§315 Civil Rights, Political Offenses
10th Circuit holds civil rights violation involved use of force. (315) For civil rights violations of 42 U.S.C. § 3631, the offense level under § 2H1.1 is based on the underlying offense or level 10 if the offense involved the use of force against another. Defendant assaulted his victim with a “stun cane,” inflicting a red mark on the victim’s neck. By special verdict, the jury found this to be a “dangerous weapon,” The district court set the offense level at 7, the level for assault, despite the government’s argument that defendant’s conduct constituted aggravated assault, which carries an offense level of 14. The government appealed, and the Tenth Circuit found that the offense was not an aggravated assault, because the victim did not suffer a serious injury and because defendant did not intend to cause bodily injury. However, the panel held that the district court should have set the offense level at 10 because defendant’s conviction involved the use of force. U.S. v. Porter, __ F.3d __ (10th Cir. June 28, 2019) No. 18-4081.
4th Circuit upholds credibility findings supporting cross-reference to murder. (315) Defendant, a former police officer, pleaded guilty to depriving another of his civil rights under color of law by shooting and killing a man. Defendant killed the victim with five shots to the man’s back as the man tried to run away. The district court applied the cross-reference in § 2H1.1(a)(1), to sentence defendant under the second-degree murder guideline, rather than for voluntary manslaughter. The district court credited a bystander’s account, and found insufficient evidence that defendant had acted in the heat of passion required for voluntary manslaughter. On appeal, the Fourth Circuit exhaustively reviewed the evidence and the district court’s fact-finding, and found that the district court had properly selected second-degree murder as the cross-reference. U.S. v. Slager, __ F.3d __ (4th Cir. Jan. 8, 2019) No. 18-4036.
(315)(431)(450)(715)(870) U.S. v. Christensen, 801 F.3d 970 (9th Cir. 2015), amended without changing the summaries, __ F.3d __ (9th Cir. July 8, 2016) No. 08-50531.
6th Circuit agrees that victim suffered serious bodily injury in connection with forced labor. (315) Defendants were convicted of conspiracy, forced labor, and acquisition of a controlled substance by deception based on their inhumane treatment of S.E., a developmentally disabled young woman, and her minor child, who lived in their apartment. The Sixth Circuit upheld an increase under §2H4.1(b)(1)(B), finding significant evidence at trial that S.E. sustained “serious bodily injury” in connection with her condition of forced labor. Defendant Hunt beat S.E. with a wooden fence post upon discovering that S.E. had taken food to feed her daughter; Hunt punched S.E. in the face when S.E. bought an item that was not on the shopping list; defendant Callahan kicked S.E. in the face and knocked her tooth loose after he learned about her note discussing escape plans. Each of these events caused S.E. extreme physical pain, and therefore, the district court properly applied the two-level enhancement. U.S. v. Callahan, __ F.3d __ (6th Cir. Sept. 8, 2015) No. 14-3771.
6th Circuit upholds dangerous weapon increase for beating victim with fence post. (315) Defendants were convicted of conspiracy, forced labor, and acquisition of a controlled substance by deception based on their inhumane treatment of S.E., a developmentally disabled young woman, and her minor child, who lived in their apartment. The Sixth Circuit upheld a §2H4.1(b)(1)(B) enhancement because a “dangerous weapon was used” during the commission of the forced labor offense. Defendant Hunt used a fence post to beat S.E., which qualified as a dangerous weapon under the circumstances. Moreover, because defendants were both convicted of conspiracy, Hunt was equally culpable for her co-conspirator’s acts in furtherance of the conspiracy. There were at least two occasions when defendant Callahan pointed a gun at S.E. and her daughter, and one occasion when Callahan threatened S.E. with a knife while questioning her about who she talked to and why she took so long to run an errand. The use of the dangerous weapon enhancement was proper. U.S. v. Callahan, __ F.3d __ (6th Cir. Sept. 8, 2015) No. 14-3771.
6th Circuit approves enhancement for kidnapping committed during forced labor offense. (315) Defendant was convicted of conspiracy, forced labor, and acquisition of a controlled substance by deception based on the inhumane treatment of S.E., a developmentally disabled young woman, and her minor child, who lived in defendant’s apartment. Guideline §2H4.1(b)(4)(B) provides for an enhancement if “any other felony offense was committed during the commission of, or in connection with, the peonage or involuntary servitude offense.” The Sixth Circuit upheld a 10-level §2H4.1(b)(1)(B) enhancement for “other felony offense.” The jury’s special verdict concluded that the forced labor offense involved kidnapping so defendant’s most serious underlying offense was kidnapping, which was governed by §2A4.1. Defendant need not have been convicted under the federal kidnapping statute for §2A1.4 to apply. There was no impermissible double counting. The kidnapping calculation, being the higher of the two, essentially replaced the forced labor calculation, and therefore defendant’s conduct was not counted twice in her ultimate sentence. U.S. v. Callahan, __ F.3d __ (6th Cir. Sept. 8, 2015) No. 14-3771.
6th Circuit says 384-month sentence for forced labor case was substantively reasonable. (315)(742) Defendant was convicted of conspiracy, forced labor, and acquisition of a controlled substance by deception based on the inhumane treatment of S.E., a developmentally disabled young woman, and her minor child, who lived in defendant’s apartment. Defendant’s guideline sentence for the forced labor charge was life imprisonment, and the district court varied downward and sentenced her to 384 months. The 6th Circuit rejected defendant’s claim that her below-guidelines sentence was unreasonable. The court appropriately considered aggravating factors, including that defendant provided untruthful testimony at trial on several material issues; that S.E. permanently lost custody of her daughter because of defendant’s conduct; that defendant used her children to harm S.E. and S.E. daughter; and that defendant inflicted physical abuse upon the victims. The court also took into account the mitigating factors, including that defendant had a tough upbringing, a history of substance abuse, was under-educated, and had also lost custody of her children. Defendant pointed to nothing that indicated that the district court erred. U.S. v. Callahan, __ F.3d __ (6th Cir. Sept. 8, 2015) No. 14-3771.
9th Circuit upholds economic gain increase against attorney. (315) Defendant, a lawyer, hired a private detective to illegally wiretap the spouse of a client who was engaged in a child support dispute with the client. Based on that conduct, defendant was convicted of illegal wiretapping, in violation of 18 U.S.C. § 2511(1)(a). At sentencing, the district court determined defendant’s offense level under § 2H3.1. Under § 2H3.1(b), a court should apply a three-level enhancement in offense level if “the purpose of the offense was to obtain . . . economic gain.” The Ninth Circuit held that the district court had not clearly erred in imposing this enhancement. U.S. v. Christensen, __ F.3d __ (9th Cir. Aug. 25, 2015) No. 08-50531.
9th Circuit upholds 36-month within-guidelines sentence for wiretapping. (315)(870) Defendant, a lawyer, was convicted of illegal wiretapping, in violation of 18 U.S.C. § 2511(1)(a). At sentencing, the district court increased defendant’s offense level by 7 based on three enhancements and departed upward by three offense levels under § 5K2.0(a)(2) because defendant’s offense level failed to account for the harm defendant had caused. The resulting guidelines range was 30-37 months, and the district court sentenced defendant to 36 months. Reviewing for substantive reasonableness, the Ninth Circuit upheld the sentence. U.S. v. Christensen, __ F.3d __ (9th Cir. Aug. 25, 2015) No. 08-50531.
Supreme Court allows departure in Rodney King beating case for victim misconduct. (315) In sentencing the police officers who were convicted of beating Rodney King, the district court departed downward for victim misconduct under U.S.S.G. § 5K2.10. The Supreme Court found no abuse of discretion, noting that victim misconduct is an encouraged basis for departure under 5K2.10. The departure was justified because the punishment prescribed by the civil rights guideline, 2A2.2 contemplates unprovoked assaults, not cases like the present one, where what began as legitimate force in response to provocation became excessive force. Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996).
