.S.C. section 994(e)(2) and (4). Finally defendant argued that the Commission departed from its statutory mandate in failing to take into account “poverty and family responsibility.” The 9th Circuit rejected each of these arguments in turn, finding no conflict between the guidelines and the statutes. U.S. v. Quesada, 972 F.2d 281 (9th Cir. 1992).
9th Circuit rules that 18 U.S.C. 3661 does not conflict with Sentencing Guidelines. (145) The district court published an opinion in U.S. v. Boshell, 728 F.Supp. 632 (E.D. Wash. 1990), ruling that there was a conflict between 18 U.S.C. section 3661 (which provides that no limit shall be placed on information concerning character, background and conduct of the defendant in determining sentence), and Guideline sections 5H1.1 to 5H1.6, which limit the use of specific offender characteristics in sentencing. On appeal, the 9th circuit found no conflict, ruling that the two provisions “may be reconciled by limiting consideration of offender characteristics to adjustments within the guideline range, and allowing departures from this range for offender characteristics only in extraordinary circumstances.” U.S. v. Boshell, 952 F.2d 1101 (9th Cir. 1991).
9th Circuit holds that limits on availability of probation do not violate the Congressional mandate. (145) Defendant argued that the Sentencing Commission ignored the legislative requirement for a separate type-of-sentence guideline; that is, a two stage inquiry which first asks whether a defendant should be imprisoned (or granted probation) and then asks how long imprisonment or probation should last. The 9th Circuit rejected this argument, holding that 28 U.S.C. § 994(a)(1)(A)-(B) does not “mandate” a separate sentencing guideline for probation. Moreover Congress did not intend 18 U.S.C. § 3561 to require that probation be available to all categories of defendants. “Although the Commission certainly could have been more lenient in its treatment of the subject of probation it was not required to be so.” U.S. v. Martinez-Cortez, 924 F.2d 921 (9th Cir. 1991).
9th Circuit holds that 10 percent projected increase in federal prison population did not violate 28 U.S.C. § 994(g). (145) The guidelines state that they will lead to an estimated 10% increase in the federal prison population over a 10 year period. Defendant argued that this impact violated 28 U.S.C. § 994(g) which requires that the guidelines “be formulated to minimize the likelihood that the federal prison population will exceed the capacity of the federal prisons.” Agreeing with other courts that have addressed this issue, the 9th Circuit found no violation of the Congressional mandate. U.S. v. Martinez-Cortez, 924 F.2d 921 (9th Cir. 1991).
9th Circuit holds that mandatory supervised release for felonies does not violate Congressional mandate. (145) Defendant argued that the Sentencing Commissions’ requirement of mandatory supervised release following incarceration for any person convicted of a felony violates its Congressional mandate under 28 U.S.C. § 994(a)(1)(C). The 9th Circuit rejected the argument, noting that Congress did not specify whether the Commission was to create a discretionary structure, a quasi discretionary structure, or a mandatory structure. Accordingly the Commissions’ establishment of mandatory supervised release “while not particularly magnanimous,” was “sufficiently reasonable.” U.S. v. Martinez-Cortez, 924 F.2d 921 (9th Cir. 1991).
9th Circuit holds that mandatory fines are not inconsistent with the Commissions’ general mandate. (145) Defendant argued that the guidelines violate their Congressional mandate by establishing mandatory fines rather than discretionary fines. The 9th Circuit rejected this argument, noting that the primary purpose of the guidelines was to limit discretion. Moreover, under the guidelines judges have discretion to waive any fine upon a finding of inability to pay or undue burden on a defendant’s dependants. U.S. v. Martinez-Cortez, 924 F.2d 921 (9th Cir. 1991).
9th Circuit rejects argument that GAO study of the guidelines’ impact was untimely and a “sham.” (145) Defendant argued that the General Accounting Office study of the guidelines’ potential impact was both untimely and a “sham.” The 9th Circuit noted that this argument had been rejected by the 5th Circuit in U.S. v. White, 869 F.2d 822 (5th Cir. 1989), on the ground that the determination was essentially a political question outside the province of the judiciary. The 9th Circuit found the reasoning of the White court compelling and adopted it here. U.S. v. Martinez-Cortez, 924 F.2d 921 (9th Cir. 1991).
