§165 Stipulation to More Serious Offense
(§1B1.2) (See also §795)
2nd Circuit holds that objects of conspiracy need not be identified in indictment as objects. (165) Defendant was convicted of conspiracy to commit Hobbs Act robberies of drug dealers in New York, and acquitted of several substantive robbery counts. Notwithstanding the jury’s acquittal on the substantive charges, the district court found for sentencing purposes that the government had proven beyond a reasonable doubt that defendant had conspired to commit two of the robberies. Citing Note 4 to § 1B1.2, defendant argued that the court could not consider the robberies as objects of the conspiracy because the robberies were not identified as objects in the conspiracy count of the indictment. The Second Circuit disagreed. Note 4, which refers to using an object offense alleged in the conspiracy count, does not require the object offense to be alleged in the conspiracy count. Instead, it emphasizes the standard of proof that must be satisfied to permit a court to find that defendant conspired to commit a particular object offense. The judge found beyond a reasonable doubt that defendant had specifically conspired to commit the robberies in question. U.S. v. Robles, 562 F.3d 451 (2d Cir. 2009).
2nd Circuit holds that “loss” should not be reduced by amount of stolen property returned before detection. (220) Defendant misappropriated for his own use 5,000 shares of stock held by his employer bank as collateral for a loan. Two months later, before the bank realized the crime, defendant returned 2,000 shares to the bank via electronic transfer. The Second Circuit held that the loss cause by defendant’s embezzlement under §2B1.1 should be based on the value of the full 5,000 shares of stock, and should not be reduced by the value of the stock returned. Loss under the guidelines includes the value of all property taken, even though all or part of it was returned. U.S. v. Arjoon, 964 F.2d 167 (2nd Cir. 1992), superseded by rule on other grounds as stated in U.S. v. Werber, 51 F.3d 342 (2nd Cir. 1995).
2nd Circuit rules that a judge may look beyond charged offense to “actual facts” in determining sentence under the guidelines. (165) The Second Circuit held that “[a]lthough the guidelines basically adopt a charge-offense method, they contain sufficient elements of the real-offense method to allow the district court in this case to look to the actual facts in determining sentence.” Guidelines § 1B1.2 instructs the court to sentence under the guidelines applicable to the facts stipulated in a guilty plea if the stipulation establishes a more serious offense than the offense of conviction. There were no stipulated facts here, but the Second Circuit nevertheless relied on the fact that defendant never disputed the government’s statement as to the amount of cocaine involved. Thus, even though defendant pled to a telephone count, the sentencing judge properly departed from the guidelines based on the 20 kilos of cocaine found in the defendant’s possession. U.S. v. Correa-Vargas, 860 F.2d 35 (2nd Cir. 1988).
3rd Circuit applies § 2D1.1, not § 2D1.2, where defendant not convicted of and did not stipulate to schoolyard offense. (165) Defendant was involved in a drug conspiracy that distributed drugs within 1000 feet of various public and parochial schools. She pled guilty to drug charges, but was not charged with violating or conspiring to violate 21 U.S.C. § 860, which prohibits drug distribution “in or near” schools. Nonetheless, the district court sentenced her under USSG § 2D1.2, which deals with drug offenses committed near “protected locations.” Defendant argued that § 2D1.2 was inapplicable because Appendix A (the “Statutory Index”) required the use of § 2D1.1 rather than § 2D1.2. Joining the majority of circuits to decide this issue, the Third Circuit held that § 2D1.1, rather than § 2D1.2, is applicable to a defendant who has not been convicted under § 860 nor has stipulated to having committed a drug offense near a school. Although the Statutory Index is not definitive, it should only be disregarded in the “atypical case” in which the guideline specified in the Statutory Index is inappropriate. This was not an atypical case. Defendant did not stipulate to distribution within a school zone. Simply agreeing, when asked, with the location in which the conspiracy operated did not constitute a stipulation. U.S. v. Watterson, 219 F.3d 232 (3d Cir. 2000).
3rd Circuit holds that statements made during plea colloquy were not stipulations. (165) Defendants’ plea agreement with the government contained a number of stipulations, including that the applicable guideline was § 2T3.1, the smuggling guideline. However, the district court sentenced defendants under the more severe fraud guideline, ruling that statements they made during the “factual basis” inquiry at their plea hearing were stipulations sufficient to establish fraud. After reviewing the text of § 1B1.2(a), particularly in light of changes the Sentencing Commission made from an earlier version of that section, the Third Circuit held that a statement is a “stipulation” only if: (1) it is part of a defendant’s written plea agreement; (2) it is explicitly annexed to the plea agreement; or (3) both the government and the defendant explicitly agree at a factual basis hearing that the facts being put on the record are stipulations that might subject a defendant to the provisions of § 1B1.2(a). Defendants’ statements here did not meet this definition and therefore, the court erred as a matter of law by treating them as stipulations. U.S. v. Nathan, 188 F.3d 190 (3d Cir. 1999).