Supreme Court reverses departure based on collateral employment consequences for police officers. (315) The district court departed downward on the ground that the police officers who were convicted of beating Rodney King would lose their jobs and be disqualified from other law enforcement careers. The Supreme Court held that this departure was an abuse of discretion. It is to be expected that a public official convicted of using governmental authority to violate a person’s rights would lose his or her job and be barred from similar employment in the future. Therefore, it must be concluded that the Commission adequately considered these consequences in formulating § 2H1.4, the civil rights guideline. The career loss factor, as it existed in this case, did not take the case out of the § 2H1.4 “heartland.” Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996).
1st Circuit says offense underlying perjury not dependent on offense of conviction. (315) Defendant, a Boston police officer, was present when Cox, a plain clothes Boston police officer, was allegedly mistaken for a fleeing suspect and beaten by unknown police officers. Defendant was convicted of perjury and obstruction of justice after he told a grand jury that he did not see Cox chase the fleeing suspect and did not see Cox being beaten. The court applied cross-references in §§ 2J1.2(c)(1), § 2J1.3(c)(1), and § 2X3.1, to sentence defendant under § 2H1.1, finding that the “underlying offense” was the violation of constitutional rights by the intentional use of excessive force by police officers. The court then calculated defendant’s sentence under § 2A2.2, the aggravated assault guideline. Defendant claimed that since he was only convicted of lying about seeing Cox chase the suspect, and was acquitted of lying about seeing Cox being beaten, the underlying offense could not include the intentional use of force. The First Circuit found that defendant’s acquittal had no bearing on what offenses were under investigation when he testified before the grand jury, and thus had no bearing on the offenses underlying the perjury conviction. Section 2J1.2(c)(1)’s cross reference does not depend on the defendant’s actual conviction as an accessory after the fact to the offense under investigation. U.S. v. Conley, 186 F.3d 7 (1st Cir. 1999).
1st Circuit uses aggravated assault guideline where one victim shot in the arm. (315) Defendants yelled racial insults at several men. When the men fled in a truck, defendants gave chase and fired shots in the air, in the back of the vehicle, and in the ground. A bullet struck one man in the arm, and another lodged in the headrest behind a second man’s head. Applying § 2H1.3(a)(3), the district court found that the underlying offense was aggravated assault, and the First Circuit affirmed. Serious bodily injury was not required to make an assault aggravated. Simple intent to do bodily harm of any kind may support a finding of aggravated assault under note 1 to § 2A2.2. However, the assault must be “felonious” to qualify as aggravated. “Felonious,” means punishable by death or a term of imprisonment exceeding one year. The maximum penalty for assault is one year, but if bodily injury results the maximum penalty is increased to ten years. The assault resulting in the gunshot wound clearly caused bodily injury and was therefore felonious. The other assault also qualified based on the same gunshot wound—nothing in the assault statute requires the bodily injury to be suffered by the intended victim of the offense. U.S. v. Page, 84 F.3d 38 (1st Cir. 1996).
1st Circuit says increase for serious bodily injury was not double counting. (315) Defendant, a police officer, beat a prisoner and was convicted of depriving a pretrial detainee of his civil rights. Section 2H1.4(a)(2) provides that the base offense level is to be set six levels above the base offense level for the underlying offense. At sentencing, the district court determined that the underlying offense was aggravated assault, since it involved serious bodily injury. Thus, the base offense level was set at 21, and then adjusted upward by four more levels under section 2A2.2(b)(3)(B) because the victim suffered serious bodily injury. The 1st Circuit rejected defendant’s claim that the enhancement for serious bodily injury constituted impermissible double counting. The commission was aware of the problem of double counting, and expressly forbid it in certain places, but not here. The notes to section 2H1.4 prohibit the application of the abuse of trust or special skill enhancement as impermissible double counting, but give no indication that the bodily injury enhancement is improper. Bodily injury is not an inherent characteristic of the offense of interfering with civil rights under color of law. U.S. v. Newman, 982 F.2d 665 (1st Cir. 1992).
2nd Circuit upholds separate enhancements for using dangerous weapon and inflicting serious bodily injuries. (315) Defendant and her husband were convicted of forced labor, harboring aliens, peonage and document servitude. She argued that enhancements for causing serious bodily injury, § 2H4.1(b)(1)(B), and for using a dangerous weapon, § 2H4.1(b)(2)(A), amounted to impermissible double counting. The Second Circuit disagreed, since the adjustments did not serve identical purposes. The conduct that would subject a defendant to a dangerous weapon enhancement would not necessarily subject that defendant to a serious bodily injury enhancement, and harms at which these adjustments are aimed are not identical. Here, the dangerous weapon increase was based on defendant’s use of weapons such as a knife, a rolling pin, and boiling water against her domestic servant. The use of such weapon did not require defendant to have inflicted serious bodily injury. The substantial evidence that defendant did inflict such injuries mandated a separate adjustment to take account of this separate harm. U.S. v. Sabhnani, 599 F.3d 215 (2d Cir. 2010).
2nd Circuit finds insufficient evidence that prison guards beat prisoner in “heat of passion.” (315) Defendants, prison guards, were convicted of civil rights violations after two of the guards severely beat a prisoner, causing his death, and a third guard participated in a cover-up of the beating. Section 2H1.1 bases the offense level on the guideline applicable to the underlying offense. The Second Circuit ruled that there was insufficient evidence to support the district court’s finding that defendants acted in the “heat of passion,” and thus the voluntary manslaughter guideline was inapplicable. The judge’s heat of passion finding was based on the fact that the guards “acted in response to [the prisoner’s] refusal to obey their commands and the abusive epithets directed to them.” These circumstances were insufficient to support a “heat of passion” finding. The panel left open the possibility that on remand the district court might find the heat of passion standard met on other grounds. However, if on remand, voluntary manslaughter is rejected, the choice between second-degree murder and involuntary manslaughter will turn on how great a risk of serious bodily injury defendants could reasonably apprehend would result from their conduct and what that risk revealed about the degree of their indifference to the prisoner’s life. Because the remand might result in a greater sentence than originally imposed, and because the government did not bring a cross-appeal, the panel gave defendants the opportunity to withdraw their appeals. U.S. v. Velazquez, 246 F.3d 204 (2d Cir. 2001).
2nd Circuit finds Apprendi violated where relationship between beating and death not submitted to jury. (315) Defendant, a prison guard, was convicted of being an accessory after the fact for helping other guards cover up their fatal beating of a prisoner. Defendant’s maximum sentence under the accessory statute depended on the maximum available for his principals. If they faced a maximum of life, his maximum as an accessory was 15 years; otherwise, his maximum was one-half of the maximum they faced. See 18 U.S.C. § 3. The statutes under which the principals were convicted, 18 U.S.C. § 241 and 242, carry maximum sentences of ten years and one year, respectively. However, the maximums are increased up to life imprisonment if the violation caused the death of the victim. Because the causal relationship between the beating and the prisoner’s death was not submitted to the jury, defendant argued that his sentence could not exceed 5 1/2 years (one half of eleven years). See Apprendi v. New Jersey, 530 U.S. 466 (2000). The Second Circuit agreed. Because defendant’s 70-month sentence exceeded by four months the maximum 5 1/2 year sentence that could be imposed without a jury determination of the cause of the prisoner’s death, his sentence must be reduced by at least four months. U.S. v. Velazquez, 246 F.3d 204 (2d Cir. 2001).
