§420 Role in Offense, Generally
9th Circuit says “use” of body armor includes wearing it. (420) Under § 3B1.5, a defendant convicted of a drug-trafficking crime who “used body armor during the commission of the offense” is subject to a four-level increase in offense level. During a traffic stop, defendant possessed illegal drugs and was wearing body armor. At defendant’s sentencing for drug trafficking, the district court enhanced defendant’s sentence under § 3B1.5. The Ninth Circuit found that defendant “used” body armor by wearing it during the traffic stop. The court held that “use” does not include mere possession, but wearing body armor is a “use.” U.S. v. Johnson, __ F.3d __ (9th Cir. Jan. 9, 2019) No. 17-10252.
5th Circuit reverses §2D1.1(b)(14)(B)(i) increase because defendant was not an organizer/leader. (420) Defendant’s PSR recommended a two-level organizer/ leader enhancement under §3B1.1, and a two-level enhancement under §2D1.1(b)(14)(B)(i) for involving a minor in the crime as an organizer/leader. The district court, however, found that defendant was not an organizer/leader and removed the §3B1.1 enhancement from his total offense level. Defendant did not object to the §2D1.1(b)(14)(B)(i) enhancement, which the court then applied to its sentencing calculation. The Fifth Circuit held that the district court’s failure to remove the §2D1.1(b)(14)(B)(i) enhancement was plain error. That section applies only if an enhancement under §3B1.1 is imposed. Moreover, the error affected defendant’s substantial rights, and “seriously affected the fairness, integrity, or public reputation of judicial proceedings.” With the enhancement, defendant’s sentencing range was 360 months to life. Without the enhancement, it was 292-365 months. The degree of the error, a possible 68-month sentencing disparity, was significant, although mitigated somewhat by another error the court made by erroneously removing some criminal history points. U.S. v. Martinez-Rodriguez, __ F.3d __ (5th Cir. May 12, 2016) No. 13-41292.
1st Circuit remands where unclear if court applied increase for use of a juvenile. (420) Defendant was convicted of drug charges, and was sentenced as a career offender to 156 months of imprisonment. The career offender guideline directs the offense level be determined by the statutory maximum for the offenses of conviction. Under 21 U.S.C. § 861, the statutory maximum is doubled if the defendant “knowingly or intentionally” used a juvenile to commit the drug offense. After sentencing, defendant challenged the use of § 861, noting that the district court credited his statement at the change-of-plea hearing that he did not know his accomplice was a minor. The court agreed in part with defendant, and reduced the term of supervised release, but left the term of imprisonment unchanged. The First Circuit found it unnecessary to decide whether the government must prove that the defendant knew the age of the juvenile, because the record was inconsistent as to whether the district court actually applied the enhancement. The judge’s statements at the change-of-plea and sentencing hearings suggested no enhancement would be applied; the judgment seemed to apply the enhancement; and the amended judgment may or may not have applied it. Given the ambiguity in the record, remand was appropriate. U.S. v. Ramirez, 708 F.3d 295 (1st Cir. 2013).
1st Circuit upholds enhancement for using minor to commit crime. (420) The district court found that numerous minors were used in the drug conspiracy and that defendant himself, a supervisor in the conspiracy, used minors to sell drugs. Defendant argued that the evidence showed only that juveniles worked for the leader or another gang member, and that no witness testified that defendant himself employed juveniles. Because defendant was convicted of conspiracy, the First Circuit found that his sentence could be enhanced based on his co-conspirators’ reasonably foreseeable use of juveniles to further the gang’s activities. Thus, the § 3B1.4 increase for “using a minor to commit a crime” was proper. U.S. v. Patrick, 248 F.3d 11 (1st Cir. 2001).
1st Circuit says role increase and departure for drug purity are not double counting. (420) Defendant and his co-defendant arranged the sale of very pure heroin (87-96% pure) to a DEA confidential informant. He complained that a leadership enhancement and an upward departure based on the heroin’s high purity was double counting, because Note 9 to § 2D1.1 explains that a drug’s high purity is probative of the defendant’s role in the chain of distribution. The First Circuit found no double counting, since the leadership enhancement was not based on an inference from the heroin purity. Defendant used “mules” and “lackeys” to make deliveries for him and exercised leadership in some of these deliveries. Furthermore, note 9 does not say that drug purity and a defendant’s leadership role are mutually exclusive sentencing considerations. U.S. v. Rodriguez, 63 F.3d 1159 (1st Cir. 1995).
1st Circuit says amendment permitting consideration of relevant conduct in role in offense was mere clarification. (420) The Introductory Commentary to Chapter 3 of the guidelines in effect on the date defendant was sentenced provided that a defendant’s role in the offense is to be based upon all relevant conduct. This provision was added to the guidelines by Amendment 345, which the sentencing commission explained was a “clarification” of the law. Defendant contended that Amendment 345 was a substantive change, and that it violated the ex post facto clause to determine his role in the offense based upon other relevant conduct. The 1st Circuit agreed that the law prior to the amendment was unclear, and that the Sentencing Commission could not, merely by labeling an amendment a clarification, change a meaning retroactively. Nonetheless, the court affirmed the district court’s determination. U.S. v. Ruiz-Batista, 956 F.2d 351 (1st Cir. 1992).
1st Circuit reviews role in the offense determinations only for clear error. (420) The 1st Circuit reaffirmed that it reviews a sentencing court’s determination of a defendant’s role in the offense only for clear error, and that such a determination, if based upon reasonable inferences drawn from undisputed facts, cannot be clearly erroneous. U.S. v. Garcia, 954 F.2d 12 (1st Cir. 1992).
2nd Circuit counts offense of conviction in pattern of activity involving sexual conduct with minor. (420) Defendant was convicted of attempted production of child pornography, based on his attempt to get a 17-year-old girl to take pornographic pictures of herself and text them to him. The Second Circuit upheld a five-level enhancement under § 4B1.5(b)(1) for a “pattern of activity involving prohibited sexual conduct” with a minor. Defendant’s conviction provided one of the two occasions of prohibited sexual conduct necessary to establish a pattern of activity. A second occasion was defendant’s engagement of a 15-year-old victim in sodomy. Because this sodomy was preceded by defendant’s efforts to persuade the 15-year-old girl to produce pornographic images of herself, just as defendant’s sexual assault on the 17-year-old girl followed his efforts to have her produce pornographic images of herself, there was particular reason to view the sodomy and the production crime of conviction as part of a pattern of prohibited sexual conduct. U.S. v. Broxmeyer, 699 F.3d 265 (2d Cir. 2012).
2nd Circuit applies “use of minor” enhancement where minor was both model and photographer of child porn. (420) Defendant was convicted of attempted production of child pornography, based on his attempt to get a 17-year-old girl to take pornographic pictures of herself and text them to him. Guideline § 3B1.4 provides for a two-level enhancement if the defendant used a person younger than 18 to commit the offense. The enhancement does not apply, however, if the guideline for the offense of conviction already incorporates this factor. Note 2 to § 3B1.4. The Second Circuit upheld the enhancement, since defendant used the minor both as the model and the photographer in his attempt to produce child porn. Defendant’s base offense level of 32 was dictated only by the minor’s role as the model, and would have applied even if someone else, including an adult, had been the photographer. U.S. v. Broxmeyer, 699 F.3d 265 (2d Cir. 2012).
2nd Circuit holds that defendant should have foreseen use of minor in housing project drug conspiracy. (420) Defendant and others conspired to distribute large amounts of heroin, cocaine and crack at a housing project. Section 3B1.4 provides for a two-level enhancement if “the defendant used or attempted to use a person less than eighteen years of age to commit the offense.” The district court applied the enhancement to defendant based on the participation of Jiminez, who was a minor when she began to sell drugs. The Second Circuit affirmed the enhancement. First, § 3B1.4 has no scienter requirement – a defendant need not have actual knowledge that the person undertaking the criminal activity was a minor. Second, the use of a minor by one of defendant’s co-conspirators was a reasonably foreseeable act in furtherance of the conspiracy. Defendant was an organizer and leader of a drug distribution ring in a public housing project. He should have anticipated the involvement of minors because they were operating in an environment where adults and minors lived together in close proximity. U.S. v. Lewis, 386 F.3d 475 (2d Cir. 2004).
