§390 “Analogies” Where No Guideline Exists
(U.S.S.G. §2X5.1)
First Circuit
Second Circuit
Third Circuit
Fourth Circuit
Fifth Circuit
Sixth Circuit
Seventh Circuit
Eighth Circuit
Ninth Circuit
Tenth Circuit
Eleventh Circuit
Miscellaneous
10th Circuit says bankruptcy fraud is not analogous to taxation offenses. (390) Defendant was convicted of bankruptcy fraud, in violation of 18 U.S.C. § 157. The Sentencing Guidelines have not adopted a guideline for bankruptcy fraud, so under § 2X5.1 the district must “apply the most analogous offense guideline.” Defendant argued that § 2T1.1, the tax guideline, was the most analogous guideline, but the district court instead applied the fraud guideline, § 2B1.1. On appeal, the Tenth Circuit affirmed, holding that because bankruptcy fraud requires an intent to defraud, § 2B1.1 is the most closely analogous guideline. U.S. v. Yurek, __ F.3d __ (10th Cir. May 21, 2019) No. 18-1134.
8th Circuit finds domestic violence guideline most analogous to strangulation offense. (215)(390) A jury convicted defendant of strangulation in violation of 18 U.S.C. §113(a)(8). At the time defendant committed the offense, the Sentencing Commission had promulgated a specific sentencing guideline. Following §2X5.1, the district court found that the domestic violence guideline, §2A6.2, was the most analogous to defendant’s offense of conviction and sentenced him to 41 months. The Eighth Circuit agreed that the domestic violence guideline was the most analogous because it was the only provision that accounted for the intimate relationship between the attacker and victim. The facts of defendant’s strangulation offense were consistent with domestic violence. Defendant and his victim were in an intimate relationship, lived together, and after defendant viciously attacked her, he kissed her, and told her he would “See [her] at home.” The existence of an intimate relationship between the attacker and victim was an aggravating circumstance unique to acts of domestic violence. U.S. v. Iceman, __ F.3d __ (8th Cir. May 2, 2016) No. 14-3833.
1st Circuit applies obstruction guideline for refusal to testify before grand jury. (390) Defendant was involved in the theft of two cars. One of the cars was later used in an armored car robbery in which a guard was killed. Despite being granted immunity, defendant refused to testify before a federal grand jury and was convicted of criminal contempt. The guidelines direct a court to use the guideline for the most analogous criminal conduct. The First Circuit upheld the use of the obstruction guideline as the most analogous guideline for defendant’s refusal to testify before the grand jury. Presumably, the term “obstruction of justice” in § 2J1.2 has the same meaning as in 18 U.S.C. § 1503. An obstruction does not violate the statute unless there is a “corrupt” purpose. The “corruptly” requirement is satisfied if the defendant’s purpose in refusing to testify is to prevent the grand jury from locating the criminals. The district court’s finding that defendant was friends with the car thieves and involved in the robbery plot made it highly likely that his refusal to testify was motivated by a desire to frustrate the investigation of the robbery and protect his friends. Thus, the court’s findings were either findings of obstruction of justice or were so close that the analogy to the obstruction guideline was apt. U.S. v. Brady, 168 F.3d 574 (1st Cir. 1999).
2nd Circuit upholds use of treason guideline for seditious conspiracy. (390) Defendants were part of a seditious conspiracy to wage a war of urban terrorism against the United States and forcibly oppose its authority. Their activities included attempting to murder Hosni Mubarak, assisting the bombing of the World Trade Center, and a campaign of attempted bombings of buildings and tunnels in New York City. Section 2X5.1 provides that if the offense is a felony for which no specific guideline has been issued, the judge should apply “the most analogous offense guideline.” The Second Circuit upheld the district court’s use of the treason guideline, § 2M1.1, as the most appropriate guideline for the offense of seditious conspiracy, even though treason is punishable by life imprisonment and even death, whereas the maximum statutory penalty for seditious conspiracy is 20 years. Although the district court was forced to impose consecutive sentences for the other counts in order to reach the life sentence mandated by the treason guideline, this was consistent with § 5G1.2(d) and did not violate any constitutional rights. “As a matter of language and logic, treason by waging war is surely analogous to the offense of a seditious conspiracy that includes as a goal levying war against the United States.” U.S. v. Rahman, 189 F.3d 88 (2d Cir. 1999).
2nd Circuit finds threatening communications guideline was most analogous for harassing ex-girlfriend. (390) Defendant was convicted of violating the Violence Against Women Act, 18 U.S.C. § 2262(a)(1), after he crossed state lines to continually threaten and harass a former girlfriend in violation of a protection order. There is no specific guideline applicable to a § 2266 offense, and the district court determined that the most analogous guideline was § 2A6.1, Threatening Communications. The Second Circuit agreed that § 2A6.1, rather than § 2B3.3 (Blackmail and Extortion), was the most analogous guideline. By its own terms, § 2B3.3 applies only where there clearly is no threat of violence to person or property. Here defendant constantly stalked and harassed the victim, threatened to kill any male with whom she might associate, and used force on at least two occasions to prevent her from leaving. Defendant was not entitled to a § 2A6.1(b)(2) reduction for no credible threats of violence. The reduction applies where the offense involved only a single instance evidencing little or no deliberation. Defendant’s success in finding the victim’s unlisted phone number and tracking her down in various places required substantial planning and deliberation. U.S. v. Casciano, 124 F.3d 106 (2d Cir. 1997).
2nd Circuit upholds misprision of felony guideline as most analogous for refusing to testify. (390) Defendant was convicted of criminal contempt after refusing to testify at the trial of the captain in a crime family. Section 2J1.1 directs a court to apply § 2X5.1, which in turn directs a court to apply the most analogous guideline. In U.S. v. Versaglio, 85 F.3d 943 (2d Cir. 1996), a Second Circuit panel rejected the determination that the guideline for misprision of a felony was the most analogous guideline. This was in conflict with U.S. v. Cefalu, 85 F.3d 964 (2d Cir. 1996), decided by a different panel the next day. On rehearing, the Second Circuit upheld the application of the misprision of a felony guideline. The sentencing judge’s decision is predominantly an application of a guideline to the facts, a decision which should be given great deference. U.S. v. Versaglio, 96 F.3d 637 (2d Cir. 1996).
2nd Circuit disapproves misprision of felony guideline as most analogous for refusing to testify. (390) Defendant was convicted of criminal contempt after refusing to testify at the trial of a captain in a crime family despite a grant of immunity. Section 2J1.1 directs a court to apply § 2X5.1, which in turns direct a court to apply the most analogous offense guideline. The Second Circuit, seemingly in conflict with U.S. v. Cefalu, 85 F.3d 964 (2d Cir. 1996), decided by a different panel the next day, rejected the determination that the guideline for misprision of a felony was the most analogous. The judge concluded that the obstruction guideline, 2J1.2(c), would be more appropriate for obstructive conduct that threatens a witness, whereas defendant merely refused to testify. However, the remedy is to apply additional sanctions appropriate for the more serious conduct, not to disregard the applicability of the obstruction guideline. Under U.S. v. Remini, 967 F.3d 754 (2d Cir. 1992), the obstruction guideline is the most appropriate. U.S. v. Versaglio, 85 F.3d 943 (2d Cir. 1996).