2nd Circuit holds that “in custody” and “color-of-law” increases were not double counting. (315) Defendant, a former New York City police officer, committed a vicious sexual assault on a black man who was in police custody. The criminal sexual abuse guideline provides an adjustment if “the victim was … in the custody, care or supervisory control of the defendant.” § 2A3.1(b)(3)(A). The civil rights guideline provides an adjustment if “the offense was committed under color of law.” § 2H1.1(b)(1) (B). The Second Circuit held that the imposition of both enhancements did not constitute double counting. The two adjustments address separate sentencing considerations. The color-of-law adjustment punishes abuse of authority, either actual or apparent, by an officer of the state. The in-custody adjustment, by contrast, punishes abuse of power over an individual in the officer’s physical and legal control. No impermissible counting occurs when a police officer, acting under color of law, is punished more severely for sexual abuse that occurred while the victim was also in his custody. U.S. v. Volpe, 224 F.3d 72 (2d Cir. 2000).
2nd Circuit departs where police officer’s choke hold resulted in death. (315) Defendant, a police officer, was convicted of civil rights violations after putting a choke hold on Baez that resulted in Baez’s death. The court departed by four levels because: (1) defendant himself created the violent situation that led to Baez’s death because Baez and his brothers had done nothing wrong; and (2) defendant was aware of NYPD regulations prohibiting choke holds and had been specifically warned by his superiors to avoid excessive force and unnecessary confrontations with civilians. The Second Circuit affirmed, rejecting defendant’s contention that the involuntary manslaughter guideline under which he was sentenced adequately considered these factors. Although the standard of care in § 2A1.4 considered the fact that defendant put Baez in a choke hold, it did not account for the fact that it was defendant’s wholly gratuitous aggression that created the confrontation in the first place. In addition, defendant had a heightened awareness of the risks associated with his conduct. Because of numerous prior complaints about his use of excessive force, defendant had been singled out for placement in a special monitoring program in which he was repeatedly counseled about unnecessary civilian confrontations and the dangers of using excessive force. U.S. v. Livoti, 196 F.3d 322 (2d Cir. 1999).
3rd Circuit uses drug guideline for police officer who violated civil rights by planting drugs on suspect. (315) Defendant, a former police officer, falsified evidence and was convicted of civil rights violations. He argued that the court erred in applying the drug distribution guideline, § 2D1.1, to his civil rights violations because he was not convicted of offenses involving the distribution of drugs. The Third Circuit ruled that the district court correctly found that defendant engaged in the distribution of narcotics, and therefore the application of § 2D1.1 was proper. See § 2H1.1(a) (base offense level should be the greatest of several options, including the offense level applicable to any underlying offense). The court agreed with U.S. v. Cortes–Caban, 691 F.3d 1 (1st Cir. 2012), a recent case which held that police officers who conspired to plant drugs on individuals to fabricate criminal offenses were properly convicted of drug charges under 21 U.S.C. §§ 841(a) and 846. A “distribution” encompasses the transfer of a controlled substance from one person or place to another, and thus includes the planting of controlled substances on individuals to facilitate false arrests. U.S. v. Figueroa, 729 F.3d 267 (3d Cir. 2013).
5th Circuit applies increase for multiple participants in civil rights abuse. (315) Defendants, deportation officers with the INS, were convicted of a variety of civil rights violations based on their physical abuse of a detainee who had broken his neck while being apprehended and was paralyzed. The district court applied a § 2H1.1(a)(2) increase for two or more participants. Defendants argued that the crime of willful deliberate indifference to medical needs was a crime of omission, so it could not involve multiple participants, they were not charged with conspiracy, and were each acting independently. The Fifth Circuit affirmed the increase, finding it was not determinative that the defendants were convicted of a crime of omission. A participant is any person who is criminally responsible for the commission of the offense, regardless of whether they were convicted of the offense. The court properly found that defendants acted together. They were together in the kitchen when the victim was complaining of injury, together at the jail when they dragged the victim to the bus, and together on the bus when they pepper sprayed him. U.S. v. Gonzales, 436 F.3d 560 (5th Cir. 2006).
5th Circuit allows downward departure in civil rights case but reverses as to extent. (315) Defendant was a Mississippi police chief who was convicted of using excessive force during an arrest, in violation of 18 U.S.C. § 242. At sentencing, the district judge departed downward under § 5K2.10 because “the victim’s wrongful conduct contributed significantly to provoking the offense behavior.” The victim had kicked at the officer repeatedly after being handcuffed and placed in the patrol car. On appeal, the Fifth Circuit relied on Koon v. U.S., 518 U.S. 81 (1996) to hold that the victim’s conduct was a valid basis for departure here. The court noted that the victim had pleaded guilty to resisting arrest. Moreover, the Fifth Circuit held that the district court could properly consider the police chief’s “unblemished record” as a police officer even though, under § 5H1.5, a defendant’s employment record is not ordinarily relevant. Nevertheless, the panel voted 2-1 to remand the case for resentencing as to the extent of the downward departure because the sentence was only 15% of the guideline minimum. U.S. v. Harris, 293 F.3d 863 (5th Cir. 2002).
5th Circuit finds that first-degree murder was offense underlying civil rights violations. (315) Defendant was involved in the execution-style murder of a woman who filed a brutality complaint against a New Orleans police officer. He was convicted of various civil rights violations, but the jury could not reach a verdict on a count of killing the victim to prevent her from communicating information to a federal law enforcement officer. Section 2H1.1 bases the offense level on the offense level for the underlying offense. The district court found the underlying offense was first-degree murder, which under § 2A1.1 has a base offense level of 43. The Fifth Circuit held that the district court properly used the conduct established by the offenses of conviction to determine defendant’s offense level. The jury’s failure to reach a verdict on the witness tampering count had no bearing on this determination. All three counts, including violating civil rights under color of law, involved the underlying offense of murder. U.S. v. Causey, 185 F.3d 407 (5th Cir. 1999).
6th Circuit holds that sentencing disparity did not make defendant’s sentence unreasonable. (315) Defendant was one of several police officers convicted of offenses stemming from excessive use of force during an arrest. Defendant challenged his 33-month sentence as substantively unreasonable, contending it resulted in an unwarranted sentencing disparity with his co-defendants. The Sixth Circuit found no disparity, and held the sentence was reasonable. Section 3553(a)(6) is concerned with national disparities between defendants with similar criminal conduct, not disparities between co-defendants. Moreover, there were several factors which warranted the differing sentences. Defendant was found guilty of more offenses than any of his co-defendants, and he was the only defendant found guilty of deprivation of rights under color of law. The disparity between the co-defendants’ sentences was reasonable. Moreover, the district court was well aware of the disparities, and found defendant to be “most culpable.” U.S. v. Carson, 560 F.3d 566 (6th Cir. 2009).
6th Circuit affirms second-degree murder guideline for officer involved in death of prisoner. (315) Defendant, a corrections officer, was convicted of conspiracy to violate the rights of detainees and prisoners of the county jail. He faced a life sentence because the jury found that his denial of medical care resulted in the death of a prisoner who had been beaten by another corrections officer. The civil rights guideline, §2H1.1(a), required the court to apply the offense level for the underlying offense, i.e., homicide. The Sixth Circuit held that the district court did not clearly err in using the second degree murder guideline, 2A1.2, rather than the manslaughter guideline, 2A1.4, as the underlying offense. The judge explained that, in his view, the record reflected malice aforethought and culpability for second degree murder. Although defendant insisted that he did not know that another officer had struck the victim in the head, the evidence showed that not only had defendant himself beat the victim twice – striking him in the head both times – but that defendant had asked the other officer to “take care of” the victim when he starting banging on his door again. The officer understood this to mean that he should use whatever force it took to make the victim stop banging on the door, and proceeded to deliver several full-powered punches to the side of the victim’s head that caused his head to bounce against the concrete wall each time. The victim was quiet after that, and defendant should have known that the other officer had silenced him by beating him. U.S. v. Conatser, 514 F.3d 508 (6th Cir. 2008).