2nd Circuit says defendant who arranged for son to drive car home “used” minor in drug transaction. (420) Defendant arrived at a parking lot to complete a drug purchase accompanied by his 17-year old son. The district court concluded that defendant deliberately brought his son to the meeting so that the boy could drive defendant’s car away from the parking lot while defendant drove a motor home containing marijuana. The Second Circuit upheld a § 3B1.4 increase for using or attempting to use a minor to commit an offense. Defendant came to the meeting pursuant to a specific appointment made earlier that day. This supported an inference that the boy’s presence was not coincidental, but deliberate. The single purpose of the meeting was to transfer possession of a motor home containing marijuana from Shaw to defendant. Because defendant was arrested as he attempted to drive this motor home from the meeting site, it was obvious that he needed the assistance of some other person to drive his own car from the scene. Shaw’s testimony indicated that it was never contemplated that he would drive defendant’s car from the scene. The logical conclusion to draw from the fact that defendant had brought his son to the meeting and left the boy in his car when he got in the motor home was that defendant intended his son to drive home. It was irrelevant whether the son knew about defendant’s drug trafficking activities. U.S. v. Gaskin, 364 F.3d 438 (2d Cir. 2004).
2nd Circuit remands for clarification of whether conspirator was recruited prior to 18th birthday. (420) Defendant received a two-level increase for using a minor, Wint, in gun-running activity. See § 3B1.4. Defendant disputed the finding that Wint was a minor when defendant recruited him. Wint stated in his plea allocution that “during 1997 and 1998 I agreed with others to deal in guns.” Wint turned 18 on January 10, 1997. Wint’s PSR said that he “may” have been under the age of 18 when defendant introduced him to gun-running. Because the record was unclear on this matter, the Second Circuit remanded for a clarification of whether Wint was recruited before his 18th birthday. U.S. v. Fuller, 332 F.3d 60 (2d Cir. 2003).
3rd Circuit rules defendant not accountable for co-conspirator’s reasonably foreseeable use of minor. (420) Defendant was part of a criminal enterprise that committed various crimes including robbery, extortion, fraud and drug trafficking. The Third Circuit rejected a § 3B1.4 increase for using a minor. Some affirmative act is necessary beyond mere partnership in order to implicate § 3B1.4. Here, the record did not support a finding that defendant committed an affirmative act beyond mere partnership. The recruitment and direction of the minor were performed by a co-conspirator before defendant became involved in the robbery as “muscle.” Even if the minor did speak to defendant on the telephone on the night of the robbery, this could not be reasonably viewed as taking affirmative steps with respect to the minor’s participation. The panel also ruled that defendant could not be held accountable for a co-conspirator’s reasonably foreseeable use of the minor. The use of a minor enhancement must be based on an individualized determination of each defendant’s culpability U.S. v. Pojilenko, 416 F.3d 243 (3d Cir. 2005).
3rd Circuit holds that increase for use of a minor has no scienter requirement. (420) Guideline § 3B1.4 provides for a two-level enhancement if “the defendant used or attempted a person less than eighteen years of age to commit the offense or assist in avoiding detection of, or apprehension for, the offense.” The district court applied this increase because a minor “sold crack cocaine for [defendant’s] organization.” Defendant argued that § 3B1.4 did not apply because he had no knowledge that his criminal activity involved the use of a minor. The Third Circuit held that § 3B1.4 does not include a scienter requirement. Two sister circuits have come to the same conclusion. See U.S. v. Gonzalez, 262 F.3d 867 (9th Cir. 2001); U.S. v. McClain, 252 F.3d 1279 (11th Cir. 2001). Moreover, the guideline’s unambiguous language does not does not contain a scienter requirement and the court “refuse[d] to find ambiguity where none exists to defeat the plain meaning of the Guidelines.” Applying § 3B1.4 without such a requirement does not violate due process. U.S. v. Thornton, 306 F.3d 1355 (3d Cir. 2002).
3rd Circuit upholds court’s sua sponte raising of possibility of increase for use of a minor. (420) The Third Circuit held that the district court did not err in raising, sua sponte, the possibility of a § 3B1.4 increase for use of a minor. Although the court could not have imposed the adjustment unless the parties had been notified and given an opportunity to brief the issue prior to sentencing, the court gave the parties such notice. The record supported the increase, since defendant stipulated before the district court that his co-conspirator “was not over 18 years of age throughout the course of the conspiracy.” U.S. v. Mackins, 218 F.3d 263 (3d Cir. 2000).
3rd Circuit relies on testimony from another trial to support role in offense. (420) Defendant pled guilty to drug charges. He argued for the first time on appeal that the district court erred in relying on testimony from another trial to support a § 3B1.1 role enhancement. The Third Circuit found no plain error in the court’s reliance on testimony from a separate proceeding. Although a defendant must be given reasonable opportunity to respond to evidence, defendant’s counsel clearly was not surprised by any reference to the testimony. Defense counsel was actually the one who first mentioned it. Counsel was given ample opportunity after the prosecutor’s response to say anything she wished about that testimony. Moreover, defense counsel had ample opportunity after the sentencing hearing to review the testimony and articulate a basis for believing that a continuance would have helped her prepare further for the testimony. U.S. v. Knobloch, 131 F.3d 366 (3d Cir. 1997).
3rd Circuit holds that aggravating role adjustment does not preclude a mitigating role adjustment. (420) Although defendant received an adjustment based upon his managerial role in the offense, he contended that he was also entitled to a mitigating role adjustment which would cancel out the aggravating role adjustment. The 3rd Circuit rejected the government’s contention that it was logically inconsistent for a defendant to receive both adjustments. Nothing in the guidelines or in the enabling legislation compels such a conclusion. Because the district court assumed that defendant’s receipt of the upward adjustment for his role in the offense precluded a downward adjustment, the case was remanded for resentencing. The appellate court did not decide whether defendant would be entitled to such a reduction, however. U.S. v. Tsai, 954 F.2d 155 (3rd Cir. 1992).
4th Circuit approves increase for use of minor. (420) Section 3B1.4 provides for a two-level enhancement if the defendant used or attempted to use a minor to commit the offense. The increase requires more than the minor’s mere presence, and here, the Fourth Circuit upheld the use of the minor enhancement. Defendant leased a trailer that was a drug stash house and formed the hub of a cocaine-dealing conspiracy. Defendant and his minor son lived in the trailer, attended drug deals with two other conspirators, and assisted one of them in the extraction of cocaine base from liquid cocaine. There was also evidence that defendant directed his minor son to pay rent on the trailer. Further, given the evidence that the trailer was filled with large quantities of drugs, money, and firearms, defendant’s act of bringing the minor into the trailer to live instead of leaving him in another location was “an affirmative act that involve[d] the minor in the offense” and constituted more than the minor’s mere presence. U.S. v. Gomez-Jimenez, 750 F.3d 370 (4th Cir. 2014).
4th Circuit upholds Commission’s authority to apply increase for “using minor” to defendants under 21. (420) In the Violent Crime Control and Law Enforcement Act of 1994, Congress directed the Sentencing Commission to promulgate guidelines to provide for a sentence enhancement for “a defendant 21 years of age or older” who involved a minor in the commission of an offense. Guideline § 3B1.4, however, provides for the sentence enhancement for all defendants, including those less than 21 years old. The Fourth Circuit, agreeing with the Seventh Circuit in U.S. v. Ramsey, 237 F.3d 853 (7th Cir. 2001), held that the Sentencing Commission was within its discretion to broaden the category of defendants eligible for the sentence enhancement. The court rejected U.S. v. Butler, 207 F.3d 839 (6th Cir. 2000), which held that the Commission failed to comport with a clear Congressional directive when it eliminated the requirement that the defendant be at least 21 years old to be subject to the enhancement. Because Congress did not direct that only defendants over age 21 receive the sentence enhancement, it actually did not require the Commission to limit § 3B1.4 to defendants of a certain age. The district court here properly found that defendant used a juvenile in the carjacking. Defendant repeatedly directed the juvenile to get into the back seat of the victim’s car, and directed the juvenile to hold the gun on the victim during the high-speed chase with police officers. U.S. v. Murphy, 254 F.3d 511 (4th Cir. 2001).
5th Circuit upholds increase for use of minor for bringing infant daughter on drug trafficking trip. (420) Defendant and his girlfriend made a drug purchase from an informant. While driving with their infant daughter to a nearby town to sell the drugs, they were stopped by police and arrested. The district court applied a § 3B1.4 enhancement for use of a minor, and the Fifth Circuit affirmed. The enhancement applies when a defendant “makes a decision to bring a minor along during the commission of a previously planned crime as a diversionary tactic or in an effort to reduce suspicion….” Although very young children tend to be with their parents, there was evidence that defendant believed the child’s presence in the car would assist in avoiding detection. When defendant was questioned about his whereabouts during the traffic stop, he told officers that he was returning from picking up his child at an apartment in Midland, and denied going to Lubbock, where he had in fact purchased crack cocaine from the informant. The minor’s presence in the car, coupled with defendant’s statements, provided the necessary evidence for applying the § 3B1.4 enhancement. U.S. v. Powell, 732 F.3d 361 (5th Cir. 2013).
