§196 Ex Post Facto: Continuing Offenses, Conspiracy
5th Circuit says defendant did not show that he withdrew from conspiracy. (196)(240) Defendant argued that applying a §2D1.1(b)(12) enhancement for maintaining a drug house violated the ex post facto clause. Pointing to a series of events occurring in August, September and October of 2010, he argued that he withdrew from the drug conspiracy before the “drug house” enhancement took effect on November 1, 2010. The Fifth Circuit disagreed, finding defendant did not assert an affirmative defense of withdrawal nor did he prove that he took affirmative acts to disavow or defeat the purpose of the conspiracy. On August 22, 2010, defendant was arrested on a state drug charge and placed on work release; in early September 2010 he called a co-conspirator and asked to resume his active participation in the conspiracy but was rebuffed; and on October 7, 2010, he pleaded guilty to the state drug charge and was placed on probation. Defendant did not report the drug distribution conspiracy to the authorities or communicate to the other conspirators his desire to withdraw from the conspiracy. The application of §2D1.1(b)(12) did not violate the ex post facto clause. U.S. v. Romans, __ F.3d __ (5th Cir. May 19, 2016) No. 13-40219.
7th Circuit uses expanded definition of “victim” where conduct spanned guideline amendment. (196) (218) The district court increased defendant’s sentence under § 2B1.1(b)(2)(B)for more than 50 victims. On appeal, defendant argued for the first time that the 2008 guidelines should have applied, and that it violated the ex post facto clause to apply the later edition. The 2008 guidelines limited the definition of victims to those who suffered actual loss or bodily injury as a result of the offense. In 2009, Application Note 4(e) to § 2B1.1 expanded “victim” to include “any individual whose means of identification was used unlawfully or without authority,” regardless of actual monetary loss. The Seventh Circuit held that the district court properly applied the later version of the guidelines because defendant’s conduct spanned from 2007 to 2010, easily encompassing the 2009 addition to Application Note 4(E). U.S. v. Harris, __ F.3d __ (7th Cir. July 1, 2015) No. 14-1846. XE “U.S. v. Harris, __ F.3d __ (7th Cir. July 1, 2015) No. 14-1846.”
1st Circuit says acts of concealment were insufficient to extend conspiracy. (196) Defendant conspired to violate federal firearms laws by unlawfully purchasing, possessing and selling handguns. He challenged the use of the November 1991 guidelines since no guns were obtained after July 1991, no sales after that time were proven, and his contact with the other conspirators after that date was minimal. The First Circuit remanded for resentencing under the earlier guidelines. The fact that the indictment alleged that the conspiracy continued until December 1991 was irrelevant. The jury had no reason to care whether the conspiracy ended in July or December or whether defendant withdrew from it. Although there may have been some cover‑up after July, acts of concealment extend the life of a conspiracy only if there is an express original agreement among the conspirators to continue to act in concert in order to cover up their crime. Any cover‑up agreement “occurred late in the day” when the conspirators knew that agents were on their trail and active trafficking in guns had come to a halt. U.S. v. Twitty, 72 F.3d 228 (1st Cir. 1995).
1st Circuit concludes bank fraud continued beyond effective date of amendment. (196) Defendant participated in a conspiracy that fraudulently obtained millions of dollars in real estate loans from two credit unions. He argued that a § 2F1.1(b)(6)(A) enhancement for jeopardizing the safety and soundness of a financial institution violated the ex post facto clause. The Second Circuit found no ex post facto violation since the conspiracy continued past the effective date of the amendment, November 1, 1990. Although all of the loans described in the indictment had closed before that date, the conspiracy extended into 1991, when defendant actively misled the credit union regarding the status of one of the loans. U.S. v. Smith, 46 F.3d 1223 (1st Cir. 1995).
1st Circuit says last date of offense, not relevant conduct, controls for ex post facto purposes. (196) Defendant obtained a series of fraudulent loans–the first in August 1988 and the last in October 1989. Effective November 1, 1989, the loss table in guideline section 2F1.1 was amended. In April 1990, defendant created and placed in one of the loan files documents that falsely showed that a mortgage for this loan had been recorded in 1989. The 1st Circuit held that defendant was properly sentenced under the 1988 guidelines. Application note 2 to section 1B1.11 states that the last date of the offense of conviction is the controlling date for ex post facto purposes. Relevant conduct that occurs after a guideline amendment does not change this. Defendant’s creation of false documents in April 1990 was merely relevant conduct, and thus not controlling for ex post facto purposes. U.S. v. Bennett, 37 F.3d 687 (1st Cir. 1994).
2nd Circuit finds defendant did not withdraw from conspiracy upon incarceration. (196) Defendant, a member of a New York crime family, was convicted of racketeering. The district court, when sentencing defendant in 2007, chose to use the post-2004 Guidelines to calculate defendant’s base offense level for a 1985 attempted murder, which was a predicate racketeering act under the RICO conspiracy. The court used the post-2004 Guidelines because it found that defendant’s involvement in the RICO conspiracy had continued beyond his arrest in 2003. Defendant argued that the law presumed that membership in a conspiracy ends upon incarceration, and the government did not rebut that presumption. The Second Circuit found there was no such presumption, and even if there were, the government introduced sufficient evidence to overcome it. Evidence established that membership in the crime family was lifelong and continued beyond arrest and incarceration. After defendant’s arrest his name remained on a list of active members that included others who had also been incarcerated. Defendant also continued to receive funds from the family’s “war chest.” U.S. v. Massino, 546 F.3d 123 (2d Cir. 2008).
2nd Circuit holds that retroactive application of remedial portion of Booker did not violate Ex Post Facto Clause. (196) Defendant argued that the district court violated the Sixth Amendment and the Ex Post Facto Clause when it sentenced him for pre-Booker conduct above the maximum of the applicable guideline range established by his admissions. In U.S. v. Vaughn, 430 F.3d 518 (2d Cir. 2005), the court held that application Booker to cases on direct review does not violate the ex post facto principle of the due process clause. The current appeal raised the same issue in a slightly different context – defendant claimed that the district court, as opposed to the court of appeals on direct review, violated the Ex Post Facto Clause by retroactively applying the remedial holding of Booker at his sentencing. The Second Circuit rejected this argument for the same reasons stated in Vaughn. Defendant had fair warning that his conduct was criminal, that enhancements or upward departures could be applied to his sentence under the guidelines based on judicial fact-findings, and that he could be sentenced as high as the statutory maximum. U.S. v. Fairclough, 439 F.3d 76 (2d Cir. 2006).