6th Circuit upholds life sentence for supervisor who failed to provide medical care to prisoner. (315) Defendant and several other corrections officers were convicted of conspiracy to violate the rights of detainees and prisoners of the county jail. Defendant, the supervisor of one of the shifts, was also convicted of six substantive charges, and received a life sentence for his role in assaulting one prisoner, and then failing to provide necessary medical care, resulting in the prisoner’s death. Hale, the co-conspirator who actually inflicted the beating that resulted in the prisoner’s death, was sentenced to only 108 months. The Sixth Circuit rejected defendant’s claim that the life sentence, which fell within his guideline range, was substantively unreasonable. The district court gave significant consideration to the difference between Hale’s 108-month sentence and defendant’s life sentence. Although Hale inflicted the injuries that ultimately killed the prisoner, the jury found that defendant’s actions in denying medical care resulted in his death. The disparity was the product of a plea bargain and downward departure that Hale received, which is a legitimate basis for sentencing disparity. The judge also fully considered mitigating facts, such as defendant’s young age, the overcrowded conditions of the jail, his lack of proper training, his support from family and friends, the counseling he received, and his sincere expressions of remorse. The court found the case “difficult,” but nonetheless believed that the “heart-wrenching” circumstances did not warrant a below-guideline sentence. The sentence was harsh, but not unreasonable. U.S. v. Conatser, 514 F.3d 508 (6th Cir. 2008).
6th Circuit holds that false arrest did not amount to kidnapping. (315) Defendants conspired to violate the civil rights of a man by setting up a false arrest in which they planted drugs and an illegal firearm in his possession. Section 2H1.1 directs a court to use a base offense level of 15 or 2 plus the offense level for the underlying offense. The government argued that the district court should have used the base offense level of 24 in § 2A4.1 (Kidnapping, Abduction, Unlawful Restraint). The Sixth Circuit disagreed, holding that the underlying offense to the conspiracy was not kidnapping. The conduct involved here was not similar to the federal offenses that fall under § 2A4.1. In addition, the conduct did not amount to the state crime of kidnapping or unlawful imprisonment in the first degree. However, the court should have enhanced defendants’ offense level under § 3A1.3 for physically restraining the victim. The charged civil rights crimes do not contain physical restraint as an element of the offense. U.S. v. Epley, 52 F.3d 571 (6th Cir. 1995).
6th Circuit holds guidelines § 2K1.4 applies to cross-burning. (315) Defendants were convicted of various offenses in connection with a cross-burning, including using fire to commit a felony. The 6th Circuit found that guideline § 2K1.4, entitled “Arson; Property Damage by Use of Explosives” applied to the offense, even though defendant’s crime did not constitute arson. The government obtained convictions after a cross-burning incident for violations of 18 U.S.C. § 241 (conspiring to intimidate black dwelling holders because of race), 42 U.S.C. § 3631 (intimidating black dwelling holders by force or threat of force), and 18 U.S.C. § 844(h)(1) (using fire to commit a felony). The three guidelines used to determine the offense level were § 2H1.2 for the conspiracy, § 2H1.3 for the violation of the Fair Housing Act, and § 2K1.4 for the use of fire in the commission of a felony. The “use of fire” conviction is the offense underlying the conspiracy. U.S. v. Gresser, 935 F.2d 96 (6th Cir. 1991).
6th Circuit upholds sentence enhancement in civil rights case. (315) Defendant was convicted of 18 U.S.C. 241(1) after burning a cross in front of the home of a black couple. The district court added a two level enhancement under guidelines § 3A1.1 after noting the particular vulnerability of blacks to the threat of cross burning and the relative isolation of the house of the couple where the cross was burned. The 6th Circuit affirmed, finding that the district court’s factual determination of vulnerability was not clearly erroneous. The court held that a victim can be “particularly susceptible” if they are more likely to be a victim because of a particular trait. U.S. v. Salyer, 893 F.2d 113 (6th Cir. 1989).
7th Circuit upholds use of aggravated assault guideline for police officer who violated victim’s civil rights. (315) Defendant, a police officer, shackled a man to a wheelchair in a hospital and then repeatedly bludgeoned him in the head and face with a sap. He was convicted in federal court of violating the victim’s civil rights. He argued that the district court should have used the civil rights guideline, rather than the aggravated assault guideline, to calculate the base offense level. The Seventh Circuit disagreed. Section 2H1.1 directs a court to apply the sentencing guideline applicable to the underlying offense (here, aggravated assault) if it would produce a greater base offense level than the base offense level premised solely on § 2H1.1. The Sentencing Guidelines recognize that in a situation, such as here, where the defendant’s conduct is more reprehensible than a civil rights violation that used a minor amount of force, the defendant’s sentence should be on par with other defendants in federal court who committed similar conduct under federal jurisdiction. U.S. v. Cozzi, 613 F.3d 725 (7th Cir. 2010).
7th Circuit says harboring an alien was “another felony” committed during course of forced labor offense. (315) Defendant and her husband confiscated the passport of their live-in Filipino housekeeper, forcing her to work long hours and cutting off her contact with the outside world. She was told that if anyone discovered her, she could be arrested, imprisoned and deported, and she would not be able to send any more money back to her family. Defendant was convicted of obtaining and conspiring to obtain forced labor and harboring and conspiring to harbor an alien for private financial gain. The forced labor guideline §2H1.4, provides for an enhanced offense level if any other felony offense was committed during the commission of the involuntary servitude offense. The Seventh Circuit held that the harboring offense was “another felony” committed during the course of the forced labor offense. There was nothing artificial about treating the forced labor and harboring as two separate offenses. They were based on different conduct, and neither necessarily encompassed the other. U.S. v. Calimlim, 538 F.3d 706 (7th Cir. 2008).
8th Circuit says illegal wiretapping was for economic gain where defendant’s wife had posted bail for fugitive. (315) Defendant’s wife, a bail bond agent, had posted $5,000 bail for a person named Basil Minor. Defendant, a part-time bail bondsman and bounty hunter, pursued Minor when he missed a court appearance. Believing Minor regularly communicated with Lofton, defendant tapped into Lofton’s phone line. Defendant was convicted of intercepting wire communications. The Eighth Circuit upheld a three-level enhancement under § 2H3.1 for committing the offense for the purpose of economic gain. The offense was not motivated by a desire to apprehend a fugitive; defendant was trying to recover the $5,000 bond that his wife posted. U.S. v. Hugh, 533 F.3d 1 (8th Cir. 1008).
8th Circuit holds that sheriff used force in sexual assault on victim seeking his help. (315) At defendant’s initial sentencing, the court found that defendant had not used force during a sexual assault, interpreting the term “use … of force” in USSG § 2H1.1(a)(3)(A) to require violence. On appeal, the Eighth Circuit ruled that the court applied an incorrect standard, and that the proper test was whether any force involved “was sufficient to prevent the victim from escaping the sexual contact.” See U.S. v. Webb, 214 F.3d 1006 (8th Cir. 2001). On remand, the district court re-imposed the same sentence. The Eighth Circuit reversed, holding that the court’s finding that defendant did not use force during his assault was clearly erroneous. Defendant’s office door was closed and eventually locked during his meeting with the victim. After defendant fondled the woman and she complained and moved away, he pushed her down on a love seat and laid his 370-pound body on top of her and refused to let her up. While he was lying on top of her, he insinuated that he would only help her if she cooperated with his advances, telling her that she was “talking to the right guy.” When he got up to lock the door, the victim was able to escape from the love seat, but then defendant grabbed her hand, placed it on his exposed penis and asked for oral sex. Defendant clearly used both physical and psychological coercive power and sufficient force to prevent the victim from escaping. U.S. v. Webb, 252 F.3d 1006 (8th Cir. 2001).