2nd Circuit upholds misprision of felony guideline as most analogous for refusing to testify. (390) Defendant was convicted of criminal contempt after refusing to testify at the trial of a captain in a crime family despite a grant of immunity. Section 2J1.1 directs a court to apply § 2X5.1, which in turn directs a court to apply the most analogous offense guideline. The Second Circuit, seemingly in conflict with U.S. v. Versaglio, 85 F.3d 943 (2d Cir. 1996), decided by a different panel the day before, upheld misprision of a felony as the most analogous guideline. The guideline for Failure to Appear by a Material Witness, 2J1.5, did not address the seriousness of the crime being prosecuted in the underlying trial. Although the judge found defendant acted in bad faith and intended to obstruct justice, the guideline for Obstruction of Justice, 2J1.2, was not most analogous. The court said U.S. v. Remini, 967 F.3d 754 (2d Cir. 1992) did not require the court to apply the obstruction guideline. The judge’s choice of misprision of felony was reasonable, because both crimes address a defendant’s withholding of information concerning a crime. U.S. v. Cefalu, 85 F.3d 964 (2d Cir. 1996).
2nd Circuit upholds contempt, suspending lawyer from practicing law in the district. (390) Defendant, a criminal defense attorney, was convicted of criminal contempt for repeatedly speaking to the media in violation of local court rules. Section 2J1.1 instructed the court to apply § 2X5.1, which in turn directed the court to apply the most analogous guideline, and if there was not a sufficiently analogous guideline, to apply 18 U.S.C. § 3553(b). That statute directed the court to impose “an appropriate sentence.” The Second Circuit upheld a sentence of three years probation, a concurrent 180-day suspension from practicing law within the district, and a 90-day period of house arrest. Defendant was not ordered to surrender his license or resign from the Bar. He was simply barred from practicing law before a single federal court during a portion of his probationary period. The connection between defendant’s profession and his contemptuous behavior was readily apparent. No further fact-finding was necessary. The length of the probation was well within the five-year maximum term of probation for misdemeanors. Nonetheless, the court was troubled by the potentially severe collateral consequences of defendant’s probation. U.S. v. Cutler, 58 F.3d 825 (2d Cir. 1995).
2nd Circuit applies obstruction of justice guideline to defendant who refused to testify. (390) Defendant was convicted of criminal contempt under 18 U.S.C. section 401 for refusing to testify at the trial of a reputed mobster. The 2nd Circuit affirmed that defendant was properly sentenced under section 2J1.2 (Obstruction of Justice), rather than section 2J1.5 (Failure to Appear by a Material Witness). Since no guideline has been provided for criminal contempt, section 2X5.1 provides for the application of the most analogous guideline. Notwithstanding U.S. v. Underwood, 880 F.2d 612 (1st Cir. 1989), the most analogous guideline for defendant’s refusal to testify was obstruction of justice. Here, the district court specifically found that defendant intended to obstruct justice. The distinction between good faith and bad faith plays a central role in choosing an applicable sentencing guideline in cases of criminal contempt. U.S. v. Remini, 967 F.2d 754 (2nd Cir. 1992).
2nd Circuit rejects claim that criminal contempt was unique crime to which guidelines did not apply. (390) Defendant claimed that the guidelines should not have been applied in his case because the criminal contempt charged was a unique crime requiring individualized sentencing. The 2nd Circuit rejected this contention, since sections 2J1.1 (contempt) and 2X5.1 (other offenses) recognize and provide for the guidelines’ application to criminal contempt. “It is not the function of the courts to create exceptions from the Guidelines for contempts that are ‘unequal’ crimes.” U.S. v. Lohan, 945 F.2d 1214 (2nd Cir. 1991).
2nd Circuit holds that bringing butane on an airplane to freebase cocaine falls within guideline for disruption of public utilities. (390) Defendant was convicted of recklessly causing the transportation of butane, a hazardous substance, in an airplane and of possession of cocaine. He claimed that the district court erred in applying guideline § 2Q1.2(b)(3) (contamination of the environment). Relying on an earlier related case, U.S. v. Moskowitz, 883 F.2d 1142 (2nd Cir. 1989), the 2nd Circuit held that § 2Q1.2(b)(3) was the proper guideline to be followed, because it was the most analogous to the offense. That section deals with disruption of public utilities, is not limited to offenses which cause contamination of the environment. U.S. v. Moskowitz, 888 F.2d 223 (2nd Cir. 1989).
3rd Circuit holds that Statutory Index’s reference to old version of statute was inadvertent error. (390) Defendant was convicted of preventing or hampering his departure following an order of removal, in violation of 8 U.S.C. § 1353(a)(1)(C). The district court sentenced him under § 2L1.2. Defendant argued that because his offense of conviction was not listed in the Statutory Index of the Sentencing Guidelines, the district court was required by § 2X5.1 to apply the most analogous guideline for the offense, which he contended was § 2A2.4. The Third Circuit held § 2L1.2 is applicable to convictions for violations of 8 U.S.C. § 1253(a)(1)(C), and that the failure to list this offense in the Statutory Index was an inadvertent error by the Sentencing Commission. The predecessor statute to § 1253, 8 U.S.C. § 1252(e), remains listed in the Statutory Index. Section 2L1.2 is listed as the applicable guideline. The fact that the Statutory Index refers to § 1252(e), the old “failure to depart” statute, rather than § 1253(a), the new “failure to depart” statute, was an inadvertent omission by the Sentencing Commission. U.S. v. Bamfield, 328 F.3d 115 (3d Cir. 2003).
3rd Circuit holds that threatening communications guideline is most analogous for false threat to airline. (390) Defendant telephoned an airline reservation office and threatened to blow up one of its planes in mid-air. He was convicted under 49 U.S.C. § 46507(1) of giving false information about carrying explosives on an aircraft. Because there is no specific sentencing guideline for this offense, USSG § 2X5.1 directs that the most analogous guideline should be applied. The PSR recommended applying § 2K1.5 (Possessing Dangerous Weapons or Materials While Boarding or Aboard an Aircraft), which carries a base offense level of 9. The district court, however, applied § 2A6.1 (Threatening or Harassing Communications), which carries a base offense level of 12. The Third Circuit agreed that § 2A6.1 was the more analogous guideline. First, § 2A6.1 accurately embodied defendant’s conduct. Defendant was convicted of conveying a false threat, not of possessing dangerous weapons while on an aircraft. Moreover, there is a scienter element present in the base offense level of § 2A6.1 that is not present in the base offense level of § 2K5.1. A defendant sentenced pursuant to the base offense level of § 2A6.1 has knowingly conveyed a threat, while a defendant sentenced pursuant to the base offense level of § 2K1.5 has not boarded the aircraft knowing that he has a dangerous weapon. If such a boarding takes place with actual knowledge of the presence of dangerous weapons, the base offense level of 9 increases to 24. See § 2K1.5(b)(1). U.S. v. Cothran, 286 F.3d 173 (3d Cir. 2002).