5th Circuit applies § 2A3.1 where defendant stipulated to facts that constituted aggravated sexual abuse. (165) Defendant pled guilty to traveling interstate for purposes of engaging in a sexual act with a juvenile, in violation of 18 U.S.C. § 2423(b). Although the parties agreed that § 2G1.1 should apply to defendant, the district court sentenced him under § 2A3.1, as directed by Appendix A. Defendant argued that § 2A3.1 applies only to the actual or attempted commission of an aggravated sexual abuse, and that here, the crime was impossible to actually commit because the juvenile victim was fictional. The government argued that § 2A3.1 was correctly applied because defendant stipulated to conduct that violated 18 U.S.C. § 2241, aggravated sexual abuse. Defendant stipulated that he traveled across state line with the intention of engaging in sexual acts with a 10-year old boy. The Fifth Circuit agreed that because defendant stipulated to facts that constituted aggravated sexual abuse, then pursuant to § 1B.2, he could be sentenced under § 2A3.1. U.S. v. Rhodes, 253 F.3d 800 (5th Cir. 2001).
5th Circuit bars court from looking outside indictment, plea agreement and stipulation to determine guideline. (165) Defendant pled guilty to two counts of possessing fraudulent alien registration cards, in violation of 18 U.S.C. § 1546(a). The Statutory Index in Appendix A lists two possible guidelines for a § 1546 violation: § 2L2.1 (“trafficking” in documents relating to naturalization, citizenship, or legal resident status) and § 2L2.2 (the fraudulent acquisition of such documents for one’s “own use”). The Fifth Circuit held that the district court can only look to the offense of conviction to determine which guideline section is applicable. Where the defendant has plead guilty pursuant to a plea agreement, the district court must look first at the language of the indictment, then to the language of the plea agreement, and then to the stipulation of facts contained in the factual resume supporting the plea agreement. See § 1B1.2(a). Here, the indictment, the plea agreement and the factual resume only showed that defendant possessed two fraudulent alien registration cards that featured her photograph and two different names. Without some reference in either the plea agreement or the factual resume that would constitute either a stipulation or an admission of “trafficking,” the appropriate guideline section could not be § 2L2.1 U.S. v. Principe, 203 F.3d 849 (5th Cir. 2000).
5th Circuit rejects use of murder guideline even though object of mail fraud was murder. (165) Defendant pled guilty to conspiracy to commit mail fraud and aiding and abetting mail fraud. The district court grouped the counts, and under § 3D1.2 and 3D1.3 purported to choose the offense level for the most serious offense. The court chose the offense level for murder because, relying on note 8 to § 3D1.2, and § 1B1.2(d) and note 5 to § 1B1.2, it concluded that murder was an object of the conspiracy. The Fifth Circuit held that conspiracy to commit murder could not be used to calculate the offense level because defendant was not charged with and did not plead guilty to conspiracy to commit murder. Both note 8 to § 3D1.2 and § 1B1.2(d) apply when a defendant is convicted of conspiring to commit more than one offense. Defendant was convicted of conspiring to commit only one offense, mail fraud. Note 5 to § 1B1.2 applies to cases in which the plea does not establish which offense was the object of the conspiracy. U.S. v. Aderholt, 87 F.3d 740 (5th Cir. 1996).
5th Circuit finds ex post facto violation because defendant did not stipulate to more serious offense. (165) Defendant pled guilty to using a communication device to facilitate a drug offense. The district court found that defendant’s guilty plea contained a stipulation that established the more serious offense of drug possession with intent to distribute. The court applied the 1993 guidelines, concluding that the 1993 guidelines were more favorable to defendant for the possession offense than the 1989 guidelines in effect when he committed his offense. The Fifth Circuit held that defendant did not stipulate to the more serious offense of possession with intent to distribute. Nothing in the record established that defendant actually, or even constructively, possessed the drugs. Since defendant did not stipulate to the possession offense, the court’s finding that defendant’s sentence under the 1993 guidelines was more favorable than under the 1989 guidelines was erroneous. Defendant’s sentence violated the ex post facto clause. U.S. v. Domino, 62 F.3d 716 (5th Cir. 1995).