8th Circuit holds that color-of-law increase independently supported by status as public official. (315) Defendant, a county sheriff, was convicted of violating the civil rights of a woman by sexually assaulting her and soliciting favors from her. The woman had come to his office seeking his help in enforcing a restraining order. Section 2H1.1(b)(1) provides for a six-level increase if (a) the defendant was a public official at the time of the offense; or (b) the offense was committed under color of law. Defendant argued that the § 2H1.1(b)(1) enhancement was double counting because the statute under which he was convicted, 18 U.S.C. § 242, already required conduct under color of law. The Eighth Circuit did not address this argument, since the increase was “justified on the wholly independent ground that [the defendant] was a ‘public official’ at the time of the offense….” Defendant stipulated that he was a public official at the relevant time, and his sentence was properly enhanced under § 2H1.1(b)(1)(A). U.S. v. Webb, 214 F.3d 962 (8th Cir. 2000).
8th Circuit holds that use or threat of force does not require violence. (315) Defendant, the county sheriff, violated the civil rights of a woman seeking his help by sexually assaulting her and soliciting sexual favors from her. Section 2H1.1(a)(3)(A) provides for an increased base offense level if the offense involved “the use or threat of force against a person.” The district court found this provision not applicable since defendant had not used violence. The Eighth Circuit held that the proper standard under § 2H1.1(a) (3)(A) for judging whether the defendant used or threatened force during a sexual assault is whether the force involved was “sufficient to prevent the victim from escaping the sexual contact.” Since the district court applied a different standard, the court remanded for the district court to consider defendant’s base offense level in light of this definition. The district court has an advantage in “judging the credibility and demeanor of witnesses, in observing the disparity in size between [defendant and the victim], and in assessing the coercive power, physical and psychological, that [defendant] may have possessed by virtue of that disparity in size and by virtue of the office he had.” U.S. v. Webb, 214 F.3d 962 (8th Cir. 2000).
9th Circuit upholds enhancement for committing another offense during forced labor. (315) The guideline for keeping a person in forced labor, § 2H4.1, provides for an enhancement if the defendant committed another felony offense during or in connection with the involuntary servitude offense. Here, defendant illegally brought a woman into the United States from Peru and forced her to work as her children’s nanny for two years. Defendant was convicted of keeping the nanny in forced labor, in violation of 18 U.S.C. §§ 1589 and 1594, and visa fraud, in violation of 18 U.S.C. § 1546(a). At sentencing, the district court imposed the enhancement for committing another felony while keeping a person in forced labor. On appeal, defendant argued that the visa fraud offense was incidental to the offense of keeping a person in forced labor. The Ninth Circuit held that defendant’s visa fraud offense facilitated the forced labor and therefore that the district court correctly applied the enhancement. U.S. v. Dann, 652 F.3d 1160 (9th Cir. 2011).
9th Circuit affirms finding that woman was held in involuntary servitude for more than a year. (315) Defendant was convicted of keeping a person in forced labor, in violation of 18 U.S.C. §§ 1589 and 1594. The Guideline for that offense, 2H4.1, provides for a three-level enhancement if the victim was held in a condition of peonage or involuntary servitude for more than one year. At defendant’s sentencing, the district court imposed this enhancement. Defendant brought a woman from Peru and forced her to serve as the nanny to defendant’s children without pay and with the threat that she would be deported. The woman served as defendant’s nanny for two years. The government argued that defendant’s behavior toward the woman became particularly abusive during the four months before the she left defendant’s house. Defendant argued that she was not held in involuntary servitude for more than a year. The Ninth Circuit rejected this argument, finding that the evidence was sufficient to show that defendant restricted the woman’s movements and behavior for more than a year. U.S. v. Dann, 652 F.3d 1160 (9th Cir. 2011).
9th Circuit says judge did not treat guidelines as mandatory in civil rights case. (315) At defendant’s sentencing for civil rights offenses, the district court stated that it had reviewed and considered the factors set forth in 18 U.S.C. § 3553(a) and that it understood that the Guidelines were not binding on the court. The court also discussed several of the § 3553(a) factors, before imposing a within-Guidelines sentence of 46 months. The Ninth Circuit held that the district court had not treated the Guidelines as mandatory and that the court had given an adequate explanation for the sentence imposed. U.S. v. Armstrong, 620 F.3d 1172 (9th Cir. 2010).
9th Circuit upholds enhancement based on victim’s race. (315) Defendant and two accomplices assaulted an African-American man they encountered at a store. Based on that conduct, defendant was convicted of violating the victim’s civil rights, in violation of 18 U.S.C. §§ 241 and 245. At sentencing, the district court increased defendant’s offense level under § 3A1.1(a), which requires a three-level enhancement if the finder of fact determines beyond a reasonable doubt that the defendant intentionally “selected” his victim because of race. The Ninth Circuit held that to convict defendant of a civil rights violation, the jury was required to find that defendant acted because the victim was an African-American. The court rejected defendant’s contention that the jury could not have specifically found that he had “selected” the victim because one of his accomplices instigated the attack. U.S. v. Armstrong, 620 F.3d 1172 (9th Cir. 2010).
9th Circuit rejects claim that guidelines were treated as mandatory in civil rights case. (315) At defendant’s sentencing for civil rights offenses, the district court stated that it had reviewed and considered the factors set forth in 18 U.S.C. § 3553(a) and that it understood that the guidelines were not binding on the court. The court also discussed several of the § 3553(a) factors, before imposing a within-guidelines sentence of 46 months. The Ninth Circuit held that the district court had not treated the guidelines as mandatory and that the court had given an adequate explanation for the sentence imposed. U.S. v. Armstrong, 620 F.3d 1172 (9th Cir. 2010).
9th Circuit finds assault guideline and enhancements properly used for civil rights violations. (315) Defendants were convicted of civil rights violations under 18 U.S.C. §§ 241 and 245(b)(2)(B) based in part on their participation in an effort to threaten and intimidate Hispanic visitors to a public park. The civil rights guideline, § 2H1.1, provides for use of the greater of the offense level set by that guideline or the offense level for the underlying offense. The district court used the guideline for aggravated assault, § 2A2.2, and applied an enhancement for use of a dangerous weapon. The Ninth Circuit held that because § 245(b)(2)(B) requires that defendants “acted by force or threat of force,” the district court properly used the aggravated assault guideline. The court also upheld the weapons enhancement, even though defendants were not actually in the park during the incident, because defendants encouraged the attack and could reasonably foresee that weapons would be used. U.S. v. Allen, 341 F.3d 870 (9th Cir. 2003).
9th Circuit finds that involuntary servitude is a crime of violence requiring restitution. (315) Under 18 U.S.C. § 3663A(a)(1), a court must order restitution to the victims of “crimes of violence.” A crime of violence is defined in part as “an offense that has an element the use, attempted use, or threatened use of physical force.” The Ninth Circuit held that holding another in involuntary servitude, in violation of 18 U.S.C. § 1584, is a crime of violence because it requires proof that the defendant coerced the victim into working against the victim’s will. . U.S. v. Veerapol, 312 F.3d 1128 (9th Cir. 2002).
9th Circuit holds that vulnerable victim enhancement is not double counting in involuntary servitude case. (315) Defendant brought an impoverished woman from Thailand and forced her to work in her home and restaurant. On this basis, she was convicted of holding another in involuntary servitude, in violation of 18 U.S.C. § 1584. The district court found that the victim was vulnerable because of her immigrant status, poverty, and lack of education and sophistication. The Ninth Circuit affirmed, rejecting defendant’s argument that the victim’s vulnerability is “incorporated” into the elements of the offense and thus that it would be double counting to apply the vulnerable victim enhancement. U.S. v. Veerapol, 312 F.3d 1128 (9th Cir. 2002).
