§715 Specific Grounds for Departure
(U.S.S.G. §5K2)
D.C. Circuit finds departure for uncharged conduct improper but upholds sentence as variance. (715) (741) At defendant’s sentencing for escape, the court departed upward to 30 months under § 5K2.21 because defendant engaged in uncharged conduct, i.e., threats, while on escape status. The D.C. Circuit held that the upward departure was improper because the threats were not relevant to the escape, but affirmed because defendant’s threats justified an upward variance. U.S. v. Brevard, __ F.4th __ (D.C. Cir. Dec. 3, 2021) No.20-3011.
4th Circuit reverses where court sentenced below statutory mandatory minimum. (245)(715) At defendant’s sentencing for drug-trafficking offenses, the district court departed downward under § 5K2.23 below the applicable 10-year statutory mandatory minimum to account for a state sentence that defendant had served for conduct related to his federal offenses. On the government’s appeal, the Fourth Circuit held that the guidelines do not authorize a departure from a statutorily imposed mandatory minimum. For that reason, the court held that the district court had no authority to depart below the mandatory minimum. U.S. v. Moore, __ F.3d __ (4th Cir. Mar14, 2019) No. 18-4481.
2d Circuit finds no eligibility for departure for undischarged state sentence. (715) On appeal from his drug-trafficking sentence, defendant argued for the first time that the district court should have departed downward under § 5K2.23 to credit him for time he spent in state custody before sentencing. Section 2K2.23 allows a downward departure for a discharged term of imprisonment if the guidelines would have provided credit for an undischarged term. Reviewing for plain error, the Second Circuit held that defendant did not qualify for a departure because he was never sentenced on the state charges. U.S. v. Young, __ F.3d __ (2d Cir. Dec. 12, 2018) No. 16-3458.
8th Circuit upholds substantial upward variance for death of two-year-old. (715)(741) Defendant pleaded guilty to second-degree murder in connection with her repeated abuse of a two-year-old boy that led to his death. The guideline range was 210 to 262 months, but the district court varied upward to 480 months, noting that defendant inflicted repeated brutal and heinous injuries on the victim. The Eighth Circuit affirmed, rejecting defendant’s claims that her sentence was disproportionately severe compared to other sentences involving the deaths of children. The court noted that the district court was unable to find any other case involving such severe mistreatment of a child. U.S. v. Wisecarver, __ F.3d __ (8th Cir. Dec. 20, 2018) No. 17-3606.
6th Circuit finds refusal to depart unreviewable where court knew it could depart. (715)(860) Defendant, a pilot, was convicted of operating an airplane while under the influence of alcohol, in violation of 18 U.S.C. § 342. The guideline for that offense, § 2D2.3, states that a departure may be warranted if “no or only a few passengers were placed at risk.” The district court denied the departure, stating that the guideline is “permissive” and that “the facts of this case [do not] warrant a departure.” The Sixth Circuit held that the district court’s failure to depart was not reviewable on appeal because the court was aware that it had the authority to depart. U.S. v. Fitzgerald, __ F.3d __ (6th Cir. Oct. 15, 2018) No. 17-2285.
6th Circuit upholds refusal to depart for flying plane under the influence. (715) Defendant tried to operate a plane while under the influence of alcohol and was convicted of a violation of 18 U.S.C. § 342. The applicable guideline, § 2D2.3, states that a departure may be warranted if “no or only a few passengers were placed at risk.” The district court declined to depart downward, and on appeal defendant argued that the court improperly focused on whether “any person” was placed at risk, as opposed to the passengers. The Sixth Circuit found no error, noting that even though only three passengers were scheduled on the flight, “it is for the district courts…to decide what counts as a sufficiently minor risk to warrant a downward departure.” U.S. v. Fitzgerald, __ F.3d __ (6th Cir. Oct. 15, 2018) No. 17-2285.
7th Circuit upholds refusal to vary downward based on discharged sentence. (650)(715) Defendant pled guilty to operating a racketing conspiracy. In recognition of a prison sentence defendant was serving at the time of sentencing, the district court imposed a 210-month sentence, at the bottom of his 210-240 month guideline range. Defendant argued on appeal that he was entitled him to a greater reduction for time served in state prison for other offenses that formed part of the underlying racketeering activity. The Seventh Circuit found no error, finding that defendant misread the guidelines. Defendant’s 2008 weapon offense involved “relevant conduct,” but § 5G1.3(b) did not apply because no portion of that sentence remained “undischarged” at the time of sentencing. Under Note 5 to § 5G1.3, in “the case of a discharged term of imprisonment, a downward departure is not prohibited” in certain circumstances. This note operated essentially as a cross-reference to § 5K2.23, which provides the district court with discretion to adjust a defendant’s sentence downward for discharged sentences. However, unlike the mandatory credit required by § 5G1.3(b), any adjustment under § 5K2.23 was entirely discretionary. Defendant did not explain why the court’s decision not to apply § 5K2.23 was an abuse of discretion. U.S. v. De La Cruz, __ F.3d __ (7th Cir. July 30, 2018) No. 17-40661.
9th Circuit finds notice of departure in presentence report was adequate. (715)(761) Defendants were convicted of various offenses arising out of manufacturng hash oil. During the manufacturing process, defendants caused a fire that caused significant damage to their apartment building, injury to five people, and the death of one person. At sentencing, the district court departed upward because “the aggravating circumstances of the crime are not fully contemplated by the Guidelines.” On appeal, defendants argued that the district court violated Fed. R. Crim. P. 32(h), which requires that the district court give notice of any contemplated departure if the ground for departure is not identified in the presentence report or a party’s prehearing submission. The Ninth Circuit held that the presentence report specifically put defendants on notice of an upward departure. U.S. v. Kaplan, __ F.3d __ (9th Cir. Oct. 7, 2016) No. 15-30213.
8th Circuit allows dismissed conduct to be considered at sentencing. (175)(715) A jury convicted defendants of assault with a dangerous weapon and assault resulting in serious bodily injury. On the government’s motion, a separate indictment, based on similar conduct with different victims, was dismissed. Guideline §5K2.21 provides that the court may depart upward in certain circumstances based on conduct “underlying a charge dismissed as part of a plea agreement … or for any other reason.” Defendants argued that the “any other reason” language did not allow the court to depart upward based on dismissed conduct because the charges were not dismissed as part of a plea agreement. The Eighth Circuit held that this argument was foreclosed by the “longstanding principle that sentencing courts have broad discretion to consider various kinds of information.” Consideration of such conduct did not violate the Sixth Amendment. Because the district court treated the guidelines as advisory and sentenced defendants below the statutory maximum, the Sixth Amendment was not implicated. U.S. v. Running Shield, __ F.3d __ (8th Cir. Aug. 8, 2016) No. 15-2369.
8th Circuit approves upward departure for conduct amounting to second-degree murder. (715)(741) During a drunken altercation with her friends, defendant pushed a friend backwards down a flight of stairs. The group left the victim without calling for medical help, and the victim was later found dead by police. Defendant pled guilty to voluntary manslaughter and assault with a dangerous weapon. The district court departed upward in part under §5K2.21, based on the dismissal of a second-degree murder count. The Eighth Circuit found no plain error, because there was sufficient evidence that defendant killed the victim with “malice aforethought.” Defendant called the victim a “snitch” and threatened her with a shovel while she was curled up on the ground asking to go home. After pushing the victim down the stairs backwards, defendant checked on her without seeking medical help. Thus, the defendant was aware of a serious risk of death to the victim when she pushed her down the stairs and left her immobilized with no medical assistance. U.S. v. Brave Bull, __ F.3d __ (8th Cir. July 11, 2016) No. 15-2143.
(315)(431)(450)(715)(870) U.S. v. Christensen, 801 F.3d 970 (9th Cir. 2015), amended without changing the summaries, __ F.3d __ (9th Cir. July 8, 2016) No. 08-50531.
2nd Circuit upholds refusal to depart downward for allegedly substandard conditions in prison. (715)(742) (860) Defendant argued that the district court erred in failing to depart downward because of his confinement in the allegedly decrepit and unsafe conditions at the Nassau County Correctional Center (NCCC). The Second Circuit ruled that defendant failed to provide sufficient reason to overturn the district court ‘s failure to depart. First, a district court’s decision not to depart from the guidelines is generally unreviewable, unless it misunderstood its authority to do so. There was nothing in the record suggesting that the district court misunderstood its ability to depart from the Guidelines. After implying that a departure would be possible, albeit a “special consideration,” the court listened to arguments on the merits of a downward departure. Second, the district court adequately explained its reasoning, noting its past experience with other NCCC inmates. The court further suggested that the evidence provided by appellant ‘s counsel was insufficient to justify a departure. U.S. v. Robinson, __ F.3d __ (2d Cir. Aug. 26, 2015) No. 14-809-cr.
4th Circuit upholds 25-year sentence for 68-year-old minister who molested young girls. (715)(742) Defendant, an ordained minister who oversaw a ministry in Haiti, was a sex addict who molested young girls. The guidelines recommended a 60-year sentence, but the district court sentenced him to 25 years. Defendant had requested a five-year term. The Fourth Circuit held that the sentence was procedurally and substantively reasonable. The court considered the mitigating factors defendant raised, including the fact that he had self-reported. Although defendant argued that the court improperly considered the victims’ ages, the record showed the court relied on non-age-related factors such as the abuse of trust involved and the fact that the girls were “some of the most vulnerable, most poor, most needy, most in need of protection from those in authority.” Despite defendant’s age (68), the 25-year sentence was a 60 percent downward variance. Defendant cited no authority for the proposition that a defendant’s advanced age renders unreasonable a sentence that would otherwise be reasonable. U.S. v. Bollinger, __ F.3d __ (4th Cir. Aug. 19, 2015) No. 14-4086.
9th Circuit includes departure in overall reasonableness review. (715)(870) Defendant was a lawyer who hired a private investigator to wiretap the spouse of a client to obtain information about a child support dispute. Defendant was convicted of illegal wiretapping, in violation of 18 U.S.C. § 2511(1)(a). At sentencing, the district court departed upward three levels under § 5K2.0(a)(2), finding that defendant’s Guidelines range failed to account for the harm he had caused. The Ninth Circuit declined to consider the appropriateness of the departure and instead held that defendant’s overall sentence should be reviewed for reasonableness. U.S. v. Christensen, __ F.3d __ (9th Cir. Aug. 25, 2015) No. 08-50531.
8th Circuit approves upward departure for “horrendous record of offending against children.” (310)(715) (741) After defendant pleaded guilty to two counts of abusive sexual contact with a child under 12, 18 U.S.C. §2244(a)(1) and (5), the district court imposed a sentence of 360 months, an upward departure from the parties’ joint recommendation of 240 months. The Eighth Circuit approved the departure. At sentencing, the court reminded the parties that it had filed a notice of intent to depart under §5K2.1(a)(1)(B), in which the court cited the defendant’s repeated failure to comply with court orders and his history of offending against children, including the murder of his infant son. The court then turned to the §3553(a) factors, first discussing the nature and circumstances of the offense and noting that there were “multiple continuing assaults against a minor child” “in the care, custody[,] and control of the defendant.” The court was also “deeply concerned” about protecting the public, noting that defendant had “just a horrendous record of offending against children,” including a murder and a continuing series of sexual assaults. U.S. v. McKay, __ F.3d __ (8th Cir. Jan. 5, 2015) No. 13-41398.
Supreme Court to decide if need for rehabilitation may justify longer sentence. (715) At defendant’s sentencing, the district court imposed a longer sentence in part to ensure that defendant would be incarcerated long enough to participate in a Bureau of Prison’s drug rehabilitation program. The Ninth Circuit affirmed, but the Supreme Court granted certiorari to determine whether a court may consider a defendant’s rehabilitative needs in setting the length of the defendant’s sentence. Tapia v. U.S., __ U.S. __, 131 S.Ct. __ (Dec. 10, 2010) (granting certiorari).
Supreme Court reverses departure based on collateral employment consequences for police officers. (715) The district court departed downward on the ground that the police officers who were convicted of beating Rodney King would lose their jobs and be disqualified from other law enforcement careers. The Supreme Court held that this departure was an abuse of discretion. It is to be expected that a public official convicted of using governmental authority to violate a person’s rights would lose his or her job and be barred from similar employment in the future. Therefore, it must be concluded that the Commission adequately considered these consequences in formulating § 2H1.4, the civil rights guideline. The career loss factor, as it existed in this case, did not take the case out of the § 2H1.4 “heartland.” Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996).
Supreme Court limits review of sentencing departures to “abuse of discretion.” (715) All nine justices of the Supreme Court agreed that an appellate court should not review de novo a decision to depart from the guidelines, but instead should ask whether the court abused its discretion. The limited appellate review provided in 18 U.S.C. § 3742 directs appeals courts to “give due deference” to the district court’s application of the guidelines to the facts. Thus the statute was not intended to vest in appellate court’s wide ranging authority over district court sentencing decisions. In most cases a departure decision will be due “substantial deference” because it embodies the sentencing court’s traditional exercise of discretion. This is true whether a given factor is present to a degree not adequately considered by the commission or whether a discouraged factor nevertheless justifies departure because it is present in some unusual or exceptional way. Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996).
Supreme Court affirms downward departures for susceptibility to abuse in prison and burdens of successive prosecution. (715) In this case involving the police officers who were convicted of beating Rodney King, the district court departed downward because the officers would be unusually susceptible to abuse in prison and because of the burden of successive prosecutions, since they were earlier acquitted in state court. The Supreme Court said that both of these decisions by the district court were entitled to deference on appeal and the court could not conclude that the district court abused its discretion. Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996).
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1st Circuit approves upward variance for defendant who harassed ex for four years. (715) Defendant pled guilty to one count of cyberstalking based on his four-year harassment of Jane Doe, an ex-girlfriend. He requested a downward departure from his 37-46-month guideline range under § 5K2.23 based on a state sentence for conduct related to the current offense. However, the court chose to depart upward to 60 months instead. The First Circuit affirmed. Even if defendant was eligible for a § 5K2.23 downward departure, the court’s refusal to depart downward was discretionary, regardless of defendant’s eligibility. The court’s reasons for imposing a variant sentence also explained its refusal to depart downward. The court gave multiple reasons for the variance, including: (1) the extra danger and fear that defendant caused by using “anonymous third parties” to harass Jane Doe; (2) the permanent nature of the intimate details that defendant posted about Jane Doe online; (3) the fact that defendant’s many involvements with law enforcement did not deter him; and (4) defendant’s “ongoing obsession” with Jane Doe, as evidenced by his cellmate’s letter and testimony to defendant’s continued plans to harass Jane Doe. The court also noted that an above-guidelines sentence was needed to keep Jane Doe and the public safe from defendant, as well as to give defendant enough time to receive treatment so that he did not repeat his behavior. U.S. v. Sayer, 748 F.3d 425 (1st Cir. 2014).
1st Circuit upholds refusal to grant variance based on imperfect entrapment. (715) Defendant, a state corrections officer, was convicted of drug and weapons charges after he provided security for a 2009 drug transaction staged by the FBI as part of a sting operation. His guideline range was 123-138 months, and the court sentenced defendant to 123 months. Defendant claimed that the court’s refusal to consider the issue of “imperfect entrapment” rendered his sentence procedurally unreasonable. The First Circuit disagreed. The sentencing transcript showed that the district court considered this theory and found it inapplicable. This was not a case in which the defendant had a sympathetic but unsuccessful entrapment defense that might warrant mitigation. There was no abuse of discretion. U.S. v. Diaz-Maldonado, __ F.3d __ (1st Cir. Aug. 19, 2013) No. 12-1513.
1st Circuit approves upward departure based on seriousness of interstate stalking crimes. (715) During a protracted custody dispute with his estranged wife, defendant sent her a number of threatening messages and telephoned her sister and described in gruesome detail how he would murder both his wife and son. The First Circuit upheld a two-level upward departure for the unusual seriousness of his interstate stalking crime. The sentencing court properly gave weight to the number and horrific nature of defendant’s threats, the length of time over which the threats were made, and the meticulousness of defendant’s plotting. Even though an upward adjustment was made for defendant’s “pattern” of behavior, §2A6.2(b)(1)(D), the atypical extent of this pattern and the aggravating factors supported the upward departure. The court’s upward criminal history departure from category I to IV was also warranted. The court considered defendant’s criminal contempt conviction, which was unrelated to the instant pattern of stalking, the additional mailing of a threatening letter while imprisoned, and the fact that defendant engaged in stalking while on pretrial release for a separate violent crime. U.S. v. Walker, __ F.3d __ (1st Cir. Nov. 23, 2011) No. 10-1092.
1st Circuit says departure based on additional obstruction was improper. (715) Defendant and his brother robbed a gun dealership at gunpoint. He received an upward adjustment based on his perjury at trial. The district court also departed upward in part based on defendant’s obstruction of justice, citing (1) defendant’s flight from justice (he evaded arrest for four years), and (2) his extensive perjury, beyond perjury at trial. The First Circuit agreed with defendant that it was not proper to depart based on defendant’s flight from justice. The commentary to the obstruction enhancements lists avoiding or fleeing from arrest as a type of conduct that “ordinarily does not warrant application of this adjustment. The court should have taken this commentary into account when considering whether to apply this departure provision. In addition, there was not an adequate factual predicate for the court’s finding at sentencing that the defendant provided false information to the court and the probation office beyond the perjurious testimony he provided at trial. U.S. v. Wallace, 461 F.3d 15 (1st Cir. 2006).
1st Circuit holds that nine-year sentence for drug dealer was not unreasonable given his history of violence. (715) Defendant pled guilty to two counts of possessing and distributing crack cocaine, and received a nine-year sentence, which was three and one half years below the bottom of the advisory guideline range. Defendant nonetheless appealed the sentence as unreasonably high because of various mitigating circumstances, primarily, his multiple serious medical problems. The First Circuit upheld the sentence as reasonable, finding the district court gave adequate consideration to defendant’s medical problems. The court found that defendant’s medical condition was “obviously a serious situation,” and this was the court’s primary rationale for imposing a sentence below the guideline sentencing range. However, the court felt that other statutory factors, including the public’s need to be protected from defendant’s “demonstrably violent personality,” warranted a “substantial sentence.” The court also expressed skepticism that defendant’s medical condition would prevent him from continuing his lifelong pattern of domestic violence, and discredited defendant’s argument that his forced sobriety while incarcerated would cure his lifetime alcohol abuse. U.S. v. Caraballo, 447 F.3d 26 (1st Cir. 2006).
1st Circuit agrees defendant is not eligible for departure where related conviction did not result in increased offense level. (715) Defendant argued that applying the 2000 guidelines, the district court should have reduced his sentence to account for the time that he served for a state drug conviction because it was conduct related to his present offense. The government argued that the 2003 guidelines applied to the case and under § 5K2.23, defendant was legally precluded from the departure because the state sentence did not result in an increase offense level for the federal conviction. The district court ruled that it could not grant the downward departure as a matter of law. The First Circuit found that because defendant did not make an ex post facto argument to justify his assertion that the 2000 guidelines applied, he forfeited any claim for applying the earlier guidelines version. Under the 2003 guidelines, § 5K2.23 authorizes a downward departure if the defendant has completed a term of imprisonment and the completed sentence was for a crime that was relevant conduct for the instant offense and was the basis for an increase in the offense level for the instant offense. Defendant met the first two conditions for eligibility, but his offense was not increased as a result of considering the earlier conviction. The district court correctly denied the § 5K2.23 departure request. U.S. v. Kornegay, 410 F.3d 89 (1st Cir. 2005).
1st Circuit remands where court felt constrained by guidelines. (715) Defendant raised a Sixth Amendment challenge to his sentence for the first time on appeal. Reviewing for plain error, the First Circuit found prejudice and fundamental unfairness, concluding that defendant would have likely received a lesser sentence under the post-Booker advisory guidelines. The record contained some indication that the district court felt itself constrained by the guidelines. The court noted that defendant’s arguments were “legitimate” and “somewhat mitigating,” and should be considered in determining where within the guidelines range defendant’s sentence should fall; but it concluded that these factors “do not approach was is required to justify a downward departure,” that age and physical condition were both discouraged as grounds for departure, and that defendant’s traits, although worthy of consideration, were insufficient to take the case outside the heartland of the guidelines. U.S. v. Heldeman, 402 F.3d 220 (1st Cir. 2005).
1st Circuit says restitution was insufficient to show extraordinary acceptance of responsibility. (715) The district court granted defendant a three-level reduction for acceptance of responsibility, under § 3E1.1(b), and then departed downward an additional four levels for defendant’s extraordinary acceptance of responsibility. In justifying the additional departure, the court relied primarily on the restitution defendant paid to his victims. He paid almost $270,000 more in restitution than he received from the scheme. The First Circuit found this insufficient to justify the downward departure. In addition to amount, the timing of and motivation for restitution are important factors in determining the propriety of a downward departure. Defendant’s payment of restitution came only after the scheme had been discovered and criminal prosecution appeared likely. In a taped conversation, he expressed hope that, by paying back the stolen funds, he and the other participants might avoid a criminal prosecution altogether. The timing of his change of heart did not suggest “extraordinary” acceptance of responsibility. U.S. v. Martin, 363 F.3d 25 (1st Cir. 2004).
1st Circuit upholds modest departure even if one of several grounds relied on was possibly invalid. (715) Defendant was convicted of carjacking with death resulting, 18 U.S.C. § 2119, 2119(3). The district court departed upward by three levels based on five factors: death resulting (§ 5K2.1), abduction (§ 5K2.4), use of a weapon (§ 5K2.6), extreme conduct (§ 5K2.8), and criminal purposes (§ 5K2.9). Defendant argued that the departure factors relied on by the court were already taken into account, either as specific offense characteristics or as other adjustments. The First Circuit found no double counting problem. Defendant made no coherent argument as to why the court’s use of extreme conduct or criminal purpose in the departure calculus would constitute double counting. Although the carjacking guideline derives from the robbery guideline, this did not mean that abduction and use of a weapon were taken into account in carjacking cases in which the cross-reference to the murder guideline applies. While the death resulting factor was at least arguably double counting, the panel did not resolve this question, since even without consideration of this factor, the modest three-level departure as a whole was supposed by the other four factors. U.S. v. Sanchez, 354 F.3d 70 (1st Cir. 2004).
1st Circuit holds that brandishing small gun near crowd was insufficient for departure. (715) Defendant was convicted of being a felon in possession of a firearm after he waved a gun while attempting to break up an altercation outside a restaurant. Note 16 to § 2K2.1 authorizes an upward departure in four alternative circumstances: (1) the number of firearms significantly exceeded 50; (2) the offense involved multiple military assault type weapons or similarly destructive guns and other devices; (3) the offense involved large quantities of armor-piercing ammunition, or (4) “the offense posed a substantial risk of death or bodily injury to multiple individuals.” The district court departed upward under the fourth clause of Note 16, noting that defendant “had a firearm cocked and pointed, thus posing a substantial risk of death or bodily injury to a multitude of individuals who were out in front of that restaurant that night.” The First Circuit held that the court’s use of Note 16 was in error, finding that clause four, when read in context with the three provisions that precede it, is reasonably interpreted to authorize departure for conduct that is dangerous to an extraordinary degree. The threat to multiple individuals for death or bodily injury must be more obvious and potent that the present record revealed. Brandishing a single small weapon in a single episode, with no evidence of an intent to fire, was insufficient to support a departure aimed at punishing conduct that puts multiple individuals at substantial risk of injury or death. U.S. v. Diaz, 285 F.3d 92 (1st Cir. 2002).
1st Circuit holds that family circumstances and introspection did not warrant downward departure. (715) The district court departed downward based on defendant’s role as a father, his effort to make amends with his ex-wife, his introspection, and his appreciation for the wrongfulness of his conduct. The First Circuit found that that all of these factors had been considered by the guidelines, and the combination of factors together did not make his case exceptional. Defendant’s role as a father and his effort to make amends with his wife fell within family ties and responsibilities, a discouraged factor under § 5H1.6. Defendant’s introspection and appreciation for the criminality of his conduct were taken into account by § 3E1.1, the acceptance of responsibility provision. Because the factors upon which the court relied to depart were discouraged or already considered by the guidelines, a departure is justifiable only if the factors were “present to some exceptional degree.” They were not. Being a exemplary parent or spouse is not sufficient to take a case out of the heartland. The fact that defendant was highly introspective and appreciated the criminality of his conduct, although admirable, did not make his case at all exceptional. U.S. v. Bogdan, 284 F.3d 324 (1st Cir. 2002).