2nd Circuit holds that 15-year limit in definition of aggravated felony applies only to foreign convictions. (196) Defendant illegally reentered the country, and received an enhanced sentence because he was deported following conviction for an aggravated felony. See USSG § 2L1.2. He contended that the district court committed plain error by sentencing him under the 1998 version of the guidelines, which contained an expanded definition of an aggravated felony, rather than the 1995 version, which did not. The Second Circuit found no plain error, because at least one of defendant’s prior convictions constituted an aggravated felony under the 1995 guidelines. Application Note 7 to the 1995 version of § 2L1.2 defined an aggravated felony to include “any crime of violence … for which the term of imprisonment imposed … is at least five years … The term ‘aggravated felony’ applies to offenses described in the previous sentence whether in violation of federal or state law and also applies to offenses described in the previous sentence in violation of foreign law for which the term of imprisonment was completed within the previous 15 years.” The fact that defendant’s imprisonment for his two 1977 state robbery convictions ended in 1980 and thus had not been “completed within the previous 15 years” did not mean these robberies were not aggravated felonies. The 15 year-limitation contained in Note 7 applies to foreign convictions, not domestic convictions. U.S. v. Gitten, 231 F.3d 77 (2d Cir. 2000).
2nd Circuit says $100 special assessment violated ex post facto clause. (196) In 1991, defendant was deported. In November 1994, he was arrested by New York City police officers and convicted of drug charges. On April 19, 1996, while in prison, the INS discovered that he had reentered the country. In June 1997, he pled guilty to illegally reentering the country follow-ing deportation. From 1984 through April 23, 1996, a federal sentencing court was required to impose a $50 assessment on a defendant convicted of a felony. On April 24, 1996, a new law increased the special assessment to $100. The Second Circuit ruled that the $100 special assessment imposed on defendant violated the ex post facto clause. The offense of illegal entry is complete as soon as the entry is made. The offense of being found in the U.S. is complete when authorities discover the illegal alien in the U.S. Defendant’s illegal reentry occurred before November 8, 1994, the date of his arrest in New York. Even if defendant had been convicted of being found in the U.S. illegally, the INS’s finding that he was present April 19, 1996 would have made his offense complete five days before the increased special assessment became effective. U.S. v. Labeille-Soto, 163 F.3d 93 (2d Cir. 1998).
4th Circuit finds no ex post facto violation where defendant committed later acts of tax evasion. (196) Under USSG 1B1.11(b)(3), if the defendant is convicted of two offenses, the first committed before, and the second after, a revised edition of the Guidelines Manual becomes effective, the revised edition of the Guidelines Manual is to be applied to both offenses. Defendant’s first offense occurred on April 13, 1993, when she filed a false tax return for the year 1992. The other three offenses occurred on December 10, 1993, when she filed the false amended tax returns for the years 1990-1992. In the interim, on November 1, 1993, the guidelines were amended to increase the base offense level for filing a false tax return. See Amendment 491, amending the tax table in USSG § 2T4.1. The Fourth Circuit held that the use of the amended guideline did not violate the ex post facto clause. Section 1B1.11(b)(3) was added to the guidelines on November 1, 1993. Defendant therefore had ample warning, when she committed the later acts of tax evasions, that those acts would cause her sentence for the earlier crime to be determined in accordance with the Guidelines Manual applicable to the later offenses, and thus that the intervening amendment to the tax table would apply. U.S. v. Lewis, 235 F.3d 215 (4th Cir. 2000).
5th Circuit finds no ex post facto violation where one overt act and one count occurred after Guideline was amended. (196) Defendant, an attorney, was convicted of conspiracy and fraud for filing fraudulent claims to recover from the settlement funds set up to compensate victims of the diet drug Fen Phen. The district court sentenced defendant under the 2006 Guidelines, which resulted in a higher sentence than under the 2001 Guidelines. Defendant argued that every fraudulent claim was filed with the settlement fund before November 1, 2001, and therefore the use of the 2006 Guidelines violated the ex post facto clause. The Fifth Circuit found no ex post facto violation because the government provided evidence that the scheme to defraud continued beyond November 1, 2001. Defendant incorrectly assumed that the scheme to defraud was complete when the claimants received their settlement payments. However, one of the overt acts in the conspiracy alleged that in January 2002, defendant caused a $275,000 check to be sent to him for attorneys’ fees. In addition, defendant was convicted of one act of wire fraud that occurred November 12, 2001. U.S. v. Arledge, 553 F.3d 881 (5th Cir. 2008).
5th Circuit finds no ex post facto problem where criminal conduct occurred on date of amendment. (196) Defendant pled guilty to a drug conspiracy. He was sentenced as a career offender based on a November 1, 1995 amendment changing the Sentencing Commission’s authority to including conspiracy as a predicate career offender crime. He contended that application of the amended version of § 4B1.1 violated the ex post facto clause because his participation in the conspiracy ended before November 1, 1995. The Fifth Circuit found no ex post facto problem because defendant did not withdraw from the conspiracy prior to his arrest on November 1, 1995. Defendant was engaging in criminal conduct when he was arrested, and therefore the application of the amended version of § 4B1.1 did not violate the ex post facto clause. U.S. v. Lightbourn, 115 F.3d 291 (5th Cir. 1997).
5th Circuit says counsel not ineffective in failing to argue that embezzlement was straddle offense. (196) Defendant pled guilty to 23 counts of embezzlement. The district court applied pre‑guidelines law to the first 18 counts and applied the sentencing guidelines to the remaining five counts. In a § 2255 motion, defendant argued that his counsel was ineffective in failing to pursue a “straddle offense” theory, i.e., that all of the counts were subject to the guidelines. The Fifth Circuit found no ineffective assistance. The only case indicating that embezzlement was a straddle offense was decided after defendant was sentenced. Counsel’s failure to move to withdraw defendant’s plea when it became apparent that the court had not accepted the straddle theory was also not ineffective assistance. Counsel said he never believed in the theory, but he felt there was a possibility that the court would follow the public policy embodied in the guidelines and apply the guidelines anyway. This is the kind of strategic choice that a court may not second‑guess. U.S. v. Gaudet, 81 F.3d 585 (5th Cir. Apr. 30, 1996).
5th Circuit rules that mail fraud is not a continuing offense. (196) Defendant was convicted of multiple counts of mail fraud. The mailings occurred both before and after the effective date of the guidelines. The sentences for his guidelines offenses ran consecutively to the sentences for his pre-guidelines offenses. He argued that because the guideline commentary required grouping of mail fraud offenses, the district court was bound to order concurrent sentences for all counts. The 5th Circuit upheld the consecutive sentences for the guidelines and pre-guidelines offenses. The commentary is only binding with respect to offenses actually covered by the guidelines. The guidelines only apply to crimes committed after November 1, 1987. Defendant’s offense did not “straddle” the guidelines’ effective date because mail fraud is not a continuing offense. Each mailing constitutes a completed offense. U.S. v. Miro, 29 F.3d 194 (5th Cir. 1994).