9th Circuit upholds refusal to find serious bodily injury in Rodney King case. (315) In sentencing the police officers for violating Rodney King’s civil rights, the district court imposed a two level upward adjustment for bodily injury rather than a four level adjustment for serious bodily injury under § 2A2.2(b)(3). On appeal, the government argued that a four level adjustment was warranted by the blow administered forty-three seconds into the video tape, which fractured King’s leg. The district court acknowledged that this blow caused serious bodily injury, but found that the officer was not acting criminally when he delivered it, because the force did not become excessive until later during the incident. The 9th Circuit found no clear error, noting that the district court provided a reason to distinguish between the officers’ intent at the time of the leg-breaking blow and their intent during the nineteen seconds of the video tape in which the court concluded that criminal activity occurred. Those latter nineteen seconds were preceded by a period in which King lay on his stomach, and posed no threat. U.S. v. Koon, 34 F.3d 1416 (9th Cir. 1994), dissent from denial of reh. en banc, 45 F.3d 1303 (9th Cir. 1995), reversed on other grounds, Koon v. U.S.,518 U.S. 81, 116 S.Ct. 2035 (1996).
9th Circuit permits application of aggravated assault offense level and offense characteristics in civil rights case. (315) In applying the guideline for deprivation of civil rights, §2H1.4 (1989), the district court used the assault guideline, §2A2.2, for several of the underlying excessive force counts. It also increased the base offense level under §2A2.2 for use of a dangerous weapon and serious bodily injury. The 9th Circuit held it was proper to double count the aggravated assault by using the assault guideline and also by increasing the offense level, because this was required by the guidelines. Some aggravated assaults do not involve either the use of a dangerous weapon or serious bodily injury. Double counting is permitted when either or both of the factors are used to increase the base offense level for this guideline. U.S. v. Reese, 2 F.3d 870 (9th Cir. 1993).
9th Circuit upholds double counting public official status in civil rights case. (315) Defendants were police officers convicted of various civil rights violations, including conspiracy and multiple substantive counts. The 9th Circuit found it was not impermissible double counting to increase the offense levels under §2H1.2 (1989) on the basis that defendants were public officials. Since being a public official is not a necessary element of the civil rights offense covered by §2H1.2, there was no impermissible double counting in adjusting the offense levels because of that status. U.S. v. Reese, 2 F.3d 870 (9th Cir. 1993).
9th Circuit finds no requirement to make finding of object of conspiracy before grouping. (315) The 1989 version of Note 9 to §3D1.2(b)(1) (now Note 5 to §1B1.2(d)) provided that the district court should group each substantive offense with a conspiracy count only “if the court . . . would convict the defendant of conspiring to commit that object offense.” Without objecting below, defendants argued on appeal that it was error to apply the grouping rules because the district court did not expressly state that it would have found defendants guilty beyond a reasonable doubt of conspiring with respect to each substantive offense. The 9th Circuit rejected the argument, finding that in the absence of an objection, there is no reason to require an express finding on the record. The Application Note does not suggest that a finding must be placed on the record before grouping may proceed. U.S. v. Reese, 2 F.3d 870 (9th Cir. 1993).
9th Circuit says guidelines insure that gun is not “double counted.” (315) The 9th Circuit noted that the commentary to the firearm guideline, section 2K2.4, specifically provides that to avoid double counting, if a defendant is sentenced under section 2K2.4 and is also sentenced for an underlying offense, any enhancements for firearm use should not be applied with respect to the underlying offense. Thus, in this civil rights case, the court should have applied the aggravated assault guideline, section 2A2.2(b)(3)(B), but should not have added five levels for the specific offense characteristic of discharging a firearm as provided for under that guideline. U.S. v. McInnis, 976 F.2d 1226 (9th Cir. 1992).
9th Circuit applies aggravated assault guideline to civil rights case. (315) Defendant fired his rifle into the home of a black family, shooting one person in the stomach. U.S.S.G. section 2H1.3 provides for a base offense level of 15 if injury occurred, or two plus the offense level applicable to any underlying offense. The 9th Circuit held that this language did not require the defendant to be charged or convicted of the underlying offense. In this case, the offense most comparable to the defendant’s conduct was assault resulting in serious bodily injury under 18 U.S.C. section 113(f). Under U.S.S.G. section 2A2.2(a), the offense level for that crime is fifteen, plus four because the victim suffered serious bodily injury. This offense level of nineteen, should then have been increased by two under section 2H1.3, for a total of twenty-one. Since twenty-one is greater than fifteen, the higher offense level of twenty-one should have been applied. U.S. v. McInnis, 976 F.2d 1226 (9th Cir. 1992).
9th Circuit affirms using offense level in section 2A6.1 for defendant who made threatening anti-Semitic phone calls. (315) Defendant and his co-conspirators made threatening, anti-Semitic telephone calls to a Jewish businessman, and pled guilty to conspiring to interfere with federally protected activities. Defendant was sentenced under section 2H1.3(a), which carries an offense level of 2 plus the offense level applicable to the underlying offense. The 9th Circuit held that the underlying offense, making threatening phone calls, was covered by guideline section 2A6.1. That section applies to violations of 18 U.S.C. section 875(c), making threatening phone calls in interstate commerce. The court said that although defendant’s phone calls were not made in interstate commerce, once jurisdiction is established over the offense of conviction, such jurisdictional requirements are irrelevant in computing a sentence. Thus, 18 U.S.C. section 875(c) constituted an underlying offense and section 2A6.1 was the appropriate guideline section to apply. U.S. v. Byrd, 954 F.2d 586 (9th Cir. 1992).
9th Circuit rules that black family was “vulnerable victim” of cross burning. (315) Defendant argued that black persons are the only victims of cross burnings and thus the vulnerability is built into the offense. The 9th Circuit rejected the argument, relying on the 6th Circuit’s opinion in U.S. v. Salyer, 893 F.2d 113 (6th Cir. 1989) that the civil rights protected under 18 U.S.C. § 241 could be violated not only on account of “race,” but also “color, religion, sex or national origin.” The court found that race was not “built into” either the statute or the guidelines. U.S. v. Skillman, 913 F.2d 1477 (9th Cir. 1990) amended, 922 F.2d 1370 (9th Cir. 1991).
10th Circuit says ten is a “large number” of vulnerable victims in involuntary servitude case. (315) Defendants ran a residential mental health treatment house. They directed their mentally ill residents to perform sexually explicit acts and farm labor in the nude, arguing that these acts constituted legitimate. The district court refused to apply an increase under §3A1.1(b)(2)(B) for a large number of vulnerable victims. The Tenth Circuit found that under these circumstances, 10 was a large number of victims. Commentary accompanying §2H4.1, which concerns involuntary servitude offenses, states that an upward departure may be warranted if the offense involved the holding of more than 10 victims in a condition of involuntary servitude. Thus, this commentary suggested that in the context of involuntary servitude and forced labor, 10 victims is a large number. On remand, the court was directed to find which of the residents were vulnerable victims. U.S. v. Kaufman, 546 F.3d 1242 (10th Cir. 2008).
10th Circuit remands for more findings on refusal to apply dangerous weapon increase. (315) Defendants, who ran a residential mental health treatment house, directed their mentally ill residents to perform sexually explicit acts and farm labor in the nude, arguing that that these acts constituted legitimate psychotherapy for the residents’ mental illnesses. The district court refused to apply a §2H4.1(b)(2) enhancement for use of a dangerous weapon, a stun gun, stating that the device used by defendants “has not been shown by a preponderance of the evidence to be a ‘dangerous weapon.'” The Tenth Circuit ruled that this finding was insufficient to allow meaningful appellate review and remanded. It could not tell from that statement whether the court concluded that the stun gun was not capable of causing serious bodily injury, whether it was not actually used by defendants in the manner described by a victim, whether the injuries were not as serious as the victim maintained, or whether there was some other reason for the court’s refusal to apply the enhancement. U.S. v. Kaufman, 546 F.3d 1242 (10th Cir. 2008).