9th Circuit upholds guideline for failure to appear despite acquittal on underlying charge. (145) Defendant failed to appear on drug charges. He was later apprehended and tried jointly on the drug charges and for failing to appear. The judge granted his motion for judgment of acquittal on the drug charges and he then pled guilty to failure to appear. On appeal, defendant argued that guideline § 2J1.6(b)(1) violated the statutory mandate by failing to distinguish between a defendant’s conviction of the underlying charge and his acquittal of that same charge. Making a “narrow inquiry” into whether the Sentencing Commission’s construction is “sufficiently reasonable,” the 9th Circuit found it reasonable for the Commission to consider the maximum term of imprisonment for the underlying offense without regard to whether the defendant is actually acquitted. The court distinguished the 8th Circuit’s opinion in U.S. v. Lee, 887 F.2d 888 (8th Cir. 1989) which held that the Commission violated its statutory mandate by failing to consider the actual sentence imposed on a defendant who failed to appear after she had been sentenced. U.S. v. Nelson, 919 F.2d 1381 (9th Cir. 1990).
9th Circuit authorizes consideration of juvenile adjudications as criminal history. (145) Defendant argued that 28 U.S.C. § 994(b)(10) did not authorize the Sentencing Commission to permit judges to consider juvenile adjudications in assessing the defendant’s criminal history. The 9th Circuit rejected the argument, holding that Congress even authorized consideration of a defendant’s prior criminal conduct, “notwithstanding the fact that the defendant may not have been adjudged guilty of the prior act.” The Commission “declined to exercise” this authority, instead limiting the term “criminal history” to criminal acts that resulted in an adjudication of guilt. The 9th Circuit found that this includes juvenile adjudications, and accordingly the Sentencing Commission acted within its statutory authority in authorizing trial judges to consider “criminal acts committed by a defendant prior to age 18.” The court also rejected the defendant’s due process argument. U.S. v. Booten, 914 F.2d 1352 (9th Cir. 1990).
11th Circuit upholds using state convictions as predicate career offender crimes. (145) Defendants challenged the validity of that portion of § 4B1.1 that takes into account prior state court convictions in determining career offender status. The Eleventh Circuit held that the Sentencing Commission did not exceed its authority under 28 U.S.C. § 994(h) in including state court convictions as predicate career offender crimes. Five other circuits have previously rejected this argument, and there is no compelling justification for rejecting these decisions. U.S. v. Gonsalves, 121 F.3d 1416 (11th Cir. 1997).
11th Circuit holds courts cannot review Commission’s actions for compliance with APA. (145) Defendant was convicted of being a felon in possession of a firearm. He was sentenced under § 2K2.1(a)(2). He argued that § 2K2.1, as amended, was invalid because the Sentencing Commission failed to adequately explain the reasons for its 1989 and 1991 amendments to that section, as required by the Administrative Procedure Act (APA). These amendments had the effect of substantially increasing the punishment for the offense. The Eleventh Circuit held that federal courts have no authority to review the Commission’s actions for compliance with the APA at least insofar as the adequacy of the statement of the basis and purpose of an amendment is concerned. Congress subjected the Commission’s rule-making to the notice and comment requirements of the APA. However, other provisions of the APA, including those concerning judicial review, were conspicuously not made applicable to the Commission. Thus, Congress did not intend to subject the actions of the Commission to judicial review. U.S. v. Wimbush, 103 F.3d 968 (11th Cir. 1997).
10th Circuit holds amendment to career offender guideline was contrary to statute. (145) In 28 U.S.C. § 994(h), Congress required a career offender’s offense level to be at or near the “offense statutory maximum.” The courts have interpreted this to include the statutory maximum as enhanced by recidivist provisions like 21 U.S.C. § 841(b). However, effective November 1994, the Sentencing Commission adopted Amendment 506, which amends note 2 to § 4B1.1 to provide that the term “offense statutory maximum” does not include any increase in the maximum term under a sentencing enhancement provision that applies because of a defendant’s criminal record. The Tenth Circuit disagreed with U.S. v. LaBonte, 70 F.3d 1396 (1st Cir. 1995) , cert. granted, 518 U.S. 1016, 116 S.Ct. 2545 (1996), and held that this amendment was contrary to the statute and therefore invalid. The Tenth Circuit found the Commission’s interpretation “inherently implausible because it effectively nullifies the criminal history enhancements carefully enacted in statutes like 21 U.S.C. § 841.” U.S. v. Novey, 78 F.3d 1483 (10th Cir. 1996).
11th Circuit upholds § 2J1.7. (145) The Eleventh Circuit rejected defendant’s claim that the Sentencing Commission overstepped its bounds in promulgating guideline § 2J1.7. Section 2J1.7 calls for a three-level enhancement if the defendant commits a federal offense while on release. Under 18 U.S.C. § 3147, the Commission is authorized to provide for enhancement for crimes committed while on release pursuant to the Bail Reform Act. U.S. v. Williams, 59 F.3d 1180 (11th Cir. 1995).