3rd Circuit applies failure to appear guideline to flight to avoid prosecution. (390) Defendant pled guilty to unlawful flight to avoid prosecution, in violation of 18 U.S.C. section 1073. Since there was no applicable guideline in effect at the time defendant returned to the United States to be prosecuted, under section 2X5.1, the district court chose the most applicable guideline. The 3rd Circuit agreed that the district court correctly applied section 2J.16, failure to appear, as the most applicable guideline for the flight to avoid prosecution offense. U.S. v. Cherry, 10 F.3d 1003 (3rd Cir. 1993).
4th Circuit approves 84-month sentence for defendant who placed brother’s life in danger by faking his own death. (390) In order to avoid a probation violation hearing, defendant faked his own death by jumping off a boat and swimming to shore. He was convicted of causing, and conspiring to cause, a false distress call to be communicated to the U.S. Coast Guard, in violation of 14 U.S.C. § 88(c) and 18 U.S.C. § 371. There is no guideline for either offense. The court rejected the government’s suggestion that the fraud guideline, § 2B1.1, was closely analogous, but stated it was “looking to” that guideline and would take it “into consideration” when applying the statutory sentencing factors under § 3553(a). After describing an extensive list of aggravating circumstances, the court sentenced defendant to 48 months’ on the conspiracy count, and a consecutive 36 months on the substantive count. The Fourth Circuit held that the district court’s approach was not plainly unreasonable, and the sentence imposed was also not unreasonable. Defendant’s case was distinguishable from previous cases because there were two charges against him, and because he placed his legally blind brother’s life in danger by abandoning him on the boat in the bay at night. U.S. v. Deffenbaugh, 709 F.3d 266 (4th Cir. 2013).
4th Circuit applies “plainly unreasonable” standard of review where no sufficiently analogous guideline. (390) Defendant was arrested on a U.S. army post for driving under the influence of alcohol. He pled guilty to drunk driving in violation of Virginia law, as assimilated into federal law by the Assimilative Crimes Act, 18 U.S.C. § 13. Because of the circumstances of the crime and defendant’s extensive history of alcohol abuse, the district court sentenced him to 27 months’ imprisonment. When an assimilated state offense resembles conduct for which a federal offense has been promulgated, the Sentencing Guidelines provides that “the most analogous offense guideline should be applied.” § 2X5.1. But where, as here, there is not a sufficiently analogous guideline, the provisions of 18 U.S.C. § 3553(a) control directly. The Fourth Circuit held that because there is no sufficiently analogous guideline, the provisions of 18 U.S.C. § 3742(a)(4) apply to impose a “”plainly unreasonable” standard of review for the sentence. Defendant’s 27-month sentence was not plainly unreasonable. The panel rejected defendant’s claim that the district court did not adequately consider the disparity between its sentence and Virginia’s sentencing guidelines. The district court considered the state guidelines, and then explained how sentencing under the state guidelines provided no deterrence to defendant. The court found that the previous six-month sentences imposed had not been sufficient, and the court needed to impose a sentence that would change defendant’s behavior and protect the public. U.S. v. Finley, 531 F.3d 288 (4th Cir. 2008).
4th Circuit holds that state statute limits sentence under Assimilative Crimes Act. (390) Defendant was convicted of violating the Assimilative Crimes Act, 18 U.S.C. § 13, which assimilated a North Carolina drunk driving statute. The state statute provided for a maximum fine of $100 and for imprisonment to be suspended, on condition that defendant be imprisoned for a term of 24 hours as a condition of special probation. The district court imposed a seven day jail term, a $100 fine, a $25 assessment, 100 hours of community service, and one year’s probation. The 4th Circuit reversed. Under the Assimilative Crimes Act, the federal court must impose a “like punishment.” Since a state court cannot imprison a defendant for more than 24 hours unless the defendant later violates a condition of probation, the Act places the same restriction on a federal court. A federal court also cannot impose a fine in excess of $100. U.S. v. Harris, 27 F.3d 111 (4th Cir. 1994).
5th Circuit holds that defendant made threats in connection with criminal trial. (390) Defendant was convicted of using intimidation and threats to a potential witness in a drug case against his brothers, in violation of 18 U.S.C. §1512(b)(2)(A). At the time defendant was sentenced, the statutory maximum for a violation of §1512(b)(2)(A) was 10 years. However, §1512(j) provides that if the offense occurs “in connection with a trial of a criminal case,” the maximum sentence is “the higher of that otherwise provided by law or the maximum term that could have been imposed for any offense charged in such case.” Defendant argued that the phrase “in connection with a trial of a criminal case” means the trial in the related case must be ongoing or scheduled reasonably close in time, and because his brothers’ trial did not meet this standard, the higher statutory maximum in §1512(j) did not apply to him. The Fifth Circuit disagreed, finding the definition of “in connection with” was expansive. Defendant’s threat was made in connection with a trial. His brothers had pled not guilty, and the case was pending in federal district court at the time defendant made his threats. U.S. v. Salazar, 542 F.3d 139 (5th Cir. 2008).
5th Circuit holds that defendant waived all sentencing claims except innocence. (390) Defendant was convicted of using intimidation and threats to persuade a potential witness not to testify against his two brothers in a pending drug case. The district court found that §2J1.2(c)(1) (Obstruction of Justice) required application of the cross-reference to §2X3.1(a) because defendant’s offense involved obstructing the investigation or prosecution of a criminal offense. Defendant challenged the application of the cross-reference on appeal. However, at sentencing, when the district court asked defendant’s counsel if he was making an argument about whether or not §2J1.2 or §2X3.1 applied, counsel responded, “No, Your Honor. We’re seeking to preserve the issue that in fact he is innocent and the conduct didn’t occur and therefore it wasn’t an obstruction of justice.” Thus, defendant’s only claim at sentencing was that the cross-reference to §2X3.1 should not have been applied because he was innocent. The Fifth Circuit held that, except for the innocence assertion, defendant waived his challenge to the application of §2X3.1. U.S. v. Salazar, 542 F.3d 139 (5th Cir. 2008).