1st Circuit holds that adverse consequences faced by deportable alien not grounds for departure from illegal reentry guideline. (715) Defendant was convicted of illegally reentering the U.S. after deportation, in violation of 8 U.S.C. § 1326. He sought a downward departure on the ground that, as a deportable alien, he would suffer certain adverse collateral consequences during his incarceration (e.g. ineligibility for minimum security prison camp and certain rehabilitative programs offered). The First Circuit held that the deportable alien status was not a ground for departure from § 2L1.2, the guideline applicable to illegal reentry cases. By definition, the only persons sentenced under that guideline will be deportable aliens. Therefore, the Sentencing Commission must have, in constructing the guideline, taken into account not only the immigration status of prospective offenders, but also the collateral consequences that would flow from that status within the federal prison system. U.S. v. Vasquez, 279 F.3d 77 (1st Cir. 2002).
1st Circuit says court may depart at resentencing, but deportability and expense are not sufficient grounds. (715) Defendant filed this § 2255 motion alleging ineffectiveness of counsel in allowing his appeal to lapse. The district court granted the petition and ordered resentencing to permit defendant to take a direct appeal. However, the court did not mechanically impose the same sentence. Instead, the court departed downward to save the taxpayers money because defendant was to be deported anyway upon release. The government argued that the district court had no right after granting the § 2255 motion to do anything more than reimpose the original sentence. The First Circuit held that the court was free to consider a downward departure for any legitimate reason at the resentencing hearing. Although the reimposing the original sentence would have remedied the constitutional defect, the court was not forbidden from sentencing defendant afresh and imposing a different sentence. However, while the court was free to consider a downward departure for any legitimate reason, it erred in granting a departure on the grounds given. The court said that it was “a waste of taxpayer money” to impose a lengthy prison term on “someone who’s going to be deported.” A deportable alien who commits a crime is still within the “heartland” of the guidelines absent something more. If deportability, expense, or some combination of the two justified a departure, it would have to be based on case-specific findings that made the case unusual. The common facts of a long sentence and likely deportation are not by themselves unusual. U.S. v. Maldonado, 242 F.3d 1 (1st Cir. 2001).
1st Circuit holds that improper conviction is not grounds for downward departure. (715) Defendant argued that the district court failed to give adequate consideration to four potential grounds for a downward departure: (1) his conviction rested on an erroneous jury instruction; (2) the government improperly paid a key witness for his testimony; (3) there was no compelling federal interest in prosecuting defendant’s local offense; and (4) defendant’s criminal history category overstated the seriousness of his criminal past. The First Circuit ruled that all of the asserted grounds were meritless. The first two grounds for departure were insufficient as a matter of law. Even if defendant’s conviction rested on an erroneous jury instruction and the testimony of an unlawfully compensated witness, neither factor was relevant to sentencing. A trial error or a prosecutorial misdeed does not, in and of itself, permit a downward departure. The third asserted ground for departure—the supposed lack of any compelling federal interest to justify his federal prosecution—was likewise flawed as a matter of law. To justify a defendant’s federal prosecution, there need only be a federal interest, not a compelling federal interest. Here, such interest was supplied by the Commerce Clause. The district court’s decision not to depart based on defendant’s “overstated” criminal history was not reviewable on appeal. U.S. v. Snyder, 235 F.3d 42 (1st Cir. 2000).
1st Circuit upholds finding that defendant sexually assaulted minors decades earlier. (715) Defendant was convicted of possessing child pornography. The district court departed upward because defendant had sexually assaulted two of his sisters-in-law decades earlier when they were minors. Defendant argued that the district court clearly erred in finding that he had sexually assaulted his two sisters-in-law, citing the two-decade delay in the victims’ revelations and the timing of those revelations (shortly after the commencement of his divorce proceedings), and attacking the reliability of his admissions to the police. The First Circuit held that the sentencing court properly chose to credit the detailed accounts contained in the victim impact statements and to take defendant’s initial admission of inappropriate contact at face value. Moreover, the assaults were corroborated by defendant’s taking and retaining of nude photographs of the girls. The district court also credited the suggestion that the victims failed to speak out earlier due to fear, shame, and mortification. There was no principled way for an appellate court to second-guess these findings. U.S. v. Amirault, 224 F.3d 9 (1st Cir. 2000).
1st Circuit departs upward based on sexual assaults committed decades earlier. (715) Defendant pled guilty to possessing child pornography. The district court departed upward because defendant had sexually assaulted two of his sisters-in-law many years earlier when they were minors. Defendant argued that the assaults were not “relevant conduct” under § 1B1.3. However, the district court did not find that the assaults were relevant conduct, but instead, concluded that the acts warranted a departure under § 5K2.0. The First Circuit held that the court properly departed upward based on an analogy to § 2G2.2, which provides for a five-level increase if the defendant engaged in a “pattern of activity involving the sexual abuse or exploitation of a minor.” § 2G2.2(b)(4). “[U]pward departures are allowed for acts of misconduct not resulting in conviction, as long as those acts, whether or not relevant conduct in the section 1B1.3 sense, related meaningfully to the offense of conviction.” This was the case here. The sexual assaults were part of a pattern of sexual exploitation of the minor girls that included the taking of about 40 nude photos, which defendant retained in his child pornography collection. Because the retained photos linked defendant’s offense of conviction to the earlier assaults, the assaults constituted an allowable ground for an upward departure. There was no “temporal wall” that precluded the use of the decades-old conduct. Note 2 to § 2G2.2, the guideline upon which the court made an analogy, states that a departure may be warranted if the defendant engaged in any sexual abuse of a minor at any time, regardless of whether such abuse occurred during the course of the offense. U.S. v. Amirault, 224 F.3d 9 (1st Cir. 2000).
1st Circuit finds no ex post facto or due process problems with departure based on 20-year old assaults. (715) Defendant was convicted of possessing child pornography. The district court departed upward because decades earlier defendant had sexually assaulted his then-minor sisters-in-law. He argued that the court’s reliance on the ancient assaults violated the ex post facto clause and the due process clause. However, the “consideration of information about the defendant’s character and conduct at sentencing does not result in ‘punishment’ for any offense other than the one for which the defendant was convicted.” Witte v. United States, 515 U.S. 389 (1995). Because defendant’s earlier assaults were used to increase the punishment for his current child pornography crime, the First Circuit found no ex post facto problem. Under the due process clause, a court may properly consider uncharged conduct at sentencing, as long as that conduct is admitted or reliably proven by a preponderance of the evidence. Despite the protracted length of time that passed between the sexual assaults and defendant’s commission of the child pornography offense, the due process clause did not bar the sentencing court from considering the earlier conduct as grounds for departure. U.S. v. Amirault, 224 F.3d 9 (1st Cir. 2000).
1st Circuit rejects departure based on Sentencing Commission vacancies and disparity among circuits. (715) The judge departed downward based on the absence of an active Sentencing Commission and a sentencing disparity between circuits that the judge perceived from a statistical compilation that he had directed the chief probation officer to prepare. These statistics purported to reflect all federal sentenced imposed in 1997 on persons whose primary offense was drug trafficking, regardless of the nature or amount of the substances involved. The judge believed that the data showed higher sentences within the First Circuit. The First Circuit reversed. First, the Sentencing Commission’s lack of a quorum was simply irrelevant to an individual sentencing decision. Nothing about vacancies is inherently aggravating or mitigating for purposes of a departure assessment. Second, the fact that the national median for a broadly stated offense type may be above or below a particular defendant’s guideline range cannot justify a departure. The base offense level for drug trafficking varies from six to 38, and defendants falling within criminal history category I can have a sentencing range as low as 0-6 months or as high as 235-293 months. This graduated sentencing structure reflects the Commission’s view that not all drug-trafficking offenses are equivalent, some deserve much longer sentences than others. The Commission intended individuals like defendant, responsible for distributing 119.6 grams of crack, to serve more time than the average drug trafficker. “Using the median sentence imposed as a lodestar for routine departures would effectively overrule that considered judgment.” U.S. v. Martin, 221 F.3d 52 (1st Cir. 2000).
1st Circuit holds that boss of smuggling ship knew or could have foreseen inhumane conditions. (715) Defendants and others smuggled Chinese nationals into the US on a ship. Note 5 to § 2L1.1 permits an upward departure for an offense involving “dangerous or inhumane treatment.” The First Circuit affirmed an upward departure under note 5 since defendant either knew or could have foreseen the ship’s inhumane and dangerous conditions. The smuggling boat was at sea for 54 days. When the ship was boarded by the Coast Guard, defendant identified himself as the master of the ship. He was also called “boss” by others on the ship. It was unlikely that the ship’s boss would not know of or suspect the unsanitary conditions, safety violations, food deprivations, or incidents of violence during the nearly two-month voyage. Moreover, there was evidence that defendant directly abused the passengers. He personally beat one passenger with a thick wooden stick and kicked another as he lay on the deck. During the beating, another crew member told the victim that he was being beaten for stealing food or water. U.S. v. Li, 206 F.3d 78 (1st Cir. 2000).
1st Circuit holds that land-based defendants could have foreseen inhumane conditions on smuggling ship. (715) Defendants conspired to smuggle Chinese nationals into the US on a ship. Note 5 to § 2L1.1 permits an upward departure for an offense involving “dangerous or inhumane treatment.” The First Circuit affirmed a note 5 departure for three land-based defendants, ruling that even though they were not on the smuggling ship, they could have foreseen the crew’s actions and the ship’s conditions. Defendant Hui Lin was in charge of the stateside portion of the conspiracy. His concern with finances during negotiations with undercover officers suggested that he understood the need for frugality. He knew the offloading vessel was inadequate, but arranged for the aliens to be transported on that vessel anyway. In addition, Hui Lin knew that enforcers would control aliens on both the smuggling ship and the offloading vessel. Defendant Kwan was the one who initially approached undercover agents about bringing 100 aliens into the US. Kwan introduced the agents to Hui Lin, participated in all meetings with the agents, and negotiated the price. Defendant Li attended all but one of these meetings. Li gave the agent the ship’s coordinates and delivered the down payment. Both Li and Kwan were present when Hui Lin discussed the enforcers and stated that the aliens would have to cope with the lack of space by foregoing sleep for two days. U.S. v. Li, 206 F.3d 78 (1st Cir. 2000).
1st Circuit denies evidentiary hearing on government’s alleged use of perjured testimony. (715) The government filed a complaint alleging that defendant’s attorney had made baseless allegations that a government agent had lied to the grand jury. Defendant’s attorney moved for an evidentiary hearing to explore these issues, contending that proof of government misconduct would entitle his client to a downward departure. The First Circuit held that defendant’s conclusory allegations did not require an evidentiary hearing. FBI agent Egan testified before the grand jury that defendant had transferred his house to his ex-wife after learning that his activities were under investigation. Egan admitted at trial that this testimony was in error. He explained that he had mistakenly relied on erroneous information that he had received from defendant’s previous attorney. Defendant failed to rebut this explanation. The prosecutor’s decision to file an ethical complaint against defendant’s attorney was not improper, even though the complaint was eventually dismissed, because the government had a threshold basis for believing that defendant’s allegations of perjury were made in bad faith. Thus, defendant’s claim of government misconduct was belied by the record and was simply too conclusory to warrant further investigation. U.S. v. Rowe, 202 F.3d 37 (1st Cir. 2000).
1st Circuit says § 5K1.1 is only avenue for substantial assistance departure. (715) Defendant argued that although the government refused to file a § 5K1.1 motion, the district court should have, given his cooperation, departed downward under § 5K2.0. The First Circuit, adopting the reasoning of the D.C., Fifth, and Third Circuits, held that a defendant’s assistance to the prosecutor cannot serve as the basis for a § 5K2.0 departure. See In re Sealed Case, 181 F.3d 128 (D.C. Cir. 1999); U.S. v. Solis, 169 F.2d 224 (5th Cir. 1999); U.S. v. Abuhouran, 161 F.3d 206 (3d Cir. 1998). Section 5K1.1 occupies the field. Departures for substantial assistance, however labeled, are available only under § 5K1.1. U.S. v. Alegria, 192 F.3d 179 (1st Cir. 1999).
1st Circuit says court exercised discretion not to depart. (715) Defendant argued that the district court incorrectly believed that defendant’s status as a deportable alien was not a valid basis for departure. Noting that this is still an undecided question in the First Circuit, the appellate court still refused to consider the matter, since the trial judge also explained that even if he did have the power to depart, he could not find facts sufficient to justify such a departure. This finding is clearly a discretionary refusal to depart which is not reviewable on appeal. U.S. v. DeLeon, 187 F.3d 60 (1st Cir. 1999).
1st Circuit says defendant’s loss argument was attempt to challenge refusal to depart. (715) Defendant was convicted of fraud based on five wire transfers made to pay liens on property he owned. He argued that the court should have excluded from its loss calculation $16.5 million that co-conspirator Christopher diverted from an insurance company’s bank account because in Christopher’s case, the government argued that Christopher alone was responsible for that loss. The First Circuit refused to review the matter since defendant was attempting to recast a challenge to the district court’s refusal to depart as an attack on the court’s loss calculation. Loss caused by factors extraneous to defendant’s conduct are not deducted from total loss. Instead, note 10 says that a downward departure may be warranted where the total dollar loss overstates the seriousness of defendant’s conduct, which “typically occur[s]” when defendant’s fraud “is not the sole cause of the loss.” The district court refused to depart based on defendant’s argument that the loss overstated the seriousness of his offense. The refusal to depart was not reviewable. U.S. v. Reeder, 170 F.3d 93 (1st Cir. 1999).
1st Circuit approves departure for causing insurance companies to become insolvent. (715) Defendant orchestrated his company’s acquisition of an insurance company and its holding company. To buy these companies, defendant used assets of the acquired companies to pay part of the agreed purchase price and to clear liens from property put up as collateral in the transaction. In so doing, defendant violated promises to state insurance regulators that he would not use the acquired companies’ assets to pay for their purchase and that pre-existing liens on the collateral would be cleared by the closing. Both companies subsequently went into receivership. The First Circuit upheld a departure based on defendant’s causing the insurance companies to become insolvent. Although both companies were having financial problems prior to defendant’s actions, that was the whole reason the regulators approved defendant’s purchase of the companies—he promised to infuse cash into them. U.S. v. Christopher, 142 F.3d 46 (1st Cir. 1998).
1st Circuit departs upward for supervisory authority over juvenile’s prostitution activities. (715) Defendant, a partner in a prostitution business, was herself a prostitute. She was convicted of transporting minors across state lines for prostitution purposes. The judge recognized that a § 3B1.1 aggravating role enhancement did not apply because none of the other prostitutes were “participants” in the transportation offense. However, the judge departed upward by two levels based on comment 2 to § 3B1.1, which allows departures for a defendant who exercised management responsibility over the property, assets or activities of a criminal organization. The First Circuit affirmed the departure based on defendant’s exercise of supervisory or management responsibility over one particular juvenile’s prostitution activities. The juvenile testified that defendant instructed her how to act, what casino to go to, what to do in casinos to attract dates and how to get them. The juvenile also testified that just before being sent on the trip, she told defendant that she was sick, but defendant told her she had to bring some money home. Although there were some inconsistencies in the juvenile’s testimony, credibility determinations lie within the district court’s domain. U.S. v. Anderson, 139 F.3d 291 (1st Cir. 1998).
1st Circuit rejects difference between federal and state sentence as basis for downward departure. (715) Massachusetts authorities initially charged defendant with firearms charges punishable by a 2 1/2 to 5-year prison term. When a federal grand jury indicted defendant for being a felon in possession of a firearm, Massachusetts dropped the state charge. Although defendant qualified as an armed career criminal and had a guideline range of 235-293 months, the district court departed downward to 180 months based on federal/state sentencing disparity. The First Circuit held that the disparity between federal and state sentences can never be a proper ground for a downward departure. The sentencing guidelines were enacted to avoid “unwarranted sentencing disparities” among defendants with similar records who have been found guilty of similar criminal conduct. However, the “unwarranted sentencing disparities” referred to variations among federal courts, not between state and federal courts. If courts departed to the sentence the state would impose, this would undermine the entire purpose of the guidelines. Moreover, the ACCA is based on the central premise that armed career criminals were being treated too gently by state courts and that these defendant ought to receive stiffer sentences. If defendant were entitled to a downward departure on this basis, then virtually every defendant subject to the ACCA would also be entitled. U.S. v. Snyder, 136 F.3d 65 (1st Cir. 1998).
1st Circuit suggests intent to pay taxes might justify downward departure. (715) From 1986 to 1992, defendant followed a regular pattern of withholding taxes from his employees’ pay but delaying payment to the government. He also frequently withdrew money from his business by means that avoided bank reports to the IRS. After the IRS met with him to discuss his late payments, he removed large sums of money from the business. In addition, he began to file false quarterly withholding tax returns. He was convicted of failure to pay withheld taxes, structuring, and obstructing the IRS. The district court departed downward to a sentence of 13 months, indicating that unlike the typical tax evader, defendant did not intend to permanently deprive the government of the money, and that there were multiple causes of the government’s losses. The First Circuit found these reasons inadequate to justify the substantial departure. The Circuit court said defendant’s alleged intent to eventually pay the withheld taxes might justify a downward departure. However, the decision to depart and the extent of the departure were not adequately explained. There were numerous factors weighing against departure that received inadequate attention, including the fact that it may not have been reasonable for defendant to believe that he could repay the taxes. He was dishonest with the IRS in at least two ways, and his structuring offense alone could have produced a guideline sentence of 24-30 months. U.S. v. Brennick, 134 F.3d 10 (1st Cir. 1998).
1st Circuit reverses downward departure for facilitating administration of justice. (715) Five defendants pled guilty to marijuana conspiracy charges. The district court departed downward under § 5K2.0, finding defendant’s plea substantially assisted the judicial system and administration of justice by obviating the need for a complex, potentially time-consuming trial. The First Circuit reversed, but acknowledged that a categorical bar against downward departures on these grounds would contradict Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996). Here, defendant’s guilty pleas did not have ameliorative consequences so far beyond ordinary expectations as to warrant a downward departure for conserving judicial resources and facilitating the administration of justice. Defendants did not tender bare pleas—they received significant concessions in exchange for their pleas. The government stipulated to drug quantity. In addition, the record did not support the court’s estimate that the trial would have taken four to six months, spread out over a ten-month period. This was a garden-variety drug-and-tax case, and it did not appear to present problems so out of the ordinary as to remove it from the mainstream. U.S. v. Dethlefs, 123 F.3d 39 (1st Cir. 1997).
1st Circuit rejects stipulation to alienage and deportability as basis for departure. (715) Defendant unlawfully reentered the U.S. following deportation. The government agreed to recommend a downward departure under § 5K2.0 in return for a stipulation of alienage and deportability following his release from prison, as well as waiver of any deportation hearing. The district court ruled that it lacked authority to depart on this basis. On appeal, the First Circuit agreed, holding that a defendant’s stipulation and waiver relating to alienage and deportability do not provide grounds for a downward departure. The Sentencing Commission was fully aware that almost all criminal defendants convicted under 8 U.S.C. § 1326(a) and sentenced under § 2L1.2 would be subjected to deportation and that many undoubtedly would stipulate to deportation. In the absence of a colorable, nonfrivolous defense to deportation, a stipulation to deportation does not constitute a mitigating circumstance of a kind not adequately considered by the Sentencing Commission. U.S. v. Clase-Espinal, 115 F.3d 1054 (1st Cir. 1997).
1st Circuit rules delay in filing immigration case did not require departure. (715) Defendant illegally reentered the country after deportation following several drug offenses. After his reentry, he was arrested on state drug charges, and sentenced to 30 months in state prison. While serving his state sentence, the INS lodged a detainer against him and federal agents interviewed him. After his release, he was indicted on federal charges of illegally reentering the U.S. after deportation. The district court imposed a 70-month sentence. Defendant argued that the district court should have departed downward because § 5G1.3(c) would have provided for the federal sentence to run concurrently with the state sentence if he had been charged federally while still serving his state sentence. The First Circuit held that the district court properly understood its authority to depart. Although deliberate tampering to increase a sentence would be a concern, the ordinary accidents of acceleration or delay are part of the fabric of criminal proceedings. The court added however, that this did not mean that innocent delays can never be the basis for departure. U.S. v. Saldana, 109 F.3d 100 (1st Cir. 1997).
1st Circuit holds management of assets did not warrant role increase but did justify departure. (715) Defendant worked for a large‑scale gambling enterprise, accepting bets and transmitting the information directly to the leader, with whom he was in daily telephone contact. The First Circuit rejected a § 3B1.1 role enhancement based on defendant’s management of the assets of the gambling organization. Amendment 500, effective November 1993, revised note 2 to provide that the defendant must have been the organizer, leader, manager or supervisor of other participants. However, management responsibility over the property, assets or activities of a criminal organization may warrant a departure. Thus, the district court’s alternative basis for its adjustment—an upward departure—was proper. The government presented solid evidence that defendant managed assets and was more than a mere “bookie” or “telephone operator” in the business. Defendant directly reviewed betting and makeup figures with the leader, and participated in “charting,” i.e. assessing the organization’s risk of loss. U.S. v. Cali, 87 F.3d 571 (1st Cir. 1996).
1st Circuit says court may not deny downward departure based on information given under cooperation agreement. (715) Defendant argued that the district court erroneously based its decision to deny a downward departure and to impose the maximum guideline sentence on self‑incriminating information he had given under a cooperation agreement. The agreement provided that the information would not be used against him by the government or in calculating his guideline range. The First Circuit held that due process prevented the use of such information since the court broadly stated at the plea hearing that the information would not be used against him. Although the agreement was limited to non‑use “by the government,” the court’s broad statement expanded the agreement to full use immunity. U.S. v. Conway, 81 F.3d 15 (1st Cir. 1996).
1st Circuit approves departure for attempt to hide assets to avoid fine or restitution order. (715) After conviction but before sentencing, defendant created an irrevocable trust for his six‑year old daughter and transferred to it his real estate and business assets. The First Circuit approved an upward departure based on defendant’s attempt to frustrate a fine or restitution by hiding his assets. The district court properly found that defendant acted bad faith in an attempt to avoid paying restitution or a fine, and that he intended to return to operate his business after his release. There was no double counting even though defendant already received an obstruction of justice enhancement for his perjury at trial. Defendant’s attempt to avoid restitution was not simply additional obstructive behavior, but a new and different act of misbehavior with a different victim. The district court could fairly conclude that this case fell outside the “heartland” and warranted a departure. U.S. v. Black, 78 F.3d 1 (1st Cir. 1996).
1st Circuit finds defendant’s fraud was within heartland of § 2C1.7. (715) Defendant, a city alderman, gave gifts and gratuities to other aldermen so they would award a lucrative construction contract to the company for which he worked. He pled guilty to using the mails to defraud the city of its right to the honest service of its public officials, in violation of 18 U.S.C. §§ 1341 and 1344. The court sentenced defendant under § 2C1.7 (Fraud Involving Deprivation of Intangible Right to Honest Services of Public Officials). Defendant argued that the court misunderstood its authority to depart downward, by analogy, to § 2C1.3 (Conflict of Interest). The First Circuit held that defendant’s conduct fell within the heartland of § 2C1.7. Defendant lobbied board members after his recusal from the committees that awarded the contract. He secretly delivered gratuities and information about the company without disclosing his actions to other board members. Although defendant may not have received a direct monetary benefit, he clearly deprived the citizens of their right to the honest services of their government. U.S. v. Grandmaison, 77 F.3d 555 (1st Cir. 1996), superseded on other grounds by guideline as stated in U.S. v. Mikutowicz, 365 F.3d 65 (1st Cir. 2004).
1st Circuit upholds departure where possession offense did not account for firing gun in crowded parking lot. (715) Defendant participated in a gun battle in a crowded parking lot. He was convicted of possessing firearms bearing obliterated serial numbers. The district court departed from a range of 21-27 months to impose concurrent sentences of 45 months on each count. The First Circuit approved the departure under note 16 to § 2K2.1 based on the substantial risk of death or bodily injury to multiple individuals. Defendant discharged his two firearms in a congested shopping center parking lot. The incident occurred during the middle of the day, defendant had run his car into another vehicle in the parking lot, and surrounding vehicles were riddled with bullet holes. U.S. v. Diaz-Martinez, 71 F.3d 946 (1st Cir. 1995).