11th Circuit says attempted drug offense is predicate career offender crime. (145) Defendant was sentenced as a career offender based in part on a prior state conviction for attempted possession with intent to deliver cocaine. He argued that the Sentencing Commission, in note 1 to § 4B1.2, exceeded its authority by making attempts to commit a drug offense a controlled substance offense. He contended that only those offenses enumerated in 28 U.S.C. § 994(h) can serve as predicate controlled substance offenses. The 11th Circuit, following its reasoning in U.S. v. Weir, 51 F.3d 1031 (11th Cir. 1995), held that the Sentencing Commission acted within its general authority under 28 U.S.C. § 994(a) to make attempts to commit drug crimes controlled substance offenses under the career offender guideline. The authority granted in § 994(a) is implicit in all the provisions of the guidelines. Commentary that interprets or explains a guideline is authoritative. Therefore, note 1 to § 4B1.2 is a binding interpretation of the term “controlled substance offense.” U.S. v. Smith, 54 F.3d 690 (11th Cir. 1995).
11th Circuit upholds drug conspiracies as predicate career offender crimes. (145) The Eleventh Circuit held that a conviction of conspiracy to possess with intent to distribute marijuana is a “controlled substance offense” under the career offender guideline, § 4B1.1. The court rejected the D.C. Circuit’s opinion in U.S. v. Price, 990 F.2d 1367 (D.C. Cir. 1993) that the Sentencing Commission lacked authority to classify drug conspiracies as controlled substance offenses. Although the commentary to § 4B1.1 states that it is implementing the mandate of 28 U.S.C. § 994(h), it does not suggest that § 994(h) is the only mandate for that provision. Section 994(a), the guidelines’ enabling statute, provides independent grounds for the career offender provision, and grants sufficient authority to the Commission to include drug conspiracies in its definition of controlled substance offenses. U.S. v. Weir, 51 F.3d 1031 (11th Cir. 1995).
11th Circuit rules guidelines do not conflict with statute prohibiting limitations on sentencing information. (145) Defendant, who committed armed bank robbery, requested a downward departure based on his mental condition, even though guideline section 5K2.13 authorizes a downward departure for diminished capacity only for non-violent offenses. Defendant contended that the guidelines’ limitation conflicted with 18 U.S.C. section 3661, which prohibits any limitation on the information which a sentencing court may consider. The 11th Circuit interpreted section 3661 as only prohibiting limitations on information that had not already been considered by the Commission in formulating the guidelines. Limitations can be placed on the district court’s consideration of information which has already been considered by the Commission, because technically the district court considers this information by applying the guidelines. U.S. v. Fairman, 947 F.2d 1479 (11th Cir. 1991).
11th Circuit finds statutory authorization for mandatory supervised release guidelines. (145) Defendant argued that U.S.S.G. § 5D3.1(a) (now 5D1.1(a)), which requires a mandatory term of supervised release, is inconsistent with the enabling statute, 18 U.S.C. § 3583(a). The 11th Circuit disagreed, noting that 28 U.S.C. § 994(a) gives the commission complete discretion to determine “whether a sentence to a term of imprisonment should include a requirement that the defendant be placed on a term of supervised release.” The court held that this section provides sufficient authority for the guidelines’ mandatory provisions for supervised release. U.S. v. West, 898 F.2d 1493 (11th Cir. 1990).
11th Circuit finds that guidelines comply with the statutory mandate of Congress. (145) Defendant challenged the validity of the guidelines on statutory grounds, claiming that they failed to comply with the congressional directives that (1) the general accounting office undertake a study and report to Congress on the projected impact of the guidelines; (2) that the Commission assess the effect that the guidelines would have on the federal prison population and (3) the guidelines reflect the general inappropriateness of imprisonment for first time offenders. The 11th Circuit rejected each of these challenges. U.S. v. Erves, 880 F.2d 376 (11th Cir. 1989).
D.C. Circuit holds that mandatory life sentence for drug offense is not cruel and unusual punishment. (145) The first defendant had 15 prior convictions; more than two were drug felonies. He received, under 21 U.S.C. § 841(b), the mandatory minimum of life imprisonment for his drug convictions. The second defendant had three prior felony drug convictions, and also received a mandatory life sentence for his instant drug convictions. The D.C. Circuit held that the mandatory life sentences were not cruel and unusual punishment. The Supreme Court has upheld a life sentence imposed on a first-time offender convicted of possessing 672 grams of cocaine. Thus, the life sentences imposed on defendants¾recidivists convicted of selling 486 grams of cocaine base—were not cruel or unusual. U.S. v. Walls, 70 F.3d 1323 (D.C. Cir. 1995).