5th Circuit upholds sentence based on more serious statutory violation. (165) Defendant was convicted of a count alleging a conspiracy to violate two statutes: 21 U.S.C. sections 841(a)(1) and 856(a)(2). The jury’s general guilty verdict did not specify whether defendant conspired to violate section 841, section 856, or both. The 2nd Circuit affirmed that defendant could be sentenced under the guideline applicable to the more severe section 841 violation. Guideline section 1B1.2(d) provides that a conviction on a count charging conspiracy to commit more than one offense is treated as if the defendant had been convicted of a separate conspiracy count for each offense. Note 6 to section 1B1.2(d) states that where the jury’s verdict fails to specify which of the charged offenses were the objects of the conspiracy, the defendant may be sentenced for the object offenses for which the court, were it sitting as trier of fact, would convict the defendant. U.S. v. Cooper, 966 F.2d 936 (5th Cir. 1992).
7th Circuit counts victims of stipulated offense in total number of victims. (165) Defendant pled guilty to 20 counts arising out of a fraudulent scheme (the Bank Watch case) and he stipulated to offenses arising out of another scheme (the Receiver case). The district court applied an increase under § 2B1.1(b)(2)(C) for an offense involving 250 or more victims. The Seventh Circuit affirmed, holding that the district court did not err in counting the 212 victims of the stipulated Receiver case in the total number of victims. Under the Guidelines, stipulated offenses are treated as offenses of conviction and are properly included in the offense level calculation. The evidence, including a judgment and commitment order entered against a co-conspirator, and defendant’s own statements, supported the court’s finding that there were 212 Receiver victims. U.S. v. Panice, 598 F.3d 426 (7th Cir. 2010).
7th Circuit holds that defendant was not denied effective assistance of counsel at pleading or sentencing. (795) Defendant’s plea agreement contained a stipulation that “the weight of the drugs for the purpose of calculating the guideline range includes 3 kilograms of cocaine relative to the defendant’s conduct in or around March 1997, and an additional 14 ounces as a historical amount.” At sentencing, the prosecution proffered that defendant’s relevant conduct involved 11 kilograms of cocaine. The district court accepted the government’s position. Defendant brought a motion under 28 U.S.C. § 2255 claiming that his counsel was ineffective at both the plea hearing and at sentencing. The Seventh Circuit disagreed. Defendant’s claim was based on the faulty premise that the stipulation placed a cap on defendant’s relevant conduct. There was not a single word or inference that suggested the relevant conduct was limited to this weight. It was reasonable for defendant’s counsel to conclude that there was no agreement between defendant and the government regarding a drug weight cap. Coleman v. U.S., 318 F.3d 754 (7th Cir. 2003).
7th Circuit holds stipulation means any acknowledgment by defendant of more serious conduct. (165) Defendants were arrested after a fire broke out in the apartment in which they manufactured methamphetamine. Although they pled guilty to drug charges normally sentenced under § 2D1.1, the court applied § 2D1.10, the guideline for endangering human life while manufacturing a controlled substance. Section 1B1.2(a) says that if a plea agreement, either written or oral, contains a stipulation that specifically establishes a more serious offense than the offense of conviction, the court should use the guideline for the stipulated offense. The Seventh Circuit ruled that a “stipulation” means any acknowledgment by the defendant that he committed the more serious offense. This allows a judge to move from one guideline to another without making an ad hoc departure. A defendant’s protection from undue severity lies not in reading “stipulation” as requiring a formal agreement, but in taking seriously the requirement that the more serious offense be established “specifically.” Here, during the Rule 11 colloquy, defendants admitted that the fire in their apartment endangered the lives of persons in other apartments. This was sufficient to allow the use of § 2D1.10. U.S. v. Loos, 165 F.3d 504 (7th Cir. 1998).
7th Circuit says statutory maximum for crime of conviction controls. (165) Defendant pled guilty to attempting to manufacture methamphetamine, in violation of 21 U.S.C. § 841(a)(1). The guideline normally applicable to this offense is § 2D1.1. However, because defendant admitted that the fire in his apartment endangered the lives of persons in other apartments, the court sentenced him under § 2D1.10, the guideline applicable to endangering human life while manufacturing illegal drugs. Defendant’s 135-month sentence exceeded the 10-year maximum for 21 U.S.C. § 858, which makes it a felony to endanger human life while making drugs. Defendant argued that since the judge chose § 2D1.10 as the applicable guideline, the judge should have respected the maximum punishment under § 858. The Seventh Circuit held that defendant’s sentence was limited by the statutory maximum for the offense of conviction, rather than the statutory maximum for the stipulated offense. The statutory maximum for attempting to manufacture methamphetamine is 30 years. Therefore, defendant’s 135-month sentence was lawful. U.S. v. Loos, 165 F.3d 504 (7th Cir. 1998).