5th Circuit says in absence of guidelines, it was plain error not to consider proposed guideline. (390) Defendant pled guilty to failing to register under the Sex Offender Registration and Notification Act, in violation of 18 U.S.C. § 2250. At the time of the offense, there was no guideline for this offense. Unaware that the Sentencing Commission had submitted a proposed guideline to Congress, the district court sentenced defendant to 60 months. The proposed guideline became effective November 1, 2007, as § 2A3.5. Under the proposed guideline, defendant’s sentencing range would have been 21-27 months. The Fifth Circuit held that the district court’s failure to consider the proposed guideline was plain error. Under the guidelines, if the offense is a felony for which no guideline has been promulgated, a district court should “apply the most analogous guideline.” § 2X5.1. In U.S. v. Armstead, 114 F.3d 504 (5th Cir. 1997), the court ruled that when there is a proposed guideline, the court should use the proposed guideline in determining the most analogous guideline for sentencing purposes. U.S. v. Sanchez, 527 F.3d 463 (5th Cir. 2008).
5th Circuit holds that aggravated assault is most analogous to drunk driving offense. (390) Defendant pled guilty to intoxication assault in violation of Texas law, and the Assimilative Crimes Act. The district court found that USSG § 2A2.2(a), the aggravated assault guideline, was the most analogous guideline. Defendant, however, argued that the involuntary manslaughter guideline, § 2A1.4 was more analogous because it, like the Texas law, encompassed recklessly driving a vehicle while intoxicated. The Fifth Circuit found no error. Although the federal assault statute, 18 U.S.C. § 113, does not specifically address driving while intoxicated, it does contain a provision which closely matches intoxication assault. Section 113(a)(6) punishes “assault resulting in serious bodily injury.” A specific intent to do harm is not an element of a § 113(a)(6) offense. Thus, the voluntarily consumption of alcohol followed by the operation of a motor vehicle while in a state of voluntary intoxication can satisfy the mens rea element of a § 113(a)(6) violation. Although the involuntary manslaughter guideline does address the specific behavior of driving while intoxicated, it also contains an element not present in this case, the death of the victim. Although it was odd that the use of the aggravated assault guideline resulted in a higher sentence than the use of the involuntary manslaughter guideline, courts cannot second guess the sentences established in the guidelines. U.S. v. Calbat, 266 F.3d 358 (5th Cir. 2001).
5th Circuit holds that § 2K2.1 is the most analogous offense guideline for § 922(u) offense. (390) In August 1995, defendants broke into a pawnshop at night and stole a number of firearms, in violation of 18 U.S.C. § 922(u). The district court sentenced them under the 1995 version of the guidelines. The 1994 version of the guidelines in effect when defendants committed their crime did not contain any reference to § 922(u). Defendants raised ex post facto challenges to the court’s use of § 2K2.1. The Fifth Circuit held that with one exception, the application of § 2K2.1 did not violate the ex post facto clause. Section 2X5.1 directs that where no guideline is specified, the court should apply “the most analogous offense guideline.” Section 2K2.1 is the “most analogous offense guideline” to be applied for violations of § 922(u) under the 1994 guidelines. The four level increase under the 1995 version of § 2K2.1(b)(5) did not violate the ex post facto clause because it also applied under the 1994 version. However, the § 2K2.1(b)(4) enhancement for stolen firearms did violate the ex post facto clause because it would not have applied under the 1994 guidelines. The note 12 commentary in 1994 excluded offenses, such as defendants’ that involved stolen firearms where the defendant was not convicted of any other offenses. This commentary was amended in 1995 to permit the sentencing court to apply the (b)(4) enhancement if the offense level is not calculated under § 2K2.1(a)(7). Defendant’s offense level was calculated under § 2K2.1(a)(4) (A), and therefore his offense level could be enhanced under the 1995 version. U.S. v. Armstead, 114 F.3d 504 (5th Cir. 1997).
5th Circuit applies guideline for robbery rather than attempted robbery. (390) Guideline § 2X1.1(b)(1) provides for a decrease in offense level if the conviction is for attempt, “unless the defendant completed all the acts the defendant believed necessary for successful completion of the offense or the circumstances demonstrate that the defendant was about to complete all such acts but for apprehension or interruption by some similar event beyond the defendant’s control.” In this case, defendant pistol whipped and injured his victims in an attempt to learn where they were hiding chemicals he intended to steal. He forced one of the victims to drive him around the city in an attempt to locate the chemicals. Defendant was attempting to locate the chemicals when he was arrested. Therefore, the district court properly applied the robbery guideline, rather than the attempted robbery guideline. U.S. v. Pologruto, 914 F.2d 67 (5th Cir. 1990).
5th Circuit upholds using second degree murder guideline for defendant whose arson caused death. (390) Defendant pled guilty to interstate travel in aid of a racketeering enterprise, under which the sentencing guideline provides that the base offense level is the greater of six or the offense level applicable to the underlying crime in respect of which the travel was taken. Since the underlying crime was arson, the district court looked at the guideline for arson, which also provides a base offense level of six, except that if the defendant’s arson caused a death, a district court must apply the “most analogous guideline” from the guideline category of offenses against the person, if the base offense level is higher. The district court determined that the most analogous guideline was second degree murder, and sentenced defendant accordingly. The 5th Circuit held that the district court properly followed the guidelines. U.S. v. Paden, 908 F.2d 1229 (5th Cir. 1990).
6th Circuit finds departure for endangering public was really a sentence for offense with no guideline. (390) Defendants were convicted of various methamphetamine charges, including endangerment to human life while manufacturing methamphetamine, in violation of 21 U.S.C. § 858. They objected to the district court’s “upward departure” under § 5K2.13 for endangering the public welfare. The Sixth Circuit found that the “departure” was really an attempt to determine a correct sentence for defendants on the § 858 charge for which, at the time of the crime, there was no sentencing guideline. Defendants committed the charged offenses between July and October of 1989 but § 2D1.10 only became effective on November 1, 1989. The district court decided on a two point increase to defendants’ offense level as an appropriate sentence for the § 858 charge, using the unfortunate language that “an upward departure” was warranted. The judge’s only constraints under the 1987 guidelines were the 10‑year statutory maximum and the parameters of 18 U.S.C. § 3553(a)(2)(A)‑(D). U.S. v. Jennings, 83 F.3d 145 (6th Cir. 1996).
6th Circuit holds that § 2B1.1 is most analogous guideline for firearm theft. (390) Defendants pled guilty to stealing a firearm from a licensed firearm dealer, in violation of 18 U.S.C. § 922(u). Defendants argued that the most analogous guideline was § 2B1.1 (Larceny and Other Forms of Theft) rather than § 2K2.1 (Unlawful Receipt, Possession or Transportation of Firearms). Notwithstanding a proposed amendment that would make § 2K2.1 applicable to defendant’s offense, the Sixth Circuit ruled that § 2B1.1 was the most analogous guideline. Section 2K2.1 is not directly applicable to the offense here. The crime of theft is not among the crimes to which § 2K2.1, by its terms, applies. Section 2B1.1, however, specifically applies to larceny and other forms of theft. The fact that a guideline amendment effective November 1, 1995 makes § 2K2.1 the applicable guideline does not change this result. The amendment does not necessarily give anecdotal support for the proposition that § 2K2.1 was the appropriate guideline to apply. It provides at least as much support for the proposition that the offense guideline currently applicable to the theft of firearms is § 2B1.1. Judge Ryan dissented. U.S. v. Halliburton, 73 F.3d 110 (6th Cir. 1996).