1st Circuit says claim that prior sentence is invalid did not warrant departure. (715) Defendant committed the instant drug offense while serving an earlier sentence imposed by a Florida district court. Section 5G1.3(a) requires a consecutive sentence for offenses committed while serving another term of imprisonment. Defendant argued that his Florida sentence was illegal, and therefore the district court had the authority to depart downward and impose concurrent sentences. The First Circuit held that the claimed illegality of a prior sentence imposed by another federal court did not constitute a ground for departure from § 5G1.3(a)’s consecutive sentence requirement. The proper way to challenge the legality of a prior federal sentence is to bring an appropriate direct or collateral attack in the federal district court that had jurisdiction over that sentence. No collateral attack is permitted in a sentencing proceeding unless defendant was deprived of the right to counsel. U.S. v. Burke, 67 F.3d 1 (1st Cir. 1995).
1st Circuit says downward departure based on settlement was foreclosed by prior appeal. (715) In U.S. v. Bennett, 37 F.3d 687 (1st Cir. 1994) (Bennett I), the First Circuit rejected a § 3E1.1 reduction based on defendant’s $660,000 payment in settlement of a civil lawsuit related to the instant offense. On remand, the district court held that the $660,000 settlement agreement constituted an extraordinary act that justified a downward departure. The First Circuit held that Bennett I foreclosed a downward departure based on the settlement agreement. Bennett I held that the civil suit settlement was not genuinely voluntary, and that restitution is relevant to the extent it shows acceptance of responsibility. Thus, regardless of whether the settlement was extraordinary, it was not grounds for a departure. U.S. v. Bennett, 60 F.3d 902 (1st Cir. 1995).
1st Circuit approves departure for risk to bystanders from carjacking in busy commercial area. (715) Defendant and an accomplice attempted a carjacking in a heavily congested commercial area. Unfortunately for them, the targeted victim was an FBI agent. The agent shot defendant, although there was conflicting evidence suggesting the agent shot defendant in the back as he was retreating. The First Circuit approved an upward departure based on the unusually high risk of harm to bystanders from an armed carjacking in a busy commercial area. Section 2B3.1, which is applicable to carjacking, provides for a sentence increase based on actual injury only to the victim of the crime. The guideline does not account for the risk to bystanders. Defendant claimed that the risk to bystanders was caused by the agent’s shots. However, the risk originated with defendant and his undisputed brandishing of a gun. The two-level departure was reasonable. U.S. v. Fuentes-Vazquez, 52 F.3d 394 (1st Cir. 1995).
1st Circuit rejects harsher crack penalties, federal prosecution, and status as young black man as grounds for downward departure. (715) Defendant argued that the district court should have departed because the harsher crack cocaine penalties have a racially disparate impact. He also claimed that a departure was warranted because of the discriminatory transfer of his case to federal court, alleged evidentiary errors, prosecutorial misconduct during his trial, and his status as an uneducated young black man. Since it was uncertain from the record whether the district court was aware of its authority to depart, the 1st Circuit addressed the merits of defendant’s claims, and rejected them. There was no discriminatory prosecution, evidentiary errors or prosecutorial misconduct, so these allegations did not merit a departure. All of the other factors cited by defendant were either discouraged or forbidden categories. Thus, the court’s refusal to depart was correct. U.S. v. Lewis, 40 F.3d 1325 (1st Cir. 1994).
1st Circuit finds no double counting in using same money for laundering and stolen goods offenses. (715) Defendant stole computer equipment from a manufacturer’s warehouse, and then resold the equipment. He was convicted of transporting stolen property and money laundering (in connection with his use of the sale proceeds). He asked for a downward departure on the ground that the same amount of money was double counted—once in the offense level calculations for money laundering and once in the offense level calculations for transporting stolen goods. The 1st Circuit doubted that this practice could be called double counting, since each crime was separate and distinct with its own measure of loss. The two figures were determined differently. The existence of some indeterminate degree of overlap between these figures did not constitute double counting. Moreover, even if there was double counting, it was not sufficiently “unusual” or “special” to warrant a downward departure. U.S. v. Pierro, 32 F.3d 611 (1st Cir. 1994).
1st Circuit says money laundering offense did not fall outside of “heartland.” (715) Defendant stole computer equipment from a manufacturer’s warehouse, and then resold the equipment. He was convicted of interstate transportation of stolen property and money laundering. The district court departed downward, finding this was a garden-variety theft case that the guidelines treated as a money laundering case. The 1st Circuit reversed, holding the case did not fall outside the “heartland” of money laundering cases. Defendant’s money laundering arose out of his use of proceeds from the sale of stolen property. The statute does not exempt people who merely launder money in furtherance of underlying criminal activity. Congress meant to address conduct undertaken after, but in connection with, an underlying crime, rather than merely affording an alternative means of punishing the underlying crime. U.S. v. Pierro, 32 F.3d 611 (1st Cir. 1994).
1st Circuit rejects departure for loss of life savings and psychological injury. (715) Defendant defrauded a number of her friends, business associates and former customers out of more than $500,000. The district court departed upward, finding the loss table in § 2F1.1 did not fully capture the harmfulness of defendant’s conduct because (a) some of the victims lost their entire life savings, and (b) some of the victims suffered “extreme psychological injury.” The 1st Circuit reversed. The failure to have a secure financial future doss contemplated by application note 10 to § 2F1.1. The bases listed in note 10 all suggest unusual repercussions beyond the loss of financial capacity and the general sense of betrayal normally associated with fraud by false pretenses. There was insufficient evidence of extreme psychological injury under § 5K2.3. The lack of trust, frustration, shock, and depression suffered by defendant’s victims were not so outside the heartland of fraud offenses as to constitute extreme psychological injury. U.S. v. Pelkey, 29 F.3d 11 (1st Cir. 1994).
1st Circuit rejects downward departure for pharmacists who illegally sold drugs. (715) Defendants, both pharmacists, conspired to dispense about 18,000 pills without proper prescriptions. The district court departed downward because it believed that this fell outside the “heartland” of the unlawful drug-trafficking statute, 21 U.S.C. § 841, but within the “heartland” of an unlawful drug-prescribing statute, 21 U.S.C. § 843. The 1st Circuit reversed, finding the district court misunderstood the difference between the two statutes. The two statutes distinguish between unlawful drug distribution (punishable under § 841) and unlawful record-keeping (punishable under § 843). It is possible that a drug-dispensing pharmacist would not violate § 841 if he believes a customer needs the drugs for legitimate medical treatment. However, where he knows that a customer not only lacks a valid prescription but also will not use the drugs for legitimate medical purposes, then § 841 applies and treats the pharmacist like a pusher. U.S. v. Limberopoulos, 26 F.3d 245 (1st Cir. 1994).
1st Circuit says gambling operators should have been sentenced under money laundering guideline. (715) Defendants operated an illegal gambling operation. They were convicted of money laundering for accepting and negotiating checks from gamblers who bet on sporting events. The district court found it was more appropriate to sentence defendants under the guidelines for operating an illegal gambling business, rather than under the money laundering guidelines. The 1st Circuit reversed, ruling that defendants’ conduct fell within the “heartland” of money laundering and therefore did not justify a downward departure. One defendant asked gamblers to structure their checks in amounts less than $10,000 and make them payable to fictitious payees. Both defendants received and negotiated the checks. Thus, defendants committed two offenses: gambling, followed by money laundering. The money laundering activity was within the full contemplation of Congress when it enacted 18 U.S.C. § 1956. U.S. v. LeBlanc, 24 F.3d 340 (1st Cir. 1994).
1st Circuit rules reckless endangerment was grounds for departure, not enhancement. (715) The district court departed upward in part because at the time of his arrest, defendant led police on a high speed chase along the wrong side of a divided highway. Defendant pointed out that the 1990 guidelines, not applicable to him, added a new provision specifically requiring a two point enhancement in such circumstances under section 3C1.2(b). The 1st Circuit held that the district court properly used the reckless endangerment as a grounds for departure, rather than a section 3C1.2(b) enhancement. Application of the new guideline, which would have required a two-level increase, would have violated the ex post facto clause. Under the earlier 1989 guidelines, the matter was properly left to the court’s departure-related discretion. U.S. v. Doe, 18 F.3d 41 (1st Cir. 1994).
1st Circuit upholds departure based on drug purity and amount, and use of children in offense. (715) Defendant, accompanied by his two young children, delivered 11 kilograms of 88 percent pure cocaine to an undercover agent. After he was arrested, he told the agent he brought the children to lessen the likelihood of being stopped on his drive. The 1st Circuit affirmed a two point upward departure based on (a) defendant’s prominent role in cocaine dealing, as evidenced by the quantity and purity of the drugs involved, and (b) the involvement of defendant’s minor children. Note 9 to section 2D1.1 specifically states that unusually high purity may warrant an upward departure, since it may be probative of a defendant’s position in the chain of distribution. Purity is relevant without regard to drug quantity, but it is particularly relevant where the quantities involved are small. The involvement of the children was also a proper ground for departure, given the relationship between drugs and violence. U.S. v. Legarda, 17 F.3d 496 (1st Cir. 1994).
1st Circuit remands because court may not have known it could depart in unusual circumstances. (715) Defendant was convicted of receiving child pornography. He requested a downward departure on several grounds, but the district court found no permissible grounds. The 1st Circuit remanded, finding the district court may not have understood it had the authority to depart downward for unusual circumstances under U.S. v. Rivera, 994 F.2d 942 (1st Cir. 1993). There are only nine forbidden grounds for departures that are listed in the guidelines (e.g. race, sex). All other factors may be taken into account. Where a factor is not listed in the guidelines, the district court is to decide whether to depart by examining the unusual nature of these circumstances and making a judgment about what is appropriate. Here, the district court clearly viewed the case as unusual. Defendant believed he was acting within the law, and thus lacked mens rea. Because a departure thus was permitted, the case was remanded To reconsider this issue. U.S. v. Gifford, 17 F.3d 462 (1st Cir. 1994).
1st Circuit finds erroneous advice on penalty for returning to U.S. no basis for downward departure. (715) Defendant pled guilty to unlawfully reentering the U.S. following deportation. He requested a downward departure because the INS erroneously informed him that the maximum penalty he would face if he returned to the country was two years, instead of the correct penalty of 15 years. Defendant claimed that relied upon this when he decided to return to the U.S., and had he known of the higher penalty he would face, he would not have returned. The 1st Circuit rejected this as grounds for a downward departure. Defendant’s contention ran counter to a primary purpose of the sentencing system, which was to deter criminal conduct. The guidelines were established, in part, to create penalties which were high enough to discourage people from committing a particular crime. U.S. v. Smith, 14 F.3d 662 (1st Cir. 1994).
1st Circuit approves departure where health insurance fraud caused a loss of confidence in an important institution. (715) Defendant pled guilty to charges stemming from his role in a fraudulent health insurance scheme whose victims were a number of small businesses and their employees. The 1st Circuit approved an upward departure under note 10 to §2F1.1 based on the loss of confidence in an important institution. The government cited articles and congressional testimony describing the growing threat to the health insurance industry, in particular multi-employer arrangements for small businesses, caused by fraudulent operators posing as legitimate insurers. The government was not required to provide evidence that defendant’s own conduct caused a loss of confidence in the health industry. U.S. v. Rowe, 999 F.2d 14 (1st Cir. 1993).
1st Circuit reverses downward departure to permit restitution but might permit in unusual case. (715) Defendant was convicted of embezzling $100,000 from a union’s health and welfare fund. Noting that restitution would be facilitated by sentencing defendant to a nonprison term, the district court departed below the guideline range and imposed a term of probation. The 1st Circuit reversed, holding that the ordinary need to pay restitution in an embezzlement case was not sufficiently unusual to justify a departure. It noted, however, that such a departure might be justified where a special need for restitution existed, or where the departure from the guidelines range was minimal. U.S. v. Rivera, 994 F.2d 942 (1st Cir. 1993).
1st Circuit affirms upward departure for number of aliens on dangerous journey. (715) Defendant was the captain of a boat carrying 104 aliens illegally into the United States. The 1st Circuit affirmed an upward departure based on the large number of aliens, the dangerousness of the journey and the underrepresentation of defendant’s criminal history, as evidenced by his prior arrest for similar conduct. Application note 8 to section 2L1.1 plainly states that offenses involving a large number of aliens or dangerous or inhumane treatment may justify an upward departure. There is no question that transporting 104 aliens in a boat designed to carry a maximum of 15 passengers, without food, life jackets, navigational equipment or charts, constituted dangerous and inhumane treatment. Defendant’s prior arrest, weeks before the instant offense after landing 93 aliens, was evidence that a criminal history category of I underrepresented the magnitude of his criminal actions. The extent of the departure, from 10 months to a sentence of 24 months, was reasonable. U.S. v. Trinidad-Lopez, 979 F.2d 249 (1st Cir. 1992).
1st Circuit upholds departure based on possession of loaded gun. (715) Defendant stole a firearm, ammunition, credit cards and other goods from a residence. He was arrested in possession of the credit cards and the loaded weapon. He eventually pled guilty to the unauthorized use of credit cards. The 1st Circuit upheld an upward departure based on defendant’s possession of the loaded handgun in close conjunction with events surrounding the offense of conviction. The fraud guideline does not list or mention as a relevant factor the possession or use of a firearm as a characteristic of that offense. There was sufficient evidence of a “significant association” between the loaded weapon and the misuse of the stolen cards. Defendant used one of the cards to rent a car which was involved in a high-speed chase with police, and admitted that his possession of the gun at the time of the chase was the reason why he fled. When arrested several weeks later he still possessed both the cards and the weapon. U.S. v. Yates, 973 F.2d 1 (1st Cir. 1992).
1st Circuit upholds unguided downward departure for multiple causation of loss. (715) Defendant received a six-level enhancement under guideline section 2F1.1(b)(1) for causing victim loss of between $100,000 and $200,000. The district court departed downward from defendant’s guideline range, relying upon application note 10 to section 2F1.1, which authorizes a departure where there are multiple causes of the victim’s loss. The 1st Circuit affirmed, rejecting defendant’s contention that defendant’s share of the loss should have been determined as part of the process of determining defendant’s offense level. The Sentencing Commission’s identification of multiple causation as a grounds for a downward departure left the structure and dimension of the departure to the discretion of the sentencing court. U.S. v. Gregorio, 956 F.2d 341 (1st Cir. 1992).
1st Circuit rules court was aware of extent of its ability to depart downward based on defendant’s poor health. (715) Defendant argued that the district court misunderstood the extent to which it could depart downward based on her poor health. First, she contended that the court ruled that guideline section 5H1.4 allows only two choices: a sentence within the guideline range, or no imprisonment at all. The 1st Circuit rejected this argument, noting that although the sentencing judge stated that defendant’s condition did not justify a sentence of no imprisonment, this was in direct response to the argument that defendant should not be incarcerated at all. The 1st Circuit also rejected defendant’s argument that the district mistakenly believed that guideline section 5K2.0 did not furnish a basis for departure independent of section 5H1.4. There was no way that defendant’s physical impairment could be ordinary for purposes of section 5H1.4 and, at the same time, sufficiently out of the ordinary to justify a departure under section 5K2.0. Because the district court understood its authority to depart and exercised its discretion not to, the appellate court lacked jurisdiction to review the matter. U.S. v. Hilton, 946 F.2d 955 (1st Cir. 1991).
1st Circuit affirms upward departure where guidelines did not reflect increased penalties under statute. (715) Defendant was convicted of being a deported alien unlawfully in the United States. The statute had recently been amended to increase the maximum penalty from two to five years. However, the guidelines lagged behind, not incorporating these changes until the November 1989 amendments. Defendant was sentenced under the 1987 version of the guidelines. The 1st Circuit upheld the district court’s departure based on the lag time between the statutory amendments and the corresponding update of the guidelines, finding that the Sentencing Commission could not have considered the increased penalties when formulating the 1987 guidelines. The 1st Circuit also found it was proper for the district court to determine the scope of the departure using the amended version of the guidelines as a guide. “In the relatively rare situation presented here, where the defendant committed an offense after the applicable statute was amended but before the corresponding guideline had been revised to reflect the change, resort to the eventual guideline revision for guidance appears to be a sensible, fair-minded approach.” U.S. v. Aymelek, 926 F.2d 64 (1st Cir. 1991).
1st Circuit upholds upward departure based upon defendant’s expressed intent to commit crime again. (715) Defendant was convicted of being a deported alien unlawfully present in the United States. The district court departed upward based on defendant’s vow, when arrested, to continue his efforts to reenter the country illegally if deported once more. The 1st Circuit upheld the departure, finding that such “brazen defiance of authority, in the form of assured recidivism, can be considered an atypical factor sufficient to take a case beyond the heartland for the offense of conviction.” U.S. v. Aymelek, 926 F.2d 64 (1st Cir. 1991).
1st Circuit upholds finding that defendant had urged son to rob bank to obtain bail money. (715) The district court departed upward and required defendant to serve an additional two months in prison because it found that defendant had urged his son to rob another bank to obtain bail money for defendant. Defendant argued that the evidence was insufficient to support the finding since the government put pressure on his son to testify by offering him immunity. The 1st Circuit rejected this argument. The son’s testimony was corroborated by a letter that defendant sent to another son. Moreover, the issue was one of credibility, and the district court was authorized to accept the son’s testimony as true. U.S. v. Porter, 924 F.2d 395 (1st Cir. 1991).
1st Circuit upholds departure of three times guideline range. (715) Defendant had an offense level of 20, and fell within criminal history category III, resulting in a guideline range of 41 to 51 months. The district court departed upward, increasing the offense level to 28 and determining that defendant more properly fell within criminal history category VI. Defendant was sentenced to 135 months. The district court identified ten specific reasons for the departure, including the fact that defendant had ordered the murder of an informant, was implicated in another murder, had planned to murder a district attorney, had used a minor as a messenger in his drug business, was one of the most important drug traffickers in Puerto Rico, and derived significant income from drug trafficking. The 1st Circuit upheld the departure, finding the judge made a “well-supported determination that [defendant’s] conduct was so egregious as to merit upward departure.” Several of the factors relied upon by the judge (defendant’s importance as a drug supplier, his use of a minor in his business, the amount of money involved) were proper grounds for departure. The degree of the departure was also reasonable, for defendant appeared to be a “lifetime criminal offender, one who has shown no respect whatsoever for the law or any other social institutions.” U.S. v. Rodriguez-Cardona, 924 F.2d 1148 (1st Cir. 1991).
1st Circuit reverses where downward departure was based on absence of violence and small amount of money stolen. (715) Defendant committed two bank robberies that netted about $3,000. Defendant was found to be a career offender with a guideline range of 210 to 262 months. The district court departed down from the guidelines and sentenced defendant to six years, based on the fact that no “real violence [was] involved, [defendant] obtained $3,000 total, and to impose 20 years in a situation like this .ÿ.ÿ. would constitute a miscarriage of justice.” The 1st Circuit reversed. The record was clear that a significant threat of violence was present during both of the subject robberies. The fact that defendant only obtained a small amount of money was not grounds for a downward departure. The perceived excessiveness of the sentence was also an improper ground for a downward departure. U.S. v. Norflett, 922 F.2d 50 (1st Cir. 1990).
1st Circuit reverses downward departure of child pornographer. (715) Defendant pled guilty to mailing three child pornography magazines. The district court departed downward, since defendant’s conduct was the least serious in a wide range of conduct covered by guidelines § 2G2.2, involving “no acting out but rather private fantasies and an otherwise exemplary life.” The 1st Circuit reversed, following its opinion in U.S. v. Studley, 907 F.2d 254 (1st Cir. 1990). The court rejected the notion that as a “passive” offender who did not engage in distribution for pecuniary gain and had never engaged in sexual activity with minors, defendant fell outside the “heartland” of offenses covered by § 2G2.2. This argument rested on the assumption that most defendants convicted of receiving child pornography are also child molesters and extroverted deviates. The 1st Circuit also found that the Sentencing Commission did consider the full range of conduct covered by § 2G2.2, as evidenced by the increase in offense level for offenses involving distribution. U.S. v. Deane, 914 F.2d 11 (1st Cir. 1990).
1st Circuit remands child molestation case for resentencing. (715) Pursuant to a plea agreement, defendant pled guilty to one charge of sexual exploitation in return for dismissal of the remaining 10 counts. The district court enhanced the sentence due to the victim’s age, and departed upward from 71 to 97 months, noting that defendant’s guilty plea to one count did not take into account defendant’s “constant and deep involvement in the exploitation of ten minors by means of photographs.” The 1st Circuit remanded for resentencing, holding that it was improper to increase defendant’s offense level by two under guideline § 3A1.1 based on the victim’s age, since the guideline for sexual exploitation of a minor already incorporates the victim’s age into the offense level. In addition, the district court appeared to rely on the presentence report’s incorrect statement that if defendant had been convicted of any one of the remaining counts, his base offense level would have increased by five, netting a guideline range of 97 to 121 months. Finally, if the district court felt that the remaining charges did not reflect the seriousness of defendant’s conduct, it should not have accepted the plea. U.S. v. Plaza-Garcia, 914 F.2d 345 (1st Cir. 1990).
1st Circuit upholds upward departure to ten years for fourteen bank robberies. (715) The multiple count section of the guidelines, U.S.S.G. 3D1.4, provides no additional time if more than five robberies are committed. The commentary states that “departure would be warranted in the unusual case where the additional offenses resulted in a total significantly more than five units.” Based on the commentary, the court departed upward from 57-71 months to 120 months, because of defendant’s nine additional robberies and one attempted robbery. The 1st Circuit affirmed, holding that the departure was “not unreasonable” even though the extent of departure was approximately equal to the underlying punishment. U.S. v. Chase, 894 F.2d 488 (1st Cir. 1990).
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2nd Circuit allows court to decline to depart after government’s § 5K3.1 motion. (715) Defendant pled guilty to illegal reentry into the United States. The government moved, pursuant to its fast-track program, for a four-level downward departure, but the district court denied the motion. Defendant argued on appeal that § 5K3.1 requires district courts to depart pursuant to an appropriate government motion. The Second Circuit disagreed. The plain text of § 5K3.1 states that upon motion of the government, the court “may” depart downward under a fast-track program. The permissive “may” foreclosed defendant’s argument that the court “must” depart downward when the government makes a motion. U.S. v. Shand, __ F.3d __ (2d Cir. Jan. 13, 2014) No. 13-227-cr.
2nd Circuit says refusal to depart not reviewable where court adequately considered departure. (715) Defendant was convicted of exporting weapons and other defense articles from the United States to the Philippines, in violation of the Arms Export Control Act (AECA). Note 1 to § 2M5.2 provides that the base offense level “assumes that the offense conduct was harmful or had the potential to be harmful to a security or foreign policy interest of the United States. In the unusual case where the offense conduct posed no such risk, a downward departure may be warranted.” Defendant contended that he was entitled to a downward departure because his conduct was beneficial in that he was selling weapons to anti-terrorist groups in the Philippines and not to insurgents. The Second Circuit held that the district court understood its authority to depart, and chose not to, and therefore the refusal to depart was not reviewable. The court stated initially that it rejected defendant’s request because “the policy is reflected in the statute,” but it then went on to consider the degree to which “violation threatened a security or foreign policy interest of the United States,” as required by Application Note 2 before downwardly departing. The district court adequately considered the relevant factors under the application note, and thus, the refusal to depart was not reviewable. U.S. v. Sero, 520 F.3d 187 (2d Cir. 2008).
2nd Circuit says court is not required to depart for fast-track departures in other districts. (715) Defendant argued that the existence of “fast-track” departures, available to those sentenced in some federal districts, but not the Southern District of New York, created an unwarranted sentencing disparity. The Second Circuit disagreed. In U.S. v. Mejia, 461 F.3d 158 (2d Cir. 2006), the court held that a district court’s refusal to adjust a sentence to compensate for the absence of a fast-track program did not make a sentence unreasonable. Its recent decision in U.S. v. Liriano-Blanco, 510 F.3d 168 (2d Cir. 2007) had no relevance to this appeal, since there was no indication that the district court wished to depart downward based on the availability of fast-track departures in other districts. U.S. v. Ramirez-Sucar, 517 F.3d 69 (2d Cir. 2008).
2nd Circuit holds that reliance on population density to impose above-guidelines sentence was legal error. (715) Defendant was convicted of conspiring to deal in and transport firearms. Although his guideline range was 12-18 months, the district court decided to impose a non-guideline sentence of 24 month. The court reasoned that gun trafficking in an urban environment like New York City inflicts greater harm and requires stiffer penalties to achieve deterrence than the same offense committed in less densely populated parts of the country. The Second Circuit held that under the circumstances of this case, the court’s reliance on the simple fact of population density to impose a non-guidelines sentence was legal error. A demographics-based approach threatens to undermine a primary purpose of the guidelines, to bring nationwide uniformity to federal criminal sentences. The court based defendant’s sentence on its own public policy determination, and, while post-Booker courts have more discretion in sentencing, a district “cannot import its own philosophy of sentencing if it is inconsistent with the § 3553(a) factors.” Moreover, the court’s support for its assessment of the harmfulness of defendant’s crime was speculative. Although injury to innocent bystanders is more probable in crowded environments, the City of New York has five boroughs with varying population densities. New York City is too large and varied a community to draw meaningful conclusions as the potential impact of stray bullets that may someday originate from a trafficked firearm. U.S. v. Cavera, 505 F.3d 216 (2d Cir. 2007).