10th Circuit says work boots used to kick restrained inmate was a dangerous weapon. (315) Defendants, all former correctional officers, were convicted of offenses related to an assault on an inmate. The court found that the defendants subjected the inmate to an aggravated assault, defined as a felonious assault involving a dangerous weapon (i.e. one defendant’s uniform boots) with intent to do harm. The Tenth Circuit held that the work boots were properly characterized as a dangerous weapon. There was no question that one defendant, surrounded by other correctional officers, repeatedly used his boots with sufficient force to cause the victim, who was on the ground at the time, head injuries. In order to characterize the boots as dangerous weapons, the district court was not required to find that the boots would cause more serious injury than any other type of normal footwear. In proper circumstances, almost anything can count as a dangerous weapon. U.S. v. Serrata, 425 F.3d 886 (10th Cir. 2005).
10th Circuit holds that work boots used to kick restrained inmate was dangerous weapon. (315) Defendants, all former correctional officers, were convicted of offenses related to an assault on an inmate. The court found that the defendants subjected the inmate to an aggravated assault, defined as a felonious assault involving a dangerous weapon (i.e. one defendant’s uniform boots) with intent to do harm. The Tenth Circuit held that the work boots were properly characterized as a dangerous weapon. There was no question that one defendant, surrounded by other correctional officers, repeatedly used his boots with sufficient force to cause the victim, who was on the ground at the time, head injuries. In order to characterize the boots as dangerous weapons, the district court was not required to find that the boots would cause more serious injury than any other type of normal footwear. In proper circumstances, almost anything can count as a dangerous weapon. U.S. v. Serrata, 425 F.3d 886 (10th Cir. 2005).
10th Circuit approves use of aggravated assault guideline for civil rights crimes. (315) Defendants and several friends verbally taunted 3 black men at a bar. When the black men left the bar, defendants gave chase in their own cars. One of the friends fired a gun several times into the victims’ car, shattering the car’s rear window and injuring the occupant of the back seat. Defendants were convicted of various civil rights violations. Section 2H1.1 provides that the offense level shall be the greater of twelve and the offense level for any underlying offense. The Tenth Circuit upheld the court’s cross-reference to the aggravated assault guideline. The conduct was an assault under Oklahoma law. An aggravated assault under the guidelines is defined as a felonious assault involving a dangerous weapon with intent to do bodily harm. The court clearly found that defendants’ conduct met this definition. U.S. v. Woodlee, 136 F.3d 1399 (10th Cir. 1998).
10th Circuit holds shooting during assault was relevant conduct. (315) Defendants and several friends verbally taunted 3 black men at a bar. When the black men left the bar, defendants and his colleagues gave chase in their own cars. One of the friends fired a gun several times into the victims’ car, shattering the car’s rear window and injuring the occupant of the back seat. Defendants were convicted of various civil rights violations. The Tenth Circuit upheld the court’s use of the shooting as relevant conduct in their sentencing. The court properly found that defendants knew of their friend’s weapon. Defendants had racially taunted the victims repeatedly throughout the night. Each had possession of a handgun, and one defendant said he would like to use it on the victims. It strained credulity that defendants, all crowded in the front seat of a pickup truck, did not know that the friend had a rifle with a scope and a 20-round clip. U.S. v. Woodlee, 136 F.3d 1399 (10th Cir. 1998).
10th Circuit remands for resentencing where the court may have relied on the wrong statute in sentencing defendant. (315) Defendant was convicted of manufacturing and selling satellite television descrambler modules, in violation of 18 U.S.C. § 1029 and 2512(1)(b). The 10th Circuit held that § 1029 cannot be applied to satellite television descramblers, but § 2512 can be. Since the district court may have relied on § 1029 in calculating the defendant’s sentence, the 10th Circuit remanded the case for resentencing under § 2512 and guidelines § 2H3.2. U.S. v. McNutt, 908 F.2d 561 (10th Cir. 1990).
11th Circuit holds that lower offense level only applies if defendant acts fraudulently about his own vote. (315) Defendants conspired to vote more than once in a general election by applying for and casting fraudulent absentee ballots in the names of voters without the voters’ knowledge or consent. Section 2H2.1(a) provides for an offense level of 12, “if the obstruction occurred by forgery, fraud, theft, bribery, deceit, or other means,” except if subsection (3) applies. Subsection (3) addresses an individual who acts unlawfully only with respect to his own vote—an individual who accepts payment to vote, gives false information to establish his own eligibility to vote, or votes more than once in his own name. Defendants offenses involved the votes of other individuals. Thus, the Eleventh Circuit ruled that the district court did not err in applying a base offense level of 12. U.S. v. Smith, 231 F.3d 800 (11th Cir. 2000).
11th Circuit reverses refusal to apply vulnerable victim enhancement to cross-burning crimes. (315) Defendants burned a cross in the front yard of a black family’s home. The 11th Circuit reversed the district court’s finding that a vulnerable victim enhancement under guideline § 3A1.1 was not appropriate. However, the court refused to adopt a presumption that the vulnerable victim enhancement should apply whenever the victim of a cross-burning is a black American. Such a presumption inadequately considers the defendant’s motives in selecting the victim. Moreover, the court refused to accept the government’s claim that the victim’s testimony alone was sufficient to satisfy the requirements of guideline § 3A1.1. The applicability of § 3A1.1 turns on the defendant’s decision to target the victim, not the victim’s suffering. However, the facts of the case did require the application of the adjustment. Defendants knew (a) the race of the victims, (b) that the victims were the first black family to move into the area, (c) the rural, isolated location of their home, and (d) the time (middle of the night) that they chose to act. U.S. v. Long, 935 F.2d 1207 (11th Cir. 1991).
California District Court sentences Rodney King defendants in civil rights case. (315) Sergeant Stacey Koon and Officer Laurence Powell were convicted respectively of violating the civil rights of Rodney King. In sentencing, the district court focused on the point during the arrest that the officers’ conduct crossed the line and became illegal. The court found that initial body blows which caused multiple broken bones were not illegal, and the 5 or 6 later blows caused only bruises. The court applied §2H1.4, and cross referenced to the aggravated assault guideline because it found that Officer Powell intended to harm King. The use of a dangerous weapon, a side handle baton, resulted in a 2-level increase. Although King suffered serious bodily injury, the illegal blows caused only “bodily injury,” so the offense level was increased by only 2 additional levels. None of the Chapter Three adjustments applied, including obstruction, even though Sergeant Koon testified at trial. Koon did not willfully intend to provide false testimony. The total offense level was 27, from which the court departed downward 8 levels and imposed sentences of 30 months. U.S. v. Koon, 833 F. Supp. 769 (C.D. Cal. 1993), affirmed in part, reversed in part by Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996).
Commission adds hate crimes based on gender and military service to guidelines. (315) Responding to the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (Division E of Pub. L. 111-84), the Commission included crimes motivated by actual or perceived “gender identity” in the list of crimes covered by the civil rights guideline, 2H1.1. The Commission also amended § 3A1.1 (Hate Crime Motivation) to state that “gender identity” means actual or perceived gender-related characteristics. The new act also added an offense at 18 U.S.C. § 1389 prohibiting attacks on U.S. servicemen on account of service. The Commission referenced the new crime to sections 2A2.2 (Aggravated Assault), 2A2.3 (Minor Assault), and 2B1.1 (Theft, Property Destruction and Fraud) in Appendix A (Statutory Index) to the guidelines. Amendment 6, effective November 1, 2010).