6th Circuit says theft is most analogous guideline for breaking into cars and stealing property. (390) Defendants broke into and stole property from cars parked at a national forest. They pled guilty to violating the Assimilative Crimes Act, predicated on a violation of Tennessee law. Section 2X5.1 directs a court to sentence a defendant under the most analogous guideline. The Sixth Circuit held that the most analogous guideline was the theft guideline and the district court erred in selecting the burglary guideline. Defendant’s offense did not constitute burglary under the guidelines. The Tennessee burglary statute that defendants violated defined the crime more broadly than the generic definition of burglary. The state statute did not require defendants to enter and remain in a structure, since the vehicles broken into by defendants were not structures. Section 2B1.1 (Larceny, Embezzlement and Other Forms of Theft), which deals with the wrongful taking of another’s property, was the most analogous guideline. The calculation of “loss” in § 2B1.1 punishes the defendants for both aspects of their crime: the damage done to the automobiles during the forced entry and the value of the property stolen. U.S. v. Couch, 65 F.3d 542 (6th Cir. 1995).
6th Circuit says most analogous guideline for firearm offense was 2K2.2, not 2K2.3. (390) Defendant was found guilty of two counts of transporting a firearm in interstate commerce with intent to commit a felony, in violation of 18 U.S.C. section 924(b). Because the guidelines did not specifically address violations of section 924(b), section 2X5.1 instructed the district court to apply the most analogous guideline. The 6th Circuit affirmed that the pre-November 1989 version of section 2K2.2 (Receipt, Possession or Transportation of Firearms), rather than the pre-November 1989 version of section 2K2.3 (Prohibited Transactions in or Shipment of Firearms) was the most analogous guideline for the offense. Although the violations addressed by section 2K2.2 were not perfectly analogous to the section 924(b) violation, since defendant’s crime did not involve a specially regulated weapon, that section was clearly more analogous than section 2K2.3. U.S. v. Holmes, 975 F.2d 275 (6th Cir. 1992).
7th Circuit departs upward to take away benefit received at earlier sentencing. (390) Defendant promised in his cooperation agreement to “provide complete and truthful testimony” in any proceeding as requested by the government. Pursuant to the agreement, defendant provided grand jury testimony, and as a result, he received a downward departure. However, on five occasions after sentencing, despite a direct court order and a grant of immunity, defendant refused to take oath or provide testimony, and as a result, was convicted of criminal contempt, in violation of 18 U.S.C. § 401. The district court departed upward in order to take away the 66-month benefit conferred upon defendant at his earlier sentencing, finding that his refusal to cooperate amounted to a breach of the cooperation agreement. The Seventh Circuit affirmed. As in U.S. v. Simmons, 215 F.3d 737 (7th Cir. 2000), defendant initially agreed to cooperate, testified, received a benefit for his cooperation, and then refused to testify. The 17-level departure, which resulted in a 66-month sentence increase, was reasonable “because it took away the benefit conferred upon” defendant by the downward departure applied to his drug sentence. U.S. v. Jones, 278 F.3d 711 (7th Cir. 2002).
7th Circuit approves departure for defendant who produced deadly toxins at his house. (390) Police recovered from defendant’s home a deadly toxin called ricin and a spray bottle containing a mixture of nicotine sulfate and another chemical. Defendant possessed enough ricin to kill 125 people. In addition, authorities estimated that as little as three sprays from defendant’s nicotine sulfate mixture could be lethal. He pled guilty to possessing a toxin for use as a weapon, in violation of 18 U.S.C. § 175(a), an offense for which there is no guideline. The district court applied § 2K2.1, which applies to the possession of destructive devices, as the most “analogous” guideline. The court departed because (1) the maximum penalty for possession of a toxin is life, while the maximum penalty for possession of a destructive device is only ten years; (2) defendant possessed two toxins; (3) the high toxicity of the toxins possessed; and (4) the potential for mass homicide. The Seventh Circuit held that the grounds for departure were appropriate. The fact that § 2K2.1 was not expressly promulgated to cover § 175(a) violations was sufficient, by itself, to take the case outside the “heartland” of § 2K2.1. Section 5K2.6 authorizes a departure based on the “especially dangerous nature of a weapon.” Similarly, a court may depart under § 5K2.14 if public health or safety is “significantly endangered” by the defendant’s conduct. Ricin is not detectable once disseminated, and there are no identifiable symptoms for those infected. Defendant produced the ricin in a residential area without concern for its accidental dissemination. U.S. v. Leahy, 169 F.3d 433 (7th Cir. 1999).
7th Circuit says most analogous guideline for material witness’s failure to appear was contempt. (390) Defendant and an associate were arrested on drug charges. Defendant was sentenced first. When the associate was prosecuted, defendant was produced in court to testify on the government’s behalf and refused, despite being given immunity and ordered to testify by the court. He did, however, acknowledge that he knew the associate. Defendant was then convicted of criminal contempt for his refusal to testify. Section 2J1.1 directs a court to § 2X5.1, which in turns directs a court to apply the most analogous guideline. The Seventh Circuit held that § 2J1.5 (Failure to Appear by Material Witness), rather than § 2X3.1( (Accessory After the Fact) was the most analogous guideline. There was no evidence that defendant’s refusal to testify was designed to assist the associate escape punishment. Defendant actually assisted the government at the associate’s trial by admitting that he was arrested for selling drugs, identifying the arresting agent, and indicating that he knew the associate. The record suggested that defendant refused to testify to avoid being labeled a “snitch.” Moreover, the base offense level of 20 for accessory after the fact was “seriously out of kilter” with defendant’s offense. U.S. v. Ortiz, 84 F.3d 977 (7th Cir. 1996).
8th Circuit finds obstruction guideline was most analogous for contempt conviction. (390) Defendant entered into a plea agreement under which he agreed to testify for the goverment. After testifying at his uncle’s trial, the government called defendant to testify in a later trial against his cousins. Defendant refused, citing his Fifth Amendment privilege against self-incrimination. The district court found that he had no Fifth Amendment privilege and found him guilty of contempt. The guideline for contempt, § 2J1.1, does not provide a base offense level. It references § 2X5.1, which instructs the district court to apply the most analogous guideline. Defendant argued that the district court erred in selecting § 2J1.2 (Obstruction of Justice) rather than § 2J1.5 (Failure to Appear by a Material Witness). The Eighth Circuit ruled that the facts supported the district court selection of the obstruction guideline. Defendant’s reason for refusing to testify against his cousins arose out of his desire to hinder their prosecution. Defendant told the district court that he would respond to questioning from defense counsel, but not from the government. This was indicative of his desire to avoid answering questions that would potentially incriminate his cousins. U.S. v. Allmon, 594 F.3d 981 (8th Cir. 2010).