5th Circuit approves two-level enhancement for using a minor to commit a crime. (420) Defendant was convicted of cocaine trafficking charges. The district court applied a § 3B1.4 enhancement for use of a minor because defendant and co-conspirator Gutierrez brought Gutierrez’s four-year-old daughter on a drive to Chicago “to give the impression that this was a family outing,” and thus to avoid the detection of the drugs in the truck. The Fifth Circuit held that the district court properly applied the § 3B1.4 enhancement. Even if Gutierrez’s daughter was already in the truck when defendant received it, the district court did not err in concluding that defendant’s’ choosing to drive a truck containing over 20 kilograms of cocaine and a four-year-old girl from Laredo to Chicago constituted an “affirmative act” involving a minor in the offense. U.S. v. Andres, 703 F.3d 828 (5th Cir. 2013).
5th Circuit holds mandate rule did not preclude raising minor role issue at resentencing. (420) Defendants were convicted of engaging in a continuing criminal enterprise (CCE) involving more than 15,000 grams of methamphetamine, and related drug conspiracy charges. The appellate court reversed the convictions of defendants Lewis and Wren on the CCE charge and the leadership enhancements of defendants Griffith and Martin. At resentencing, the district court refused to entertain defendants’ requests for minimal or minor role reductions, finding that the mandate rule precluded them from raising their objections at resentencing. The Fifth Circuit agreed that Griffith’s and Martin’s claim for a minor role reduction were waived by failing to raise it in their initial appeal. The reversal of the leadership enhancement did not “breathe life” into the role reduction questions, because the issues are not mutually exclusive. However, district court erroneously concluded that the mandate rule precluded Lewis and Wren from requesting minor role reductions for their alleged limited participation in the conspiracy. The sentencing court originally ordered no sentence for Lewis and Wren’s conspiracy conviction, because conspiracy is a lesser included offense of CCE. Thus, Lewis and Wren had no reason to argue for a minor role reduction because at the time of their conviction they were not facing a sentence on the conspiracy count. U.S. v. Griffith, 522 F.3d 607 (5th Cir. 2008).
5th Circuit rejects use of minor increase where girlfriend was simply present during drug transactions. (420) Defendant’s 17-year old girlfriend knew of defendant’s drug business and went with him on some of his drug runs. The Fifth Circuit held that the minor’s presence and knowledge of defendant’s drug trafficking was not sufficient to constitute use of a minor under § 3B1.4. There was no evidence of anything more than the girlfriend’s presence while unlawful activity occurred. She and her child were present at defendant’s residence when the search warrant was executed, she knew about the presence of the drugs and certain aspects of the drug operation, she went with defendant a couple of times to pick up marijuana, and one of the co-conspirators drove her back and forth to Corpus Christi. However, there was no evidence that she assisted in carrying or loading drugs, that she ever drove defendant or his co-conspirators on the drug runs, or that defendant believed his girlfriend’s presence during a drug run would assist in avoiding detection. Defendant’s girlfriend lived in Corpus Christi, so it was quite possible that she used defendant and his co-conspirators merely to transport her between her residence in Corpus Christi and defendant’s residence in Austin. U.S. v. Molina, 469 F.3d 408 (5th Cir. 2006).
6th Circuit holds that defendant used a minor in robbery and carjacking. (420) Defendant pled guilty to being a felon in possession, carjacking, and use of firearms. The district court applied a § 3B1.4 enhancement, finding that defendant used a minor to facilitate an armed robbery and carjacking outside a liquor store. Defendant gave the minor a phone and instructed him to act like he was talking on the phone and to initiate a conversation or contact with the first person who came up. The minor followed these instructions pretending to talk on the phone and asking the first passerby if he had change. Then, as that person left the store, defendant robbed him at gunpoint, and defendant and the minor fled the scene in the victim’s car. The Sixth Circuit affirmed the enhancement. Defendant took affirmative acts to involve a minor in the crime. His conduct qualified as “directing, commanding, encouraging, … counseling, [or] training” the minor for the offense. Note 1 to § 3B1.4. It did not matter whether the minor contributed to the planning of the crime. U.S. v. Yancy, 725 F.3d 596 (6th Cir. 2013).
6th Circuit holds that “using” a minor requires affirmative act beyond acting as partner. (420) Guideline § 3B1.4 provides for a two-level enhancement if the defendant “used or attempted to use” a minor “to commit the offense, or assist in avoiding detection of, or apprehension for, the offense.” Defendant and a minor robbed a bank. He argued that a § 3B1.4 enhancement was improper since there was no proof that he used or attempted to use the minor during the robbery. The Sixth Circuit held that “using” a minor to carry out criminal activity requires affirmative steps to involve a minor. Thus, “using” a minor entails more than being the equal partner of that minor in committing the crime. The district court incorrectly applied § 3B1.4, finding only that defendant and the minor were partners in crime who worked together to rob the bank. The court failed to find that defendant acted affirmatively to involve the minor beyond merely acting as his partner. U.S. v. Butler, 207 F.3d 839 (6th Cir. 2000).
6th Circuit upholds validity of enhancement for using minor in offense, despite removal of age limit. (420) Section 14008 of the Violent Crime Control and Law Enforcement Act of 1994 directs the Sentencing Commission to promulgate a guideline enhancement for a defendant 21 years of age or older who involves a minor in the commission of an offense. In response, the Sentencing Commission promulgated USSG § 3B1.4, which provides for a two-level enhancement if the defendant used a minor to commit the offense. The guideline does not contain the age restriction in § 14008. The Sixth Circuit held that the enactment of § 3B1.4 was valid and the Sentencing Commission did not overstep its authority in removing the age restriction. The Sentencing Commission submitted Amendment 527, which contained § 3B1.4, to Congress on May 1, 1995, and specified an effective date of November 1, 1995. The Commission expressly stated that Amendment 527 implemented the directive of § 14008 “in a slightly broader form.” Congress considered and rejected some of the May 1, 1995 amendments, but did not modify or disapprove of Amendment 527. By failing to modify or disapprove of Amendment 527 even when notified that it was different from § 14008, Congress, in effect, approved Amendment 527 as an appropriate reflection of its sentencing policy. U.S. v. Butler, 207 F.3d 839 (6th Cir. 2000).
7th Circuit says increase for police officer’s use of body armor and abuse of trust were not double counting. (420) Defendant, a police officer, was involved in a corruption scheme between drug dealers and cops. Section 3B1.5(2) provides for a two-level enhancement if the offense involved the use of body armor, and a four-level enhancement if the defendant used body armor during the offense. Defendant admitted that he wore his bulletproof vest during a home invasion to steal drugs and money from a rival drug dealer’s home. The Seventh Circuit held that the district court correctly applied the four-level enhancement for using body armor during the offense. The application of the body armor enhancement and an enhancement for abuse of trust under § 3B1.3 was not improper double counting. The district court rejected defendant’s argument that he used body armor only to make it look like he was a legitimate officer engaged in legitimate law enforcement. The court drew the reasonable inference that the body armor was being used for its primary purpose – protection. U.S. v. Haynes, 582 F.3d 686 (7th Cir. 2009), abrogated as to double counting by U.S.v. Vizcarra, 668 F.3d 516 (7th Cir. 2012).
7th Circuit holds that use of a minor enhancement only applies where defendant’s affirmative act involves minor in crime. (420) Defendant was a member of a gang that distributed powder and crack conspiracy. She knew that two minors sold cocaine for the gang, but her personal involvement with them was limited. The district court applied a two-level enhancement under § 3B1.4 for using a minor in the offense. The Seventh Circuit reversed, holding that a defendant uses a minor in the commission of his crime if his affirmative actions involved minors in his criminal activities. The panel rejected the position of some circuits that the enhancement applies where a defendant could reasonably foresee a co-conspirator’s use of a minor. Such liability makes no sense in the context of the individualized enhancements set out in § 3B of the guidelines, which seek to punish the particular behavior of individual members of a conspiracy. Since defendant did not personally “use” a minor in committing the offense, the enhancement was improper. U.S. v. Acosta, 474 F.3d 999 (7th Cir. 2007).
7th Circuit holds that scienter is not required for use of minor enhancement. (420) Defendant pled guilty to bank robbery. The district court applied a § 3B1.4 increase for use of a minor based on a 16-year old girl, the girlfriend of his accomplice, who accompanied them on the robbery. The Seventh Circuit held that the evidence supported the enhancement, and scienter was not required. The robbers had discussed the minor going with them because they thought that if the car had a girl and a guy in it would help them evade police. After defendant robbed the bank, the minor help him climb into the trunk of the car, and after the dye pack exploded, she helped defendant dispose of the bag. Later she helped the robbers count the money. The § 3B1.4 enhancement did not require defendant to know that the girl was a minor. A scienter element would frustrate the purpose of § 3B1.4, which is to protect minors from being used to commit crimes. U.S. v. Brazinskas, 458 F.3d 666 (7th Cir. 2006).