6th Circuit holds that failure to appear is a continuing offense. (196) In 1990, defendant was convicted of drug and tax charges, and failed to appear for sentencing. Almost 10 years later, in April 2000, defendant was arrested, charged and pled guilty to failing to appear, in violation of 18 U.S.C. §§ 3146(a)(1) and (b)(1)(A)(i). He argued that the use of the 1998 guidelines to calculate his sentence violated the ex post facto clause, and the court should have used the 1990 guidelines. Agreeing with the Second, Ninth, and Tenth Circuits, the Sixth Circuit held that failure to appear is a continuing offense. Like the crime of escape, the crime is not complete on the day that a defendant fails to appear for sentencing, but rather continues until the defendant is apprehended and finally appears for sentencing. Accordingly, the 1998 edition of the guidelines applied to defendant’s sentence. U.S. v. Green, 305 F.3d 422 (6th Cir. 2002).
7th Circuit says sentence inadvertently converted to time served was not correctible clerical error. (196) Defendants filed motions to reduce their sentences under the retroactive Sentencing Guideline amendments for crack cocaine offenses. The district court reduced their sentences as requested. However, the March 13 order also stated: “If this sentence exceeds the amount of time the defendant has already served, the sentence is reduced to a ‘Time Served’ sentence.” This language was inadvertent, and on March 26, the court amended the previous order to read: “If this sentence is less than the amount of time the defendant has already served, the sentence is reduced to a ‘Time Served’ sentence.” Rule 35(a) corrections must be made within seven days “after sentencing.” The Seventh Circuit held that the modification was not timely under Rule 35(a), even though the March 13 order stated that it was not effective until 10 days after the order date. The sentences were imposed and the seven-day periods began when the written orders were entered. Although Rule 36 provides an exception that allows a court to correct a “clerical error” in an order at any time, it cannot be used to fix “judicial gaffes.” U.S. v. Lawrence, 535 F.3d 631 (7th Cir. 2008).
7th Circuit holds that defendant did not withdraw from pedophile conspiracy prior to increase in statutory maximum. (196) Defendant was convicted of conspiring to travel in foreign commerce with the intent to engage in illicit sexual conduct, in violation of 18 U.S.C. § 2423(b) and (e). On October 30, 1998, Congress amended § 2423 to increase the maximum penalty from 10 to 15 years. The indictment alleged that the conspiracy ran from January 1998 until February 1999, and there was no dispute that the conspiracy continued beyond October 30, 1998. The resort that defendant and his partner started in Mexico for pedophiles continued beyond that date, the partner remained in charge of the hotel, and customers continued to patronize it. The Seventh Circuit held that the application of the higher statutory maximum did not violate the Ex Post Facto Clause – no reasonable jury would have found that defendant withdrew from the conspiracy prior to October 30. To withdraw from a conspiracy, defendant must take some affirmative act to defeat or disavow the criminal aim of the conspiracy. There was no such affirmative act by defendant. Although defendant no longer lent his financial support to the hotel after that date, and his partner sensed a “coolness” from defendant, these were passive acts of disengagement, and did not signal an overt disavowal of the conspiracy. Defendant’s name remained on the lease, and his partner remained in possession of defendant’s ATM card. U.S. v. Julian, 427 F.3d 471 (7th Cir. 2005).
7th Circuit holds that grouped mail fraud convictions are straddle offense for ex post facto purposes. (196) Defendant argued that a § 3D1.4 increase for using minors in his insurance fraud scheme violated the ex post facto clause, since all the fraudulent mailings involving minors were completed before the enactment of § 3B1.4. When a defendant commits crimes that straddle the date of promulgation of a new guideline, the defendant can be punished under the new guideline without violating the ex post facto clause. In U.S. v. Barger, 178 F.3d 844 (7th Cir. 1999), the court held that a series of mail frauds was not a straddle offense, because each was completed at the time of the mailing. The Seventh Circuit held that a series of mail fraud convictions that are grouped may be considered to straddle a revision without a presumptive ex post facto violation because of the criminal’s prior notice of the grouping rules. Thus, Barger was distinguishable because it did not involve mail fraud convictions that were grouped together under § 3D1.2. In the present case, because the district court found the conduct committed by defendant similar enough for § 3D1.2(d) grouping to apply, defendant’s actions constituted a continuing offense that straddled the promulgation of § 3D1.4. U.S. v. Vivit, 214 F.3d 908 (7th Cir. 2000).
7th Circuit finds no ex post facto problem where defendant never withdrew from drug conspiracy. (196) Defendant argued for the first time on appeal that his sentencing under the 1997 Sentencing Guidelines violated the ex post facto clause. He claimed he was not an active participant in the conspiracy to distribute methamphetamine and marijuana after June 1995, and thus, the less severe 1994 guidelines should have been applied to him. The Seventh Circuit found no ex post facto violation, since as a member of the conspiracy until its end in 1996, defendant was responsible for the reasonably foreseeable offenses of his co-conspirators. Defendant was charged and convicted of conspiring to distribute drugs from June 1993 to November 1996. Defendant did not object to his PSR, which stated that the drug conspiracy continued from 1993 through August 1996. Evidence at trial established his participation in the conspiracy during the period charged in the indictment. Moreover, a defendant has the burden of establishing that he has withdrawn from a conspiracy. Withdrawal requires an affirmative act to either defeat or disavow the purposes of the conspiracy, such as making a full confession to authorities or communicating to co-conspirators that one has abandoned the enterprise. There was no evidence that defendant withdrew from the conspiracy. U.S. v. Hall, 212 F.3d 1016 (7th Cir. 2000).
7th Circuit rules defendant did not withdraw from conspiracy. (196) Two defendants argued that their sentences violated the ex post facto clause because the conspiracies did not exist beyond the date on which the sentencing statutes were enacted and because they had withdrawn from the conspiracies prior to that date. The Seventh Circuit found sufficient evidence that the defendants’ drug dealing continued past the effective date of the statutes. There was no withdrawal from the conspiracy. Withdrawal requires a definitive break, rather than mere cessation of activities, even if combined with a subjective determination not to resume. Otherwise, a conspirator could sit back and wait to see whether the conspiracy had succeeded or failed and only then decide to announce whether he had withdrawn. One defendant’s argument that he withdrew when he became a fugitive from justice was frivolous, since such a theory would reward fugitives. Defendant was hiding from police rather than his co-conspirators. U.S. v. Boyd, 208 F.3d 638 (7th Cir. 2000), vacated in part on other grounds, Boyd v. U.S., 531 U.S. 1135, 121 S.Ct. 1072 (2001).