8th Circuit holds that fraud guideline was most analogous guideline for violation of consent judgment. (390) Defendant fraudulently sold business opportunities to customers, knowing that they would not receive some of all of the things he had promised. When customers began complaining, defendant would restart his scheme under a new company with a different name. In response to a 1983 lawsuit brought by the Federal Trade Commission, defendant entered into a consent agreement with the United States. In spite of a consent judgment entered by the district court, defendant continued to operate and close eight additional companies. He pled guilty to contempt of court, in violation of 18 U.S.C. § 401, for violating the 1983 court order. Section 2J1.1, the guideline applicable to § 401 violations, directs a court to apply § 2X5.1. Section 2X5.1 applies when there is no expressly applicable guideline, and directs the court to apply the most analogous guideline. The Eighth Circuit upheld the district court’s decision to sentence defendant under the fraud guideline, § 2F1.1, rather than the obstruction of justice guideline, § 2J1.2. The essence of defendant’s conduct was fraud. U.S. v. Ferrara, 334 F.3d 774 (8th Cir. 2003).
8th Circuit affirms use of involuntary manslaughter guideline for vehicular battery. (390) Defendant pled guilty to vehicular battery after driving drunk and causing an accident which seriously injured the driver of another car. Because there is no expressly promulgated guideline for vehicular battery, § 2X5.1 directed the court to apply the most analogous guideline. Despite the factual similarity between this case and U.S. v. Osborne, 164 F.3d 434 (8th Cir. 1999), a companion case in which the Eighth Circuit upheld the use of the aggravated assault guideline for a vehicular battery, the Eighth Circuit here approved the district court’s decision to use the involuntary murder guideline. Both involuntary manslaughter and vehicular battery contemplate that the defendant did not have the specific intent to cause harm. Like vehicular battery, involuntary manslaughter requires that the defendant’s conduct cause serious bodily harm, although involuntary manslaughter contemplates the death of the victim. However, the court did err when it added the specific offense characteristic of aggravated assault to the base offense level of involuntary manslaughter. The guidelines call for upward departures, not the combining of guidelines, when the district court finds that the total offense level arrived at by applying the analogous guideline is not adequate. U.S. v. Allard, 164 F.3d 1146 (8th Cir. 1999).
8th Circuit approves use of aggravated assault guideline for vehicular battery. (390) Defendant pled guilty to vehicular battery after driving drunk and causing a serious car accident in which three passengers were injured. Because there is no expressly promulgated guideline for vehicular battery, § 2X5.1 directed the court to apply the most analogous guideline. The Eighth Circuit upheld the district court’s decision to use aggravated assault as the most analogous guideline for vehicular battery. Assault resulting in a serious bodily injury only requires a general intent to commit the acts of assault, and not a specific intent to do bodily harm. The applicable South Dakota statute similarly required only a general intent. Defendant’s conduct fell well within the aggravated assault guideline. He chose to drive a motor vehicle in a highly intoxicated state, despite being warned that he was weaving out of his lane and that he should let someone else drive. The accident and consequential injuries followed naturally from his decision. Defendant had the general intent comparable to that required for an assault resulting in a serious bodily injury under federal law. U.S. v. Osborne, 164 F.3d 434 (8th Cir. 1999).
8th Circuit reviews court’s choice of analogous guideline under mixed standard. (390) Defendant pled guilty to vehicular battery. Because the sentencing guidelines have no expressly promulgated guideline for vehicular battery, § 2X5.1 directed the court to apply the most analogous offense guideline. The Eighth Circuit announced a two-step procedure for reviewing a district court’s application of § 2X5.1. The first step of the § 2X5.1 analysis is to determine whether there are any guidelines that are sufficiently analogous to the defendant’s crime. If there are none, then the defendant is to be sentenced using the general provisions of 18 U.S.C. § 3553(b). The district court’s determination as to whether there is a sufficiently analogous crime is reviewed de novo. The second step of the § 2X5.1 analysis requires the district court to choose the most analogous guideline from the sufficiently analogous guidelines. The district court’s choice of the most analogous guideline should be reviewed with due deference. In choosing the most analogous guideline, the district court must take into account all the circumstances of the case and make factual findings to support its choice. The evaluation of which guideline is most analogous is more factual in nature than legal. U.S. v. Osborne, 164 F.3d 434 (8th Cir. 1999).
8th Circuit upholds sentencing defendant convicted of incest under criminal sexual assault guideline. (390) Defendant pled guilty to incest within Indian country. Because the guidelines do not contain a specific offense guideline for incest, under guideline § 2X5.1 the district court was directed to apply the guideline most analogous to defendant’s offense. The 8th Circuit upheld the district court’s determination that guideline § 2A3.1, criminal sexual abuse, was the most analogous. The district court looked to the underlying circumstances and found that defendant’s offense involved several nonconsensual acts of sexual intercourse. This finding was not clearly erroneous. U.S. v. Clown, 925 F.2d 270 (8th Cir. 1991).
8th Circuit holds that sentencing guidelines apply to Indian offenses. (390) Reversing the decision in U.S. v. Norquay, 708 F.Supp. 1064 (D. Minn. 1989), the 8th Circuit held that the federal sentencing guidelines apply to convictions under the Indian Major Crimes Act, 18 U.S.C. § 1153. The Major Crimes Act makes burglary committed by an Indian within “Indian country” a federal crime. Because there exists no federal statute describing what conduct constitutes the crime of burglary, the Major Crimes Act incorporates the law of the state in which the burglary was committed for purposes of defining the crime and establishing the punishment. The district court held that this meant that Minnesota’s sentencing guidelines should govern the defendant’s sentence. The 8th Circuit disagreed, holding that the federal sentencing guidelines applied, but that the sentence could not exceed any maximum sentence under Minnesota law. U.S. v. Norquay, 905 F.2d 1157 (8th Cir. 1990).
9th Circuit selects fraud guideline for offense of flying without a pilot’s license. (390) Defendant pleaded guilty to serving as an airman without an airman’s certificate, in violation of 49 U.S.C. § 46306(b)(7), based on his piloting an airplane without the required license. Because no Guideline directly applies to a violation of § 46306(b)(7), at sentencing, the district court determined that the most analogous guideline was § 2A5.2(a)(2)(A), the guideline for interfering with a flight crew member or recklessly endangering the safety of an airport or aircraft. On appeal, the Ninth Circuit held that the district court had erred in using § 2A5.2(a)(2)(A) and that the most analogous guideline for defendant’s offense (as opposed to the underlying conduct) was § 2B1.1, the general fraud and deceit guideline. U.S. v. McEnry, 659 F.3d 893 (9th Cir. 2011).