7th Circuit rejects ex post facto challenge because guideline section 1B1.2(d) is merely clarification of existing law. (165) As a result of two different efforts to burn down a building, defendant pled guilty to one count of conspiracy to commit arson. Relying upon guideline section 1B1.2(d), the district court determined that defendant’s offense level should be adjusted upward as if he had been convicted of a separate count of conspiracy for each offense that he conspired to commit, and that those two convictions should not be grouped under guideline section 3D1.2. Section 1B1.2 was adopted after the date of defendant’s offense. Nonetheless, the 7th Circuit rejected defendant’s ex post facto challenge, ruling that section 1B1.2(d) was enacted to clarify existing procedure under the guidelines, and was not a substantive change. U.S. v. Golden, 954 F.2d 1413 (7th Cir. 1992).
8th Circuit rules that commission checks were personal income to defendant. (795) Defendant sold used cars through a corporation which did business as Midtown Motors. He referred some car buyers interested in luxury to Plaza Motors, and received commission checks from Plaza for such referrals. The commission checks were made out to Midtown Motors instead of defendant personally, but defendant used the checks for his personal expenses. Defendant failed to file income tax returns on personal income he received in 1994 and 1995. The Eighth Circuit ruled that the district court properly included the Plaza Motors commission checks as personal income to defendant, and thus they were part of the tax loss. First, defendant stipulated in his plea agreement that the commission checks constituted personal income to him. Moreover, even without such a stipulation, the district court could have properly included the commission checks in the tax loss. Plaza Motors did not enter a commission agreement with Midtown Motors, Midtown had no corporate records of the commission checks, and defendant used money from the commission checks to pay for personal expenses unrelated to Midtown Motors. U.S. v. Hart, 324 F.3d 575 (8th Cir. 2003).
8th Circuit holds that court properly rejected plea agreement’s drug quantity recommendation. (795) Under defendant’s plea agreement, the parties agreed to recommend that he be held responsible for at least 500 grams but less than 1.5 kilograms of methamphetamine. The district court refused to accept this agreement and held an evidentiary hearing on the appropriate weight to be charged against the defendant. After this hearing, the Court found defendant was responsible for a larger quantity. The Eighth Circuit found no error. The court was not bound by the stipulation, which, in any event, was phrased as a recommendation only. The district court explained why it made a finding different from that requested by the parties, and it also gave the defendant a chance to renounce the agreement and go to trial. The Court could have accepted the agreement, but the law did not require that it do so. U.S. v. Franco-Martinez, 271 F.3d 764 (8th Cir. 2001).
8th Circuit rejects using burglary guideline for bank theft. (165) Defendant entered three bank branches and used a screwdriver to open the backs of ATM machines, taking money on two occasions. He later was involving in passing counterfeit bills and using fraudulently obtained credit card numbers. He pled guilty to one count of bank theft, two counts of counterfeiting and one count of access device fraud. The PSR recommended grouping the offenses together under § 3D1.1. The government requested an upward departure because it believed that grouping would result in no incremental punishment. Instead of granting the departure, the district court treated the bank theft as a burglary so it would not “group” with the other counts. The Eighth Circuit held that this was error because defendant did not stipulate to facts that established the more serious burglary offense and this was not an “atypical” case. The court did not decide whether Appendix A contains an “atypical” case exception because this was not an atypical case. A case is not “atypical” simply because the total criminal conduct includes some acts more serious than the charged offense. The fact that defendant did not object to facts in the PSR that could arguably be considered burglary, did not amount to a stipulation. U.S. v. Casey, 158 F.3d 993 (8th Cir. 1998).
9th Circuit allows identity theft sentence to be reduced to offset mandatory minimum. (165) Under 18 U.S.C. § 1028A, a defendant who commits aggravated identity theft is subject to a two-year mandatory sentence that must be imposed consecutively to the underlying “predicate” identity theft offense. Defendant pleaded guilty to mail fraud, theft of government property, tax evasion, and aggravated identity theft. At sentencing, the district court imposed the two-year mandatory minimum required by § 1028A and a consecutive 108-month within-Guidelines sentence for defendant’s remaining offenses. Defendant argued that the district court failed to recognize that it had the authority to impose a sentence below the Guidelines range in light of the two-year mandatory minimum required by § 1028A. The Ninth Circuit agreed, holding that a court has discretion to reduce defendant’s sentence for a non-predicate offense to offset the two-year mandatory minimum. U.S. v. Wahid, 614 F.3d 1009 (9th Cir. 2010).