Commission amends guidelines for human trafficking for prostitution. (315) In response to the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. 110–457, the Commission amended §2L1.1 to provide a two-level increase in subsection (b)(8)(B) if the defendant was convicted of alien harboring, the alien harboring was for the purpose of prostitution, and the defendant receives an adjustment under §3B1.1 (Aggravating Role). If the alien had not attained the age of 18 years, a six-level increase applies. Because this is an alternative enhancement, it does not apply if the enhancement for coercion at §2L1.1(b)(8)(A) is greater. The Commission also amended Application Note 6 to provide that although the increase for restraint of victim under §3A1.3 does not apply to cases enhanced under §2L1.1(b)(8)(A), it can apply to cases enhanced under §2L1.1(b) (8)(B). In addition, the Commission made §2B1.1 applicable to the new offense of Fraud in Foreign Labor Contracting (18 U.S.C. § 1351), and §2H4.1 applicable to the new offense of Benefitting Financially from Peonage, Slavery, and Trafficking in Persons. (18 U.S.C. § 1593A). Proposed Amendment 5, effective November 1, 2009.
Commission makes “pretexting” amendment permanent and adopts guidelines for misusing information. (315) The Commission made permanent the temporary emergency amendment (effective May 1, 2007) at § 2H3.1, for the new offense at 18 U.S.C. § 1039 which makes it a crime to use a pretext to obtain personal information. In addition, the guideline instructs that if the purpose of the 18 U.S.C. § 1039 offense was to facilitate another offense, the guideline applicable to an attempt to commit the other offense should be applied, if the resulting offense level is higher. In addition, the Adam Walsh Child Protection and Safety Act of 2006, added a new offense at 42 U.S.C. § 16962 for the improper release of information obtained in fingerprint-based checks for the background check of either foster or adoptive parents or of individuals employed by, or considering employment with, a private or public educational agency. The Act also added a new Class A Misdemeanor offense at 42 U.S.C. § 16984 prohibiting the use of a child’s fingerprints for any purpose other than providing those fingerprints to the child’s parent or legal guardian. This amendment references both offenses to § 2H3.1, providing a base offense level of 9 under § 2H3.1(a)(1) if the defendant was convicted of violating 42 U.S.C. § 16962, and a base offense level of 6 if the defendant was convicted of violating 42 U.S.C. § 16984. Finally, this amendment implements the Violence Against Women Act, which included the International Marriage Broker Regulation Act of 2005 (“IMBRA”), which requires marriage brokers to keep private information gathered in the course of their business confidential. New offenses at 8 U.S.C. §§ 1375a(d)(3)(C) and 1375a(d)(5)(B) involve invasions of protected privacy interests and, as such, are referenced to § 2H3.1. Amendment 708, effective November 1, 2007.
Commission adopts guidelines for unlawful disclosure of tax-related information by public employees. (315) The Internal Revenue Service Restructuring and Reform Act of 1998 created new tax offenses for the unlawful disclosure by public employees of tax-related information contained on computer software and for unlawful requests for tax audits. In addition, the Taxpayer Browsing Protection Act of 1997 created another offense for the unlawful inspection of tax information. These provisions are in 26 U.S.C. §§ 7213 and 7213A. The Commission found that the guideline most analogous for these offenses is § 2H3.1, which concerns offenses against privacy. The amendment adds a three-level decrease in the base offense level for the least serious types of offense behavior, in which there was no intent to harm or obtain pecuniary gain. Amendment 628, effective November 1, 2001.
Commission increases penalties for human trafficking. (315) Responding to a Congressional directive, the Commission adopted an emergency amendment, effective May 1, 2001 (1) creating a new guideline – § 2H4.2 – for willful violations of the Migrant and Seasonal Agricultural Protection Act, and (2) adopting guideline references for violations of four new statutes, 18 U.S.C. §§ 1589 (forced labor), 1590 (trafficking with respect to peonage, involuntary servitude or forced labor); 1591 (sex trafficking of children by force, fraud or coercion), and 1592 (unlawful conduct with respect to documents in furtherance of peonage, involuntary servitude, or forced labor). The amendment also increases penalties and reflects changes to three existing statutes: 18 U.S.C. §§ 1581(a) (peonage), 1583 (enticement into slavery) and 1584 (sale into involuntary servitude). This amendment became permanent under a November 1, 2001 amendment. May 1, 2001 Amendment 612, repromulgated as Amendment 627, effective November 1, 2001.
Commission proposes to increase penalties for human trafficking. (315) In § 112(b) of the Victims of Trafficking and Violence Protection Act of 2000, Pub L. 106-386, Congress conferred emergency authority on the Sentencing Commission to amend the guidelines to reflect changes in statutes regarding peonage, enticement into slavery, and sale into involuntary servitude. The Commission was also directed to consider how to address four new statutes including sex trafficking of children by force, fraud or coercion. To address to this multi-faceted directive, the Commission proposes to make changes in several existing guidelines in Chapters 2G and 2H and to create a new guideline for criminal violations of the Migrant and Seasonal Agricultural Worker Protection Act. 2001 Proposed Amendment 4.
Articles discuss Supreme Court’s decision in Koon. (315) In an issue of the Federal Sentencing Reporter edited by Mark Harris and Douglas Berman, a number of authors discuss the Supreme Court’s decision in Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996). Paul Hofer, Special Projects Director at the Sentencing Commission, expresses concern that the Court’s “heartland” concept may yield different results depending on whether the method used is “statistical,” “intentional,” or “normative.” Professor Kate Stith asserts that the Court’s “abuse of discretion” standard did little to challenge the Sentencing Commission’s hegemony. Professor Frank Bowman argues that it is “pure banana oil” for the Court to say that Congress intended district courts to “retain much of their traditional sentencing discretion,” and says the Court is wrong when it says district courts have an “institutional advantage” over appellate courts in making departure decisions.” Former AUSA Peter Vigeland suggests that defense counsel’s role, after Koon, “is to exploit the hostility many district judges bear towards the guidelines,” but Federal Defender Abraham Clott worries that Koon may actually “encourage courts of appeals to narrow the range” in which district courts may exercise discretion at all.” Defenders James Forman and Giovanna Shay draw attention to the racial implications of Koon, suggesting that additional discretion “may largely reinforce existing discrimination in the criminal justice system.” Probation Officer Francesca Bowman offers statistics from the District of Massachusetts indicating that “it does not appear that the Koon decision is undermining the guidelines.” Finally, Catherine Goodwin, Assistant General Counsel at the Administrative Office of U.S. Courts, points out that Koon did not deal with the extent of departures, and she suggests that probation officers should “assist the court by analyzing the potential for departures.” Mark Harris and Douglas Berman, Koon v. United States: The Supreme Court’s Puzzling Ruling on Departures and Discretion, 9 Fed. Sent. Rptr. 4-36 (1996).
Commission adopts emergency increase in guidelines for involuntary servitude. (315) Section 218 of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 directed the Commission to review the guideline for peonage, involuntary servitude and slave trade offenses to reduce or eliminate any unwarranted disparity between the sentences for these offenses and the sentences for kidnapping and alien smuggling. In accordance with this directive, the Commission amended § 2H4.1 to add a new subsection (b) providing enhancements for (1) injury to the victim, (2) use of a dangerous weapon, (3) the length of time that any victim is held in involuntary servitude or peonage, and (4) commission of any other felony offense in connection with this offense. The Commission designated this as an emergency amendment, effective May 1, 1997. It will also be sent to Congress as a non-emergency amendment, effective November 1, 1997. The full text of the amendment is available on the Commission’s web site, www.ussc.gov.