7th Circuit applies enhancement even though leadership role ended before guidelines’ effective date. (196) Defendant, a member of the El Rukn street gang, was involved in a drug conspiracy that straddled November 1, 1987, the effective date of the sentencing guidelines. He argued that he could not be given a leadership enhancement because his leadership role ended with his demotion from “General” to private before November 1, 1987. He cited U.S. v. Torres, 901 F.2d 205 (2d Cir. 1990), in which the Second Circuit held that the ex post facto clause forbids punishing defendants as “principals, administrators, organizers, or leaders” of a continuing criminal enterprise if their leadership role did not continue after the enactment of the statute creating the offense, even though the enterprise itself continued past that date. The Seventh Circuit held that the enhancement was proper under the straddle rule. The statute at issue in Torres created a new substantive offense that had as an element that defendant have had a leadership role. Thus, it punished Torres for engaging in conduct before the statute was passed. In the present case, defendant committed all the elements of the offense after the change in the guideline, and thus became responsible for the conduct that he engaged in before the change. U.S. v. Boyd, 208 F.3d 638 (7th Cir. 2000), vacated in part on other grounds, Boyd v. U.S., 531 U.S. 1135, 121 S.Ct. 1072 (2001).
7th Circuit holds that mail fraud is not a continuing offense. (196) In 1989, a federal grand jury charged defendant with 64 counts of mail fraud and 24 counts of wire fraud. He pled guilty to seven of the mail fraud charges. The district court sentenced defendant to a 20-year sentence, without applying the sentencing guidelines. Although the guidelines apply to offenses committed after November 1, 1987, all of the circuits agree that “straddle offenses” (offenses beginning before November 1, 1987 but continuing after November 1, 1987) are also covered by the guidelines. Defendant argued that his mail fraud scheme was a “straddle offense” because the indictment charged that the scheme to defraud lasted from 1984 until 1988. The Seventh Circuit held that multiple mail frauds, in and of themselves, do not constitute a straddle offense. Unlike an ongoing conspiracy, mail fraud is punishable once the material is place in the mail. Regardless of the continuing nature of the scheme, each mailing constitutes a separate offense. The crime of mail fraud is completed, for sentencing purposes, at the time of the mailing. The counts to which defendant pled guilty all arose from mailings that occurred in 1986. Thus, the guidelines were not applicable. U.S. v. Barger, 178 F.3d 844 (7th Cir. 1999).
7th Circuit applies guidelines where conduct continued after effective date of guidelines. (196) For about two decades, defendant and his confederates engaged in a pattern of racketeering schemes. Defendant argued that the use of the guidelines to punish actions that occurred long before November 1, 1987, when the guidelines went into effect, violated the ex post facto clause. The Seventh Circuit rejected this claim based on circuit precedent. U.S. v. Bailey, 97 F.3d 982 (7th Cir. 1996).
7th Circuit applies guidelines where preponderance of the evidence showed no withdrawal from conspiracy. (196) Defendant challenged the application of the sentencing guidelines, claiming he that he withdrew from a drug conspiracy before the guidelines were promulgated. The Seventh Circuit found “plenty” of evidence to support the district court’s finding that defendant did not withdraw before the guidelines went into effect. Since the issue went to sentencing rather than guilt, the standard of proof was merely a preponderance of the evidence. The defendant bears the burden of production but not of persuasion. U.S. v. Williams, 81 F.3d 1434 (7th Cir. 1996).
7th Circuit holds that defendant waived claim that he withdrew from conspiracy. (196) Defendant was involved in a conspiracy to rig bids and fix prices. He argued that the use of the 1993 guidelines violated the ex post facto clause, because he withdrew from the conspiracy in 1989 when he moved to Florida to take an unrelated job. The Seventh Circuit held that he waived the argument, even though his presentence memorandum plausibly raised a withdrawal objection. His response to the government’s rebuttal brief stated that he did not intend to claim that he withdrew from the conspiracy. This indicated an “intentional relinquishment” of a known right to object based on withdrawal. In any event, the government presented sufficient evidence that defendant continued in the conspiracy after moving. His attempt to cover up the conspiracy was sufficient to show that he had not withdrawn from it. U.S. v. Bullis, 77 F.3d 1553 (7th Cir. 1996).
7th Circuit applies guidelines to conspiracy that straddled guidelines’ effective date. (196) Defendant was convicted of a racketeering conspiracy, racketeering, extortion and obstruction of justice. The Seventh Circuit rejected his challenge to the validity of the obstruction of justice count. It then held that because the acts of obstruction were part of an ongoing conspiracy that straddled the date on which the sentencing guidelines became effective, the district court properly applied the guidelines to defendant’s sentence. U.S. v. Maloney, 71 F.3d 645 (7th Cir. 1995).
7th Circuit applies amended guidelines where conspiracy extended beyond effective date. (196) Defendant argued that the district court should have applied the 1988 guidelines rather than the 1992 guidelines to his conspiracy conviction. The Seventh Circuit upheld the application of the 1992 guidelines because defendant’s involvement in the conspiracy extended after the effective date of the amendments incorporated in the 1992 guidelines. U.S. v. Shorter, 54 F.3d 1248 (7th Cir. 1995).
7th Circuit holds government waived challenge to non-guidelines sentence for straddle conspiracy. (196) Defendant’s drug conspiracy straddled the effective date of the sentencing guidelines. The government told the district court that it had discretion not to apply the guidelines to the conspiracy, and the court imposed a non-guidelines sentence. Defendant appealed his conviction but the government did not file a cross-appeal. In response to defendant’s motion to reduce his sentence, the government moved to correct the “illegal” sentence, and appealed when the district court denied its motion. The Seventh Circuit held that the government had a right under 18 U.S.C. § 3742(b)(1) to appeal a non-guidelines sentence imposed for a straddle conspiracy, but had waived any error by stating several times at sentencing that applying the guidelines was not mandatory. The district court relied on this representation. The government did not file a cross-appeal to vacate defendant’s sentence when he appealed his conviction. U.S. v. Byerley, 46 F.3d 694 (7th Cir. 1995).