9th Circuit affirms re-calculated sentence based on facts in plea agreement. (165) Defendant was charged with illegal reentry after deportation, in violation of 8 U.S.C. § 1326, but pursuant to a plea agreement, he pleaded guilty to making a false statement to a federal official, in violation of 18 U.S.C. § 1001. In the agreement, the parties agreed that defendant had a sentencing range of 6 to 12 months and to recommend a nine-month sentence. At sentencing, the district court found that the actual offense that defendant committed was illegal reentry and that his Guideline calculation should rest on that offense. As a result, the court calculated defendant’s Guideline range as 10 to 16 months and imposed a sentence of 16 months. The Ninth Circuit held that under § 1B1.2(c), when a plea agreement establishes that defendant committed an offense other than the offense to which he pleaded guilty, a court must proceed as if the defendant committed the other offense. Applying that Guideline, the court of appeals held that defendant’s plea agreement established that he illegally entered the U.S. after deportation and that the district court properly calculated the Guidelines range for that offense. The court also held that defendant’s 16-month sentence was reasonable. U.S. v. Gutierrez-Sanchez, 559 F.3d 1088 (9th Cir. 2009), amended, 587 F.3d 904 (9th Cir. 2009).
9th Circuit upholds finding that defendant committed the robberies that were objects of the conspiracy. (165) Guideline § 1B1.2(d) says that a “conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit.” Application Note 5 says that this guideline should be applied only if the court, sitting as trier of fact, would have convicted the defendant of conspiring to commit the overt act. The Ninth Circuit upheld the district court’s finding as “not clearly erroneous.” Like the robbery for which the jury expressly found defendant guilty, witnesses gave descriptions of taller and shorter robbers matching the defendant and his co-conspirator, wearing trench coats and glasses, who entered the bank after hours without force and used plastic electrical ties to secure the employees. Defendant opened up a safe deposit box around the same time and near both crimes, and it was later found to possess three guns, disguises, lock picks and over $200,000 in cash. U.S. v. Bowman, 215 F.3d 951 (9th Cir. 2000).
9th Circuit finds no double counting in increases for brandishing and use of firearm on separate counts. (165) Defendant was convicted of conspiracy to rob five banks, which were listed as overt acts. In a separate count, he was convicted of using and carrying a firearm in connection with one of the robberies. He was sentenced to the mandatory minimum 60 months on the count charging using and carrying a firearm. His sentence on the conspiracy count was increased by 5 levels for brandishing a firearm in two of the other robberies, under § 2B3.1(b) (2)(C). The Ninth Circuit rejected his argument that this was impermissible double counting, relying on U.S. v. Chin-Sung Park, 167 F.3d 1258 (9th Cir. 1999), which rejected a similar argument. Under guideline § 1B1.2(d) and § 3D1.1(a), each of the robberies that defendant conspired to commit was treated as a separate offense. See U.S. v. McCarthy, 77 F.3d 522, 536-37 (1st Cir. 1996). Thus, defendant was not punished twice for the same conduct. U.S. v. Bowman, 215 F.3d 951 (9th Cir. 2000).
9th Circuit says “schoolyard” guideline cannot be selected based on “relevant conduct.” (165) In U.S. v. Crawford, 185 F.3d 1024, 1026-29 (9th Cir. 1999), the Ninth Circuit held that a defendant convicted under 21 U.S.C. § 841(a) could not receive an enhanced sentence under the “schoolyard” guideline, § 2D1.2, because selling drugs within a 1,000 feet of a school is not an element of the § 841(a) offense. However, the defendant in this case was also convicted of conspiracy under 21 U.S.C. § 846. Appendix A of the Guideline Manual says § 2D1.2 is one of several guidelines which may apply to a conspiracy conviction under § 846. However, the indictment here failed to allege that an object of the conspiracy was to distribute drugs near a school. Accordingly, the most applicable offense guideline was § 2D1.1, and defendant’s sentence under § 2D1.2 was reversed. The panel reiterated its statement in U.S. v. Lawton, 193 F.3d 1087, 1094 (9th Cir. 1999) that “relevant conduct may not be used to select a guideline under § 1B1.2.” U.S. v. Takahashi, 205 F.3d 1161 (9th Cir. 2000).