2nd Circuit says court need not consider whether defendant would have received a shorter sentence if prosecuted in state court. (715) Defendant was convicted of being a felon in possession of a firearm, and received a 120-month sentence. Had he been prosecuted for the same offense in New York state court, his potential sentence could not have exceeded 84 months. He argued that the district court erred by failing to take into account, when considering his motion for a downward departure or variance, the difference between federal and state penalties for his offense of conviction. The Second Circuit disagreed. Although § 3553(a)(6) directs a court to consider the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct, the primary of § 3553(a)(6) is to reduce disparities nationwide. Requiring district court to reduce a defendant’s sentence whenever he might have been subject to a lesser state sentence would make federal sentences dependent on the law of the state in which the sentencing court was located, resulting in federal sentencing that would vary from state to state. U.S. v. Johnson, 505 F.3d 120 (2d Cir. 2007).
2nd Circuit reverses where court increased downward departure to make up for enhancement required by appellate court opinion. (715) Defendant’s company monitored pacemakers for Medicare patients. He falsely represented to Medicare that his company had complied with all relevant regulations, and instructed his managers to alter records to make them look in compliance. The district court initially found that defendant’s noncompliance did not cause Medicare any harm, granted him a six-level downward departure for public service, and imposed a sentence of one year’s probation. On defendant’s first appeal, the Second Circuit reversed, holding that the district court had erred in declining to make a guideline loss calculation. On remand, the court added a 13-level enhancement for a loss of $5 million. However, it also granted a 15-level downward departure on the ground that the monetary loss overstated the seriousness of the offense. The court again imposed a sentence of one year’s probation, and the Second Circuit reversed. The court’s explanation of why the $5 million loss overstated the seriousness of the offense related only to actual loss; the court made no findings as to intended loss. Moreover, it was questionable whether the departure authority in Note 11 to § 2F1.1 applied here. The court also improperly considered Medicare’s conduct – Medicare did not provoke defendant’s conduct. Finally, the extent of the departure was unreasonable. The effect of the departure was to treat defendant as through he had intended to cause no loss at all, which was contrary to the appellate court’s instructions. A departure that results in the same sentence that was previously rejected because it failed to account for an aggravating factor appears to be unreasonable. U.S. v. Canova, 485 F.3d 674 (2d Cir. 2007).
2nd Circuit says court is not required to depart for good time credit defendant might have earned if incarcerated in U.S. (715) Defendant pled guilty to conspiring to import ecstasy into the U.S. and received a sentence of 162 months’ imprisonment. The court departed downward by 26 months, the length of defendant’s imprisonment in Belgium, pursuant to U.S.S.G. § 5K2.23, which permits departures for “discharged terms of imprisonment.” Defendant argued that because the federal statute governing good time credit permits the Bureau of Prisons to award inmates up to 54 days of good time credit at the end of each year of imprisonment, the district court’s downward departure should have included all of the good time credit defendant might have earned had he served his 26-month Belgian sentence in federal prison. The amount of good time credit earned by a defendant is determined by the BOP based on a prisoner’s behavior while incarcerated in a BOP controlled environment. Because defendant was previously incarcerated in a foreign jail, the Second Circuit ruled that the district court did not abuse its discretion in denying a downward departure on the basis of defendant’s speculative assertion that he would have earned good time credit in a BOP prison had he served his time in such a facility. The court also rejected defendant’s argument that the district court should have reduced defendant’s sentence to ensure that it was commensurate with a co-defendant’s probable sentence under Belgian law. The district court did not abuse its discretion when it declined to depart on the basis of defendant’s wholly speculative argument that a foreign sovereign might sentence his co-defendant to a lesser sentence than would generally be warranted under the guidelines. U.S. v. Hilario, 449 F.3d 500 (2d Cir. 2006).
2nd Circuit upholds four-level departure for bartering drugs for firearms. (715) Defendant was convicted of being a felon in possession of a firearm and bail jumping. The district court made a four-level upward departure for defendant’s bartering of drugs in exchange for firearms. Defendant did not dispute that this was a proper ground for departure, but contended that the extent of the departure constituted an abuse of discretion because the court failed to provide any valid “penalogical explanation” for its departure calculation. The Second Circuit found that the court gave adequate reasons for the extent of the departure. The court analogized between defendant’s conduct and the conduct described in § 2K2.1(b)(5), which prescribed more severe punishment for the sale of firearms in connection with committing another felony. Defendant did not establish that the district court plainly erred or abused its discretion in choosing a four-level departure. U.S. v. Fuller, 426 F.3d 556 (2d Cir. 2005).
2nd Circuit approves departure based on intent to engage in sexual activity with minor while infected with HIV. (715) Defendant traveled to New York to have sexual relations with a boy he had chatted with over the Internet. The “boy” was in reality an undercover agent. The district court departed upward under § 5K2.0 based on defendant’s intent to engage in sexual activity with a minor while knowingly infected with HIV. No condoms were found in defendant’s hotel room at the time of his arrest, and defendant had, in chat sessions with the “boy” prior to his trip to New York, expressed his intention to leave condoms at home. Defendant argued that the upward departure was improper because there was “no victim, no child, and no sexual activity.” The Second Circuit found no merit to this objection. It is hornbook law that factual impossibility is not a defense to a charge of attempt in substantive criminal law. The guidelines punish attempts as severely as completed offenses. U.S. v. Weisser, 417 F.3d 336 (2d Cir. 2005).
2nd Circuit reversed where court gave conclusory one sentence reason for departure. (715) Upon discovery of a guideline range miscalculation, and a mistaken sentence based upon that miscalculation, the district court decided to retain the sentence, and in order to reconcile the discrepancy, awarded a downward departure “for mitigating factors which weren’t contemplated.” The Second Circuit reversed. The district court’s explanation of its decision to depart was conclusory. Moreover, no notice was given to the government by the court of its intent to depart downward. On remand, the court must adhere to the requirements of the PROTECT Act to state in open court, as well “with specificity in the written order and judgment,” reasons for imposing a sentence outside the guidelines. U.S. v. Nuzzo, 385 F.3d 109 (2d Cir. 2004).
2nd Circuit departs upward for defendant who pretended he was killed in September 11 attacks to avoid criminal prosecution. (715) Shortly after September 11, 2001, in order to avoid passport fraud charges, defendant pretended to be his own fictional brother, and falsely reported to his attorney that defendant had died in the September 11 attacks. He also posed as another fictional brother in an attempt to obtain a death certificate for himself from the city. Defendant’s “brother” reported to the New York City Law Department that defendant had worked at Cantor Fitzgerald in the World Trade Center and had died in the attacks. To support the claim, he produced a fabricated email from a deceased human resources manager from Cantor Fitzgerald purporting to show that defendant had begun working at Cantor Fitzgerald a week before the attacks. The district court departed upward under § 5K2.0 and § 5K2.7, finding defendant’s behavior “despicable” and “complete[ly] selfish.” In addition to committing a fraud on the court and the city, defendant diverted resources from the Marshals Service, the New York City Law Department and Cantor Fitzgerald at a time when their resources were desperately needed elsewhere. The Second Circuit held that the departure was not an abuse of discretion. The court did not depart merely because this case involved September 11 or resulted in an unnecessary additional expenditures, but “after careful consideration of the inter-relationship of a constellation of factors.” U.S. v. Leung, 360 F.3d 62 (2d Cir. 2004).
2nd Circuit says court erred in departing without making finding on defendant’s motive for reentry. (715) Defendant was convicted of illegally reentering the country after deportation. He moved for a downward departure in part based on the fact that he reentered the U.S. illegally due to fear for his life and physical safety in El Salvador. Although the district court found nothing in the record to corroborate defendant’s claim, the court nonetheless cited this ground in departing downward. The Second Circuit found that the district court did not make sufficient findings to support a departure. The court made statements such as “I’m not passing judgment on the truth of what he claims [were] the circumstances down there;” and “I’m not gonna decide, as a question of fact, whether what he said in those affidavits is correct. I recognize that he may very well be contriving to stay in the United States,” and “I don’t think it’s appropriate for me to resolve credibility issues at this juncture … I have not made a finding, in the final analysis, that … the facts [are exactly] as he asserts them…” The district court was presented with two opposing sets of statements from the defendant regarding his motive for reentry, and it had an obligation to determine which statements were truthful based on defendant’s alleged personal safety motive. U.S. v. Leiva-Deras, 359 F.3d 183 (2d Cir. 2004).
2nd Circuit rejects departure where judge believed probation revocation sentence should not count in “sentence imposed.” (715) Guideline § 2L1.2(b)(1)(A)(i) requires a 16-level increase if the defendant reentered the U.S. after a conviction for a felony that is a drug trafficking offense for which the sentence imposed exceeded 13 months. In U.S. v. Huerta-Moran, 352 F.3d 766 (2d Cir. 2004), the court held that “a probation revocation sentence that, by itself, is longer than 13 months qualifies as a ‘sentence imposed’ for a ‘drug trafficking offense’ under § 2L1.2(b)(1)(A)(i).” In this case, defendant’s original sentence of three years probation with the first 180 days to be spent in jail was imposed for the sale of marijuana, a drug trafficking offense. Since defendant’s original sentence was a drug trafficking offense, the four-year term of imprisonment imposed upon revocation of defendant’s probation qualified as a “sentence imposed for a drug trafficking offense.” Therefore, the Second Circuit ruled that it was error for the sentencing court to depart downward on the grounds that the probation revocation sentence should not be included in the “sentence imposed” for a drug trafficking offense. U.S. v. Leiva-Deras, 359 F.3d 183 (2d Cir. 2004).
2nd Circuit rejects downward departure based on nature of prior drug trafficking felony. (715) Defendant, convicted of illegally reentering the country after deportation, received a 16-level enhancement under § 2L1.2(b)(1)(A)(i) based on a prior felony drug trafficking conviction for which the sentence imposed was greater than 13 months. During sentencing, the court stated that treating all trafficking offenses equally was illogical, and that it did not believe that selling $10 worth of marijuana supported a 16-level increase. It justified a downward departure in part based on the Sentencing Commission’s failure to adequately take into account the minor nature of certain drug trafficking crimes. The Second Circuit noted that in U.S. v. Stultz, 356 F.3d 261 (2d Cir. 2004), argued on the same day as this case, it held that the Sentencing Commission took the severity of the underlying felony into account when creating the graduated system of felonies in the 2001 amendments to U.S.S.G. § 2L1.2. Thus, a downward departure based on the nature of the prior drug trafficking felony is improper. U.S. v. Leiva-Deras, 359 F.3d 183 (2d Cir. 2004).
2nd Circuit says marijuana conviction was within heartland of offenses deserving 16-level enhancement. (715) Defendant pled guilty to illegally reentering the country after deportation. The court applied a 16-level enhancement under § 2L1.2(b)(1)(A)(i) based on a prior conviction for trafficking in marijuana. Apparently believing that marijuana offenses are less serious than other drug offenses, the court departed downward five levels on the ground that the prior conviction was 16 years old and involved the sale of marijuana. The Second Circuit reversed, holding that the court erred when it decided that the Sentencing Commission had not taken into account the severity of prior drug offenses involving marijuana. Whether marijuana deserves to be treated comparably to other drugs for purposes of this enhancement has been considered by the Commission, and hence may not serve as a grounds for departure. Moreover, the period of time between the two offenses was not a proper ground for departure. U.S. v. Stultz, 356 F.3d 261 (2d Cir. 2004).
2nd Circuit remands where court did not explain reasons for departing from § 5G1.2(d). (715) Applying § 5G1.2(d), the PSR recommended that the first defendant serve a 240-year sentence, reaching by imposing the statutory maximum term for each count consecutively. Instead, the district court sentenced defendant to only 30 years. The PSR recommended a 40-year sentence for the second defendant (20-year statutory maximum for each of defendant’s two counts). This defendant did not seek a downward departure, but the court sentenced him to two ten-year sentences to run consecutively, for a total of only 20 years’ imprisonment. The Second Circuit remanded because the district court failed to articulate its reasons for departing from the range set forth by U.S.S.G. § 5G1.2(d). The court made no findings of fact or conclusions of law justifying its departures. In response to the government’s inquiry as to the first defendant, the court stated only that “I must have departed downward … to get those three segments of ten years.” As to the second defendant, the court was equally vague: “I would have to assume that I have departed.” The basis for the departures later provided by the court in its published order was equally obscure, since it merely cited § 5K2.0 without further explanation. This was not sufficient to satisfy 18 U.S.C. § 3553(c)(2), which requires articulation “in open court” of the “specific reason” for a departure. U.S. v. Evans, 352 F.3d 65 (2d Cir. 2003).
2nd Circuit holds that increase for past vulnerable victims and criminal history departure was not improper. (715) Note 4 to U.S.S.G. § 3A1.1 says that an upward departure may be warranted where the defendant “knew or should have known that a victim of the offense was a vulnerable victim,” and “the defendant’s criminal history includes a prior sentence for an offense that involved the selection of a vulnerable victim.” The district court departed upward by two levels, based in part on a finding that a 1992 Florida offense involved the selection of a vulnerable victim. The court also made an upward departure criminal history departure under § 4A1.3, finding that category I did not adequately reflect the seriousness of the offense or risk of recidivism. Defendant argued that the court’s use of both §§ 3A1.1 and 4A1.3 was impermissible because departure under each section depended not just on the same act but also on the same rationale – punishment for targeting vulnerable victims. The Second Circuit found no error, since there was nothing in the guidelines or relevant statutes reflecting an intent to preclude the type of double counting the court used. Moreover, the two departures focused on distinct aspects of defendant’s prior conduct. Under § 3A1.1, the district court focused on defendant’s past abuse of vulnerable victims. In departing under § 4A1.3, the district court stated that in light of defendant’s pattern of exploitation, category I would understate his likelihood of recidivism. There was no improper double counting. U.S. v. Morris, 350 F.3d 32 (2d Cir. 2003).
2nd Circuit says overlap between guidelines might justify downward departure. (715) Defendant, a medical doctor, fraudulently obtained reimbursement from insurance companies for fertility treatments he performed on patients whose insurance did not cover such treatments. The district court refused to apply an enhancement under § 2F1.1(b)(8)(B) for affecting a financial institution and deriving more than one million dollars in gross receipts from the offense, ruling that the defrauded insurance companies did not constitute financial institutions. The Second Circuit reversed, since Note 19 to § 2F1.1 specifically lists “insurance company” among the types of institutions included within the definition of “financial institution.” Moreover, since the court ordered restitution of more than three million dollars, the court necessarily determined that defendant derived more than one million dollars in gross receipts. Thus, the § 2F1.1(b) (8)(B) enhancement should have been imposed. However, the panel suggested that a downward departure might be warranted because of the cumulation of enhancements based on the large amount of fraud proceeds involved. While the guidelines permit the use of a § 2F1.1(b)(8)(B) enhancement in addition to a large loss enhancement, “the cumulation of such substantially overlapping enhancements, when imposed upon a defendant whose adjusted offense level translates to a high sentencing range,” permitted the sentencing judge to make a downward departure. U.S. v. Lauersen, 348 F.3d 329 (2d Cir. 2003).
2nd Circuit holds that cross-reference applies only if elements of another offense are established by conduct set forth in indictment. (715) Defendant pled guilty to one count of making false statements to representatives of the U.S. Attorney’s office and the FBI, in violation of 18 U.S.C. § 1001. At sentencing, the government argued that U.S.S.G. § 2B1.1(c)(3), a cross-reference provision, permitted the court to sentence defendant under U.S.S.G. § 2J1.2(c)(1), the obstruction of justice guideline, rather than under § 2B1.1, the fraud guideline that applied to § 1001 violations. The Second Circuit held that the § 2B1.1(c)(3) cross-reference applies only if the elements of another offense are established by conduct set forth in the count of conviction and proven by a preponderance of the evidence. The cross-reference was not applicable here. The indictment did not set forth a sufficient nexus between defendant’s false statements and a federal judicial proceeding to set forth a violation of 18 U.S.C. § 1503. The indictment also did not establish a violation of 18 U.S.C. § 1512, which requires a specific intent to interfere with the communication of information to authorities. However, the fact that the cross-reference was not applicable did not bar the district court from departing under Note 15 to § 2B1.1, which permits a departure where the primary objective of the offense was an aggravating non-monetary objective. The district court incorrectly concluded that Note 15 could not be used “as a back door to allowing an upward departure” that was otherwise prohibited by the inapplicability of the § 2B1.1(c)(3) cross-reference. U.S. v. Genao, 343 F.3d 578 (2d Cir. 2003).
2nd Circuit says bartering of guns for drugs, while not basis for criminal history departure, could support offense level departure. (715) Defendant was convicted of gun-running offenses and other weapons offenses. In departing upward from criminal history category from II to IV under § 4A1.3, the judge relied on defendant’s possession of a .357 magnum revolver, which had been the basis of a dismissed charge in South Carolina, and his bartering of guns for drugs. Defendant contended that this horizontal departure was improper because both acts were part of his relevant criminal conduct. The government conceded that the horizontal departure was improper, but contended that on remand the bartering of guns for drugs could be the basis of a vertical departure under § 5K2.0. The Second Circuit agreed. The bartering of guns for drugs, if not technically “relevant conduct” for purposes of an offense-specific adjustment, was sufficiently related to the offense to make it also unavailable as a basis for a horizontal departure. Nevertheless, such conduct remained available as a basis for a vertical departure to increase the offense level because it played no part in setting the base offense level of any of the offense-specific adjustments. Simply because the court used the bartering activity for the wrong kind of departure was not a reason to preclude its use on remand for a permissible type of departure. U.S. v. Fuller, 332 F.3d 60 (2d Cir. 2003).
2nd Circuit affirms departure based on large number of pornographic images involved. (715) Defendant was convicted of receiving and possessing child pornography. The Second Circuit approved an upward departure based on the large number of images (150,000) involved. In such circumstances, the guidelines did not give sufficient weight to quantity. Moreover, the district court could measure quantity by the number of images, instead of the number of computer disks, in making this determination. While the precise number of images that defendant received was never determined, there was no doubt that the number was far in excess of ten, the threshold quantity above which U.S.S.G. § 2G2.4 requires an increase of two offense levels. At sentencing, defendant did not challenge the 150,000 image estimate. U.S. v. Lasaga, 328 F.3d 61 (2d Cir. 2003).
2nd Circuit says departure could account for part of time spent in home detention. (715) On the first appeal, the Second Circuit held that defendant was not entitled to a minor role adjustment and remanded with instructions to resentence defendant at a base offense level of 15. The court left open the possibility that defendant was entitled to an additional one-level acceptance of responsibility reduction. On remand, instead of sentencing defendant in accordance with that mandate, the district court granted him a three-level downward departure based on the additional level for acceptance of responsibility, and (1) extraordinary rehabilitation, (2) aberrant behavior, (3) the detrimental effect of defendant’s imprisonment on his employer, and (4) credit for time served in home detention pursuant to defendant’s original sentence. The Second Circuit held that the departure was unwarranted in part because of the mandate in the original appeal and in part on the merits. The original mandate precluded litigation of defendant’s claim that his behavior was aberrant and that his further imprisonment was detrimental to his employer. Defendant’s post-sentencing rehabilitation, even if a proper ground for departure (which was doubtful in light of a November 2000 amendment), was not extraordinary. However, the court was permitted to depart to account for the time defendant spent in home detention. Because home detention is a lighter punishment than prison, the departure should be less than the time served under home detention. U.S. v. Carpenter, 320 F.3d 334 (2d Cir. 2003).
2nd Circuit says heartland of money laundering guideline not limited to organized crime and drugs. (715) The district court granted defendant’s motion for a downward departure on his money laundering offense, finding that defendant’s crime was outside the heartland of the money laundering guideline. It found that the heartland of the money laundering guideline involved “widespread and far-reaching schemes such as those associated with organized crime, racketeering offenses, or serious drug crimes and conspiracies.” In contrast, defendant’s business, asbestos abatement and removal, “was at its core legitimate.” The Second Circuit found that the district court erred in finding that defendant’s offense was atypical simply because he did not launder the proceeds of serious crimes like drug trafficking and organized crime. In U.S. v. McCarthy, 271 F.3d 387 (2d Cir. 2001), decided 17 days before defendant was sentenced, the court rejected the argument that the money laundering guideline was limited to proceeds derived from drugs or organized crime. The case was remanded for consideration by the district court in light of McCarthy. U.S. v. Thorn, 317 F.3d 107 (2d Cir. 2003).
2nd Circuit says court properly refused to depart based on illegal activities of robbery victims. (715) Defendant participated in two robberies, and was convicted of several Hobbs Act counts. He requested a downward departure, claiming that because the victims of the robberies were involved in illegal activity, the robberies fell outside the heartland of Hobbs Act activities. The district court refused, and defendant argued on appeal that the court misunderstood its authority to depart. The Second Circuit disagreed, finding it clear that the district court considered defendant’s argument and rejected it. It therefore could not be said that the court refused to exercise its discretion. The court was not mistaken in its belief that it lacked authority to downwardly depart on the grounds asserted by defendant. There is no case law indicating illegal activities bring a case outside the Hobbs Act heartland. U.S. v. Fabian, 312 F.3d 550 (2d Cir. 2002), abrogated by U.S. v. Parkes, 497 F.3d 220 (2d Cir. 2007).
2nd Circuit rejects downward departure intended to make defendant eligible to seek asylum. (715) Defendant, convicted of possessing and conspiring to sell stolen artwork, requested a downward departure to a sentence of less than one year in order to preserve her eligibility to seek asylum under 8 U.S.C. § 1158. Aliens who have committed an “aggravated felony” are ineligible to seek asylum. See § 1158(b)(2)(A)(ii), (b)(2)(B)(i). Theft offenses that result in a term of imprisonment of at least one year are aggravated felonies. 8 U.S.C. § 1101(a)(43)(G). Under another provision of the INA, however, a defendant convicted of an aggravated felony may apply for “withholding of removal,” which is available where there is a “clear probability” that the alien’s life or freedom would be threatened. 8 U.S.C. § 1231(b)(3)(B). The Second Circuit held that the district court lacked the authority to grant a departure for the purpose of making the defendant eligible to seek asylum. The court’s decision to depart was based on its opinion that the heavier burden of proof in the withholding of removal context should not be applied. However, Congress has made a legislative choice that, in the absence of the narrow grounds for withholding of removal, every alien who commits an aggravated felony must be removed from the U.S., regardless of the possible merits of her asylum request. A district court may not undermine this statutory prohibition by fashioning a sentence specifically to ensure that the statute does not apply. U.S. v. Aleskerova, 300 F.3d 286 (2d Cir. 2002).
2nd Circuit rejects § 5K2.0 departure based on factors relating to prior crimes. (715) The district court departed upward under § 5K2.0 because of the large amount of money defendant stole, the relatively small punishment imposed for his prior crimes, the fact that he committed another crime while free on bail, the likelihood that he would commit future crimes, and more generally his “state of mind.” The court expressly stated that it was not departing horizontally across the sentencing table by increasing defendant’s criminal history category under § 4A1.3. The Second Circuit held that because the court focused primarily on defendant’ criminal history and likelihood to commit future crimes, the § 5K2.0 departure was an abuse of discretion. The court’s concern about the amount of money embezzled also could not justify a departure because the loss amount was taken into account under § 2F1.1 when defendant’s offense level was calculated. The panel declined to decide whether, on remand, a § 5K2.0 departure might nevertheless be warranted on the facts of the case or whether a § 4A1.3 departure could be justified. U.S. v. Riera, 298 F.3d 128 (2d Cir. 2002).
2nd Circuit upholds court’s refusal to depart based on past cooperation with state prosecutors. (715) Typically, for a district court to depart downward for substantial assistance to authorities, a motion by the government is required. See USSG § 5K1.1. But, in this case, defendant assisted state prosecutors, not federal, which made § 5K2.0 an appropriate potential basis for departure. Therefore, the sentencing court had authority to consider a downward departure even without a motion by the government. See U.S. v. Kaye, 140 F.3d 86 (2d Cir. 1998). The sentencing court declined to depart, reasoning that anyone who had ever cooperated in a past prosecution would become eligible for a downward departure. It concluded that a departure might be appropriate when a defendant’s assistance is “contemporaneous” with a pending proceeding, but that defendant had assisted the state several years prior to the trial in the current case. Because defendant’s assistance occurred so long ago, his conduct was akin to a prior good deed, which is a discouraged basis for departure. Thus, although defendant’s prior actions were commendable, the Second Circuit held that the sentencing court did not abuse its discretion in determining that they were not so extraordinary that they justified a departure. U.S. v. Gaines, 295 F.3d 293 (2d Cir. 2002).