7th Circuit finds conspiracy straddled effective date of guidelines. (196) Defendants argued for the first time on appeal that the district court erred in finding that their RICO offense continued beyond November 1, 1987, the effective date of the guidelines. The 7th Circuit held that the finding was not plain error. Although the jury did not find that any defendant committed the two acts the government alleged to have occurred after November 1987, the judge decided that defendants did commit those acts. A sentencing court may find facts explicitly or implicitly rejected by the jury. One extortion victim testified that he made his last payment to the conspiracy in November 1987. Although the conspirator contradicted the victim, a court’s choice between competing evidence cannot be clearly erroneous and is certainly not plain error. Finally, the court rejected one defendant’s claim that he withdrew from the conspiracy in June 1987 when he was involuntarily terminated. Merely ceasing participation in a conspiracy is never enough to withdraw from it unless accompanied by some affirmative act, such as a confession to authorities or a clear communication to co-conspirators of abandonment of the conspiracy’s goals. U.S. v. Morgano, 39 F.3d 1358 (7th Cir. 1994).
7th Circuit applies guidelines to straddle conspiracy. (196) Defendant argued that applying the guidelines to his conspiracy violated the ex post facto clause, since some of the overt acts alleged in the indictment and proved at trial occurred before the date the guidelines became effective. The 7th Circuit noted that this claim had been rejected “long ago.” The guidelines apply to straddle crimes. U.S. v. Jackson, 32 F.3d 1101 (7th Cir. 1994).
7th Circuit says court should not look to indictment to determine when offense ended. (196) Defendant argued that because the indictment alleged that the conspiracy lasted until March of 1988, his conspiracy was a “straddle” offense to which the guidelines should be applied. The 7th Circuit held that the question depended on the factual basis for the guilty plea, not the indictment. Reliance on the indictment would allow the government to manipulate the sentencing basis for the defendant. Here, the evidence showed that the criminal acts at the heart of the conspiracy ceased when the organization’s building burned down in May 1987. Efforts to conceal records from detection and to impede the government’s investigation were merely after-the-fact measures taken long after the criminal objectives of the conspiracy had been accomplished. U.S. v. Roberts, 22 F.3d 744 (7th Cir. 1994).
8th Circuit finds no ex post facto violation where conspiracy straddled enactment of new guideline. (196) Defendant argued that the district court should have applied the version of the sentencing guidelines in effect when the drug conspiracy began and not the more punitive guidelines, amended effective November 1997, in effect at the time of sentencing. The Eighth Circuit found no ex post facto violation because defendant’s conspiracy straddled the effective date of the amended guidelines. Where a defendant’s offense straddles an enactment, the enactment can be applied to the defendant without violating the ex post facto clause even when the enactment would result in a harsher sentence. See U.S. v. Warren, 149 F.3d 825 (8th Cir. 1998). Defendant did not withdraw from the conspiracy before the amended version of the guidelines went into effect. Defendant presented no evidence at trial that he had taken affirmative action to defeat the conspiracy or that he had communicated his intent to withdraw to his co-conspirators. On the contrary, the evidence showed that after November 1997, defendant continued to be involved with the conspiracy. For example, in January 1998, prison officials intercepted mail from defendant addressed to inmates containing pictures of defendant with his arms wrapped around the precursor materials needed to make methamphetamine. Also, while awaiting trial, defendant attempted to cover up the conspiracy by propositioning another inmate to intimidate witnesses who were prepared to testify against him. U.S. v. Zimmer, 299 F.3d 710 (8th Cir. 2002).
8th Circuit says illegal reentry offense continued until defendant found in the U.S. (196) Defendant pled guilty to illegally reentering the country after deportation, in violation of 8 U.S.C. § 1326. The district court applied a 16-level increase under § 2L1.2(b) (1)(B) because one of defendant’s prior offenses, a 1987 conviction for corporal injury on a spouse, was an aggravated felony under the 1997 version of 8 U.S.C. § 1101(a)(43). Defendant argued that the use of the enhancement violated the ex post facto clause because the 1987 conviction was not an aggravated felony in 1991 when he violated § 1326 by illegally reentering the country. The Eighth Circuit found no ex post facto violation because the crime of reentry is an ongoing offense that continues until an individual is discovered by authorities. When an individual is “found in” the United States, the date he or she is found is generally considered to be the date he or she violated § 1326. Defendant was “found in” the U.S. in 1997, after the definition of aggravated felony was expanded to include his 1987 conviction. U.S. v. Estrada-Quijas, 183 F.3d 758 (8th Cir. 1999).
8th Circuit says no D-meth finding was necessary where conspiracy extended past date distinction was eliminated. (196) Defendant argued that the district court erred in failing to make a finding as to whether L- or D-methamphetamine was involved in his conspiracy. Prior to November 1, 1995, the guidelines distinguished between the two types of meth and mandated harsher sentences for offenses involving D-meth. This distinction was eliminated by Amendment 518, which became effective November 1, 1995. The Eighth Circuit held that no D-meth finding was necessary because defendant’s conspiracy continued until July 11, 1996. Conspiracy is a continuing offense for which the completion date controls which version of the guidelines applies. Because Amendment 518 was effective at the completion date, no finding on the type of methamphetamine involved in the offense was required. The court also rejected another defendant’s claim that he withdrew from the conspiracy when he was arrested in October 1995. A participant must affirmatively withdraw from a conspiracy to end his legal liability. A co-conspirator testified that this second defendant did not take the affirmative action necessary to terminate his participation in the conspiracy. Also, the jury found defendant guilty of a conspiracy that began in October 1994 and ended on July 11, 1996. U.S. v. Maggard, 156 F.3d 843 (8th Cir. 1998).
8th Circuit holds restitution order did not violate ex post facto clause despite change in law. (196) Defendant trafficked in cloned cellular telephones. He argued for the first time on appeal that applying the Mandatory Victim’s Restitution Act (MVRA) to him violated the ex post facto clause by increasing his punishment for illegal phone sales he made before the MVRA’s effective date of April 24, 1996. The Eighth Circuit held that the restitution order did not violate the ex post facto clause because the date of the offense to which defendant pled guilty was May 30, 1996, more than a month after the MVRA took effect. When defendant trafficked in cloned phones on that date, he had fair warning that his criminal conduct could trigger mandatory restitution to persons other than the victim of his May 30 offense. The MVRA does not violate the Eighth Amendment. U.S. v. Williams, 128 F.3d 1239 (8th Cir. 1997).