9th Circuit says statement in plea agreement was not a “stipulation” to a more serious offense. (165) Under § 1B1.2(a), if more serious conduct is “specifically established” by stipulations in a plea agreement, the court must apply the guideline for the more serious conduct. However, in Braxton v. U.S., 500 U.S. 344, 351 (1991), the Supreme Court held that a stipulation which “supports two reasonable readings,” one of which is inconsistent with guilt, is not “a stipulation that ‘specifically establishes’” a crime under § 1B1.2(a). In the present case, nothing in the plea agreements specifically established a more serious offense. Therefore the district court should not have used the aggravated assault guideline in sentencing defendants who pled guilty to making false statements to the FBI. U.S. v. Lawton, 193 F.3d 1087 (9th Cir. 1999).
9th Circuit uses tax guideline, not obstruction guideline, for obstructing tax collection. (165) Defendants were convicted of conspiracy under 18 U.S.C. § 371 and obstruction of IRS proceedings under 18 U.S.C. § 1505. Guideline section 1B1.2 instructs the court to determine “the offense guideline section … most applicable to the offense of conviction.” The accompanying commentary refers to the guidelines’ statutory index in Appendix A. However, Appendix A permits the court in an atypical case to use “the guideline section most applicable to the nature of the offense conduct charged.” In the present case, the district court properly sentenced the defendants under § 2T1.9, which covers conspiracies to “impede, impair, obstruct or defeat tax.” See § 2X1.1(c)(1) (“When an attempt, solicitation, or conspiracy is expressly covered by a clear offense guideline section, apply that guideline section.”) The Ninth Circuit agreed that § 2J1.2 did not consider the amount of tax liability the defendants attempted to obstruct or the sometimes violent nature of the conspiracy. U.S. v. Hopper, 177 F.3d 824 (9th Cir. 1999).
9th Circuit requires higher sentence for conspiracy with more than one object. (165) Guideline section 1B1.2(d) says that a “conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense the defendant conspired to commit.” Defendant argued that this guideline was unconstitutional based on dicta in U.S. v. Garcia, 37 F.3d 1359, 1371 n.4 (9th Cir. 1994), which suggested that the object of the conspiracy was an essential element that could only be found by the jury. The Ninth Circuit held that recent Supreme Court precedent appears to defeat this argument. In Edwards v. U.S., 118 S.Ct. 1475, 1477 (1998), the Supreme Court held that as long as the sentencing court does not exceed the maximum statutory sentence (based on the lesser object offense) of a multi-object conspiracy conviction, the court may consider conduct for which the defendant was never charged or was acquitted. Defendant’s argument that § 1B1.2(d) violated her Sixth Amendment right to a jury trial was unconvincing in light of Griffin v. U.S., 502 U.S. 46 (1991), which held that a general guilty verdict on a multiple-object conspiracy was legally supportable if the jury could find that at least one of the objects supported the conspiracy charge. No due process violation occurs because § 1B1.2(d) requires the sentencing court to apply a “beyond a reasonable doubt” standard of proof to determine the objects of the conspiracy. U.S. v. Jackson, 167 F.3d 1280 (9th Cir. 1999).
9th Circuit says acquittal on distribution charge did not bar sentence for conspiracy to distribute. (165) Defendant argued that her acquittal on substantive drug distribution charges prevented the trial court from sentencing her under § 1B1.2(d) based on the distribution objects of her conspiracy conviction. The Ninth Circuit rejected this argument based on the Supreme Court’s opinion in U.S. v. Watts, 117 S.Ct. 633, 637 (1997), which held that a “jury cannot be said to have ‘necessarily rejected’ any [related] facts when it returns a general verdict of not guilty.” Thus, it was possible that the jury chose to acquit defendant of the distribution charges because the government failed to prove one of the additional elements necessary to establish the distribution charge. If that were the case, then it would not have been illogical for the sentencing court to find defendant guilty of conspiring to distribute drugs even though the jury had acquitted her of the underlying substantive offenses. U.S. v. Jackson, 167 F.3d 1280 (9th Cir. 1999).
9th Circuit requires sentence for offense established by stipulation in plea agreement. (165) Guideline section 1B1.2(c) provides that a “plea agreement (written or made orally on record) containing a stipulation that specifically establishes the commission of additional offense(s) shall be treated as if the defendant had been convicted of additional count(s) charging those offense(s).” The 9th Circuit held that this language is mandatory. Thus, the district judge in this case was required to sentence the defendant as if he had been convicted of unlawfully acquiring food stamps, even though he pled guilty only to cocaine distribution charges and the twelve food stamp fraud charges were dismissed. The defendant’s stipulation to the food stamp offenses included all of the elements of those crimes. U.S. v. Saldana, 12 F.3d 160 (9th Cir. 1993).