2nd Circuit rejects departure to account for a defendant’s loss of opportunity to serve concurrent sentences. (715) Defendant was convicted of illegally reentering the country after deportation. At sentencing, defendant argued that the government delayed prosecution until after his release from state custody, and that his delay deprived him of the opportunity to receive a federal sentence concurrent with his state sentence. The district court agreed, and departed downward by 14 months, which credited him with the entire period of his custody from the date of his state arrest in New York until his federal sentencing. The Second Circuit reversed. To the extent the court “credited” defendant with time served from the date of his arrest, the judge abused his discretion. This time included 54 days that preceded that INS’s discovery that defendant was in the U.S. illegally. The court similarly abused its discretion by departing in order to credit defendant with the time from his transfer to federal custody to the date of sentencing eight months later. Under 18 U.S.C. § 3583(b)(1), the credit to which defendant is due for time spend in federal custody is to be handled by the Bureau of Prisons and not the sentencing court. As to the remaining four months, the Second Circuit a district court may depart based on a prosecutorial delay that resulted in a missed opportunity for concurrent sentencing only where the delay was in bad faith or was longer than a reasonable amount of time for the government to have to have diligently investigated the crime. The fact that the INS took custody of defendant the day he was released from state custody was not sufficient to show bad faith by the government. Four months was a reasonable amount of time to investigate defendant’s crime. U.S. v. Los Santos, 283 F.3d 422 (2d Cir. 2002).
2nd Circuit says court must start with offense level for offense of conviction in departing based on analogous guideline. (715) Note 12 to § 2F1.1 states that “In the case of an offense involving false identification documents or access devices, an upward departure may be warranted where the actual loss does not adequately reflect the seriousness of the conduct.” Thus, the district court was justified in determining that an upward departure was appropriate here, where the loss amount of zero did not adequately reflect the seriousness of defendant’s conduct in acting as a broker for the issuance of false identification documents by corrupt employees of the Department of Motor Vehicles. However, the Second Circuit ruled that the district court erred in determining the extent of the upward departure. The district court departed upward by seven levels by calculating the offense level defendant would have received if he had been sentenced under the bribery guideline. The panel rejected this “computation methodology,” instead adopting the methodology described in U.S. v. Puello, 21 F.3d 10 (2d Cir. 1994). Under Puello, the sentencing court should first apply the base offense level and the sentencing characteristics for the offense of conviction and then, in the exercise of its discretion, apply an analogous guideline it deems appropriate for an upward departure. “[A]n upward departure means a departure starting from the guideline provided for the offense of conviction, whether the departure is based on an analogous guideline provision or on any other rationale.” U.S. v. Guzman, 282 F.3d 177 (2d Cir. 2002).
2nd Circuit affirms firearms departures. (715) Defendant pled guilty to illegal possession of two machine guns, a short-barreled rifle, and at least one destructive device, in violation of 26 U.S.C. § 5861(d). The district court departed upward one level pursuant to Application Note 16(2) of USSG § 2K2.1 because defendant’s offense “involved multiple National Firearms Act weapons.” The court also departed upward two levels pursuant to Application Note 16(4) of USSG § 2K2.1 because the offense “posed a substantial risk of death or serious bodily injury to multiple individuals.” The Second Circuit, without further discussion, affirmed the departures for the reasons stated in the district court’s opinion U.S. v. Brunet, 2001 WL 135759 (S.D.N.Y. 2001). U.S. v. Brunet, 275 F.3d 215 (2d Cir. 2001).
2nd Circuit says it cannot review court’s refusal to depart based on atypical nature of money laundering. (715) Defendant was convicted of multiple counts of embezzlement from employee benefits funds, money laundering, and related counts. He argued that the district court erred as a matter of law by not deeming his money laundering atypical, and sentencing him under the embezzlement guideline as “the guideline section most applicable to the nature of this offense.” Appendix A. After defendant’s sentencing, Appendix A was amended and now no longer permits the court to find a case “atypical” and sentence outside the offense guideline. See Amendment 591 (2000). The Second Circuit did not reach the issue of whether the amendment applied retroactively because it found the court’s decision unreviewable. A district court’s refusal to downwardly depart based on the atypical nature of the conduct charged is unappealable unless the court fails to recognize it has authority to depart. During sentencing, the district court recognized it had authority to depart “on any of the areas … any and all …” that defendant briefed in his sentencing memo to the court. Further, the district court correctly found defendant’s conduct did not represent an “atypical” money laundering case. U.S. v. McCarthy, 271 F.3d 387 (2d Cir. 2001), abrogation on other grounds recognized by U.S v. Robinson, 430 F.3d 537 (2d Cir. 2005).
2nd Circuit holds that presentence confinement conditions may be proper basis for departure. (715) Defendant requested a downward departure on the basis of the conditions of confinement he suffered while incarcerated in the Dominican Republic while awaiting extradition to the U.S. The court stated that “under no circumstance is [defendant], who went voluntarily to his own country, entitled to a downward departure because the prison conditions were such that [he] was affected adversely.” The Second Circuit agreed with defendant that the court may have misunderstood its authority to depart. The court’s use of the phrase “under no circumstances” suggested that it may have believed that presentence conditions of confinement – at least when such confinement occurs in a defendant’s “own” country – can never serve as the basis for a downward departure. This was not correct. The Sentencing Commission has not categorically proscribed consideration of this factor, and the panel could not say that conditions of confinement cannot be so severe as to take a particular case outside the heartland of the applicable Guideline. Since there was no indication that the Sentencing Commission contemplated that federal presentence detainees would be kept in any detention facilities other than federal facilities, the panel held that presentence confinement conditions may, in appropriate cases, be a permissible basis for downward departures. U.S. v. Carty, 264 F.3d 191 (2d Cir. 2001).
2nd Circuit upholds five-level upward departure for non-monetary harm caused by identity theft. (715) Defendant was convicted of various crimes relating to identity theft and fraudulent applications for credit cards. The district court departed upward under Note 12 to § 2F1.1 because the loss calculation did not take into account the harms caused to the individuals whose identities and social security numbers were used. In October 1998, Congress enacted the Identity Theft and Deterrence Act, which directed the Sentencing Commission to review and amend the guidelines to provide for appropriate sentences for identity theft offenses. As of the date of defendant’s July 1999 sentencing, the Sentencing Commission had not yet implemented this Congressional directive. Defendant contended that this failure to act indicated that the Commission had specifically forbidden departures based on identity theft. The Second Circuit disagreed, and affirmed the departure. This argument did not account for a recent guideline amendment. Section 2F1.1(b)(5) now provides for a two-level increase for identity theft offenses involving certain aggravating features. Prior to the changes to the guidelines, they did not take into account the type of non-monetary harms that identity theft risks imposing. The five-level departure here was considerable but not so excessive as to be vacated. U.S. v. Karro, 257 F.3d 112 (2d Cir. 2001).
2nd Circuit rejects upward departure based on wife’s refusal to surrender interest in property. (715) The district court determined that certain assets in the name of defendant’s wife were fraud proceeds, including the family home and stocks interests. The court found that defendant and his wife were attempting to keep the fraud proceeds, and announced that it would depart upward by ten years if the assets were not voluntarily surrendered before the final sentencing hearing. At the time, separate forfeiture proceedings were pending, at which defendant’s wife would have the opportunity to assert an innocent owner defense. At sentencing, no assets were returned, and the court imposed a 30-year sentence, noting explicitly that the ten-year component of the upward departure would not have been imposed had defendant and his wife surrendered their assets. The Second Circuit reversed, holding that the departure conflicted with the statutory remedy that has Congress established to recapture the proceeds of various unlawful activities, including money laundering. See 18 U.S.C. § 982. The threat of an enhanced punishment if defendant’s wife did not surrender properties she claimed were hers undermined the statutory right given to her under the forfeiture statute. U.S. v. Bennett, 252 F.3d 559 (2d Cir. 2001).
2nd Circuit says defendant who contested government’s case at trial not entitled to acceptance reduction. (715) Defendant robbed a bank. He was acquitted in state court due to his voluntary intoxication at the time of the robbery. However, in federal court, defendant’s intoxication defense was irrelevant, and he was convicted. He argued that he deserved an acceptance of responsibility reduction because he went to trial only to challenge the applicability of the federal statute to his conduct. The Second Circuit upheld the denial of the reduction, since the district court based its decision on its factual conclusion that defendant was not “totally candid” about the circumstances of the crime and his responsibility for his actions. The judge noted that defendant engaged in a series of acts during the robbery, such as wearing a disguise and attempting to evade police, which indicated that he knew “what was going on.” Apart from defendant’s claim that he was too intoxicated to know what he was doing during the robbery, he contested the evidence that he actually committed the robbery. He highlighted inconsistencies in the teller’s descriptions of the holdup note and the hat he was wearing, elicited from a police officer that the government had failed to obtain fingerprint evidence, and accused government witnesses from being interested witnesses. U.S. v. Sewell, 252 F.3d 647 (2d Cir. 2001).
2nd Circuit holds that market value of smuggled wildlife need not approximate economic loss. (715) Defendant was convicted of Lacey Act violations for smuggling sturgeon roe into the United States without obtaining the proper permits. The district court departed downward primarily because it found that a 15-level enhancement under § 2Q2.1(b)(3)(A) based on the market value of the smuggled goods overstated the seriousness of the offense. The court did not believe that defendant’s conduct resulted in any discernable economic “loss,” and that the Fish and Wildlife Service added sturgeon roe to the list of protected wildlife only to assist Russia’s failing economy. Also, the court found that the case fell outside the “heartland” of cases involving endangered species because the statutes at issue here did not prohibit the importation of the roe, but merely regulated it. The Second Circuit reversed. First, the § 2Q2.1 market value of the endangered species is not intended to approximate the economic “loss” caused by an offense, even though § 2Q2.1 references the fraud loss table in § 2F1.1 to calculate the enhancement. The district court should not have been concerned with the economic loss resulting from defendant’s conduct. Second, the court abused its discretion in carving out a general exception for all cases involving the illegal importation of sturgeon roe. The limitation on the importation of sturgeon roe is not significantly different from the restrictions placed on the importation of other endangered species. U.S. v. Koczuk, 252 F.3d 91 (2d Cir. 2001).
2nd Circuit holds that obstruction increase cannot be offset by departure for “aberrant” perjury. (715) At trial, defendant testified over a two-day period during which she repeatedly denied any knowing involvement in the charged offenses. The jury discredited this testimony and convicted her. In seeking to qualify for safety valve protection, defendant admitted that she had lied at trial. She claimed that she had testified falsely in response to threats made by certain co-conspirators who had told her to keep quiet. After imposing the obstruction of justice increase required by defendant’s confession of perjury, the district court determined that the perjury was “aberrant behavior” warranting an offsetting two-level downward departure. The Second Circuit reversed. Nothing in § 3C1.1 remotely suggests that its mandatory upward adjustment is inapplicable to “aberrant” perjury, or could otherwise be offset or conditioned in this way. Although previous cases have approved “aberrant behavior” departures, see, e.g., Zecevic v. U.S., 163 F.3d 731 (2d Cir. 1998), and this concept is now largely codified in § 5K2.20, there is no suggestion that it may also constitute an implied exception to every sentence adjustment. If each individual sentence adjustment were itself subject to nullification on the grounds of aberrance, the entire calculus of the guidelines and its purpose to limit sentencing disparities would be rendered problematic. U.S. v. Ortiz, 251 F.3d 305 (2d Cir. 2001).
2nd Circuit vacates downward departure based on grand jury testimony in unrelated state prosecution. (715) In 2002, defendant was convicted of fraud and money laundering. The district court granted defendant a downward departure under § 5K2.0 based on the assistance he provided to state authorities in 1999, when he testified before a state grand jury in connection with a 1992 killing. That murder was completely unrelated to the federal charges against defendant. The Second Circuit reversed. Although cooperation with local law enforcement can provide a basis for a downward departure, see U.S. v. Kaye, 140 F.3d 86 (2d Cir. 1998), such cooperation does not always merit a downward departure. A defendant’s conduct must be so extraordinary as to fall outside the heartland of cases covered by the guidelines. In the ordinary case, testifying before a grand jury is similar to “civic, charitable, or public service” and therefore does not support a downward departure. There was nothing suggesting that defendant’s testimony was exceptional in any way – he simply testified that in 1972 he had seen three individuals, one of whom was murdered later that day, together at a bar where he worked at the time. U.S. v. Korman, 251 F.3d 893 (10th Cir. 2001), superseded by statute on other grounds as stated in U.S. v. Kostakis, 364 F.3d 45 (2d Cir. 2004).
2nd Circuit finds court may have been unaware of discretion to depart from § 5G1.2’s stacking provision. (715) The district court calculated defendant’s offense level at 43, which carries a sentence of life imprisonment. Because a life sentence exceeded the statutory maximum sentence for any one of the crimes of which defendant was convicted, the district court ran the sentences consecutively under § 5G1.2(d). In U.S. v. Rahman, 189 F.3d 88 (2d Cir. 1999), the Second Circuit recognized that a sentencing court may depart from this “stacking” provision to impose concurrent sentences in certain circumstances where the imposition of multiple stacked sentences is based on similar conduct. Here, the Second Circuit agreed that the district court erred when it found that it had “no leeway” to depart from the 240-year sentence indicated by the guidelines. A court will not presume that a district court was aware of its authority “where the judge’s option turns on an obscure point of law or where the judge’s sentencing remarks create ambiguity as to whether the judge correctly understood an available sentencing option.” The court’s comment that it had “no leeway” created an ambiguity as to whether it understood its authority to depart, particularly since Rahman was decided five months before sentencing and two days before oral argument on the sentencing issues facing the court. U.S. v. White, 240 F.3d 127 (2d Cir. 2001).
2nd Circuit holds that guidelines do not preclude departures based on incomplete entrapment. (715) Defendant requested a downward departure based on “imperfect entrapment”: he led a law-abiding life until encountering the government’s sting operation and he was so inept at his crime that no real criminal would have done business with him. The sentencing judge refused to consider imperfect entrapment as a ground for a downward departure, believing that Second Circuit law did not authorize it. The Second Circuit found nothing in the Sentencing Guidelines to preclude a departure based on imperfect entrapment. Moreover, the policy statement in § 5K2.12 could reasonably be read to authorize such a departure in appropriate cases. However, the court’s refusal to consider this ground for departure was harmless. In imposing sentencing, the judge noted that after looking at all of the evidence before him, he had concluded that defendant became involved in the money laundering scheme solely out of greed. Thus, although there might be cases whose circumstances would warrant a downward departure on the basis of imperfect entrapment, the record here did not support such a departure. U.S. v. Bala, 236 F.3d 87 (2d Cir. 2000).
2nd Circuit rejects sentencing entrapment claim because no outrageous government conduct. (715) Defendant contended that he was subjected to sentencing entrapment or sentencing manipulation, because his punishment, which was directly related to the value of the funds at issue, increased because IRS agents arranged an additional transaction with a co-conspirator after a grand jury had already indicted defendant and the co-conspirator. The Second Circuit has not ruled on whether sentencing entrapment or sentencing manipulation is a valid ground for departure. Previous cases have found no sentencing entrapment where a defendant’s principal contention concerned the timing of his arrest after entering a sting transaction. See U.S. v. Rosa, 17 F.3d 1531 (2d Cir. 1994). Other cases have suggested that, if a sentencing entrapment or sentencing manipulation departure was valid, it would likely require a showing of “outrageous” government conduct. See U.S. v. Knecht, 55 F.3d 54 (2d Cir. 1995); U.S. v. Gomez, 103 F.3d 249 (2d Cir. 1997). Although the status of either concept as a departure ground remains unclear, the Second Circuit found that these concepts were unavailable to defendant, for the present record provided no basis for finding outrageous government conduct. U.S. v. Bala, 236 F.3d 87 (2d Cir. 2000).
2nd Circuit says ordinary delay in prosecution and transfer to federal custody did not justify departure. (715) Defendant argued that the district court erred in holding that the federal government’s alleged delay in commencing his prosecution and transferring him to federal custody did not warrant a downward departure. The district court cited U.S. v. Saldana, 109 F.3d 100 (1st Cir. 1997) for the proposition that “ordinary accidents of acceleration or delay” are simply part of the criminal process, in contrast to “extreme” or sinister” delays concocted to increase a sentence. Defendant was unable to allege that the delay in his case was either deliberate or nefarious. The Second Circuit found this reading of Saldana accurate, and thus defendant’s claim lacked merit. U.S. v. Amezquito Acevedo, 229 F.3d 350 (2d Cir. 2000).
2nd Circuit affirms departure to statutory maximum to leader of inhumane smuggling venture. (715) Defendant orchestrated and financed the transportation of 300 Chinese nationals to the U.S. from Kenya in a cargo ship under extraordinarily inhumane conditions. The ship was deliberately grounded at 3 a.m. off the coast of New York. In the ensuing pandemonium, at least ten people died of hypothermia or drowning. On his conviction for seaman’s manslaughter, the district court departed upward from 33 months to the maximum ten-year sentence. The court’s stated reasons for the departure included all four factors identified in note 5 to § 2L1.1: dangerous or inhumane treatment, death of at least six individuals and the bodily injury of many others, the involvement of substantially more than 100 aliens, and possession of a dangerous weapon. The Second Circuit affirmed the departure, finding all of the district court’s reasons valid. Defendant admitted three of the four facts on which the departure was based. The district court did not err by failing to proceed step-by-step through every possible sentence before sentencing defendant to the statutory maximum. Such a step-by-step procedure is not necessary for offense level departures. The district court considered the fact that defendant was the leader of this inhumane venture, the person who orchestrated and financed it, and who gave a direct order to his employees aboard the ship to ground it. The upward departure reflected a careful and reasoned application of the guidelines. U.S. v. Fei, 225 F.3d 167 (2d Cir. 2000).
2nd Circuit affirms refusal to depart where defendant named another party as accomplice. (715) Defendant, a former New York City police officer, committed a vicious sexual assault on a man who was in police custody. The man was taken by another officer, either Schwarz or Wiese, into the bathroom, where defendant kicked and punched him, then forced a broken broomstick into the victim’s rectum, causing severe internal injuries. Defendant argued that the court failed to recognized its authority to depart downward to take account of defendant’s statement to the government that his accomplice was Weise, not Schwarz (as the government was arguing at trial). The district court concluded that defendant’s efforts to exonerate a supposedly innocent man and inculpate another was insufficient to justify a departure because “the trial proceeded to a verdict entirely without [defendant’s] ‘assistance'” and he did not break any “log-jam” in the case against his co-defendants. The Second Circuit found the issue non-reviewable. There was no particular reason to believe defendant was being truthful in naming Weise as his co-assailant. His assertion was never tested by cross-examination, the man he was supposedly trying to exonerate, Schwarz, did not call him as a witness, and the jury ultimately decided to convict only Schwarz, not Wiese. U.S. v. Volpe, 224 F.3d 72 (2d Cir. 2000).
2nd Circuit says departure not proper remedy for ineffective assistance of counsel. (715) Upon defendant’s § 2255 petition, the district court found that defendant’s counsel had provided constitutionally ineffective assistance by failing adequately to advise defendant whether to accept the government’s initial plea offer. Defendant eventually entered a guilty plea under a plea offer less favorable than the government’s initial offer. Defendant argued that the district court abused its discretion in granting him a two-level downward departure as a remedy for this constitutional violation. The Second Circuit agreed, holding that the resentencing must be specifically tailored to the constitutional error. Ineffective assistance is a constitutional violation of a defendant’s rights and not a mitigating factor to be considered at sentencing or resentencing. However, this did not mean that a defendant is necessarily entitled to specific performance of a previously spurned plea offer whenever his counsel is ineffective in failing to advise him whether to accept the offer. After an appropriate hearing, the court might find that the defendant would have spurned the offer, or that, if the offer was accepted, the court would have imposed a sentence that differed from the government’s recommendation. U.S. v. Carmichael, 216 F.3d 224 (2d Cir. 2000).
2nd Circuit finds that despite statement about recidivism, court made departure under § 5K2.0. (715) Defendant was acquitted of charges relating to a bombing plot and convicted of possessing a counterfeit alien registration card. The district court departed from a range of 0-6 months to a 36-month term, finding that defendant’s possession of the counterfeit green card was part of a much larger pattern of serious frauds in connection with U.S. immigration laws. Defendant challenged the departure on the grounds that the court failed to state whether the departure was pursuant to § 4A1.3 or § 5K2.0. The Second Circuit ruled that the court’s findings make it sufficiently clear that the departure was premised on § 5K2.0. While the court mentioned that it had a concern about recidivism, that concern was prompted by the factors on which it relied in departing; the concern for recidivism was one of those factors. The court was concerned with the breadth of defendant’s unlawful and unpunished conduct, and his disdain for U.S. immigration laws. The heartland of § 2L2.2 does not include a defendant who has engaged in fraudulent conduct at every turn, and whose possession of a counterfeit green card was bolstered by other facially authentic but invalid documentation acquired by fabrication, fraud and forgery. U.S. v. Khalil, 214 F.3d 111 (2d Cir. 2000).
2nd Circuit holds that defendant’s consent to deportation did not warrant downward departure. (715) Defendant pled guilty to importing heroin into the U.S. He also entered into a stipulation with the INS permitting his removal from the U.S. at the conclusion of his imprisonment, without a hearing or process of any sort. The district court departed downward based on defendant’s consent to deportation. In U.S. v. Galvez-Falconi, 174 F.3d 255 (2d Cir. 1999), the Second Circuit held that a defendant seeking a departure for consenting to deportation must present a colorable, non-frivolous defense to deportation, such that the act of consenting to deportation carries with it unusual assistance to the administration of justice. The district court distinguished Galvez-Falconi, principally on the ground that, unlike this case, the defendant in Galvez-Falconi had previously been deported and was convicted of illegally re-entering the country, an offense that subjected him to summary deportation proceedings. The Second Circuit found Galvez-Falconi applicable: the fact defendant was convicted of drug charges, while Galvez-Falconi involved a defendant convicted of illegally re-entering the U.S., did not distinguish the case. Moreover, the vast majority of illegal aliens are removed from the U.S. without formal proceedings. Therefore, defendant’s stipulation to deportation did not provide unusual assistance or make his case atypical. Thus, without a proffer of some colorable, non-frivolous defense to deportation, defendant’s consent to deportation was not a proper basis for departure. U.S. v. Sentamu, 212 F.3d 127 (2d Cir. 2000).
2nd Circuit says defendant must meet listed criteria to receive departure for seriousness of aggravated felony. (715) Defendant pled guilty to illegally reentering the US after being deported following conviction for an aggravated felony, a 1991 drug offense. Note 5 to § 2L1.2 authorizes a downward departure based on the seriousness of the aggravated felony where (A) the defendant has previously been convicted of only one felony offense; (B) such offense was not a crime of violence or a firearms offense; and (C) the term of imprisonment imposed did not exceed one year. Defendant did not meet this criteria since he also had a 1973 conviction for felony possession of a weapon. The Second Circuit held that the district court lacked the power to depart based on the nature of defendant’s predicate aggravated felony because defendant did not meet the criteria listed in note 5. In enacting note 5, the Sentencing Commission defined the “heartland” of cases under § 2L1.2 by exclusion. That is, the “heartland” of § 2L1.2 cases includes all cases of illegal reentry following conviction for an aggravated felony, except those that meet the three enumerated criteria. Because this factor was adequately taken into consideration by the Sentencing Commission, it was not a proper basis for departure absent satisfaction of the three listed conditions. U.S. v. Tappin, 205 F.3d 536 (2d Cir. 2000).
2nd Circuit approves departure for repeated guns sales. (715) Defendant was arrested in Rochester, New York after transporting 13 firearms from Alabama. He pled guilty under 18 U.S.C. § 922(a)(1) to illegally dealing in firearms. He admitted in his plea agreement that in the previous year he had purchased 39 handguns on several occasions in Alabama and resold them in Rochester. The district court departed upward based on defendant’s “repeated conduct,” finding defendant systematically purchased guns about every two months for resale in Rochester, which he specifically targeted because of its high crime rate and high demand for guns. The Second Circuit affirmed. A conviction under § 922(a) for being “engaged in the business” of selling guns contemplates more than one sale. Furthermore, § 2K2.1(b)(1) provided for a five-level increase based on the number of firearms involved in the offense. However, the court did not rely solely on the number of guns involved. Rather, the court found that it was the repeated nature of defendant’s conduct that warranted a departure. Although the same number of guns can ultimately enter a neighborhood in single or multiple trips, it is within a district court’s discretion to consider the dangerousness apparent in a defendant who has acted illegally more than once. U.S. v. Carter, 203 F.3d 187 (2d Cir. 2000).