7th Circuit applies increase for using a minor to commit a crime. (420) Three high school students, one of whom was a minor, cut school and committed two robberies. They stole numerous weapons, and took the stolen items to defendant’s home so that he could fence them. Defendant had previously told the boys, while the minor was present, that he could unload stolen property through a connection in Chicago. Defendant was convicted of being a felon in possession of firearms and receiving stolen firearms. The Seventh Circuit upheld a § 3B1.4 increase for using a minor to commit a crime. Whether or not defendant knew that the minor was coming to his home to deliver the stolen guns was not relevant. Defendant’s criminal activity began, and was completed, once the minor and the others arrived at defendant’s home with the guns and defendant took possession of them. In doing so, defendant clearly “used” the minor. The minor testified that he helped defendant and the other two boys carry the guns into defendant’s apartment. Also, defendant’s “use” of the minor extended to events both before and after the moment he took possession of the guns. The minor was present at conversations that took place before the burglary, and defendant encouraged the minor and others to leave the guns in his possession so that he could sell them. This evidence created a clear picture that the minor was either a subordinate or a partner in the deal. U.S. v. Hodges, 315 F.3d 794 (7th Cir. 2003).
7th Circuit says § 3B1.4 does not require defendant to use minor to shield himself from prosecution. (420) The district court found that defendants used a minor to commit the drug offense. For example, during controlled purchases with undercover DEA agents, defendants told the minor to quote certain prices to the agents. However, the court also found that § 3B1.4 did not apply because defendants did not use the minor to shield themselves from prosecution. The application notes to § 3B1.4 stated that using a minor includes “directing, commanding, encouraging, intimidating, counseling, training, procuring, recruiting, or soliciting” the minor. The Seventh Circuit held that § 3B1.4 does not require the government to prove that the defendants intended to use the minor to shield themselves from prosecution in order for § 3B1.4 to apply. The plain language of § 3B1.4 does not support this interpretation. Moreover, such a holding would require a finding that the defendant had actual knowledge that the person he used to commit his offense was a minor. However, two other courts have held that § 3B1.4 does not require such actual knowledge. U.S. v. Ceballos, 302 F.3d 679 (7th Cir. 2002).
7th Circuit holds that bank manager used minor teller in embezzlement scheme. (420) Defendant, the assistant branch manager of a bank, embezzled money from customer accounts. While at the bank, defendant also supervised a number of bank tellers, including one 17-year old teller. The Seventh Circuit affirmed a § 3B1.4 enhancement for using a minor to commit the offense. Section 3B1.4 focuses on whether the defendant used a minor in the commission of a crime, not on whether the minor knew that he was being used to commit a crime. U.S. v. Ramsey, 237 F.3d 853 (7th Cir. 2001). Here, defendant used the 17-year old teller to make three of 15 withdrawals from one customer account and one of two additional withdrawals from another account. The minor’s teller identification number accompanied each of these withdrawals. Although the teller did not specifically remember these specific withdrawals, she testified that she often made such withdrawals for defendant in her role as a teller. U.S. v. Anderson, 259 F.3d 853 (7th Cir. 2001).
7th Circuit upholds increase for using minor son in drug offense. (420) The district court applied a § 3B1.4 increase for defendant’s use of a minor in his drug offense. Defendant’s son unloaded marijuana from the van, weighed quantities of marijuana in the residence, and retrieved money to pay the co-conspirators. Defendant claimed that he took no affirmative act to involve his son in the commission of the offense, and that any action by his son, such as unloading the marijuana from the van, were done at his son’s own initiative. The Seventh Circuit affirmed the increase, noting that defendant’s claims were contradicted by the testimony of co-conspirators, which the district court credited. Although defendant argued that the testimony was inconsistent and was obtained pursuant to incentives in the co-conspirators’ plea agreement, the district court recognized the shortcomings in the testimony. The testimony was bolstered by the son’s actions in helping to unload the van in his father’s presence. If defendant did not want his son aiding in the offense, he could have told him to stop. His failure to do so provided some corroboration for the witness’s testimony that defendant sought his son’s help. U.S. v. Rivera, 248 F.3d 677 (7th Cir. 2001).
7th Circuit holds that defendant “used” minor in drug transaction. (420) Section 3B1.4 provides for a two-level increase if “the defendant used or attempted to use a person less than eighteen years of age to commit the offense.” Note 1 says that “used or attempted to use” includes directing, commanding, encouraging, intimidating, counseling, training, procuring, recruiting, or soliciting. In the Seventh Circuit, this test can be met when the minor is a partner in the criminal offense. See U.S. v. Benjamin, 116 F.3d 1204 (7th Cir. 1997), as well as when the minor’s role in subordinate to that of the defendant. The Seventh Circuit agreed with the district court’s conclusion that § 3B1.4 was applicable to defendant. Defendant made the initial contact with the confidential source, and then recruited his 16-year old brother into the commission of the crime by asking him to supply the additional crack cocaine needed to complete the sale. During the transaction, defendant made all the arrangements with the undercover agent, and did all of the talking. The brother was called over by defendant only after the final arrangements were made. At that time, defendant directed his brother to show the agent the crack cocaine. The brother complied, gave the crack to the agent, and accepted the agent’s money. U.S. v. Ramsey, 237 F.3d 853 (7th Cir. 2001).
7th Circuit says enhancement for using minor may be applied to defendants under age 21. (420) In the Violent Crime Control and Law Enforcement Act of 1994, Congress directed the Sentencing Commission to promulgate guidelines to provide that defendants 21 years of age or older “shall receive an appropriate sentence enhancement if the defendant involved a minor in the commission of the offense.” Pub.L. No. 103-22, § 140008. In response, the Commission promulgated § 3B1.4, which eliminated the requirement that the defendant be at least 21 to be subject to the enhancement. Thus, in U.S. v. Butler, 207 F.3d 839 (6th Cir. 2000), the Sixth Circuit found § 3B1.4 inapplicable to defendants under the age of 21. The Seventh Circuit rejected Butler and upheld the validity of § 3B1.4 as written, finding the Sentencing Commission exercised reasonable discretion in promulgating a guideline that reaches defendants under age 21. The issue was whether the Commission obeyed the specific directive of Congress. Here, the Commission promulgated a guideline that encompassed the directive of Congress, but expanded the provision to encompass a greater number of defendants. It is within the Commission’s statutory mandate to legislate more broadly than Congress. See U.S. v. Lauer, 148 F.3d 766 (7th Cir. 1998). As long as the Commission’s guideline is not “at odds” with the congressional directive, the Commission has discretion to enlarge the category of defendants to whom an enhancement will apply. U.S. v. Ramsey, 237 F.3d 853 (7th Cir. 2001).
7th Circuit agrees that doctor “used” minor patients in insurance fraud scheme. (420) Defendant, a medical doctor, involved as many as 130 patients in a complicated scheme to defraud insurance companies by charging for services he did not provide. Two of the counts of conviction involved false insurance claims filed on behalf of a minor, and defendant admitted that he treated many minors in his clinic. However, he contended that the role of the minor patients was too minimal or unintentional to justify a § 3B1.4 increase for using a minor in the offense. Defendant treated a 16-year old girl for injuries she suffered in a car accident. As part of the treatment, defendant directed the girl to sign the attendance sheet fraudulently to inflate the number of visits she paid to defendant. Defendant’s bill to the insurer showed 49 visits, but the girl said she actually made only eight or ten. Defendant also treated a 9-year old girl and her 7-year old sister for injuries suffered in a car accident. The sisters only visited defendant one or two times, but he directed both girls to falsify an attendance sheet 11 times. The Seventh Circuit ruled that defendant’s direction to falsify attendance records involved these minors and constituted the “use” of minors under § 3B1.4. U.S. v. Vivit, 214 F.3d 908 (7th Cir. 2000).