8th Circuit agrees that offense continued after effective date of guidelines. (196) Defendant was charged in a cocaine conspiracy, but pled guilty to unlawful use of a telephone in the commission of a drug offense. He claimed the guidelines did not apply because he pled guilty only to using a telephone in 1986, before the November 1, 1987, effective date of the guidelines. The Eighth Circuit upheld the use of the guidelines, because in his guilty plea, defendant acknowledged use of a telephone in a drug felony in 1988, although he claimed he was cooperating with the police in an investigation of a co‑defendant. The plea agreement said defendant used the phones in 1986 and 1988 to discuss the sale and distribution of cocaine with his co‑defendant as part of the charged conspiracy. Moreover, there was testimony at trial that defendant had been involved in criminal activity well after November 1987. U.S. v. Campbell, 77 F.3d 247 (8th Cir. 1996).
8th Circuit says plea showed conspiracy extended beyond effective date of mandatory minimum. (196) Defendant argued that 21 U.S.C. § 841’s mandatory life sentence was not applicable to him because there was no evidence that any cocaine transaction took place after the effective date of that section. It was enacted November 18, 1988 and became effective 120 days later. The 8th Circuit found that defendant’s guilty plea to a conspiracy to distribute from June 1987 to July 1991 established that the conspiracy, and defendant’s participation in it, continued long after the effective date of the mandatory sentencing provision. U.S. v. Marks, 38 F.3d 1009 (8th Cir. 1994).
9th Circuit holds that Guidelines apply to 2002 conviction for failure to appear at 1975 trial. (196) Defendant failed to appear for his criminal trial in 1975. He was not recaptured until 2002, at which point he pled guilty to failure to appear, in violation of 18 U.S.C. § 3146. At sentencing, the district court declined the government’s request to apply the Sentencing Guidelines, which became effective in 1987. On the government’s appeal, the Ninth Circuit held that because failure to appear is a continuing offense that continues while the defendant is at large, the defendant should have been sentenced under the Guidelines. U.S. v. Alcarez Camacho, 340 F.3d 794 (9th Cir. 2003).
9th Circuit says being “found in” the U.S. is a continuing offense and upholds reclassifying prior felony as “aggravated.” (196) In 1994, defendant illegally re-entered the United States. In 1996, the IIRIRA reclassified his prior 1986 conviction for alien smuggling as an aggravated felony. In 1998 he was arrested and charged with being “found in” the United States after deportation, in violation of 8 U.S.C. § 1326, and his sentence was increased based on the 1986 “aggravated” alien smuggling offense. The Ninth Circuit found no error, ruling that he committed the present offense after the effective date of the IIRIRA because being “found in” the United States is a continuing offense. U.S. v. Guzman- Bruno, 27 F.3d 420, 423 (9th Cir. 1994). Thus, the 1996 Act’s reclassification of his 1986 alien smuggling offense as an aggravated felony did not violate the ex post facto clause. U.S. v. Ramirez-Valencia, 202 F.3d 1106 (9th Cir. 2000).
9th Circuit holds conspiracy was complete, for ex post facto purposes, when warehouse burned. (196) The government argued that the higher 1992 sentencing guidelines applied to defendant’s conspiracy to commit mail fraud by means of arson, because the conspiracy continued until April 1, 1993. However, the district judge found the conspiracy was completed when the warehouse burned in 1989. Of the later acts in the indictment, only the false insurance claims and payment to one of the conspirators occurred after November 1, 1990, when § 2K1.4 was amended. The Ninth Circuit held that these acts bore “only a tenuous relationship” to defendant’s continuing involvement in the conspiracy. Thus, the court saw “no reason” to disturb the district court’s finding that the conspiracy was completed at the time the warehouse burned. Thus, using the 1992 guidelines would violate the ex post facto clause. U.S. v. Beardslee, 197 F.3d 378 (9th Cir. 1999).
9th Circuit holds bank fraud is a continuing offense, but making false statements to a bank under § 1014, is not. (196) In U.S. v. Niven, 952 F.2d 289, 291 (9th Cir. 1991), the Ninth Circuit held that mail and wire fraud are not continuing violations because those offenses punish each use of the mail or wires. In the present case, the Ninth Circuit distinguished Niven, noting that bank fraud in violation of 18 U.S.C. § 1344 punishes the execution of a scheme to defraud or obtain money; “language that suggests the violation should be treated as continuing.” On the other hand, defendant was also convicted of making false statements to a bank in violation of 18 U.S.C. § 1014, which does not require a scheme to defraud, but instead punishes each false statement. Therefore the Ninth Circuit concluded that § 1014 is not a continuing offense. Accordingly, since no offenses were committed after the effective date of the sentencing guidelines, November 1, 1987, the guidelines did not apply. U.S. v. Nash, 115 F.3d 1431 (9th Cir. 1997).
9th Circuit says mail fraud is not a continuing offense so ex post facto clause required resentencing. (196) Defendant was convicted of five counts of mail fraud, spanning the period between August, 1986 and July, 1990. The fraud table in guideline § 2F1.1 was increased on November 1, 1989, after four of the counts were completed, but before the fifth count. Section § 1B1.11(b)(3), requires the November 1, 1989 guideline manual to be applied to all offenses, but the Ninth Circuit held that this would violate the ex post facto clause because mail fraud is a “completed rather than a continuing offense.” Thus, the court said that there are “in fact five separate crimes; each carries its own punishment, even if the sentences are all run concurrently to the extent that they overlap.” On remand, the district court was directed to sentence defendant under the 1988 guidelines on counts one through four and under the 1994 guidelines on count five. U.S. v. Ortland, 109 F.3d 539 (9th Cir. 1997).
9th Circuit applies guidelines where co-conspirator’s acts continued after November 1, 1987. (196) Defendant argued that the sentencing guidelines should not be applied to him because the last overt act committed directly by him occurred in 1986, before the guidelines became effective on November 1, 1987. The Ninth Circuit rejected his argument, finding that the overt acts committed by his co-conspirators after November 1, 1987, were “in furtherance of the conspiracy and were reasonably foreseeable by [defendant]” within the meaning of § 1B1.3, the relevant conduct guideline. U.S. v. Bracy, 67 F.3d 1421 (9th Cir. 1995).
9th Circuit says unauthorized flight to avoid prosecution is a continuing offense. (196) In U.S. v. Gray, 876 F.2d 1411, 1418 (9th Cir. 1989), cert. denied, 495 U.S. 930 (1990), the Ninth Circuit held that failure to appear for sentencing, in violation of 18 U.S.C. § 3146(a), is a continuing offense. Relying on Gray, the Ninth Circuit in this case held that unauthorized flight to avoid prosecution (UFAP) in violation of 18 U.S.C § 1073, is also a continuing offense. Thus it was proper to apply the sentencing guidelines even though defendant fled before the effective date of the guidelines, because his flight continued after the guidelines became effective. U.S. v. Merino, 44 F.3d 749 (9th Cir. 1994).