2nd Circuit departs where police officer’s choke hold resulted in death. (715) Defendant, a police officer, was convicted of civil rights violations after putting a choke hold on Baez that resulted in Baez’s death. The court departed by four levels because: (1) defendant himself created the violent situation that led to Baez’s death because Baez and his brothers had done nothing wrong; and (2) defendant was aware of NYPD regulations prohibiting choke holds and had been specifically warned by his superiors to avoid excessive force and unnecessary confrontations with civilians. The Second Circuit affirmed, rejecting defendant’s contention that the involuntary manslaughter guideline under which he was sentenced adequately considered these factors. Although the standard of care in § 2A1.4 considered the fact that defendant put Baez in a choke hold, it did not account for the fact that it was defendant’s wholly gratuitous aggression that created the confrontation in the first place. In addition, defendant had a heightened awareness of the risks associated with his conduct. Because of numerous prior complaints about his use of excessive force, defendant had been singled out for placement in a special monitoring program in which he was repeatedly counseled about unnecessary civilian confrontations and the dangers of using excessive force. U.S. v. Livoti, 196 F.3d 322 (2d Cir. 1999).
2nd Circuit rejects ineffective assistance of counsel as grounds for downward departure. (715) Defendant claimed that his original attorney’s erroneous advice about the maximum sentence he faced prevented him from entering into serious plea discussions with the government. At sentencing, defendant’s new counsel moved for a downward departure due to ineffective assistance of counsel. The Second Circuit refused to review the merits of defendant’s claim, holding that ineffective assistance of counsel is not a basis for a downward departure. A finding that a convicted defendant has received ineffective assistance of counsel necessarily calls into question the validity of the conviction. By contrast, the imposition of a sentence and the entry of judgment necessarily assumes the validity of the conviction. A downward departure on ineffective assistance grounds is impermissible because it simultaneously assumes the validity of a defendant’s conviction and conspicuously calls its validity into doubt. U.S. v. Bicaksiz, 194 F.3d 390 (2d Cir. 1999).
2nd Circuit says court retains discretion to depart downward to concurrent sentences. (715) The district court sentenced defendants under the treason guideline, § 2M1.1, which provides for an offense level of 43 and thus a life sentence. Because all of the offenses of conviction carried statutory maximums of 20 years or less, the district court imposed consecutive sentences under § 5G1.2(d) (sentences are to be imposed consecutively “to the extent necessary to produce a combined sentence equal to the total punishment.”). The Second Circuit agreed with the First, Fifth and Ninth Circuits that sentencing judges retain discretion under § 5G1.2(d) to run sentences concurrently, although such discretion may be exercised only by use of departure authority. Defendant El-Gabrowny’s present case presented a mitigating circumstance that justified a downward departure. For resisting agents, defendant received three sentences of three years each. For having five false passports in his pocket, defendant received six sentences, one of three years for possession of five false identity documents and five of five years each for possession of each of five false passports. The prosecutor’s ability to lengthen sentences simply by adding duplicative counts, each describing the same criminal conduct, was a circumstance not adequately considered by the Sentencing Commission. U.S. v. Rahman, 189 F.3d 88 (2d Cir. 1999).
2nd Circuit upholds limited departure based on rehabilitation and pre-indictment delay. (715) Defendant committed perjury in a civil lawsuit he brought alleging police brutality during a drug arrest. Four years later, a federal grand jury indicted him on perjury charges. During this four-year period, defendant had been released from state prison and had ostensibly rehabilitated himself and re-established ties to his community. Defendant requested a downward departure on five independent grounds, including the government’s pre-indictment delay and his rehabilitation. The judge rejected a departure on any of these grounds individually, although defendant’s rehabilitation presented a close question. Nonetheless, the court made a one-level departure based on defendant’s unique combination of circumstances as a whole. The Second Circuit found no abuse of discretion in the court’s decision to grant only a limited departure. The pre-indictment delay did not violate due process. Post-conviction rehabilitation must be extraordinary to justify a downward departure. A sentencing court’s decision not to depart is only appealable if the refusal to depart was based on the court’s mistaken understanding of its authority to depart. U.S. v. Cornielle, 171 F.3d 748 (2d Cir. 1999).
2nd Circuit approves upward departure for multiple victims of threats. (715) Defendant made two phone calls to the U.S. Marshal’s Service, claiming that he had the child of a particular district judge, that the judge was not getting the child back, and that defendant was “gonna get” the judge. Several months later, defendant left a recorded message at the Marshals Service office claiming to know about a plot to kill the judge. He pled guilty to making a false statement within the jurisdiction of the federal government. The Second Circuit affirmed an upward departure based on the fact that defendant’s threats affected people other than the judge. One of defendant’s calls indicated defendant had the judge’s “kid.” Since defendant did not specify which child he was referring to and the judge had three children, the district court reasonably found all three children were victims. In determining the extent of its upward departure, the district court analogized to the grouping principles of § 3D1.4, creating a hypothetical count for each victim of defendant’s threat. Since note 2 to § 2A6.1 says that multiple counts involving different victims are not to be grouped under § 3D1.2, the district court calculated a four-level increase in defendant’s offense level. This grouping method was not an abuse of discretion. U.S. v. Adelman, 168 F.3d 84 (2d Cir. 1999).
2nd Circuit rejects departure where court found delay in prosecution not outside the heartland. (715) Defendant pled guilty to illegally reentering the U.S. after being deported following an aggravated felony conviction. The court imposed a 63-month sentence, but ordered that it be deemed to have commenced 18 months earlier. This gave defendant credit for time he had served in state custody when INS was aware of his illegal reentry but took no action to proceed with the formal filing of charges. On appeal the parties agreed that the district court lacked authority to backdate the commencement of defendant’s sentence to grant a sentencing credit. However, defendant argued that the court should have departed downward to grant him the sentencing credit. The Second Circuit found no grounds for a departure. The district court expressly found that the government’s delay in commencing the current prosecution did not warrant a departure. To the extent the district court felt that the guideline sentence was too harsh, that factor was not an appropriate basis for departure since the statute itself provides greater penalties for defendants who were deported following aggravated felonies. U.S. v. Labeille-Soto, 163 F.3d 93 (2d Cir. 1998).
2nd Circuit says delay in transferring alien to federal custody is grounds for downward departure. (715) Defendant illegally entered the country after having been deported. Before his federal conviction and after being sentenced on an unrelated state crime, he was confined for eight months in state jail on an INS detainer while awaiting transfer to federal custody. The district court applied the eight months served on the detainer toward defendant’s federal sentence by deeming that sentence to have begun when the INS placed the detainer on defendant. The court also granted defendant a one-level downward departure on the basis of his stipulated deportation. On appeal, the parties agreed that the district court erred when it deemed defendant’s sentence to have begun at the time the INS lodged its detainer. The Second Circuit vacated defendant’s sentence to allow the district court to revisit its departure decision. The time during which an alien is incarcerated solely due to the government’s delay in transferring him to federal custody and for which the alien does not receive credit provides a valid ground for departure. The court’s decision not to depart for the uncredited time served was reviewable on appeal because the court’s mistaken belief that it could directly credit defendant’s sentence may have affected its departure decision. The case was remanded to allow the district court to reconsider its departure decision. However, since defendant was no longer in the country, this limited resentencing should not take place until such time as he returned and was again before the court. U.S. v. Montez-Gaviria, 163 F.3d 697 (2d Cir. 1998).
2nd Circuit rejects departure to achieve concurrent sentences where other sentence was vacated. (715) Defendant was convicted of fraud and sentenced to 47 months. He then filed a 28 U.S.C. § 2255 motion, claiming that the district court erroneously believed that the Bureau of Prisons would credit a substantial portion of pre-sentence federal detention to his federal sentence, so that his federal sentence would effectively run concurrently with a California sentence for offenses taken into account in calculating his federal sentence. The BOP had properly refused to credit defendant’s presentence federal detention to the federal sentence because it had already been credited to the California sentence, and § 3585(b) bars double-counting. The district court granted defendant’s motion, and resentenced him to time served. The Second Circuit reversed. Prior to resentencing on the 2255 motion, the California court had vacated its four-year sentence and resentenced defendant to probation. This rendered inconsequential the district court’s misunderstanding of § 3585(b) at the original sentencing, and left the court with no proper rationale for its downward departure. Even if a court may depart downward under § 5K2.0 to achieve a sentence concurrent with a discharged state sentence, this was not possible at the time of the resentencing, because the California court had vacated his original four-year sentence and resentenced him to probation. Werber v. U.S., 149 F.3d 172 (2d Cir. 1998).
2nd Circuit reverses downward departure for prior lenient sentences, co-defendant’s sentence, drug quantity, stable family, and eligibility for deportation. (715) Defendant pled guilty to distributing cocaine. The district court departed downward from the career offender guideline, citing the leniency of defendant’s prior sentence, the lighter sentence received by a co-defendant, the small quantity of drugs involved in the offense, defendant’s stable family relationship, and defendant’s eligibility for deportation. The Second Circuit reversed. The first three grounds were impermissible as a matter of law. A downward departure based on a prior lenient sentence conflicts with § 4A1.3, which states that a prior lenient sentence for a serious offense may warrant an upward departure. Disparity between the sentences of individual co-defendants and a small quantity of drugs are not proper bases for departure. Family circumstances are a discouraged basis for departure unless the hardship would be “exceptional.” The existence of a stable family is not extraordinary and does not satisfy the exceptional hardship criterion. Deportation alone does not constitute an extraordinary consequence that would justify a downward departure. U.S. v. Tejeda, 146 F.3d 84 (2d Cir. 1998).
2nd Circuit affirms upward departure for multiple acts of obstruction. (715) Defendant pled guilty to drug charges. He failed to appear for sentencing and was re-arrested. On the day of sentencing, he gave documents to his attorney purporting to show he had committed the offense when he was 16 and had absconded when he was only 17 years old. The judge found the documents were fraudulent. The Second Circuit affirmed an upward departure based on defendant’s “renewed and repeated” obstruction of justice. A court may depart for reasons taken into consideration in the guidelines if the court determines that, in light of unusual circumstances, the guideline level attached to that factor is inadequate. Defendant’s case presented such circumstances. He obstructed justice more than once through wholly discrete and unrelated acts. Defendant intended to mislead the court about his age in order to be sentenced as a juvenile and submitted a number of fraudulent documents to the court to support that claim. The misrepresentations caused considerable delay and required investigation by a number of officials. In addition, defendant failed to appear for sentencing. U.S. v. Ventura, 146 F.3d 91 (2d Cir. 1998).
2nd Circuit affirms upward departure for multiple acts of obstruction. (715) Defendant pled guilty to drug charges. He failed to appear for sentencing and was re-arrested. On the day of sentencing, he gave documents to his attorney purporting to show he had committed the offense when he was 16 and had absconded when he was only 17 years old. The judge found the documents were fraudulent. The Second Circuit affirmed an upward departure based on defendant’s “renewed and repeated” obstruction of justice. A court may depart for reasons taken into consideration in the guidelines if the court determines that, in light of unusual circumstances, the guideline level attached to that factor is inadequate. Defendant’s case presented such circumstances. He obstructed justice more than once through wholly discrete and unrelated acts. Defendant intended to mislead the court about his age in order to be sentenced as a juvenile and submitted a number of fraudulent documents to the court to support that claim. The misrepresentations caused considerable delay and required investigation by a number of officials. In addition, defendant failed to appear for sentencing. U.S. v. Ventura, 146 F.3d 91 (2d Cir. 1998).
2nd Circuit rejects downward departure to equalize sentence with aliens who stipulate to deportation. (715) In the Eastern District of New York, the U.S. Attorney has a policy of recommending a one-level downward departure to alien defendants who agree to waive their right to a removal hearing before an immigration judge and their right to appeal or otherwise challenge the removal order. Defendant, a naturalized citizen, argued that to deny him the one-level departure would penalize him for having entered the country legally and becoming a citizen. The district court granted the one-level departure to account for the unfairness of such departures on similarly situated Americans. The Second Circuit reversed, holding that defendant’s status as a U.S. citizen is not a permissible basis for departure. Even assuming that stipulation to departure is a proper basis for departure ¾ a question not yet decided by this Circuit ¾ defendant was not similarly situated to alien defendants because he would not be deported for his criminal conviction. U.S. v. Young, 143 F.3d 740 (2d Cir. 1998).
2nd Circuit allows departure without government motion for assistance to local police. (715) Defendant argued that the district court erred by declining to consider a downward departure under § 5K2.0 based on assistance defendant provided to local law-enforcement agencies. In the first opinion in this case, U.S. v. Kaye, 65 F.3d 240 (2d Cir. 1995), the Second Circuit held that a departure based on assistance to local authorities could only be considered under § 5K1.1, upon motion of the government. On reconsideration, however, the court held that § 5K1.1 was not intended to cover assistance to local law-enforcement. Section 5K1.1’s requirement that federal prosecutors make a motion for a departure is so ill-suited to situations in which defendant assists non-federal authorities, that some explicit expression of the Commission’s intent would be expected. Thus, the court had authority to depart downward without a government motion. Judge Van Graafeiland dissented, arguing that the original opinion was correct. U.S. v. Kaye, 140 F.3d 86 (2d Cir. 1998).
2nd Circuit departs upward where zero loss did not adequately reflect fraud. (715) Defendant attempted to obtain a bank loan by lying about his income, employment, and credit history. Because the loan would have been adequately secured by property and defendant did not intend a loss, the § 2F1.1 loss was zero. The Second Circuit affirmed an upward departure under note 7 to § 2F1.1, which provides that an upward departure may be warranted where the loss understates the seriousness of defendant’s crime. Although the lender’s capital was not actually put at risk because the crime was discovered before the loan was made, the bank was sucked into a transaction with a person insensitive to his credit obligations and skilled in the extraction of multiple loans from unsuspecting lenders, secured by the identical security interest. U.S. v. Bobowick, 113 F.3d 1302 (2d Cir. 1997).
2nd Circuit departs upward based on use of Internet to lure minor into sexual activity. (715) Defendant communicated with and sent child pornography via electronic mail to an adult confidential informant who told defendant he was a 12‑year old boy. Defendant sent brief E‑mail messages with the pictures. One message accompanying a picture of a young boy engaged in anal intercourse stated “I want to do this to you sometime if you’ll let me.” Defendant repeatedly asked to speak with the informant by phone and expressed a desire to meet with him in person. He suggested that the informant tell his parents he was going camping where he would not have access to a telephone. The Second Circuit affirmed an upward departure based on defendant’s use of the computer to sexually exploit children. Defendant used the Internet to transfer child pornography to minors to seduce a minor to engage in sexual activity. Section 2G2.2 deals with pictorial transmissions. Sending such transmissions for the purpose of soliciting sexual activity is outside the heartland of § 2G2.2. U.S. v. Delmarle, 99 F.3d 80 (2d Cir. 1996).
2nd Circuit authorizes downward departure if adjustments are proved by bare preponderance. (715) Defendants argued that an upward departure based in part on acquitted conduct violated due process. In rejecting the argument, the Second Circuit held that in making upward adjustments based on relevant conduct, the court may examine whether the conduct underlying multiple upward adjustments was proven by a standard greater than a preponderance of the evidence. Where a higher standard is not met, the court should depart downward. The risk of factual error in a series of adjustments, each of which involves conduct proven by a bare preponderance, is a circumstance not adequately contemplated by the Sentencing Commission and thus warrants a downward departure. Here, there were no such concerns. The district court found that the evidence of the acquitted conduct was “compelling.” U.S. v. Gigante, 94 F.3d 53 (2d Cir. 1996).
2nd Circuit approves reference to bodily injury enhancement to determine extent of upward departure. (715) Defendants were convicted of extortion charges. The district court departed upward based on defendant’s involvement in an uncharged murder conspiracy. The 2nd Circuit upheld the district court’s reference to § 2B3.2(b)(4)(C) of the extortion guidelines (which specifies a six-level increase for victims sustaining bodily injury) as a basis for calculating the extent of the departure. The judge referred to the “threatening undertone of some level of violence” throughout the conspiracy and to the murders that were planned and committed in the wake of its exposure. A district court need not articulate the precise provision relied on as a reference for the extent of the departure. U.S. v. Gigante, 94 F.3d 53 (2nd Cir. 1994).
2nd Circuit approves departure based on extent of harm caused by risky investment of pension funds. (715) When defendant’s real estate syndication firm went into bankruptcy, he concealed from investors information about the firm’s failing finances, funneled money to out‑of‑state relatives to hide cash from creditors, and bribed local officials. The district court departed upward in part based on defendant’s use of structured funds to bribe the mayor and corporate counsel to facilitate the investment of municipal pension funds. The Second Circuit held that the bribe and the resulting risky investment of the pension funds was an adequate ground for the seven level departure. Although § 2S1.3(b) creates a two level enhancement for the illegal use of structured funds, a departure may still be warranted if the guidelines level is still inadequate. Here, the degree of harm flowing from the illegal use of the structured funds—a “devastating” harm to shareholders of the pension fund—so far exceeded that anticipated by the Commission for that offense that an upward departure was appropriate. U.S. v. Sisti, 91 F.3d 305 (2d Cir. 1996).
2nd Circuit uses upward departure as starting point for substantial assistance departure. (715) Defendant pled guilty to smuggling illegal aliens into the U.S. and aiding in misconduct resulting in a loss of life. The court concluded that, but for a substantial assistance departure, it would have imposed the maximum five year sentence for the smuggling charge and the maximum 10‑year sentence for the manslaughter charge, for a total of 15 years. In light of the government’s § 5K1.1 motion, however, the court departed downward and ran the sentences concurrently, for a total sentence of ten years. Defendant argued that § 5G1.2(c) required concurrent sentences, and therefore the court failed to give effect to the government’s § 5K1.1 motion. The Second Circuit held that the court properly imposed consecutive sentences by departing upward, and then used the consecutive sentences as a starting point for the substantial assistance departure. The substantial upward departure was reasonable, because (1) multiple deaths resulted, (2) these deaths were the foreseeable result of the intentional grounding of the ship, (3) the conditions on the smuggling vessel were dangerous and inhumane, and (4) the voyage involved more than 100 aliens. U.S. v. Hui, 83 F.3d 592 (2d Cir. 1996).
2nd Circuit reverses departure for psychological condition, nonpredatory nature, and rehabilitation. (715) Defendant pled guilty to knowingly receiving child pornography. The district court departed downward in light of defendant’s psychological condition, his limited involvement with child pornography, his nonpredatory nature, and his efforts towards rehabilitation. The Second Circuit reversed. The evidence did not support a finding that defendant suffered from an extraordinary mental or emotional condition. Defendant’s offense was not atypical; the Sentencing Commission clearly foresaw that § 2G2.2 would extend to a “mere passive offender” who has not engaged in large‑scale pornography distribution. The fact that defendant had never sexually abused children did not merit a departure. Section 2G2.2 contains an enhancement for individuals involved in the sexual abuse of a minor. Finally, there was no evidence that defendant had made “extraordinary efforts” at rehabilitation and there were no “objective indications” of defendant’s progress towards overcoming his condition. U.S. v. Barton, 76 F.3d 499 (2d Cir. 1996).
2nd Circuit says possession of sawed-off shotgun fell within heartland of § 2K2.1. (715) Defendant pled guilty to unlawful possession of a firearm by a felon. The gun he possessed was a sawed-off shotgun. At sentencing he requested a downward departure, claiming he altered and kept the gun so that he could use it in committing suicide. The Second Circuit upheld the court’s refusal to depart, agreeing that defendant’s conduct fell within the heartland of § 2K2.1. Defendant had provided a written sworn statement to agents in which he admitted possessing the shotgun and cutting off the barrel even though he knew it was illegal. He said he did not know why he had done it. The district court was entitled to accept this sworn statement over defendant’s last minute sentencing claims. U.S. v. Ruggles, 70 F.3d 262 (2d Cir. 1995).
2nd Circuit says possession of sawed-off shotgun fell within heartland of § 2K2.1. (715) Defendant pled guilty to unlawful possession of a firearm by a felon. The gun he possessed was a sawed-off shotgun. At sentencing he requested a downward departure, claiming he altered and kept the gun so that he could use it in committing suicide. The Second Circuit upheld the court’s refusal to depart, agreeing that defendant’s conduct fell within the heartland of § 2K2.1. Defendant had provided a written sworn statement to agents in which he admitted possessing the shotgun and cutting off the barrel even though he knew it was illegal. He said he did not know why he had done it. The district court was entitled to accept this sworn statement over defendant’s last minute sentencing claims. U.S. v. Ruggles, 70 F.3d 262 (2d Cir. 1995).
2nd Circuit rejects basing departure on facts underlying prior aggravated felony. (715) In 1985, defendant pled nolo contendere to aggravated rape and received a five year sentence. He was released on parole after serving a quarter of his sentence, and deported. In 1993, he illegally reentered the United States. Based on this aggravated felony, the district court applied the 16-level enhancement in § 2L1.2(b)(2). However, it departed downward, finding that the prior conviction overstated defendant’s past criminal behavior because, based on the underlying facts, there was a questionable basis for the conviction, and defendant only served two years. The Second Circuit reversed, holding that the district court erred in looking behind the conviction to justify the departure. A sentencing court may only look to the statute under which the defendant was convicted to determine if the offense involved the requisite use of force. Moreover, the court erred in considering that defendant served fewer than five years of his sentence. Under Note 7 to § 2L1.2(b)(2), the term of imprisonment imposed, rather than served, is used to determine an aggravated felony. U.S. v. Amaya-Benitez, 69 F.3d 1243 (2d Cir. 1995).
2nd Circuit says upward departure on remand not the result of vindictiveness. (715) Defendant was involved in a kidnapping conspiracy to recover unpaid drug debts. He was originally convicted of a drug conspiracy, impeding federal agents, and using a firearm during a drug trafficking crime. The Second Circuit reversed all but Count 2, impeding federal agents. At resentencing, the district court departed upward to the statutory maximum of 120 months based on defendant’s involvement in the armed kidnapping. Defendant argued that the departure was vindictive. The Second Circuit affirmed, because the 120-month sentence was the same as the original sentence. At the original sentencing, § 5G1.2(b) required the statutory maximum 120 months for Count 2 because that count had been grouped with an offense carrying a 235 month sentence. The resentencing was based on a different set of circumstances, and the district court was free to consider grounds for departure not considered at the first sentencing proceeding. The evidence showed that defendant knowingly participated in the kidnapping, even though he may not have known the kidnapping was drug-related,. On this basis alone the departure was justified. U.S. v. Atehortva, 69 F.3d 679 (2d Cir. 1995).
2nd Circuit holds “safety valve” does not permit departure from guidelines. (715) Defendant argued that she deserved a downward departure from the guidelines sentencing range under the “safety valve” provision, 18 U.S.C. § 3553(f), and guideline § 5C1.2. The Second Circuit held that the statute is limited to departures from statutory minimum sentences, and does not authorize downward departures from the guidelines. In fact, the statute directs that where a defendant meets the listed criteria, the sentencing court should impose a sentence pursuant to the guidelines. [Ed. note: Effective November 1, 1995, the Commission amended § 2D1.1(b) to provide a two level decrease for defendants who qualify for the safety valve, if the base offense level is 26 or greater.] U.S. v. Dia, 69 F.3d 291 (9th Cir. 1995).
2nd Circuit approves downward departure based on lack of personal profit and restitution. (715) Defendant was the vice president of a company that contracted with NASA, and he failed to disclose to NASA the company’s true costs of fulfilling the contract. The district court departed downward because defendant did not personally profit from the fraud, the contract was favorable to the government under existing market conditions, and the government received restitution from defendant’s employer. The Second Circuit adopted the First Circuit’s approach to departures in U.S. v. Rivera, 994 F.2d 942 (1st Cir. 1993): there are encouraged departures, discouraged departures, and forbidden departures. The present departure was a discouraged departure. Ordinarily payment of restitution and lack of personal profit are not grounds for departure. However, the district court found that defendant’s crime was significantly different from the typical fraud defendant. He did not set out to mislead the government. When he was able to negotiate a lower interest rate for his company, he failed to inform the government partly because he believed his company was in financial trouble and partly because the new rate was the product of his own efforts rather than the government’s. Moreover, unlike the typical fraud victim, the government suffered no loss. Although this was a close case, the judge was within his discretion in departing downward. U.S. v. Broderson, 67 F.3d 452 (2d Cir. 1995).