7th Circuit holds that grouped mail fraud convictions are straddle offense for ex post facto purposes. (420) Defendant argued that a § 3D1.4 increase for using minors in his insurance fraud scheme violated the ex post facto clause, since all the fraudulent mailings involving minors were completed before the enactment of § 3B1.4. When a defendant commits crimes that straddle the date of promulgation of a new guideline, the defendant can be punished under the new guideline without violating the ex post facto clause. In U.S. v. Barger, 178 F.3d 844 (7th Cir. 1999), the court held that a series of mail frauds was not a straddle offense, because each was completed at the time of the mailing. The Seventh Circuit held that a series of mail fraud convictions that are grouped may be considered to straddle a revision without a presumptive ex post facto violation because of the criminal’s prior notice of the grouping rules. Thus, Barger was distinguishable because it did not involve mail fraud convictions that were grouped together under § 3D1.2. In the present case, because the district court found the conduct committed by defendant similar enough for § 3D1.2(d) grouping to apply, defendant’s actions constituted a continuing offense that straddled the promulgation of § 3D1.4. U.S. v. Vivit, 214 F.3d 908 (7th Cir. 2000).
7th Circuit applies enhancement for using a minor to commit crime. (420) Defendant challenged a § 3B1.4 enhancement for using a minor to commit a crime. She contended that under U.S. v. Porter, 145 F.3d 897 (7th Cir. 1998), a district court may only enhance a sentence for use of a minor if the court finds that the defendant is responsible for involving the minor in the crime, the defendant occupied a position of trust, and the minor’s involvement in the crime was unwitting. The Seventh Circuit found Porter inapplicable, because the case was not about the § 3B1.4 enhancement (which was not in effect at the time), but about the propriety of departing upward to account for the use of a minor. Porter did not address what it means to “use” a minor to commit a crime. In the present case, a wiretap intercepted two phone calls in which defendant placed an order for crack with a 14-year old, and requested that he deliver the drugs to her home. The fact that the minor was a high-ranking, salaried member of the organization was irrelevant. U.S. v. Brack, 188 F.3d 748 (7th Cir. 1999).
7th Circuit rules court was mistaken in believing it could not depart for level of participation in crime. (420) Defendant was convicted of drug charges. The judge said he was troubled by having to sentence defendant to ten years in prison, and that he would depart if he could depart. Defendant was 21 years old, had no criminal record, was not the principal offender and had made efforts to better himself before committing the crime. The Seventh Circuit held that the district court’s conclusion that it could not depart based on defendant’s level of participation was erroneous. Judges are discouraged from considering age, education and employment history unless the defendant’s case is “exceptional.” Defendant did not provide any evidence that his case met this definition. However, a defendant’s level of participation is an encouraged factor. However, if the encouraged factor is already taken into account by a role adjustment under § 3B1.2, the court should only depart if the factor is present to an exceptional degree. If the court chooses not to use § 3B1.2, it is inappropriate to rely on § 5H1.7 for a downward departure. Here, the probation officer did not recommend a role reduction, and the district court adopted the PSR’s findings without objection from defense counsel. U.S. v. Sewell, 159 F.3d 275 (7th Cir. 1998).
7th Circuit finds no double counting in increases for role and more than minimal planning. (420) Defendant argued that increases for aggravating role under § 3B1.1(a) and more than minimal planning constituted impermissible double counting. The Seventh Circuit disagreed, observing that it rejected the same argument in U.S. v. Michalek, 54 F.3d 325 (7th Cir. 1995). Almost every circuit has reached the same conclusion. Moreover, note 4 to § 1B1.1 states that absent an instruction to the contrary, the adjustments from different guideline sections are applied cumulatively. The note lists the § 2F1.1(b)(2) more than minimal planning enhancement and the § 3B1.1 aggravating role adjustments as provisions to be applied cumulatively. U.S. v. Porretta, 116 F.3d 296 (7th Cir. 1997).
7th Circuit focuses on conviction offense in extortion case. (420) Defendant was convicted of collecting a loan by extortionate means. The 7th Circuit held that the appropriateness of adjusting defendant’s sentence for role in the offense turned on how many persons participated in defendant’s offense of conviction, not in the defendant’s larger scheme to collect other loans by extortionate means. Though the court noted that a 1990 amendment to the commentary to 3B1.1 sought to reverse previous constructions of that guideline as focusing solely on the offense of conviction, the court viewed that amendment as making no difference on the facts of the case. Other acts that are part of the same course of conduct are included as relevant conduct under 1B1.3(a)(2) only when the offenses would be grouped under 3D1.2(d). Since defendant’s offense did not fit that category, 1B1.3(a)(1) dictated consideration of only defendant’s offense of conviction and acts occurring in preparation for that offense. Factual similarity does not constitute “preparation” for an offense. U.S. v. Tai, 994 F.2d 1204 (7th Cir. 1993).
8th Circuit applies body armor increase for defendant who wore bulletproof vest to party with friends. (420) Defendant pled guilty to possession of a firearm after a prior conviction for a misdemeanor crime of domestic violence. Section 3B1.5 provides for a four-level enhancement if (1) the defendant was convicted of a drug trafficking crime or a crime of violence, and (2) used body armor during the offense, in preparation for the offense, or in an attempt to avoid apprehension for the offense. “Use” is defined as “active employment in a manner to protect the person from gunfire.” Defendant argued that he did not “use” body armor because he simply wore a bulletproof vest while attending a party with his friends. The Eighth Circuit upheld the increase. Defendant wore the vest throughout the evening, wearing it while distributing methamphetamine to his friends and while threatening his “friends” with a gun. And, finally, the vest provided personal security when he shot one of his “friends.” Defendant’s claim that he wore the vest merely as a fashion statement to celebrate his 21st birthday was meritless. U.S. v. Barrett, 552 F.3d 724 (8th Cir. 2009).
8th Circuit upholds use of minor increase where co-conspirator used juvenile to sell drugs and hold money. (420) Defendant was convicted of multiple drug and gun crimes in connection with the operation of a drug trafficking business on a South Dakota Indian reservation. The Eighth Circuit upheld a two-level enhancement under §3B1.4 for use of a minor. The district court found it was reasonably foreseeable to defendant that other co-conspirators were using a certain child to sell drugs, to hold money, and to do other acts on behalf of the conspiracy. The court further found that defendant had directly sold drugs to that child. Later, the district judge explained that a co-conspirator managed to elude detection by storing her drugs in places where they would not be found and hiding them with the juvenile. U.S. v. Spotted Elk, 548 F.3d 641 (8th Cir. 2008).
8th Circuit applies use of a minor increase to defendant who convinced minor to take nude pictures of herself. (420) Defendant was convicted of child pornography and sexual exploitation charges arising from his communications with a 13-year old girl, whom he persuaded to mail him naked photographs of herself. The Eighth Circuit affirmed a § 3B1.4 increase for the use of a minor in the commission of the offense. Defendant encouraged the girl to take the pictures of herself in his letter, directed her about how to position herself as she was taking the pictures, and instructed her to mail the photos to him. He also solicited the assistance of the girl’s minor friends by mailing them packages to deliver to the girl, and then instructed the girl to conceal the crime by refusing to speak to the police. U.S. v. Mentzos, 462 F.3d 830 (8th Cir. 2006).
8th Circuit upholds increase for use of a minor. (420) Defendant directed his girlfriend and Sanders, his nephew, to buy pseudoephedrine pills from local drug stores so that they could be used to produce methamphetamine. The district court applied a two-level enhancement under § 3B1.4 for using a minor because it concluded that defendant was directing Downs, who was 16 throughout the charged conspiracy. On several occasions, Downs drove Sanders to stores to buy the pills, and Downs occasionally purchased the pills himself. At the time of his arrest, Downs told police that he was buying pseudoephedrine for defendant, and that he understood the pills would be used by defendant to trade for meth. He also testified that if he was ever caught, defendant instructed him to blame it on a different conspirator. The Eighth Circuit affirmed the increase. It was reasonably foreseeable to defendant that Sanders would have interacted with Downs. In fact, defendant personally instructed Downs to implicate another person if he was arrested, thus confirming defendant’s knowledge that Downs was involved in the joint criminal activity. Defendant was not required to know that Downs was under the age of 18. U.S. v. Voegtlin, 437 F.3d 741 (8th Cir. 2006).
8th Circuit applies use of minor enhancement to 19-year old defendant. (420) Defendant, who was 19 years old when the relevant offense occurred, involved his 17-year old girlfriend in a drug offense. Guideline § 3B1.4 provides for a two-level enhancement for all defendants who “used or attempted to use a person less than eighteen years of age to commit the offense.” In U.S. v. Wingate, 369 F.3d 1028 (8th Cir. 2004), the court held that the wording of the enhancement was not contrary to Congress’s directive to promulgate an enhancement for defendants “21 years or age or older” who “involved a minor in the commission of the offense.” Because there is no language in the congressional directive limiting the enhancement to only those defendants who are 21 years and older, and because all defendant 21 years and older who use a minor to commit an offense will receive the § 3B1.2 enhancement, the court concluded that the guideline promulgated by the Sentencing Commission was not contrary to Congress’s directive. Therefore, the Eighth Circuit rejected defendant’s argument that the § 3B1.4 enhancement was improperly applied to him. U.S. v. Harris, 390 F.3d 572 (8th Cir. 2004).