9th Circuit requires most analogous guideline to be applied without a multiplying factor for potency. (390) Defendant was convicted of conspiracy to manufacture OPP/PPP, a novel synthetic heroin which was not listed in the guidelines’ drug tables. Testimony at trial showed that OPP/PPP is a chemical analog of MPPP, a Schedule I narcotic listed in the Drug Equivalency Table. The table indicated that 1 gram of MPPP was the equivalent of 0.7 grams of heroin. Nevertheless, the district court multiplied the base offense amount by 100, based on two letters from the DEA to the Sentencing Commission which represented that OPP/PPP is 100 times as potent as MPPP. The 9th Circuit reversed, holding that once the court found that the proper analog was MPPP, it was not authorized to use a multiplying factor. The court added that it was offering no opinion “as to whether the potency considerations that concerned the district court could serve as the basis for an upward departure.” U.S. v. Ono, 918 F.2d 1462 (9th Cir. 1990).
9th Circuit holds that guidelines apply to Assimilative Crimes Act offenses. (390) The Assimilative Crimes Act, 18 U.S.C. § 13, makes state crimes on federal enclaves into federal offenses subject to “like punishment” as that in state court. Agreeing with a recent 10th Circuit ruling, the 9th Circuit held that the federal sentencing guidelines apply to Assimilative Crimes Act offenses. Defendant was sentenced to three consecutive one-year terms for passing forged checks. She argued that the sentence was excessive because, under state law, while she could have received the same sentence, she would have been eligible for parole in 18 months. The court rejected this argument, holding that the Assimilative Crimes Act does not incorporate state parole policies. The court distinguished parole rights from systems permitting reduced sentences through deferred acceptance of guilty pleas. U.S. v. Leake, 908 F.2d 550 (9th Cir. 1990).
9th Circuit rules that when there is no sentencing guideline for particular drug, guideline for most analogous drug applies. (390) The trial court found there was no applicable sentencing guidelines for the drug “euphoria.” The court followed guideline sections 2X5.1 and 1B1.2 which directed it to pick an analogous guideline. After conducting an evidentiary hearing the court concluded that the drug guideline for amphetamine, in § 2D1.4 was most analogous. The 9th Circuit held that the court correctly applied the guidelines based on the nature of the offenses and the substance involved. U.S. v. Marsh, 894 F.2d 1035 (9th Cir. 1990).
10th Circuit applies § 2A6.1 even though defendant was acquitted of sending threatening letter. (390) Defendant was convicted of conspiracy to impede or injure an officer, 18 U.S.C. § 372, based on his involvement in sending a threatening letter to an assistant U.S. attorney who was prosecuting members of a white supremacy group. Defendant was acquitted of mailing a threatening communication, 18 U.S.C. § 876. The offense of conviction § 372, does not have an assigned Sentencing Guidelines section, so § 2X5.1 directed the court to apply “the most analogous offense guideline.” The Tenth Circuit held that § 2A6.1, which applies to threatening or harassing communications, was the most applicable guideline, rather than § 2A2.4, which applies to efforts to obstruct or impede officers or employees of the U.S. by force. Section 2A6.1 better captured the element of a letter seeking to threaten or intimidate a public official. While § 2A2.4 incorporates the fact that the victim was a governmental officer, and § 2A6.1 does not, the official victim enhancement, § 3A1.2, expressly applies to § 2A6.1 and not § 2A2.4. Although defendant was acquitted of mailing a threatening communication, this did not affect the “most analogous guideline” inquiry. U.S. v. Rakes, 510 F.3d 1280 (10th Cir. 2007).
10th Circuit says first-degree murder guideline is most analogous for Oklahoma City bombing conspiracy. (390) Defendant was convicted of conspiring to use a weapon of mass destruction, in violation of 18 U.S.C. § 2332a, for his role in the bombing of the Alfred P. Murrah Federal Building in Oklahoma City. The Statutory Index for the 1994 guidelines does not specify a guideline section for § 2332a violations. The Tenth Circuit upheld the district court’s use of § 2A1.1, the guideline for first-degree murder, as the most analogous guideline for defendant’s § 2332a offense. Section 2A1.1 clearly was sufficiently analogous. Effective November 1, 1995, the Statutory Index was amended to specify that a violation of § 2332a may be handled under either § 2A1.1 or § 2K1.4. The most analogous offense can be determined either from the face of the indictment or from defendant’s relevant conduct. The Tenth Circuit did not resolve which method was proper because the court’s choice of § 2A1.1 was proper under either approach. The indictment alleged that defendant intended with premeditation to kill people in the federal building, and that the object of the conspiracy was to kill and injure innocent persons. Even if the indictment had omitted the allegations of intent to kill and premeditation, the murder guideline would remain the most analogous because the doctrine of felony-murder implies the malice as a matter of law and obviates the need for premeditation. Defendant’s relevant conduct also supported the court’s decision to use § 2A1.1. The record contained sufficient information from which the judge could reasonably conclude that defendant harbored the necessary malice and premeditation. U.S. v. Nichols, 169 F.3d 1255 (10th Cir. 1999).
10th Circuit refuses to apply 2D1.1 to conspiracy to carry firearm during a drug trafficking offense. (390) The 10th Circuit rejected the application of guideline section 2D1.1 to a defendant convicted solely of a conspiracy under 18 U.S.C. 371 to use or carry firearms during the commission of a drug trafficking offense in violation of 18 U.S.C. section 924(c). While a defendant must have intended to commit a drug trafficking crime in order to be convicted of this conspiracy charge, a conspiracy to use or carry a firearm during a drug trafficking crime is distinct from a conspiracy to commit the drug trafficking offense. The appropriate guideline for section 371 conspiracies is section 2X1.1. Under this guideline, the base offense level is determined by the guideline for the substantive offense. However, section 2K2.4(a), the guideline for the underlying section 924(c) offense, does not provide a base offense level but references only the term of imprisonment required by statute. In this situation, section 2X5.1 directs a court to apply “the most analogous guideline,” which in this case is section 2K2.1(a)(7). U.S. v. Morehead, 959 F.2d 1489 (10th Cir. 1992).
10th Circuit holds most analogous offense for false reports to airline was possessing dangerous weapons while boarding aircraft. (390) Defendant was convicted of making two false reports to an airline, in violation of 49 U.S.C. section 1472(m), for claiming that his ex-wife’s suitor was on board carrying a handgun and explosives. There is no sentencing guideline for that offense. The 10th Circuit reversed the district court’s application of guideline section 2A6.1 (Threatening Communications), holding that section 2K1.5 (Possessing Dangerous Weapons While Boarding an Aircraft) was the most analogous guideline. The offense of threatening communications is committed by making threats against a President, foreign dignitaries and a former President, or using the mail to make a threat. Defendant’s conduct did not implicate any of these crimes. A closer parallel existed between his crime and the offense of carrying weapons aboard an aircraft. U.S. v. Norman, 951 F.2d 1182 (10th Cir. 1991).