2nd Circuit approves fine departure where defendant’s gain vastly exceeded the maximum fine. (715) Defendant engaged in tax fraud. The district court originally departed upward from a fine range of $10,000-$100,000 to impose an $850,000 fine, and an additional $96,850 fine to cover the cost of incarceration. In defendant’s first appeal, the Second Circuit ruled the fine departure inappropriate, since the factors cited by the court were already considered by the Sentencing Commission. On remand, the district court imposed the same sentence, but reduced the fine to $650,000 in recognition of a divestiture the court had not previously considered. The court based the fine departure on the alternative-fine provision in Note 4 to § 5E1.2, which suggests an upward departure where two times the amount of defendant’s gain or the amount of loss exceeds the maximum of the fine guideline. The Second Circuit affirmed the departure. The tax loss was $6.7 million. Plainly, a fine of $100,000 did not meet the Commission’s expectation that a fine within the guideline range would be at least twice the gain or loss from the offense. U.S. v. Leonard, 67 F.3d 460 (2d Cir. 1995).
2nd Circuit approves upward departure for defendant who became captain of smuggling ship partway through voyage. (715) Defendant was originally the first officer on a ship smuggling 300 Chinese nationals to the U.S. Part way through the trip, the crew mutinied and defendant was appointed captain by the mutineers. Under defendant’s direction, the ship intentionally grounded when it reached the U.S. and the passengers were ordered to jump. Ten of the passengers drowned in the rough waters. The Second Circuit approved an upward departure based on several of the factors set forth in note 5 to § 2L1.1. Defendant knew when he signed on that more than 100 people were going to be involved. He also knew the conditions were dangerous and inhumane. He nonetheless agreed to participate in the scheme, and furthered the scheme by acting in a supervisory capacity (both as first officer and captain). He participated in the decision to intentionally ground the boat, which led to the death of 10 people. Defendant was responsible for the number of passengers on board, the conditions on the boat, and the events that led to the deaths of the passengers. The departure from a 21-27 month range to a 54-month sentence was reasonable under the circumstances. U.S. v. Moe, 65 F.3d 245 (2d Cir. 1995).
2nd Circuit departs upward for inhumane conditions on ship smuggling aliens into U.S. (715) Defendant was the original captain of a ship smuggling 300 Chinese nationals to the U.S. Part way through the trip, the crew mutinied and defendant was relieved of duties for the duration of the voyage. The Second Circuit approved an upward departure based on the inhumane conditions for the passengers on the smuggling ship. Although defendant had been relieved of duties at the time the ship was intentionally grounded and 10 passengers drowned, he was responsible for the condition of the passengers until the mutiny. He could not place the blame on the land-based smugglers who owned the boat. Defendant was fully familiar with the smuggling operation and voluntarily chose to participate as captain. The conditions were clearly “inhumane.” Nearly 300 passengers were packed into 800 square feet of cargo space for a voyage halfway around the world, lasting more than three months, with inadequate water supplies and food, no toilet facilities, no life preservers or life boats, and only a single ladder providing a means of escape from the hold. The departure from a 18-24 month range to a sentence of 60 months was substantial but reasonable. U.S. v. Moe, 65 F.3d 245 (2d Cir. 1995).
2nd Circuit permits downward departure for hardship to antitrust defendant’s employees. (715) Defendant, the owner-operator of several steel-related businesses, was convicted of conspiring to fix prices. The district court made a one level downward departure (which allowed a sentence of probation, rather than prison), based on the effect defendant’s imprisonment would have on his employees. The Second Circuit ruled that business ownership alone does not justify downward departure but it may be appropriate if imprisonment would impose extraordinary hardship on employees. Family members, employees, business associates and the companies’ chief creditor attested that defendant was the only individual with the knowledge, skill, experience and relationships to run the steel trading business on a daily basis. Defendant’s daily involvement was also necessary to ensure the continuing viability of the other business. The companies were heavily indebted to one trade creditor. There was evidence that if defendant were absent, the creditor might withdraw its credit, leading to both companies’ immediate bankruptcy and loss of employment for over 200 employees. U.S. v. Milikowsky, 65 F.3d 4 (2d Cir. 1995).
2nd Circuit rejects downward departure from 16-level enhancement in immigration case. (715) Defendant was convicted of re-entering the country following deportation. The court originally applied a 16-level enhancement for deportation after conviction of an aggravated felony. This resulted in a 57-month sentence. The court later departed downward to 24 months, finding the previous drug offense was less serious than the typical “aggravated felony.” The court also found that defendant’s deportation was three years after his drug conviction, he was attempting to reenter to visit his family, and there was little threat of recidivism. The Second Circuit reversed. Under U.S. v. Polanco, 29 F.3d 35 (2d Cir. 1994), disparity between the 16-level enhancement and the seriousness of the underlying conviction was not a ground for departure. Nor were the three years between the drug conviction and deportation, because this merely allowed defendant time to violate his parole, commit additional crimes and serve time in prison for those crimes. The fact that he was attempting to visit his wife and children was not an extraordinary circumstance because every deported alien may leave family behind. U.S. v. Abreu-Cabrera, 64 F.3d 67 (2d Cir. 1995).
2nd Circuit says erroneous INS form did not warrant downward departure. (715) When defendant was deported in 1990, he was given an outdated Form I-294 that erroneously warned that if he returned to the U.S. illegally, he would face up to two years of imprisonment under 8 U.S.C. § 1326. The maximum penalty had actually been increased to five years in 1988. In 1992, defendant was found in the U.S. illegally. The Second Circuit held that the erroneous INS form did not limit his sentence to two years. Nor did it transform the statutorily authorized sentence into a due process violation. The form clearly stated that reentry without permission was a felony. Although it misstated the severity of the punishment, it referred to the applicable statute, and that statute correctly stated the authorized punishment. The erroneous form also did not warrant a downward departure. U.S. v. Cruz-Flores, 56 F.3d 461 (2d Cir. 1995).
2nd Circuit rejects upward departure because defendant’s bank fraud was not money laundering. (715) Defendant’s associates were involved in a scheme to deposit counterfeit checks in a Swiss bank account, and transfer the proceeds back to the United States. The conspirators were unable to negotiate any of the fraudulent checks. However, with defendant’s help, they were able to cash a small number of stolen checks at a Texas bank and obtain $500,000. Defendant pled guilty to bank fraud. His associates were also convicted of international money laundering charges. The district court departed upward under note 13 to § 2F1.1, believing that defendant’s offense essentially involved money laundering, rather than bank fraud. The Second Circuit reversed, since engaging in a domestic financial transaction with the proceeds of a simple theft is not money laundering under 18 U.S.C. § 1956(a)(1). While bank fraud is a specified unlawful activity under the money laundering statute, it was not the source of proceeds in this case. U.S. v. Napoli, 54 F.3d 63 (2d Cir. 1995), superseded by guideline on other grounds as stated in U.S. v. Genao, 343 F.3d 578 (2nd Cir. 2003).
2nd Circuit approves upward departure in Medicaid fraud case. (715) Defendant led a racketeering enterprise that defrauded the New York State Medicaid system of 8 million dollars. The enterprise operated through four clinics and two corporations controlled by defendant. The Second Circuit approved an upward departure based on the health risk posed by the scheme, the undermining of public confidence in Medicaid, and defendant’s role in inducing doctors to abuse their positions of trust. Note 10(a) to § 2F1.1 authorizes a departure where the fraud caused or risked foreseeable, substantial non-monetary harm. The scheme here created a substantial health risk to patients, most of whom were alcoholics or drug addicts, because the clinics administered medical exams and dispensed prescription drugs without regard to the patients’ needs. The effect on Medicaid was also a proper basis for departure. Section 5K2.7 identifies “disruption of a government function” as a basis for departure. The scheme here disrupted the government’s function of efficiently administering Medicaid and undermined public confidence in government. Finally, defendant’s § 3B1.1(a) leadership enhancement did not adequately account for his role in inducing others to abuse positions of trust. U.S. v. Khan, 53 F.3d 507 (2d Cir. 1995).
2nd Circuit says court cannot substitute community confinement for imprisonment. (715) Defendant fell within Zone C of the Sentencing Table with a sentencing range of 10-16 months. Section 5C2.1(d) provides that a sentence for a Zone C defendant can include a term of supervised release on condition of community confinement, if at least half the minimum term is satisfied by imprisonment. The district court sentenced defendant to six months’ community confinement and six months’ supervised release. The Second Circuit held that this was not permitted. Section 5C2.1(d) only permits the term of supervised release, but not the term of imprisonment, to be conditioned on a period of community confinement. However, defendant’s sentence was valid as a downward departure. The district court expressed its intent to depart under either § 5H1.6 (extraordinary family circumstances) or § 5K2.0. The record showed unusual family circumstances and a record of community service. The government did not challenge the grounds for departure. U.S. v. Adler, 52 F.3d 20 (2d Cir. 1995).
2nd Circuit says departure for risk of recidivism should be under § 4A1.3 rather than § 5K2.0. (715) Defendant was convicted of possessing cars with altered VINs. The government moved for an upward departure based on evidence that he was a drug trafficker. The district court departed upward by seven levels under § 5K2.0, stating that defendant was a “confirmed recidivist” at the “peak of his criminal career” who had to be sentenced harshly for “incapacitation.” The Second Circuit reversed, holding that a departure based on these criminal history concepts must be under § 4A1.3 rather than § 5K2.0. A district court cannot avoid the step-by-step framework required under § 4A1.3 by classifying a departure based on criminal history as an offense level departure under § 5K2.0. Although § 5K2.0 permits an upward departure based on misconduct related to the offense of conviction, the government did not prove that defendant’s offenses had such a relationship. U.S. v. Tropiano, 50 F.3d 157 (2d Cir. 1995).
2nd Circuit again rejects downward departure by district court in deported alien case. (715) Defendant pled guilty to illegally reentering the country after being deported for committing a felony. The district court found that defendant’s prior drug felony was not an aggravated felony under § 2L1.2(b)(2), taking judicial notice of the New York defense bar’s practice of advising low-level drug defendants to plead guilty because they would receive light sentences. In the first appeal, the Second Circuit reversed because the prior drug felony was an aggravated felony. At resentencing, the district court still refused to apply the 16-level aggravated felony enhancement, because the appellate court did not specifically mention the district court’s judicial notice of the defense bar’s practice. The district court also suggested that the 16-level enhancement might violate due process and equal protection. The Second Circuit reversed and remanded to a different district judge, finding no merit to the court’s suggestion that the definition of aggravated felony was unconstitutional. A drug trafficking crime is an aggravated felony regardless of the sentence imposed. U.S. v. Polanco, 47 F.3d 516 (2d Cir. 1995).
2nd Circuit finds no reason to justify downward departure for inspectors who accepted bribes. (715) Defendants, who worked for the city as line inspectors, accepted bribes to overlook defects in taxicabs and to certify inspections that never took place. The district court sentenced them below the applicable guideline range. The Second Circuit found no valid reasons for a downward departure. Defendants’ personal characteristics were not so extraordinary as to warrant a departure. Although the district court characterized defendants as “among our best and most reliable working people,” their histories were fraught were personal failures. Moreover, two of the defendants played “substantial” roles in the corruption scheme, enticing others into the scheme and aggressively soliciting payoffs. The fact that the government refused to provide § 5K1.1 letters for defendant also was not a permissible consideration. The fact that defendants, unlike their superiors involved in the scheme, did not hold a position of public trust, also did not warrant a departure. U.S. v. Deriggi, 45 F.3d 713 (2d Cir. 1995).
2nd Circuit approves upward departure for possession of numerous counterfeit access devices. (715) Defendant and his accomplices arranged for a phony ATM to be put in a mall. They used the information received from the phony ATM to manufacture hundreds of counterfeit ATM cards. They used the counterfeit cards to withdraw over $107,000 in cash from legitimate ATMs. Note 11 to § 2F1.1 states that in an offense involving access devices, an upward departure may be warranted where the actual loss does not adequately reflect the seriousness of the conduct. The Second Circuit upheld a two level departure, concluding that defendant’s production and possession of counterfeit ATM cards created a risk of loss far greater than the actual loss caused by the ATM scheme. The cards he and his accomplices created would have allowed them to withdraw much larger sums than the $107,000. U.S. v. Greenfield, 44 F.3d 1141 (2d Cir. 1995).
2nd Circuit upholds refusal to depart for gang members’ youthful lack of guidance. (715) Defendants belonged to a violent street gang involved in robbery, extortion, and murder. Three defendants claimed that they were entitled to downward departures because of the lack of guidance they received during their upbringing. A fourth defendant argued that the Sentencing Commission did not consider the special problems of young gang members. The 2nd Circuit upheld the district court’s refusal to depart. This circuit has not recognized “youthful lack of guidance” as a valid basis for departure. Moreover, the district court considered a departure for two of the defendants, but refused to do so as an act of discretion. It found that the hardships suffered by these defendants while growing up were not so severe as to mitigate the murders they committed. Under § 5H1.1, age is not ordinarily relevant in determining whether to depart. Moreover, defendant’s prospects for rehabilitation were too speculative. U.S. v. Wong, 40 F.3d 1347 (2nd Cir. 1994).
2nd Circuit says reasons for fine departure were adequately considered by Commission. (715) Defendant, the 80% partner and CEO of a retail grocery store, was convicted of tax evasion charges for skimming profits from the store since the late 1970s. The district court departed upward from a fine range of $10,000 to $100,000, and imposed an $850,000 fine. The court relied on (1) defendant’s initiation of the cash-skimming scheme, (2) his involvement of others, (3) the fact that he was the sole beneficiary of the scheme, (4) the fact that the scheme existed before the first year charged in the indictment, (5) the presence of unprosecuted offenses, and (6) defendant’s receipt of the time value of the skimmed cash. The 2nd Circuit reversed, finding all of the stated reasons were adequately considered by the guidelines. The first three reasons were considered as factors relevant to defendant’s role in the offense. The fourth and fifth were considered as relevant conduct. The sixth was considered when the Commission established the base offense levels that corresponded to the tax loss caused by a defendant. Application note 4 to § 5E1.2 and the alternative fine provision of 18 U.S.C. § 3571(d) did not support the fine, since they were not cited by the district court. U.S. v. Leonard, 37 F.3d 32 (2nd Cir. 1994).
2nd Circuit approves departure based on inference that aliens would face involuntary servitude to pay smuggling fee. (715) Defendant conspired to bring 150 aliens into the United States for a fee of $25,000 to $30,000 each. Most of this fee was to be paid after arrival in the U.S. The district judge departed in part because he believed that the aliens would likely have spent years in involuntary servitude in the U.S. in order to pay the smuggling fee. The 2nd Circuit agreed, despite the lack of evidence to support this theory. Upon their arrival in the U.S., each of the 150 aliens would be indebted to the smugglers in amounts ranging from $10,000 to $30,000. “A contract to pay smuggling fees, unenforceable at law or equity, necessarily contemplates other enforcement mechanisms, none of them savory.” The district court was permitted to infer that the huge debts would be paid through the years under circumstances fairly characterized as involuntary servitude. The inhumane conditions aboard the ship used to transport the aliens also supported the upward departure. The ship was designed as a fishing vessel, had only one bathroom, and provided inadequate life preservers and life rafts. The 150 aliens lived in fish holds for 18 weeks and the captain brandished a gun to maintain order. U.S. v. Fan, 36 F.3d 240 (2nd Cir. 1994).
2nd Circuit rejects “combination” of invalid grounds as basis for downward departure. (715) On defendant’s two previous appeals, the 2nd Circuit rejected downward departures based on defendant’s minor role in the offense and on a murder victim’s aggravating conduct. At defendant’s second resentencing, the district court again departed downward, attempting to “combine” the two factors as a single ground for departure. The 2nd Circuit held that where independent factors have been adequately considered by the Sentencing Commission, and each factor considered individually fails to warrant a downward departure, the court may not aggregate the factors in an effort to justify a downward departure. A combination of typical factors does not present an unusual case warranting departure. In addition, parity between federal and state sentencing schemes is not a proper consideration for a sentencing court. U.S. v. Minicone, 26 F.3d 297 (2nd Cir. 1994).
2nd Circuit affirms upward departure based on degree of harm suffered by fraud victim. (715) Defendant defrauded his great-aunt of her life savings. The district court departed upward because the great aunt lost most of her liquid assets and was forced to depend on the generosity of others to meet her usual living expenses. The 2nd Circuit affirmed, rejecting defendant’s claim that the degree of harm was adequately considered by enhancements for amount of loss, abuse of trust, and vulnerable victim. Under note 10 to §2F1.1, a departure is permitted where the financial loss does not fully capture the harm. This was such a case. The abuse of trust enhancement is concerned mainly with factors that make a crime easier to commit, not with the consequences of the crime. Similarly, the vulnerable victim enhancement is not primarily concerned with defendant’s selection of a victim who will suffer greatly from the crime, but with the selection of a victim who is less likely to thwart the crime. U.S. v. Kaye, 23 F.3d 50 (2nd Cir. 1994).
2nd Circuit says loss of credit when defendant was in INS custody may justify departure. (715) Upon defendant’s release on bail, she was taken into INS custody. Defendant then asked that her bail be revoked, but the revocation took two weeks, and she lost sentence credit for that time. The 2nd Circuit held that defendant’s loss of sentence credit was an atypical circumstance not adequately considered by the sentencing commission, and was therefore a permissible ground for departure. U.S. v. Restrepo, 999 F.2d 640 (2nd Cir.), cert. denied, 114 S.Ct. 405 (1993) did not bar a departure. Unlike Restrepo, defendant did not seek a departure because she was subject to additional post-imprisonment civil confinement as a consequence of her alien status. Rather, she argued that bureaucratic confusion caused her to seek bail when it was not to her advantage to do so. Because the record was ambiguous as to whether the court understood it had authority to depart, remand was necessary. U.S. v. Ogbondah, 16 F.3d 498 (2nd Cir. 1994).
2nd Circuit holds that inability to carry out threat is not basis for downward departure. (715) While incarcerated, defendant sent threatening letters to a federal judge. The district court departed downward based on defendant’s present inability to carry out the threat, and the fact that he displayed this inability by putting his prison return address on the envelope. The 2nd Circuit held that defendant’s inability to carry out the threat, and his overt manifestation of that inability, were improper grounds for departure. Section 2A6.1(b)(1) provides for an enhancement where a defendant engages in conduct evidencing an intent to carry out a threat. Implicit in this is the consideration that certain defendants will be unable to execute their threats. Moreover, the fact that the recipient was made aware that defendant could not immediately carry out his threat was not sufficiently unusual that the court could conclude it was not factored into the guidelines. U.S. v. Malik, 16 F.3d 45 (2nd Cir. 1994).
2nd Circuit rejects downward departure based on collateral consequences to alien. (715) Defendant, who was married to a U.S. citizen with whom he had three children, was a conditional permanent resident alien of the U.S. The district court departed downward because as an alien, defendant would suffer three consequences as a result of his conviction: (a) he would be deported, and thus separated from his family, (b) he would be ineligible to serve part of his sentence in a minimal security prison or in a community custody program, and (c) he would be incarcerated in an INS facility for an additional period while awaiting deportation. The 2nd Circuit reversed. It rejected the government’s contention that alienage can never be considered as grounds for departure, but found that the bases relied upon by the court did not justify the departure. Although deportation might cause hardship, reduction of the prison term would not make those effects less harsh. U.S. v. Restrepo, 999 F.2d 640 (2nd Cir. 1993).
2nd Circuit rejects downward departure for alien who would be deported and separated from fiancée upon conviction. (715) The district court departed downward because since defendant was an alien, (a) he would be deported upon conviction, (b) he would be separated from his United States fiancée upon deportation, and (c) he would be ineligible to serve the latter part of his sentence at a halfway house. Relying on U.S. v. Restrepo, 999 F.2d 640 (2nd Cir. 1993), decided the same day, the 2nd Circuit reversed. In Restrepo, a similar departure was rejected, even though the personal consequences of deportation for that defendant were more severe (he was a lawful resident of the United States, and married to a U.S. citizen with whom he had three children). U.S. v. Adubofour, 999 F.2d 639 (2nd Cir. 1993).
2nd Circuit says court must impose three level supervisor enhancement. (715) The district court found that defendant was a supervisor of a group with more than five participants which was otherwise extensive. Nonetheless, the court only imposed a two level enhancement, rather than the three levels required by section 3B1.1(b). The 2nd Circuit reversed, holding that the court had no discretion to limit the increase to two steps. There were no grounds for a downward departure. The suggestion that defendant lacked a sufficient commitment to the organization’s affairs was belied by the court’s findings that defendant was the leader’s trusted “right hand man.” The lack of evidence that defendant was to profit more than the others was an impermissible basis for departure in light of the Commission’s explicit consideration of the profit factor in its commentary to section 3B1.1. The finding that defendant was not more likely to recidivate was not a permissible ground for departure. Judge Pratt dissented. U.S. v. Farah, 991 F.2d 1065 (2nd Cir. 1993).
2nd Circuit suggests downward role departure for where other party in crime is government agent. (715) Defendant sold several sawed-off shotguns to a government informant. The 2nd Circuit affirmed that a section 3B1.2 mitigating role adjustment could not apply to defendant as a matter of law because his offense did not involve another criminally responsible person. Adjustments under section 3B1.1 and 3B1.1 apply only when an offense is committed by more than one participant, who must be criminally responsible for the commission of the offense. Even if the undercover agent entrapped defendant, the agent was not criminally responsible. However, a downward departure may be available. If the district court would have decreased the defendant’s offense level under section 3B1.2 had the other person involved in the offense been criminally responsible, it has the discretion to depart downward between two and four levels, based on defendant’s culpability relative to that of the government agent. U.S. v. Speenburgh, 990 F.2d 72 (2nd Cir. 1993).
2nd Circuit affirms that departure based on refusal to make restitution and concealment of assets did not violate 5th Amendment. (715) The district court departed upward based upon defendant’s false claim that he had disbursed most of the proceeds of his fraud and his concealment of other assets. The 2nd Circuit rejected the claim that the departure violated defendant’s 5th Amendment rights by penalizing him for refusing to incriminate himself by returning the proceeds of his crime. First, defendant waived his 5th Amendment privilege as to information regarding his funds by agreeing, as part of his plea bargain, to disclose all his financial information to the government and the court. Second, since money is fungible, the production of funds for restitution does not implicitly acknowledge defendant’s possession of the stolen funds, especially when the defendant is a substantial businessman. U.S. v. Merritt, 988 F.2d 1298 (2nd Cir. 1993).
2nd Circuit prohibits section 5K2.0 departure based on past criminal conduct and likelihood of recidivism. (715) The 2nd Circuit found an upward departure to be “procedurally defective” where the district court failed to state the section number of upon which it relied in making the departure. The court gave every indication that it was making a section 5K2.0 departure, but nonetheless based the departure upon defendant’s criminal record and likelihood of recidivism. The strictures of section 4A1.3 (which requires a step-by step procedure) may not be avoided by classifying a departure as one under section 5K2.0. Past criminal conduct and likelihood of recidivism may not be the basis for a section 5K2.0 departure. U.S. v. Deutsch, 987 F.2d 878 (2nd Cir. 1993).
2nd Circuit rejects youthful lack of guidance, harsher federal penalties, as basis for departure. (715) The 2nd Circuit affirmed the refusal to depart downward based on defendant’s youthful lack of guidance, the prosecution’s choice of federal jurisdiction, and the enhanced penalties for crack-related crimes. Although the 9th Circuit upheld youthful lack of guidance as a basis for a downward departure, the Sentencing Commission amended section 5H1.12 to reject this as a ground for a downward departure. A departure based on a prosecutor’s choice of federal rather than state jurisdiction is not permissible, because choice of forum is an exclusive function of a prosecutor’s discretion. Finally, a departure based upon the enhanced penalties for crack is not permitted because the harsher penalties reflect a rational aim of deterring drug transactions involving crack. Crack is the most addictive and destructive form of cocaine. U.S. v. Haynes, 985 F.2d 65 (2nd Cir. 1993).