9th Circuit says being found in U.S. after deportation is a continuing offense. (196) Defendant argued that he committed his offense—being a deported alien found in the United States—in 1990 when he re-entered the U.S. shortly after his deportation. Therefore, he reasoned, a later guideline amendment could not be applied to him even though the Immigration Service did not find him until 1992. The 9th Circuit rejected the argument, holding that a violation of 8 U.S.C. §1326 is a “continuing offense” which continues as long as the alien remains in the country. U.S. v. Guzman-Bruno, 27 F.3d 420 (9th Cir. 1994).
10th Circuit rules that tax evasion is a continuing offense. (196) A jury found Barker guilty of four counts of tax evasion, in violation of 26 U.S.C. § 7201. The district court found that evasion of payment under § 7201 was not a continuing offense, and therefore sentenced defendant using the 1997 Guidelines, rather than the 2006 version. Using the 2006 version would have resulted in a higher guidelines range, and the court found that this would violate the ex post facto clause. The Tenth Circuit held that the district court erred in its legal conclusion that an evasion of payment under § 7201 is not a continuing offense. Because it is a continuing offense, the date of the last act of evasion is the date of the offense of conviction in determining the appropriate version of the Guidelines under § 1B1.11. The court’s error constituted significant procedural error because it led the court to use the wrong version of the Guidelines, thereby resulting in a lower advisory guideline range. U.S. v. Barker, 556 F.3d 682 (10th Cir. 2009).
10th Circuit says counterfeit goods conspiracy ended when counterfeit goods were seized from store. (196) Defendant participated in a conspiracy to traffic in counterfeit goods. He argued that the conspiracy terminated on December 7, 1998, the date when the government seized all the merchandise from his store. Therefore, the use of the May 2000 guidelines, which carried a higher offense level than the November 1998 guidelines, violated the Ex Post Facto Clause. The Tenth Circuit agreed that the conspiracy terminated in 1998 and that the court erred in apply the 2000 version of the guidelines. The district court found that defendant continued selling counterfeit goods after the 1998 FBI seizure, relying on the testimony of one of defendant’s employees. The employee testified that defendant continued to sell, until May 2000, items similar to those seized by the FBI, including products with Nike, Tommy Hilfiger and Dooney & Burke trademarks. However, the district court previously held that there was insufficient evidence presented at trial that any trademarks other than the Mont Blanc mark were in use at the time defendant trafficked in goods with those marks. The only criminal conspiracy for which defendant could have been convicted was conspiracy to sell products with counterfeit Mont Blanc trademarks. The sales of products with other trademarks was not part of the offense of conviction. U.S. v. Foote, 413 F.3d 1240 (10th Cir. 2005).
10th Circuit agrees that defendant continued to participate in conspiracy after arrest. (196) Defendant argued that the district court violated the ex post facto clause by applying the November 2001 version of the guidelines to his sentence for check counterfeiting rather than the prior version. He argued that his participation in the scheme ended on August 28, 2001, the date he was arrested with one of his cashers. The Tenth Circuit disagreed, upholding the district court’s finding that defendant remained actively involved in the conspiracy after the date of his arrest, until the conspiracy as a whole ended on November 29, 2001. One of the bosses of the conspiracy testified that defendant stole checks for the organization sometime in September 2001, and that these checks were used to create counterfeit checks to be negotiated later. U.S. v. Osborne, 332 F.3d 1307 (10th Cir. 2003).
10th Circuit upholds guideline implementing “one-book rule.” (196) Defendant failed to file tax returns for the years 1991, 1992, and 1993. The guidelines were amended effective November 1993 to increase the base offense level for failure to file convictions. Under USSG § 1B1.11(b)(3), if “the defendant is convicted of two offenses, the first committed before, and the second after, a revised edition of the Guideline Manual became effective, the revised edition of the Guidelines Manual is to be applied to both offenses.” The revised edition is to be applied “even if the revised edition results in an increased penalty for the first offense.” See Background Commentary to § 1B1.11(b)(3). The Tenth Circuit joined six other circuits which have upheld the validity of § 1B1.11(b)(3) against ex post facto challenges. It was not the guideline amendment that disadvantaged defendant, it was his election to continue his criminal activity after the amendment became effective. Defendant was on notice even when he committed his first two tax offenses that the guidelines would determine his offense level for all years in which he failed to pay taxes. Moreover, the grouping rules gave him notice that his three consecutive failures to file would be considered part of the same course of conduct. While failure to file a tax return is not a continuing offense even if committed in successive years, a series of such failures to file is the “same course of conduct” under the guidelines. U.S. v. Sullivan, 255 F.3d 1256 (10th Cir. 2001).
11th Circuit holds that MVRA applies to conspiracy that straddled effective date. (196) A jury convicted defendants of participating in a conspiracy that ran from October 1992 until March 1998. The district court ordered restitution under the Mandatory Victims Restitution Act (MVRA), which went into effect April 24, 1996. The MVRA does not apply to a defendant whose criminal conduct occurred and ceased prior to April 24, 1996. U.S. v. Siegel, 153 F.3d 1256 (11th Cir. 1998). The Eleventh Circuit held that the MVRA applies to acts in an ongoing conspiracy that began before the MVRA’s date of enactment but concluded after the MVRA’s enactment. The ongoing nature of the conspiracy enables application of the new statute without violating the ex post facto clause. U.S. v. Futrell, 209 F.3d 1286 (11th Cir. 2000).
11th Circuit finds no evidence defendant withdrew from conspiracy before effective date of guidelines. (196) Defendant argued that the court erred in not determining from the jury whether his conspiracy concluded before November 1, 1987, the effective date of the sentencing guidelines. Defendant contended that as a non-guideline offense, his recommended sentence would have been shorter, no minimum mandatory would have been imposed, and he would be subject to parole. The Eleventh Circuit found no error. A conspiracy that begins before the effective date of the guidelines and continues after that date is subject to sentencing under the guidelines. A defendant must take affirmative steps prior to the effective date to terminate and disavow any participation in the conspiracy in order for the guidelines not to apply to his sentencing. There was no proof that defendant took such steps. U.S. v. Diaz, 190 F.3d 1247 (11th Cir. 1999).