10th Circuit holds that sentencing guidelines apply to Assimilative Crimes Act offenses. (390) The Assimilative Crimes Act, 18 U.S.C. § 13, provides that anyone on a federal reservation who commits an act that would be punishable if committed within the jurisdiction of the state in which the federal reservation is located “shall be guilty of a like offense and subject to a like punishment.” The defendant, an American Indian, pled guilty to manslaughter in violation of New Mexico law, as assimilated by the Assimilative Crimes Act. He argued that the federal sentencing and forfeiture guidelines did not apply to him because the Act required that he receive a “like punishment” to what he would have received if convicted in state court. The 10th Circuit rejected the argument, holding that since there were no restrictions on state judges, the federal guidelines should apply as long as the sentence fell within the maximum range provided by state law. U.S. v. Garcia, 889 F.2d 1454 (5th Cir. 1989).
11th Circuit remands for failure to find which object offenses defendant conspired to commit. (390) Defendant challenged his sentence on a money laundering conspiracy count, which alleged that he had conspired to commit five money laundering objects. Despite being instructed that it could not convict defendant without determining that he had conspired to commit one of those acts, the jury returned a general verdict of guilty. The court accepted the PSR’s recommendation that defendant’s money laundering sentence be based on the money laundering object with the highest possible offense level. However, under § 1B1.2(d), when a defendant is convicted of a conspiracy to commit multiple object offenses, he must be sentenced as if he had been convicted on a separate count of conspiracy for each. Courts have held that note 4 to § 1B1.2(d) requires the district court to find beyond a reasonable doubt which offense(s) the defendant conspired to commit. The Eleventh Circuit held that the district court erred in failing to make this necessary finding. It vacated defendant’s sentence and remanded for resentencing. U.S. v. Bradley, 644 F.3d 1213 (11th Cir. 2011).
11th Circuit says border tunnel guideline was not analogous to submersible vessel offense. (390) Defendants operated a semi-submersible vessel with intent to evade detection, in violation of the Drug Trafficking Vessel Interdiction Act of 2008, 18 U.S.C. § 2285 (DTVIA). At the time of sentencing, no guideline had been promulgated for DTVIA violations. A proposed guideline, § 2X7.2, became effective months after sentencing. Defendants asked the court to apply § 2X7.1, which applies to border tunnels. The district court found that the border tunnel guideline was not “sufficiently analogous” to DTVIA violations, and instead relied solely on the § 3553(a) factors in sentencing defendants to 108 months. The sentence corresponded to the bottom of the guideline range that would have resulted from the application of the proposed § 2X7.2. The Eleventh Circuit held that the sentence was procedurally and substantively reasonable. Given the difference between the offenses, the district court did not err in finding the border tunnel guideline was not sufficiently analogous to the DTVIA offense. Since there was no sufficiently analogous guideline, the court followed § 2X5.1 to select a sentence based on the § 3553 factors. U.S. v. Saac, 632 F.3d 1203 (11th Cir. 2011).
11th Circuit applies § 3553(a)(2) where there was no guideline for offense. (390) Defendant received a 10-year sentence for acting as an agent of a foreign government without notifying the Attorney General, 18 U.S.C. § 951, and a consecutive five-year sentence for conspiracy to violate § 951 and to defraud the United States, 18 U.S.C. § 371. The Tenth Circuit found no error in the court’s imposition of consecutive sentences. Section 951 is a felony “for which no guideline expressly has been promulgated.” § 2X5.1. Nor has any guideline been promulgated for conspiracy to violate 851. Because “there is not a sufficiently analogous guideline,” the general purposes of sentencing in 18 U.S.C. § 3553 controlled the discretion of the district court. Here, the district court selected the 10-year statutory maximum for the § 951 conviction and a consecutive five-year sentence, also the statutory maximum, for the conspiracy conviction. The district court considering the purposes of sentencing in § 3553(a)(2) and expressly recognized its obligation to impose a sentence sufficient, but not greater than necessary, to comply with the purposes in § 3553(a). U.S. v. Campa, 529 F.3d 980 (11th Cir. 2008).
11th Circuit uses guideline for attempt to manufacture methamphetamine for possession of phenylacetic acid. (390) Defendant was convicted of possessing phenylacetic acid, with knowledge that it would be used to manufacture methamphetamine, in violation of 21 U.S.C. section 841(d)(2). Applying U.S.S.G. 2D1.1, the district court found that 100 pounds of phenylacetic acid could yield approximately 30 kilograms of methamphetamine, and used this to arrive at a base offense level of 36. The 11th Circuit affirmed the result, but used a different methodology. The version of the guidelines applicable to defendant did not address violations of section 841(d)(2). Section 841(d)(2) makes an independent crime out of what would otherwise be an attempt to manufacture methamphetamine under 21 U.S.C. section 846. Since guideline section 2D1.4 governs attempts to manufacture methamphetamine and uses the same Drug Quantity Table as section 2D1.1, it yielded the same offense level as the district court’s approach. U.S. v. Hyde, 977 F.2d 1436 (11th Cir. 1992).
11th Circuit upholds 60-month sentence for bail jumping. (390) Defendant was convicted of criminal contempt in connection with jumping bail. Because the kinds of conduct constituting contempt vary significantly, the applicable guideline, § 2J1.1, does not contain a specific offense level but directs a court to impose a sentence based on the purposes for sentencing. An application note refers to guideline 2X5.1, which instructs a district court to look to analogous guidelines. The district court found there was no analogous guideline, and imposed a 60-month sentence. The 11th Circuit affirmed. Although defendant argued that § 2J1.6 — failure to appear — was an analogous guideline, the 11th Circuit agreed that defendant’s actions were more serious than just failing to appear. Defendant fled shortly before trial, leaving behind a videotape explaining the reasons for his flight. Extensive efforts were necessary to recapture him, and resulted in two trials. U.S. v. Gabay, 923 F.2d 1536 (11th Cir. 1991).
Commission creates a new guideline for use of a minor to commit a crime of violence. (390) The Protect Act created a new offense in 18 U.S.C. § 25 for using a minor in a crime of violence. In response, the Commission created a new guideline at § 2X6.1 directing the court to increase by four levels the offense level from the guideline applicable to the underlying crime of violence. Application notes are included to provide that the adjustment under § 3B1.4 for using a minor to commit a crime in general is inapplicable if § 2X6.1 is used, and to provide rules for the grouping of multiple counts. Amendment 674, effective November 1, 2004.
Commission expressly states that guidelines apply to Assimilative Crimes Act and Indian Offenses. (390) The background commentary to section 2X5.1 was amended on November 1, 1991, to reflect that Congress amended the Crime Control Act of 1990 to expressly state that the Sentencing Guidelines apply to convictions under 18 U.S.C. section 13 (the Assimilative Crimes Act) and 18 U.S.C. section 1153 (the Indian Major Crimes Act).