9th Circuit treats defendant as if he had been convicted on separate count of conspiracy for each object offense. (165) Defendant argued that the court erred in sentencing him for two separate conspiracies because the verdict did not specify whether he was guilty of one or both objects of the conspiracy. The 9th Circuit found no error, noting that section 1B1.2(d) provides that a conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each separate object offense. Commentary Note 5 provides that the court may sentence if, sitting as a trier of fact, it “would convict the defendant of conspiring to commit that object offense.” The 9th Circuit found evidence of separate conspiratorial objectives, and affirmed the sentence for two separate conspiracies. U.S. v. Tham, 960 F.2d 1391 (9th Cir. 1991).
9th Circuit upholds civil rights sentence on the basis of underlying offense. (165) Guideline section 2H1.3 provides that if no injury occurred, the base offense level is the greater of 10 or 2 plus the offense level for any underlying offense. Here, the underlying offense carried a base offense level of 12, so defendant received an offense level of 14. The 9th Circuit rejected defendant’s argument that because the district court selected section 2H1.3 as most applicable to his offense, it was improper for the district court to look to the base offense level of any other guideline. Looking to the base offense level for an underlying offense was necessary to apply section 2H1.3(a) and consistent with section 2H1.3 being the applicable section. Although defendant did not stipulate in his plea agreement to the facts necessary to prove the underlying offense, section 1B1.2(a) did not prohibit the district court from using the base offense level from the underlying offense. Section 1B1.2(a) governs only the initial selection of the guideline section most applicable to the offense of conviction. U.S. v. Byrd, 954 F.2d 586 (9th Cir. 1992).
10th Circuit sentences defendant based on stipulation to aggravated incest. (165) Defendant pled guilty to knowingly engaging in a sexual act with a minor on federal property. He stipulated that the child victim was his 13-year old daughter and that she gave birth as a result of the sexual act. Defendant argued that the court erred in sentencing him for the offense of aggravated incest since he did not plead guilty to incest. The Tenth Circuit held that defendant was properly sentenced for aggravated incest based on his stipulations. When a stipulation as part of a plea agreement establishes facts that prove a more serious offense than the offense of conviction, the court is to apply the guideline most applicable to the most serious offense established. The sentence is limited to the maximum authorized by the statute under which the defendant is convicted. The district court properly consulted Kansas law to determine defendant’s offense for sentencing purposes. Aggravated incest in Kansas requires the offender to knowingly engage in a prohibited sexual act with a person under 18 who the offender knows is biologically related. Defendant stipulated that he knowingly engaged in sexual intercourse with his 13-year old biological daughter. U.S. v. Passi, 62 F.3d 1278 (10th Cir. 1995).
10th Circuit holds that section 1B1.2 does not prohibit consideration of relevant conduct. (165) Section 1B1.2 provides that where a plea agreement contains a stipulation that specifically establishes a more serious offense than the offense of conviction, the offense level is based on the guideline for the stipulated offense. Defendant argued that since he did not stipulate to a more serious offense, the judge could not use relevant conduct to sentence him for a more serious offense. The 10th Circuit held that section 1B1.2 did not prohibit consideration of relevant conduct. The relevant conduct guideline, § 1B1.3(a)(2), directs that the entire picture of the defendant’s conduct be considered when determining the base offense. The fact that the plea agreement called for the dismissal of the more serious counts did not render the relevant conduct guideline inoperative. U.S. v. McGee, 7 F.3d 1496 (10th Cir. 1993).
11th Circuit permits use of guideline different from Statutory Index, but not here. (165) Defendant, a police officer, was caught in an FBI sting stealing money from an undercover agent posing as the girlfriend of a wanted fugitive. Defendant was convicted under 18 U.S.C. § 641 of stealing FBI funds. The trial judge determined that the theft offense was accompanied by civil rights violations, including an “abusive” search of the agent’s hotel room without a warrant or consent. The Eleventh Circuit held that the court erred in sentencing defendant under §2H1.1, the civil rights guideline, rather than § 2B1.1, the theft guideline. The Statutory Index provides that § 2B1.1 is the guideline ordinarily applicable to convictions under § 641. Section 1B1.2(a) cannot be the basis for applying § 2H1.1 because there was no plea agreement and no stipulation that specifically established a more serious offense. Appendix A does provide that in an “atypical case” where the designated guideline section is inappropriate, a court can use the guideline section most applicable “to the nature of the offense conduct charged in the count of conviction.” Thus, this clause permits a court to consider the implications of the facts recited in the information but additional to the specific crime charged. It was inapplicable here because the indictment did not charge a civil rights violation. U.S. v. Jackson, 117 F.3d 533 (11th Cir. 1997).