11th Circuit uses guidelines in effect when defendant committed last in series of crimes. (196) Defendant was convicted of various fraud and firearms charges relating to his operation of a firearms business. He committed his crimes between February 1989 and April 1992. The government conceded that applying the November 1993 guideline would violate the ex post facto clause. It argued that defendant should be sentenced under the November 1991 guidelines which were in effect when he committed the last of his crimes. Defense counsel persuaded the district court to sentence defendant under the 1990 guidelines which were in effect when he committed the majority of his crimes. The Eleventh Circuit held that defendant should have been sentenced under the 1991 guidelines. The “one-book” rule, together with the guidelines grouping rules and relevant conduct sections, provide that related offenses committed in a series will be sentenced together under the guideline manual in effect at the end of the series. A defendant knows that when he continues to commit related crimes, he risks a sentence for all of his offenses under the latest, amended guidelines manual. Defendant’s offenses clearly composed a single guidelines group because they were all integrally related to his firearms business. U.S. v. Bailey, 123 F.3d 1381 (11th Cir. 1997).
11th Circuit says insufficient evidence tied December 1987 shipment to conspiracy. (196) The government claimed the guidelines applied because there was testimony that the drug importation scheme continued until December 1987, after the guidelines became effective. The Eleventh Circuit remanded to apply pre-guidelines law, finding insufficient evidence to tie the December 1987 shipment to the conspiracy. This shipment was by one of the conspirators who had previously worked for the conspiracy as a pilot. However, the pilot had recently bought the boat, which suggested that he was now operating on his own. Also there was no evidence that the house he used to off-load the drugs were used for any other ventures by the conspiracy. The fact that a co-conspirator was sentenced under the guideline was irrelevant. This co-conspirator pled guilty, and thus was obliged to accept the dates as stated in the indictment. U.S. v. Knowles, 66 F.3d 1146 (11th Cir. 1995).
11th Circuit sentences under guidelines where conspiracy extended beyond effective date. (196) Defendant was extradited from Uruguay, and convicted of a conspiracy to import cocaine into the United States. The Eleventh Circuit upheld the application of the sentencing guidelines, since the charged conspiracy ran until at least May 1988. The extradition treaty did not limit defendant’s prosecution to a single cocaine shipment in 1985. U.S. v. Puentes, 50 F.3d 1567 (11th Cir., 1995).
11th Circuit finds defendant who moved and set up competing business did not withdraw from conspiracy. (196) Defendant contended that he withdrew from a drug conspiracy before the effective date of the guidelines. He claimed to have moved to another state and set up his own competing drug business. The Eleventh Circuit held that setting up a competing business does not constitute withdrawal from a conspiracy. Rather, defendant must show that he (1) took affirmative steps to defeat the objectives of the conspiracy, and (2) made a reasonable effort to communicate these acts to his co-conspirators or disclosed the scheme to law enforcement authorities. Defendant’s actions in setting up a competing business did not constitute an effort to thwart the objectives of the conspiracy. Mere cessation of criminal activity is insufficient to demonstrate withdrawal. U.S. v. Young, 39 F.3d 1561 (11th Cir. 1994).
11th Circuit requires proof that defendants agreed to participate in conspiracy past guidelines’ effective date. (196) Defendants participated in a conspiracy that operated from 1979 until 1990. The conspiracy provided a runway and an airstrip to various groups smuggling drugs into the U.S. Defendants all resided at the ranch where the airstrip was located. Three defendants challenged the application of the guidelines to their offenses, arguing that their personal involvement in the conspiracy ended before November 1, 1987, the guidelines’ effective date. The 11th Circuit vacated the sentences of two defendants because the government did not prove they agreed to participate in the conspiracy after the effective date of the guidelines. Criminal involvement must be based on actual individual agreement and activity. The enterprise had sporadic and unpredictable episodes, with little foreseeability or opportunities to express intent to withdraw. U.S. v. Peeples, 23 F.3d 370 (11th Cir. 1994).
D.C. Circuit holds that lies to investigator did not extend conspiracy. (196) Defendant’s girlfriend died in December 2000. In January 2001, defendant filed a claim for the life insurance benefits based on a forged beneficiary designation form, and received about $20,000. In 2001, the Guidelines set the base offense level for defendant’s fraud offense at 10. A 2004 amendment increased the base offense level to 14. The government argued that the use of the 2006 Guidelines did not violate the ex post facto clause because the conspiracy continued through 2005, when a co-conspirator who helped defendant with the forgery lied to investigators in order to conceal her role in the fraud. The D.C. Circuit disagreed, and held that defendant’s sentence violated the ex post facto clause. The government did not prove any express agreement between defendant and the co-conspirator to conceal their offense after they had pocketed the proceeds. Although the Guidelines are now advisory, sentencing under the post-Booker advisory guidelines can still violate the ex post facto clause. Here, it was likely defendant’s sentence would have been lower if the court had properly applied the older version of the Guidelines. U.S. v. Turner, 548 F.3d 1094 (D.C. Cir. 2008).
D.C. Circuit reaffirms application of guidelines to straddle conspiracy. (196) Defendant was involved in a large drug conspiracy. The conspiracy straddled the effective date of the guidelines. The D.C. Circuit upheld the application of the guidelines to such “straddle” conspiracies. The rule of lenity did not require that sentencing be based only on post-enactment conspiratorial conduct. The rule of lenity only applies where there is an ambiguity that cannot be resolved through other methods of statutory interpretation. There is no such ambiguity here. Since the guidelines apply to straddle conspiracies, sentencing should be based on all of the conspiratorial conduct, not just the conduct that occurred post-enactment. U.S. v. Thomas, 114 F.3d 228 (D.C. Cir. 1997).
D.C. Circuit finds insufficient evidence that conspiracy extended beyond November 1, 1987. (196) Defendant, a HUD employee, used her position to secure government funds for developers who paid fees to lobbyists with whom she associated. The D.C. Circuit found the guidelines did not apply to one conspiracy count because the evidence was not sufficient to show that the conspiracy continued beyond November 1, 1987. In examining the sufficiency of the evidence supporting the conviction on this count, the appellate court found only one overt act by defendant to support the verdict–a July 1984 letter relating to one particular project. However, there was sufficient evidence to support application of the guidelines to a second conspiracy count. A co-conspirator received payments for his consulting services after November 1, 1987. The receipt of these payments was within the scope of the conspiracy and was reasonably foreseeable. U.S. v. Dean, 55 F.3d 640 (D.C. Cir. 1995).
D.C. Circuit applies sentencing guidelines where payments were made after effective date. (196) Defendant was convicted of making illegal gratuity payments. The D.C. Circuit upheld the application of the sentencing guidelines, since the trial court could have found that that the gratuity involved payments made after November 1, 1987. U.S. v. Wilson, 26 F.3d 142 (D.C. Cir. 1994).