8th Circuit applies enhancement for using minor despite inaudible tape. (420) Two undercover officers at a truck stop arranged to purchase ephedrine tablets from defendant, who was with his eight-year old daughter. When the officers refused to pay the money until defendant brought the drugs from his nearby supplier, defendant suggested that he leave his daughter with the officers in the truck stop restaurant so they could give him the money in advance and be certain he would return with the drugs. The officers refused. However, based on this suggestion, the district court applied a § 3B1.4 enhancement for attempting to use a minor to commit the offense. Defendant argued that he did not make such a suggestion, noting it could not be heard on the government’s audio tape of the conversation. However, both officers testified that portions of the tape were inaudible due to background noise from nearby highway traffic. One officer testified unequivocally that defendant offered to leave his daughter in the restaurant while he took the money to get drugs, and identified the point on the tape when this inaudible statement occurred. The Eighth Circuit ruled that the district court’s finding that defendant offered to leave his daughter with the officers was not clearly erroneous. The tape did not establish whether the alleged suggestion was never made, or was merely inaudible. U.S. v. Warner, 204 F.3d 799 (8th Cir. 2000).
8th Circuit applies enhancement for encouraging minors to participate in cross burning. (420) Defendant and his brother conspired to violate civil rights by burning a cross in the front yard of a family that they mistakenly believed were African American. The Eighth Circuit upheld a § 3B1.4 enhancement for encouraging minors to participate in the cross burning. Defendant gave a speech about “white power” at the fire station shortly before the cross burning. Minors were present during this speech. When a group of boys attempted to leave the fire station, defendant threw a beer can at them and joined in calling the boys insulting names. U.S. v. Pospisil, 186 F.3d 1023 (8th Cir. 1999).
9th Circuit reverses use-of-minor enhancement for insufficient evidence. (420) Under § 3B1.4, a district court must enhance a defendant’s sentence by two levels if the defendant used a minor in the commission of the offense. Evidence at trial and sentencing showed that the minor turned 18 during the conspiracy, and defendant argued that she was only using drugs prior to her eighteenth birthday and that she did not start selling drugs for the conspiracy until she turned 18. The district court imposed the enhancement but did not supply supporting information. The Ninth Circuit held that unsupported statements in the presentence report did not justify the enhancement and that the evidence was insufficient to support the enhancement. U.S. v. Flores, 729 F.3d 910 (9th Cir. 2013).
9th Circuit affirms recruiting minors enhancement. (420) Guideline § 3B1.4 provides for a two-level enhancement if defendant used or attempted to use a minor to commit the offense. As founders and leaders of a neo-Nazi group, defendants recruited minors because minors were less likely to suffer severe penalties for criminal acts. Defendants urged minors to go out and cause trouble and to beat up minorities. Defendants were convicted of conspiracy to violate others’ civil rights and with violating the civil rights of Hispanics visiting a public park by harassing and threatening them. Minors associated with defendants’ gang participated in the park incident. The Ninth Circuit upheld an enhancement under § 3B1.4 for defendants, finding that the evidence showed that defendants encouraged the minors to take part in the park incident. U.S. v. Allen, 341 F.3d 870 (9th Cir. 2003).
9th Circuit finds use of child as “window dressing” insufficient for enhancement for use of minor. (420) Defendant attempted to drive a load of marijuana across the border at 1:45 a.m. Her 11-year-old son was a passenger in the front seat of the car. At sentencing, the district court found that she had used a minor during the commission of the offense within the meaning of § 3B1.4 by using her son “window dressing” to avoid detection. The Ninth Circuit reversed the enhancement, finding no evidence that defendant “acted affirmatively” to involve her son in the offense or that he would not have been with her if she were not trying to smuggle drugs. U.S. v. Jimenez, 300 F.3d 1166 (9th Cir. 2002).
9th Circuit finds no double counting in role increase for ungrouped money laundering and fraud offenses. (420) Defendant was convicted of money laundering and fraud. At sentencing, the district court, refused to “group” the counts, following then-binding Ninth Circuit law. Although the district court found that there was “no question” that defendant was a leader of both the money laundering and fraud offenses, it found that applying the role enhancement to both the money laundering and fraud counts would be improper double counting. The Ninth Circuit held that under the 2001 guidelines amendments, the district court should group the fraud and money laundering counts only if it found that the laundered funds were the proceeds of the fraud. It held, however, that if the district court did not group the money laundering and fraud counts, it would not constitute impermissible double counting to apply a role-in-the-offense enhancement to both counts. U.S. v. Martin, 278 F.3d 988 (9th Cir. 2002).
9th Circuit says enhancement for use of minor does not require knowledge of minor’s age (420) Section 3B1.4 provides for a two-level enhancement if defendant “used or attempted to use a person less than eighteen years of age to commit the offense or assist in avoiding detection of, or apprehension for, the offense.” The Ninth Circuit held that a defendant need not know the age of the person she enlists to assist in the commission of the offense in order to receive an enhancement under this provision. U.S. v. Gonzalez, 262 F.3d 867 (9th Cir. 2001).
9th Circuit holds enhancements for management role, using minor are not double counting (420) Defendant received an enhancement under § 3B1.4 for using a minor in the commission of an offense and another enhancement under § 3B1.1(c) for being a leader or organizer of the offense based on her recruitment of the minor. The Ninth Circuit held that each enhancement accounted for a different kind of harm and thus imposition of both enhancements was not impermissible double counting. U.S. v. Gonzalez, 262 F.3d 867 (9th Cir. 2001).
9th Circuit says using minor as decoy supports increase under § 3B1.4 (420) Section 3B1.4 provides for a two-level offense level enhancement if defendant used a minor to commit or avoid detection of an offense. Defendant had his three-year-old son in the car when he drove across the border with 46 kilograms of marijuana. The son was usually with defendant’s mother-in-law at that time of day, and there was evidence that defendant had picked up his son shortly before the border crossing. The Ninth Circuit upheld the § 3B1.4 enhancement, ruling that § 3B1.4 does not require proof that the minor was actively employed or involved in the offense. There was sufficient evidence that defendant used his son to deflect suspicion when he crossed the border. U.S. v. Castro-Hernandez, 258 F.3d 1057 (9th Cir. 2001).
9th Circuit says defendant must act affirmatively to involve minor for “use of a minor” adjustment. (420) One of defendant’s co-participants in bank robbery was a minor, and the court adjusted defendant’s sentence upward for use of a minor to commit a crime, pursuant to USSG § 3B1.4. Note 1 defines “use” as “directly commanding, encouraging, intimidating, counseling, training, procuring, recruiting, or soliciting” the minor to commit the offense. The Ninth Circuit declined to follow the Seventh Circuit’s decision in U.S. v. Butler, 207 F.3d 839, 848 (6th Cir. 2000), which found that mere participation with a minor merits the adjustment. Instead, the panel reversed the adjustment where the defendant participated with a minor in the offense, but there was no evidence that he had acted affirmatively to involve the minor in the offense. U.S. v. Parker, 241 F.3d 1114 (9th Cir. 2001).
9th Circuit says drug courier’s role must be evaluated in relation to supplier and distributor. (420) The circuits are divided over whether a drug courier is eligible for a role reduction. See generally, Comment, Timothy B. Tobin, Drug Couriers: A Call for Action by the U.S. Sentencing Commission, 7 Geo. Mason L. Rev. 1055 (1999). In U.S. v. Klimavicius-Viloria, 144 F.3d 1249, 1267 (9th Cir. 1998), the Ninth Circuit held that in determining whether defendant is eligible for a role reduction, “[t]he relevant comparison is between the defendant’s conduct and that of the other participants in the same offense,” not some hypothetical “average participant” in the type of crime involved. Applying this rule to drug couriers, the Ninth Circuit held that the district court must consider all “participants” in the scheme. Thus, in the present case, if the district court found sufficient evidence of the “existence and participation in the overall scheme” of the “alleged Los Angeles supplier and the Reno distributor,” it should have considered that evidence when evaluating the defendant’s role in the offense. The sentence was vacated and remanded for new findings. U.S. v. Rojas-Millan, 234 F.3d 464 (9th Cir. 2000).