D.C. Circuit says mandatory sentences are not cruel and unusual. (145) Defendants helped others cook cocaine powder into cocaine base. One was subject to a 20-year mandatory minimum and the other was subject to a 10-year mandatory minimum. The district court found § 841(b)’s mandatory sentencing requirements cruel and unusual as to these defendants, and sentenced them using the sentencing guidelines for powder cocaine. The D.C. Circuit reversed, holding that the mandatory minimum sentences did not violate the Eighth Amendment. No sort of government misconduct brought about the mandatory penalties for defendants. Defendants willingly manufactured crack cocaine for their co-conspirators. The DEA agents did nothing whatever improper with respect to them, nor did the prosecutor. The fact that defendants were drug addicts did not make the sentences “cruel.” Although the Eighth Amendment forbids punishing a drug addict merely for the status of being an addict, it is not unconstitutional to punish an addict for committing other crimes, even the crime of possessing drugs to feed his own habit. U.S. v. Walls, 70 F.3d 1323 (D.C. Cir. 1995).
D.C. Circuit upholds using juvenile adjudications in criminal history. (145) Defendant argued that § 4A1.2(d), which permits certain juvenile offenses to be included in a defendant’s criminal history, exceeded the Sentencing Commission’s statutory authority. He pointed to the fact that under the D.C. Code, a juvenile adjudication is not a conviction of a crime. The D.C. Circuit upheld the validity of § 4A1.2(d). Under 28 U.S.C. § 994(d)(10), the Sentencing Commission must “consider” whether a defendant’s criminal history is relevant, and if so, it should be taken “into account.” Since juvenile records are without doubt relevant, the Commission did not exceed its statutory authority in taking them into account in establishing criminal history categories. It was not unreasonable for § 4A1.2(d) to fail to differentiate between juvenile adjudications and adult criminal convictions. It is a method, “rough to be sure,” of measuring relative culpability among offenders and the likelihood of their engaging in future criminal behavior. Judge Wald dissented, questioning the rationality of § 4A1.2(d)(2). U.S. v. Johnson, 28 F.3d 151 (D.C. Cir. 1994).
D.C. Circuit rejects defendant’s argument that probation guidelines violate the statutory mandate. (145) Defendant argued that the commission was directed to establish a separate set of guidelines for determining how much of each type of punishment to impose. Defendant also argued that the commission was required to establish guidelines reflecting the general appropriateness of imposing a sentence other than imprisonment on first offenders. Finally, defendant argued that 18 U.S.C. § 3553(a)(4), required that sentencing judges make “probation versus incarceration” determinations independent of their decisions about how much probation or incarceration to impose. The D.C. Circuit rejected each of these arguments in turn, holding that the guidelines’ limitations on the availability of probation are not inconsistent with the enabling legislation. U.S. v. Ortez, 902 F.2d 61 (D.C. Cir. 1990).
New York District Court rules that guidelines do not violate statutory mandate. (145) Defendant argued that the guidelines as enacted violated Congress’s mandate because: (1) they improperly preclude the use of probation; (2) they require supervised release for all terms where a sentence of over one year or a fine is imposed; (3) they foster prison overcrowding; (4) the provision governing “substantial assistance departures” is inconsistent with the statute; and (5) the manner of calculating criminal history scores perpetuates sentencing disparity. District Judge McLaughlin of the Eastern District of New York rejected each of those claims in turn. U.S. v. Dixon, 713 F.Supp. 565 (E.D.N.Y. 1989).
Illinois District Court holds that guidelines do not violate statutory mandate. (145) Defendant argued that the guidelines violated the statutory mandate of the enabling legislation because (1) they unduly restrict the availability of probation for first time offenders; (2) Congress’ directive that there be no substantial increase in the federal prison population required that probation be broadly available to first time offenders; (3) the guidelines restrictions on probation are inconsistent with 18 U.S.C. § 3561 and (4) the guidelines require a least restrictive alternative approach to sentencing. The of Illinois District Court rejected these contentions. U.S. v. Hallemeier, 715 F.Supp. 203 (N.D. Ill. 1989).
Article canvasses and analyzes legislative history of the guidelines. (145) Kate Stith and Steve Y. Koh review the series of bills beginning in 1975 and culminating in the Sentencing Reform Act of 1984. They argue that the reform process began as a liberal anti-imprisonment and antidiscrimination measure but eventually was passed as a more conservative law-and-order crime control measure. They also claim that Congress failed to resolve significant sentencing issues, delegating them to the Sentencing Commission. Finally, they maintain that the federal judiciary failed to persuade Congress of the risks of transferring sentencing authority to the Commission. Kate Stith, and Steve Y. Koh, The Politics of Sentencing Reform — The Legislative History of the Federal Sentencing Guidelines, 28 Wake Forest L. Rev. 223-90 (1993).