11th Circuit remands for findings beyond reasonable doubt on object offenses of conspiracy. (165) Under 1B1.2(d), a defendant convicted of a conspiracy count designating multiple object offenses should be treated as if separately convicted of conspiracy to commit each of the object offenses. Where the jury’s verdict does not indicate the offenses that were the object of the conspiracy, the court is to make the decision as a trier of fact. The 11th Circuit concluded that the district court erred by sentencing defendants as if they had conspired to commit each of the four alleged object offenses without finding, either implicitly or explicitly, that defendants had so conspired. The court should hold defendants responsible for an object offense only on a finding beyond a reasonable doubt that they had conspired to commit the offense. U.S. v. McKinley, 995 F.2d 1020 (11th Cir. 1993).
11th Circuit holds that defendant who burned boat for insurance fraud stipulated to arson offense. (165) Defendant pled guilty to fraud and deceit in connection with burning a boat in order obtain insurance benefits. The district court sentenced him under the arson guidelines, rather than the fraud guidelines, because it found that defendant had stipulated to the more serious arson offense. The 11th Circuit ruled that the facts in defendant’s plea agreement specifically established the more serious offense of arson, and thus guideline section 1B1.2 authorized the sentencing court to sentence defendant under guideline section 2K1.4, the arson guideline. A district court is not required to find that a case is “atypical” before applying section 1B1.2. The district court also correctly determined that under guideline section 2K1.4, defendant’s base offense level was 20, because he created a substantial risk of death or serious bodily injury. The court could conclude that the firefighters faced a substantial risk of death or serious bodily injury. U.S. v. Day, 943 F.2d 1306 (11th Cir. 1991).
Commission clarifies when statements in plea colloquy are considered “stipulations.” (165) The courts have been divided over whether admissions made by a defendant during a guilty plea hearing, without more, can be considered stipulations under § 1B1.2(a). The Second, Third, Tenth and Eleventh Circuits have held that statements during the factual-basis hearing do not constitute stipulations. See U.S. v. McCall, 915 F.2d 811 (2d Cir. 1990); U.S. v. Nathan, 188 F.3d 190, 201 (3d Cir. 1999); U.S. v. Gardner, 740 F.2d 587 (10th Cir. 1991); U.S. v. Saavedra, 148 F.3d 1311 (11th Cir. 1998). However, the Fifth and Sixth Circuits have interpreted “stipulations” to mean any acknowledgment of the acts justifying use of the more serious guideline, even if they are not in the formal plea agreement. U.S. v. Domino, 62 F.3d 716 (5th Cir. 1995); U.S. v. Loos, 165 F.3d 504, 508 (7th Cir. 1998). Effective November 1, 2001, the Commission amended § 1B1.2 to require that a factual statement by the defendant during the plea colloquy must be made as part of the plea agreement in order to be considered a “stipulation” for purposes of § 1B1.2(a). Amendment 613, effective November 1, 2001.
Commission resolves conflict over drug sales in protected location or to a protected individual. (165) A new amendment resolves a circuit conflict over whether the enhancements in § 2D1.2 (Drug Offenses Occurring Near Protected Locations or Involving Underage or Pregnant Individuals) can be based on relevant conduct or only when the defendant is actually convicted of drug sales in a protected location or to a protected individual. The amendment clarifies that the courts must apply the offense guideline for the statute of conviction listed in the Statutory Index unless the case involves a stipulation to a more serious offense or additional offenses as set forth in § 1B1.2(a). The court may not look to the defendant’s relevant conduct in determining the offense guideline to be used. Amendment 1, effective November 1, 2000.
Commission amends definition of “stipulation.” (165) As anticipated by the Supreme Court in Braxton v. U.S., 111 S.Ct. 1854, 114 L.Ed.2d 385 (1991), the Sentencing Commission amended application note 1 to section 1B1.2, effective November 1, 1991 to clarify the meaning of the term “stipulation.” The Commission stated that “[w]here a stipulation that is set forth in a written plea agreement or made between the parties on the record during a plea proceeding specifically establishes facts that prove a more serious offense or offenses than the offense or offenses of conviction, the court is to apply the guideline most applicable to the more serious offense or offenses establis