9th Circuit says failure to resolve factual disputes over role “infected” loss determination. (420) The Ninth Circuit held that the district court’s failure to comply with Rule 32(c)(1), Fed. R. Crim. P. in finding that defendant had a managerial or supervisory role “infected” its conclusion that she should be held accountable for a loss of over $1,500,000 in the conspiracy to counterfeit fraudulent securities. “A minor participant is not held responsible, for sentencing purposes, for the criminal acts of others after the minor participant has been taken into custody.” By contrast, “a managerial or supervising participant may be held accountable for transactions occurring after arrest.” Because the district court did not comply with Rule 32, the sentence was vacated and the case was remanded for resentencing. U.S. v. Carter, 219 F.3d 863 (9th Cir. 2000).
9th Circuit uses information from proffer session to deny safety valve and role. (420) The proffer agreement permitted the government to use information “to rebut any evidence offered by [defendant] in connection with . . . sentencing.” At sentencing, defendant did not introduce new “evidence” but he did rely on his own written statement about the offense of conviction that he provided to the probation officer that was part of the presentence report. The government countered with information that defendant had disclosed¾and what he hadn’t disclosed¾during the proffer session. The Ninth Circuit agreed with the district court that the government’s response was within the scope of the proffer agreement, because defendant’s statement was “evidence” which the government could “rebut” by showing that it was not a full and truthful disclosure of all information had concerning the offenses that were part of the same course of conduct. U.S. v. Miller, 151 F.3d 957 (9th Cir. 1998).
9th Circuit subtracts for role before applying acceptance of responsibility guideline. (420) In the plea agreement, the government agreed that the base offense level was 16 and that two levels should be deducted for role in the offense and three levels for acceptance of responsibility. At sentencing, however, the district court deducted the two levels for minor role under guideline § 3B1.2, making the offense level 14, before considering acceptance of responsibility. Section 3E1.1(b) permits the third level deduction for acceptance of responsibility only if the offense level before applying § 3E1.1 is “level 16 or greater.” Accordingly, the district court deducted only two levels for acceptance of responsibility. On appeal, the Ninth Circuit affirmed. The court noted that the plea agreement explicitly provided that the court was not bound by what the government said in the plea agreement. The district court “properly followed the directions of the sentencing guidelines, deducting the role points before turning to the provision for acceptance of responsibility. U.S. v. Flinn, 18 F.3d 826, 831 (10th Cir. 1994).” [Ed. note: section 1B1.1 expressly provides that the role adjustment is to be applied before the adjustment for acceptance of responsibility.] U.S. v. Sanchez-Anaya, 143 F.3d 480 (9th Cir. 1998).
9th Circuit upholds supervisory role based on relevant conduct in environmental crime. (420) Defendant was licensed to clean up environmental contamination from leaking underground gasoline storage tanks. He submitted false test reports, some from labs that did not exist, others forged on legitimate laboratory letterhead. He also directed his employees to take samples from areas that would show sites to be free from contamination, when they were not. In one case, he directed his employees to drain contaminated water from holding tanks directly into the storm sewers during the night without sampling, testing or obtaining a permit. He pleaded guilty to submitting false reports in violation of 18 U.S.C. § 1001 and his sentence was increased by two levels under guideline § 3B1.1(c) for his role in supervising his employees. On appeal, the Ninth Circuit affirmed the supervisory role enhancement. Even though the employees did not participate in the crime charged—submitting false statements—the district court properly considered his supervisory role over others in the “relevant conduct.” Moreover the district court specifically found the employees were knowing participants who knew that their conduct was unlawful. U.S. v. Cyphers, 130 F.3d 1361 (9th Cir. 1997).
9th Circuit says defendant’s minimal role claim did not preserve minor role issue. (420) In the district court, defendant asked for a four-level reduction based on his allegedly minimal role in the offense. The district court found that his participation was not minimal. On appeal, he argued for the first time that his role was minor, so that he should have been given a two-level reduction. The Ninth Circuit relied on U.S. v. Flores-Payon, 942 F.2d 556, 558 (9th Cir. 1991) to hold that defendant waived any claim that his role in the offense was minor when he did not request a reduction for minor participation in the district court. U.S. v. Ortland, 109 F.3d 539 (9th Cir. 1997).
9th Circuit remands for failure to discuss defendant’s requests for adjustments. (420) Without discussing defendant St. Clair’s requests for adjustments for acceptance of responsibility and role in the offense, the district court simply gave him the sentence recommended by the presentence report. The Ninth Circuit remanded with instructions to make specific findings as to whether St. Clair was entitled to those adjustments. The appellate court noted that prior cases require the district court to make clear on the record its resolution of all disputed matters. Defendant specifically objected to the presentence report and raised these issues in his sentencing argument. It was insufficient for the district court simply to rely on the presentence report. U.S. v. Ing, 70 F.3d 553 (9th Cir. 1995).
9th Circuit says role in offense is reviewed on appeal for clear error. (420) The Ninth Circuit reviews the trial court’s factual finding regarding defendants role in the offense for clear error. Without discussing the facts in this case, the court simply stated that under this standard, the defendant here “cannot prevail.” In a footnote, the court noted that the “mere fact that the government agents may have played managerial roles” did not help defendant, because “[t]here can, of course, be more than one person who qualifies as a leader or organizer of a criminal association or conspiracy.” U.S. v. Manarite, 44 F.3d 1407 (9th Cir. 1995).
9th Circuit says career offender is not entitled to “minor role” adjustment. (420) When the Sentencing Commission amended the career offender guideline, §4B1.1, on November 1, 1989 to allow an adjustment for acceptance of responsibility, it declined to authorize an additional adjustment for the defendant’s role in the offense. Accordingly, the 9th Circuit held that allowing such an adjustment without an express authorization would conflict with Congress’s intent, as expressed in 28 U.S.C. §994(h), that career offenders receive a sentence “at or near the maximum term authorized by statute.” U.S. v. McCoy, 23 F.3d 216 (9th Cir. 1994).
9th Circuit upholds departure in steroids case based on quantity and scope but reverses for improper reliance on role. (420) The steroid guideline, § 2N2.1, contained no distinctions based on quantity. Accordingly the 9th Circuit held that it was proper for the district court to consider the large quantity of steroids distributed in departing upward. Similarly it was proper for the court to depart on the basis of the “scope” of the offense, since the distribution schemes spanned at least 14 months. However, the sentence was reversed because the judge also relied on the defendant’s “role” in the offense. Since role in the offense is governed by § 3B1.1, the case was remanded for resentencing. Judge Rymer dissented, arguing that the departure was based the scope of the operation, not on role in the offense. U.S. v. Shields, 939 F.2d 780 (9th Cir. 1991).
9th Circuit says role in offense is not limited to offense of conviction, disapproving earlier dictum. (420) In U.S. v. Zweber, 913 F.2d 705 (9th Cir. 1990) the 9th Circuit approved in dictum of the 7th and D.C. Circuit’s view that the word “offense” as used in § 3B1.1 means “offense of conviction.” After Zweber was decided, the introductory commentary to chapter 3E was amended to state, “[t]he determination of a defendant’s role in the offense is to be made on the basis of all conduct within the scope of § 1B1.3 .ÿ.ÿ. and not solely on the basis of the elements and acts cited in the count of conviction.” Because of this change, the 9th Circuit held the adjustment for role in the offense under § 3B1.1 “is not limited to the offense of conviction.” Accordingly the court upheld a two level upward adjustment for defendant’s leadership role even though he was the only participant in the offense of conviction. U.S. v. Lillard, 929 F.2d 500 (9th Cir. 1991).
9th Circuit rules proponent of change from base level has “preponderance” burden. (420) As part of plea bargain, government stipulated defendant was a “minor participant” in the crime. The court refused to accept the stipulation, ruled defendant was not a “minor participant”, and refused a two-point reduction from base level. Defendant claimed that the government should have borne the burden of proving he was not a “minor participant. Reviewing the district court’s decision as a finding of fact, the 9th Circuit followed the approach of the Third and Fourth Circuits, holding that the government bears the burden of establishing the base level or any upward increase, and the defendant bears the burden of proof if the defendant seeks to lower the offense level. The burden of proof is the “preponderance of the evidence” standard. U.S. v. Howard, 894 F.2d 1085 (9th Cir. 1990).
10th Circuit holds that 16-year old victim was minor for § 4B1.5(b) enhancement purposes. (420) Defendant was convicted of five counts of aggravated sexual abuse against his 16-year old niece, in violation of 18 U.S.C. § 2241(a). Section 4B1.5(b) requires a five-level enhancement if a defendant has perpetrated a “covered sex crime” and defendant engaged in a pattern of activity involving prohibited sexual conduct. Defendant argued that he did not commit a covered sex crime because his offense of conviction was not perpetrated against a person under the age of 16. Although Note 1 to § 4B1.5(b) defines a “minor” as “an individual who has not … attained the age of 18 years” defendant asked the court to go beyond the text of the guideline, pointing to certain crimes which define a minor as between 12 and 16. The Tenth Circuit found no error. The guideline provides a conclusive definition of “minor.” U.S. v. Cerno, 529 F.3d 926 (10th Cir. 2008).
10th Circuit holds that increase for use of a minor applies to defendants aged 18 to 21. (420) The Violent Crime Control and Law Enforcement Act of 1994 directed the Sentencing Commission to promulgate sentence enhancements for a “defendant 21 years of age or older … if the defendant involved a minor [less than 18 years old] in the commission of the offense.” However, the guideline that the Commission developed, § 3B1.4, makes no mention of what age a defendant needs to be for the enhancement to apply. At least one circuit has held that the § 3B1.4 increase is not applicable to a defendant under the age of 21. See U.S. v. Butler, 207 F.3d 839 (6th Cir. 2000). The Tenth Circuit, however, sided with the Fourth and Seventh Circuits in holding that the guideline should not be invalidated on this basis. See U.S. v. Murphy, 254 F.3d 511 (4th Cir. 2001); U.S. v. Ramsey, 237 F.3d 853 (7th Cir. 2001). Although Congress intended the enhancement to apply to those over 21, the Congressional directive makes no mention of any special policy for those under 21. The congressional directive does not conflict with the plain language of the guideline, and the guideline is therefore valid as applied to defendants aged 18-21. The district court’s application of the increase to an 18-year old defendant was therefore proper. U.S. v. Kravchuk, 335 F.3d 1147 (10th Cir. 2003).
10th Circuit applies “use of a minor increase” to defendants who hired minor as driver. (420) Defendant was involved in a scheme to cash counterfeit checks in New Mexico. To help effectuate the scheme, the co-defendants employed a 16-year old boy to pick them up at the airport, drive them to hotels and bank branches, and return them to the airport. The boy was paid between $100 and $300 each time the conspirators visited New Mexico. When he was hired, the boy was not told why he was driving the defendants around town, but after seeing large stacks of checks and overhearing the defendants’ conversations, he deduced that they were cashing counterfeit checks. The Tenth Circuit affirmed a § 3B1.4 increase for the use of a minor to commit a crime. The enhancement does not require the defendant to have informed the minor of the criminal purpose for which the minor’s services are wanted. U.S. v. Tran, 285 F.3d 934 (10th Cir. 2002).
10th Circuit agrees that defendant “used” minors in check cashing conspiracy. (420) Defendant admitted in his plea agreement that he conspired with Isbell and two juvenile females to manufacture and cash counterfeit checks. The district court relied on defendant’s admission that the minors were involved in the conspiracy to impose a § 3B1.4 increase. He argued that he did not “use” the minors, and that he never intentionally involved them in the conspiracy. The Tenth Circuit found sufficient evidence to support the § 3B1.4 increase. Isbell testified at sentencing that defendant instructed all three co-conspirators on which banks to visit and how to dress when presenting the checks. Additionally, one of the minors testified before the grand jury that defendant counseled them on how to behave if they were caught while cashing a counterfeit check. U.S. v. Suitor, 253 F.3d 1206 (10th Cir. 2001).
10th Circuit rejects enhancement for using minor where girl had independent drug business. (420) Defendant sold methamphetamine from a house he shared with several others, including a 14-year old girl. The district court applied a § 3B1.4 enhancement for using a minor to commit the offense, finding that defendant involved the girl in some of his sales, and that she in turn made drugs available to other children. The Tenth Circuit reversed, finding no evidence that the minor “was used at least in some of the sales” or that she distributed defendant’s drugs to other juveniles. The girl, who was using meth heavily during this period, had her own illegal meth business that was independent of the defendant’s trafficking activities. The girl testified without contradiction that she only sold meth that she obtained from other sources, mostly other juveniles. There was no indication that those juveniles were also customers of defendant. She was able to keep her business to herself because she lived in the basement of the house, and didn’t allow others in her room. The girl denied witnessing any drug sales by defendants. Although defendant engaged in meth use with the girl, these few instances were not shown to have any relation to defendant’s large volume drug business. U.S. v. Humphrey, 208 F.3d 1190 (10th Cir. 2000).
11th Circuit holds that enhancement for use of a minor does not have scienter requirement. (420) Defendants participated in a conspiracy that recruited young girls to cash counterfeit checks at various bank branches and business locations. One of the minors was only 16 years old, although she allegedly told one defendant that she was 20. Both defendants received enhancements under § 3B1.4 for using a minor to commit a crime. They argued that § 3B1.4 requires scienter—an intent to use someone the defendant knows to be a minor to commit the offense. The Eleventh Circuit disagreed. Courts have interpreted the Juvenile Drug Trafficking Act, 21 U.S.C. § 861(a), which contains similar language, to not contain a scienter requirement. There was no reason why USSG § 3B1.4 should be interpreted to give less protection to minors than a similar worded federal statute, absent a showing of Congress’s contrary intent. Moreover, as a policy matter, requiring the government to prove scienter at sentencing would encourage defendants to close their eyes and ears to information about persons they employ in their criminal schemes. U.S. v. McClain, 252 F.3d 1279 (11th Cir. 2001).
11th Circuit upholds increase where use of minor was foreseeable part of joint criminal activity. (420) Defendant and Tucker recruited young girls to cash counterfeit checks at various bank branches and business locations. One of the minors recruited by Tucker was only 16 years old, although Tucker claimed that she had told him she was 20. Citing U.S. v. Butler, 207 F.3d 839 (6th Cir. 2000), defendant challenged a § 3B1.4 enhancement for using a minor to commit a crime. Butler held that § 3B1.4 is inapplicable unless the defendant took affirmative steps to involve a minor in a crime, rather than simply operating as an equal partner with the minor. The Eleventh Circuit disagreed with Butler, holding that § 3B1.4 is applicable to participants in a jointly undertaken criminal enterprise in which use of a minor was reasonably foreseeable. While defendant did not personally recruit the minor to assist in the check-cashing scheme, he and his co-conspirators were in the practice of recruiting young females and providing them with counterfeit checks and false identification. Defendant was a leader of the conspiracy, while Tucker was only a supervisor. The minor’s recruitment was reasonably foreseeable to defendant. U.S. v. McClain, 252 F.3d 1279 (11th Cir. 2001).
11th Circuit holds role in offense is proper ground for departure. (420) The district court departed upward from the guidelines for simple possession partly on the grounds that the defendant’s role warranted a greater sentence. The 11th Circuit affirmed, holding that although the guidelines normally consider a defendant’s role in the offense (§ 3B1), the district court is not precluded from considering defendant’s role in the offense merely because it did not rise to the level of an aggravating role, as defined by § 3B1.1. U.S. v. Crawford, 883 F.2d 963 (11th Cir. 1989).
Commission deletes language that may have discouraged role reductions. (420) At present, Application Note 3(C) to § 3B1.2 says that “[a]s with any other factual issue, the court, in weighing the totality of the circumstances, is not required to find, based solely on the defendant’s bare assertion, that such a role adjustment is warranted.” And Application Note 4 says that “It is intended that the downward adjustment for a minimal participant will be used infrequently.” The Commission deleted these two sentences as unnecessary and also because they may have had the unintended effect of discouraging courts from applying the mitigating role adjustment in otherwise appropriate circumstances. Amendment 755, effective November 1, 2011.
Commission creates a new guideline for use of a minor to commit a crime of violence. (420) 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 modifies mitigating role cap for drug defendants. (420) The November, 2003 amendments “capped” a drug defendant’s offense level at 30 if he played a minor role in the offense and met certain other requirements. To address proportionality concerns arising from this “mitigating role cap,” a 2004 amendment modified § 2D1.1(a)(3) to provide a graduated reduction for offenders whose quantity level under § 2D1.1(c) results in a base offense level greater than level 30 and who qualify for a mitigating role adjustment under § 3B1.2. Specifically, the amendment provides a two-level reduction if the defendant receives an adjustment under § 3B1.2 and the base offense level from the Drug Quantity Table in § 2D1.1 is level 32. If the base offense level determined at § 2D1.1(c) is level 34 or 36, and the defendant receives an adjustment under § 3B1.2, a three-level reduction is provided. A four-level reduction is provided if the defendant receives an adjustment under § 3B1.2 and the base offense level under § 2D1.1(c) is level 38. This amendment also provides an identical reduction in § 2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy). Amendment 668, effective November 1, 2004.
Commission provides two level adjustment for using a minor to commit a crime. (420) The Commission adopted a new § 3B1.4 in Amendment 527, effective Nov. 1, 1995, stating that “if the defendant used or attempted to use a person less than 18 years of age to commit the offense or assist in avoiding detection of, or apprehension for, the offense, increase by two levels.