2nd Circuit affirms enhancement based on acquitted crimes but suggests downward departure. (715) Defendant was acquitted of several narcotics offenses and convicted of two unlawful firearm possession offenses. Both firearm guidelines, section 2K2.1 and section 2K2.2 (1988), provide that if the firearm was used in connection with another offense, the guideline for the other offense should be applied if it would result in a higher offense level. The district court found that defendant used the firearms in connection with a narcotics conspiracy, and applied the drug offense level under section 2D1.1. The 2nd Circuit held this was proper, even though defendant had been acquitted of the drug offenses. An acquittal does not establish the untruth of the evidence, and disputed facts at sentencing need only be established by the preponderance. Nonetheless, the court doubted that the Commission intended so “astronomical” an increase (offense level tripled, guideline range increased from 12-18 months to 210 to 262 months), especially with respect to acquitted conduct. Thus, it concluded that the court had the power to depart downward under section 5K2.0. U.S. v. Concepcion, 983 F.2d 369 (2nd Cir. 1992).
2nd Circuit remands again for finding of whether defendant’s circumstances supported departure. (715) The district court originally departed downward based on a note from the jury which asked the court to be lenient in sentencing. In U.S. v. Mickens, 926 F.2d 1323 (2nd Cir. 1991) (Mickens I), the 2nd Circuit held that although the jury’s sympathy may reflect circumstances that the court could appropriately consider, it was inappropriate to base a departure solely on the jury’s recommendation. The case was remanded for an independent determination. At resentencing, the judge sentenced defendant to the bottom of her guideline range, holding that he had no authority to depart downward. On defendant’s second appeal, the 2nd Circuit held that the judge mistakenly interpreted Mickens I. A departure might be appropriate depending on the facts. It was precisely because the district court did not conduct independent fact-finding that defendant’s original sentence was vacated, and for that same reason the case was again remanded for resentencing. U.S. v. Mickens, 977 F.2d 69 (2nd Cir. 1992).
2nd Circuit permits career offender to receive departure for exceptional acceptance of responsibility. (715) Defendant robbed a bank while in a drug-induced state. One day later, after the effects of the crack wore off, he voluntarily surrendered to police, confessed his crime, and explained that he needed drug rehabilitation, which he hoped to receive in prison. The 2nd Circuit found that such voluntary surrender and confession one day after the robbery might constitute an extraordinary acceptance of responsibility that would justify a downward departure. The court rejected the government’s argument that the Sentencing Commission implicitly rejected the availability of such departures for career offenders such as defendant. Because it was not clear whether the district court was aware of its authority to depart in this situation, the case was remanded. U.S. v. Rogers, 972 F.2d 489 (2nd Cir. 1992).
2nd Circuit affirms upward departure in criminal history and offense level based upon the same conduct. (715) Defendant was deported after committing an aggravated felony. After illegally re-entering the United States and committing another crime, he pled guilty to unlawful presence in the United States. The district court departed from criminal history category IV to V pursuant to section 4A1.3, based in part upon the aggravated nature of the crimes underlying defendant’s prior convictions. The court also departed upward by two offense levels under application note 3 to section 2L1.2 because defendant’s deportation followed his conviction for an aggravated felony. The Second Circuit rejected defendant’s claim that the two departures constituted impermissible double counting, holding that a criminal history departure and an offense level departure can be based upon the same act. A defendant’s criminal history and offense level measure different things. Thus, this case involved the unusual situation where a prior act is relevant to determining both the defendant’s criminal history category and the offense level for the charged conduct. While this may be double counting in a literal sense, double counting is permissible where a single act is relevant to two dimensions of the guidelines analysis. U.S. v. Campbell, 967 F.2d 20 (2nd Cir. 1992).
2nd Circuit rules that return of stolen property did not justify downward departure. (715) The Second Circuit ruled that the fact that defendant voluntarily returned a portion of his stolen property did not justify a downward departure. This fact is taken into account in the acceptance of responsibility provisions. Application Note 1(b) to §E1.1, which provides for a two-level reduction for acceptance of responsibility, expressly directs a sentencing judge to consider whether the defendant made restitution prior to the adjudication of guilt in determining whether such an adjustment is appropriate. Thus, the Sentencing Commission adequately considered restitution as a mitigating circumstance in formulating the guidelines. Defendant already received credit for his voluntary repayment of embezzled funds when he receive his acceptance of responsibility reduction. U.S. v. Arjoon, 964 F.2d 167 (2nd Cir. 1992), superseded by rule on other grounds as stated in U.S. v. Werber, 51 F.3d 342 (2nd Cir. 1995).
2nd Circuit rules that erroneous downward departure based on sharing of illegal profits was harmless error. (715) The district court departed downward in part because the proceeds of defendant’s conspiracy were divided with another defendant. The 2nd Circuit rejected this as a ground for a downward departure, but found the error to be harmless. The commentary to guideline section 1B1.3 makes it clear that a defendant is accountable for the entire amount of money stolen during concerted criminal activity. Because the commission specifically addressed the issue of divided proceeds and decided that the entire amount should be included as part of each defendant’s relevant conduct, it could not be said that defendant’s splitting of proceeds with her co-conspirator amounted to a circumstance not adequately taken into consideration by the sentencing commission. U.S. v. Johnson, 964 F.2d 124 (2nd Cir. 1992).
2nd Circuit affirms refusal to return stolen money as grounds for upward departure. (715) Defendants were convicted of stealing $3.7 million from their armored car company. The district court departed for refusal to return the stolen money. The 2nd Circuit agreed that the guidelines did not adequately consider the defendants’ refusal to return stolen money because they were willing to exchange time in prison for “instant riches” upon release. The court rejected the argument that consideration of defendants’ failure to return the stolen money violated their right against self-incrimination, noting that producing the money would not implicate them in any crimes other than those for which they had already been convicted. Nor would it prejudice defendants’ rights on appeal, since production of the money would not be part of the appellate record. Here, however, the district court failed to make proper findings of fact concerning defendant’s possession of the money. The case was remanded to permit defendants to present evidence indicating that they did not have control over the money. U.S. v. Bryser, 954 F.2d 79 (2nd Cir. 1992).
2nd Circuit affirms application of environmental guideline to mail fraud defendants. (715) Defendants were convicted of RICO and mail fraud charges in connection with their operation of an environmentally hazardous landfill. The district court sentenced them under the environmental guideline, section 2Q1.2, relying on application note 15 to the 1988 version of section 2F1.1, which provided that where the mail fraud statute is used primarily as a jurisdictional basis to prosecute other offenses, the most analogous guideline should be applied. The 2nd Circuit affirmed, but held that the application note was in conflict with the requirement in section 1B1.2(a) that the offense level be based on the offense of conviction. This conflict was resolved by a 1989 amendment (now numbered application note 13) directing the court to apply a section other than section 2F1.1 only if the other offense was “established” in the information or the indictment. The 2nd Circuit found it unnecessary to resolve the conflict because the district court stated that even if section 2F1.1 applied, it would depart upward to 26 based on the environmental harm. Since there was no indication that the mail fraud guidelines took into account the massive environmental damage proven here, a departure would not be an abuse of discretion. U.S. v. Paccione, 949 F.2d 1183 (2nd Cir. 1991).
2nd Circuit affirms upward departure for failure to perform forfeiture agreement. (715) Defendants entered into an agreement with the government which provided that if they were found guilty of various RICO and fraud charges, they would pay the government $22 million in lieu of forfeiture or fines. Defendants were convicted but failed to make any of the installment payments required by the agreement. The district court departed upward by two levels based on defendants’ default. It specifically found that defendants had committed a fraud on the court because they were aware at the time they executed the agreement that they would be unable make their installment payments within the specified time period. The 2nd Circuit affirmed. There was no evidence that the district court improperly placed on defendants the burden of proving their intent to perform the forfeiture agreement. The fact that the government could enforce the forfeiture agreement by filing confessions of judgment did not make it unfair for the court to consider their fraud as a ground for departure. U.S. v. Paccione, 949 F.2d 1183 (2nd Cir. 1991).
2nd Circuit rules district court had authority to depart downward based on atypical money laundering crime. (715) On several occasions, one defendant sent cocaine to his co-defendant from Alaska via Express Mail. The co-defendant then sold the cocaine, converted the proceeds into a money order, and sent it to defendant. Money orders totaling $3,320 were purchased. Defendants were convicted of drug offenses and money laundering. The 2nd Circuit held that the district court mistakenly believed that it lacked authority to depart downward based on the atypical nature of the money laundering offense. Defendants did not use the financial transactions to conceal a serious crime; the money orders were simply used pay for illegal drugs. Although defendants’ conduct fell within the words of Money Laundering Act, the terms of the relevant commentary showed that their conduct fell well outside the “heartland” of such cases. U.S. v. Skinner, 946 F.2d 176 (2nd Cir. 1991).
2nd Circuit affirms four-level downward departure based upon minimal role of defendants in money laundering scheme. (715) Based on their minimal role in a money laundering offense, defendants received both a four-level offense level reduction for minimal role under guideline § 3B1.2 and a four-level downward departure. The 2nd Circuit affirmed, holding that such a departure beyond the adjustments in § 3B1.2 is authorized where the minimal role is “extraordinary.” Defendants’ case presented such a situation. As a result of the large amount of cash involved, defendants received a nine-level increase in offense level. This single factor raised defendants’ guideline range from 33-41 months to 87 to 108 months. The sentencing commission apparently contemplated some connection between the quantity of money implicated and the extent of a defendant’s role in the offense. No such correlation was involved here. Defendants’ sole role in the offense was to load boxes of money in a warehouse on one particular date. U.S. v. Restrepo, 936 F.2d 661 (2nd Cir. 1991).
2nd Circuit orders reconsideration of downward departure based on defendant being “misled” by her boyfriend. (715) The district court departed downward because it found that defendant had been “misled” by her boyfriend, a co-defendant. The 2nd Circuit remanded, because the record was unclear as to the reasons for the departure. The court may have been influenced by a memorandum submitted on defendant’s behalf which contended that defendant was unaware of the money laundering scheme until her boyfriend, on the night of the arrest, explained why they were watching out for police. If the district court intended to adopt this assertion as a factual finding, departure might be justified. However, the judge may not have accepted this version of the facts since he declined to grant defendant the reduction for minimal role that was given to other defendants. On remand, the district court was directed to reconsider the factual and legal basis for the departure. U.S. v. Restrepo, 936 F.2d 661 (2nd Cir. 1991).
2nd Circuit reverses downward departure which was based on defendants’ civil contempt penalty for obstruction. (715) Defendants received civil contempt sentences as a result of their refusal to provide the court with handwriting exemplars. Since defendants were already in pretrial detention, the civil contempt sentence resulted in defendants’ not being given credit for time spent in custody before trial. At sentencing, the court enhanced defendants’ sentences for obstruction of justice based on the failure to provide the exemplars, but offset this increase with an equivalent downward departure, concluding that the guidelines did not consider the imprisonment for civil contempt. The 2nd Circuit reversed, disagreeing with the district court’s equation of the goals of civil contempt and the sentence enhancement for obstruction of justice. The court also found the extent of the departures unreasonable, since they exceeded the amount of time served for civil contempt. U.S. v. Restrepo, 936 F.2d 661 (2nd Cir. 1991).
2nd Circuit rejects acceptance of responsibility and jury’s recommendation of leniency as grounds for downward departure. (715) The 2nd Circuit found that the district court’s downward departure was improperly based upon defendant’s acceptance of responsibility and on the request for leniency made by the jury in announcing its guilty verdict. The district court believed that the two-point reduction for acceptance of responsibility did not adequately reflect the degree of defendant’s contrition. Although the appellate court did not foreclose the possibility that this rationale might, in appropriate circumstances, support a downward departure, this was not such a case. It was also error for the judge to rely upon the jury’s plea for leniency as grounds for departure. Although the jury’s sympathy for defendant might reflect circumstances that would justify a departure, the judge must make an independent determination of these circumstances. U.S. v. Mickens, 926 F.2d 1323 (2nd Cir. 1991).
2nd Circuit rejects downward departure based upon federal and state prosecution for related offenses. (715) Defendant engaged in a scheme to defraud several banks through check-kiting. Defendant pled guilty in state court to defrauding one bank. Upon defendant’s release, he was transferred to federal authorities, where he pled guilty to fraudulently withdrawing funds from another bank. Defendant argued that under the version of guidelines’ § 5G1.3 in effect when he committed his offenses, if he had been prosecuted concurrently by the state and federal government, this would have required concurrent sentences. Since the federal government delayed his prosecution, defendant reasoned that he was entitled to a downward departure to prevent him from being prejudiced by the independent prosecutions. The 4th Circuit rejected this argument, finding that § 5G1.3 was significantly amended prior to the sentencing of defendant. The version in effect on the date defendant was sentenced did not mandate that the district court depart downward, and the 4th Circuit found that it had no jurisdiction to review the district court’s discretionary refusal to depart from the applicable guidelines range. U.S. v. Adeniyi, 912 F.2d 615 (2nd Cir. 1990).
2nd Circuit holds that downward departure to avoid severe penalty for crack cocaine required reversal. (715) The district court departed downward in a drug case because it found that the penalties for distribution of crack cocaine were more severe than for distribution of normal cocaine. The government appealed and the 2nd Circuit reversed. It found that “a downward departure cannot be fashioned because the penalties are more severe.” Congress had enhanced the penalties for crack cocaine specifically to deter what it found to be insidious drug transactions, including those involving the highly addictive form of cocaine base known as crack. U.S. v. Reina, 905 F.2d 638 (2nd Cir. 1990).
2nd Circuit upholds upward departure for misrepresentations to probation department. (715) The judge imposed a two-point upward departure based on the Probation Department’s conclusion that he willfully misrepresented his financial condition. Specifically, the Department found that defendant, in his presentencing financial disclosure, had failed to disclose his unrecorded interest in substantial assets, including real estate, stocks, and insurance policies. The 2nd Circuit found no abuse of discretion. U.S. v. Stephenson, 895 F.2d 867 (2nd Cir. 1990).
2nd Circuit holds that departure upward because defendant “played” with the criminal justice system, was abuse of discretion. (715) “Where the guidelines take into consideration a specific form of misconduct, departure will be warranted only if the district court finds that ‘unusual circumstances’ in a particular case warrant an upward departure from the pertinent guideline provision.” Thus the Second Circuit held that the district court’s decision to depart upward because the defendant “played” with the criminal justice system by attempting to conceal his identity, was an abuse of discretion. The district court gave no indication why such concealment was not adequately covered by guideline § 3C1.1 on obstruction of justice. U.S. v. Palta, 880 F.2d 636 (2nd Cir. 1989).
2nd Circuit rules no departure warranted when defendant’s minor participation was recognized in setting base offense level. (715) Defendant claimed the court should have departed due to his minor role in the transaction. The 2nd Circuit disagreed, noting that the defendant had already received two reductions in his base offense level, two points for acceptance of responsibility, and four points for minimal involvement (§ 3B1.2(a)). The decision whether to depart is vested in the discretion of the sentencing court, but only when there exist factors of a kind or degree not considered by the guidelines (§ 5K2.0, 18 U.S.C. § 3553). Because the grounds urged for departure had been recognized by the Sentencing Commission and had already resulted in a benefit to the defendant, the decision not to depart proper even if the doubtful assumption could be made that the “discretion not to depart could ever be exceeded.” U.S. v. Paulino, 873 F.2d 23 (2nd Cir. 1989).
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3rd Circuit finds court properly considered § 3553(a) factors in denying departure request. (715) Defendant pled guilty to possession of child pornography, and was sentenced to 96 months. He argued that a downward departure under § 5H1.3 was appropriate because he suffered from obsessive compulsive disorder coupled with an “internet addiction,” manifesting itself in an uncontrollable urge to download and catalogue pornographic images. According to his psychiatric evaluations, defendant did not exhibit any sexual attraction to children, nor did he seek out the images to gratify his sexual urges. The Third Circuit rejected defendant’s claim that the district court failed to consider the § 3553(a) factors in denying his request for a downward departure. The district court took into account that defendant had been a productive member of society having served as a police officer, as well as the fact that he made “a serious and sincere effort to overcome” his mental illnesses by seeking therapy. It also focused on the need to “reflect the seriousness of the offense,” § 3553(a)(2)(A), and to “deter other generally from engaging in this crime.” The court’s consideration of the § 3553(a) factors was fairly comprehensive. U.S. v. Handerhan, __ F.3d __ (3d Cir. Jan. 7, 2014) No. 12-3500.
3rd Circuit says departure may be based on congressional finding supporting guideline change. (715) Defendant induced a woman to move from New York to Pennsylvania so that he could engage in sexual conduct with the woman’s two-year-old daughter. He pleaded guilty to interstate transportation to engage in sex with a minor, in violation of 18 U.S.C. §2241(c). At sentencing, the district court found that defendant had an offense level of 37. The court departed upward by five levels in part because post-offense amendments to the Guidelines showed that the applicable Guidelines did not sufficiently punish the offense. The Third Circuit held that the district court properly relied on the congressional finding behind the Guidelines amendments to determine that the Guidelines did not punish the offense adequately. U.S. v. King, __ F.3d __ (3d Cir. Apr. 30, 2010) No. 09-1861.
3rd Circuit upholds departure in sexual abuse case based on pattern of sexually abusing minors. (715) Defendant sexually molested the two-year-old daughter of a woman he convinced to move from New York to Pennsylvania. He was convicted of interstate transportation to engage in sex with a minor, in violation of 18 U.S.C. §2241(c). At sentencing, the district court departed upward in part because defendant’s pattern of sexually abusing minors, including his own daughter, placed his conduct outside the heartland. The Third Circuit upheld the departure, finding that the district court was not required to quantify the extent to which defendant sexually abused minors and that the record adequately established both that defendant had sexually abused minors and that he engaged in “online predation of minors.” The court agreed with the district court that defendant’s repeated abuse “creates social harm that is not addressed by a Guideline that applies to a single instance of abuse.” U.S. v. King, __ F.3d __ (3d Cir. Apr. 30, 2010) No. 09-1861 .
3rd Circuit reverses downward departure from fraud guideline. (715) Defendants were convicted of fraud for using a school to obtain federal funds for classes that were never conducted. The district court departed downward to sentences of probation with periods of in-home confinement. The court cited (1) defendants’ good works and community support, (2) their lack of an initial intent to defraud, (3) defendant Spicer’s minor role, and (4) the “exculpatory no” doctrine in Spicer’s case. The Third Circuit reversed, finding none of the factors relied upon supported the departures. First, public service and good works are discouraged bases for departures. See § 5H1.1. Most of the good works occurred during work at the school and involved no special sacrifice. As for defendants’ intent, it is inappropriate to consider intent as a departure factor where the crime specified an intent element. Defendant Spicer received a minor role reduction, and the court failed to outline how that role was “exceptional.” Finally, Spicer lied to the grand jury and was convicted of perjury for this lie. U.S. v. Ali, 508 F.3d 136 (3d Cir. 2007).
3rd Circuit says defendant’s assistance was considered under § 5K1.1 and thus did not warrant § 5K2.0 departure. (715) Defendant embezzled money, and invested part of the stolen funds in International Recovery Limited (IRL), which turned out to be a fruitless venture. Defendant eventually admitted his embezzlement and began assisting authorities in investigating IRL. After the FBI decided not to pursue a criminal investigation of IRL, defendant continued to assist the SEC regarding IRL for several more months. The district court denied defendant’s request for a departure under § 5K2.0, finding it had no authority to grant a substantial assistance departure in the absence of a government motion under § 5K1.1. The Third Circuit disagreed, but nonetheless agreed that a departure was unwarranted. Departures under § 5K2.0 do not require a government motion. However, while some courts have permitted departures under § 5K2.0 based on a defendant’s assistance in civil matters, defendant’s cooperation here fell within the heartland of § 5K1.1. The SEC investigation and the FBI investigation were clearly related. Had the SEC investigation uncovered criminal acts by IRL, there was no doubt those fact would have been transmitted to the FBI. A factor that fits within the heartland of a separate guideline provision cannot be the basis of a departure under § 5K2.0. U.S. v. Jones, 382 F.3d 403 (3d Cir. 2004).
3rd Circuit rejects downward departure for defendant who threatened to kill federal judge. (715) While in prison, defendant sent a letter threatening to kill a federal judge. He was frustrated regarding the way in which time that he spent in custody after arrest was taken into account in determining his federal sentence and a related state sentence. The district court departed downward for five reasons: (1) its difficulty in identifying the heartland of the offense because the Statutory Index listed numerous guidelines that might apply to violations of 18 U.S.C. § 115(a); (2) the fact that defendant was not particularly dangerous; (3) the fact that defendant might not even have violated § 115(a)(1)(B); (4) the sentencing expectations of previous judges in defendant’s case had been frustrated; and (5) defendant’s frustration over this situation. The Third Circuit held that the departure was an abuse of discretion. It was irrelevant that there is not one single guideline for all § 115(a) cases. The absence of evidence that a defendant was likely to carry out a threat is already taken into account in § 2A6.1, since an enhancement applies when the offense involved conduct showing an intent to carry out the threat. A departure based on the weakness of the evidence is inappropriate. While a defendant’s having previously served an “unfair” sentence is not a forbidden factor, the court abused its discretion in concluding that the events surrounding defendant’s prior state and federal sentences took his case outside the heartland. Finally, the fact that defendant was “provoked” to write the threatening letter was not a proper ground for departure. U.S. v. D’Amario, 350 F.3d 348 (3d Cir. 2003).
3rd Circuit holds that asserted legal purpose for illegal reentry did not warrant downward departure. (715) Defendant was convicted of unlawfully reentering the country after deportation. He argued that his case was not within the heartland of the guidelines for illegal reentry cases because he had reentered the U.S. to obtain legal employment and he thought he could reenter legally after four or five years from his deportation. The Third Circuit found held that defendant’s purpose in illegally reentering the U.S. did not warrant a downward departure. Under the language of 8 U.S.C. § 1326, the motive of the illegal entrant is irrelevant to the commission of the offense. U.S. v. Dyer, 325 F.3d 464 (3d Cir. 2003).
3rd Circuit finds court has authority to depart where intended loss overstates seriousness of crime. (715) Defendant participated in a conspiracy to produce and cash counterfeit checks. When he learned of the government investigation into the scheme, he surrendered to the Secret Service and turned over preprinted checks with a face value $455,102.99. Following Note 8 to § 2F1.1, these checks were included by the district court in its calculation of intended loss. Note 11 to § 2F1.1 provides that a downward departure may be warranted where the loss overstates the seriousness of the offense. At sentencing, defendant contended that because he had himself surrendered the unnegotiated checks that would being used to support an enhanced sentence, the “intended loss” they represented overstated the seriousness of his offense. The district court disagreed, believing that allowing a downward departure under Note 11 because Note 8 produced an unwarrantedly harsh sentence “is in effect to say I disagree with … Note 8, which I can’t do.” The Third Circuit found that the district court “took an unnecessarily restricted view of Note 11. The Note’s language indicates that there may be situation where the loss understates or overstates the seriousness of an offense. The fact that Note 8 clarifies that “loss” refers to “intended loss” where that figure can be ascertained did not limit Note 11’s reach. “Intended loss” can understate or overstate the seriousness of an offense just as much as “actual loss.” U.S. v. Kushner, 305 F.3d 194 (3d Cir. 2002).
3rd Circuit holds that court properly departed after grouping. (715) Defendant argued that the district court erred in applying a three-level upward departure for his acts of public corruption under Application Note 5 to USSG § 2C1.7, to the final combined offense level after grouping, rather than to the offense level established for the public corruption charges only. Guideline § 1B1.1 lists the steps for calculating a sentence. Defendant contended that the court should have applied the departure at step (b) (directing court to determine the base offense level and apply any appropriate “specific offense characteristics,” “cross references,” and “special instructions”) rather than at step (i) (referring to departure factors in Chapter Five). The Third Circuit held that the district court did not err in applying Note 5 to defendant’s sentence after grouping. The departure warranted by Note 5 does not amount to a “specific offense characteristic,” “cross reference,” or “special instruction,” the only three types of sentencing adjustments to which step (b) refers. Note 5 is not the functional equivalent of a special instruction. Judge Greenberg dissented. U.S. v. Milan, 304 F.3d 273 (3d Cir. 2002).
3rd Circuit holds that disposal of 22 stolen firearms did not pose substantial risk of death or bodily injury. (715) Several of defendant’s associates burglarized a sporting goods store and stole 22 guns. They had discussed the plan with defendant, but he had declined to participate. However, after the burglary, defendant disposed of the firearms, turning over the proceeds to the burglars. The record contained nothing as to where, how, or to whom defendant sold the guns. Three of the 22 guns were later confiscated in connection with criminal activity. Application Note 16 to § 2K2.1 provides that an upward departure may be warranted where the offense posed a substantial risk of death or bodily injury to multiple individuals. The district court departed upward under Note 16, finding that selling “a score of lethal concealable firearms on the streets” was an extreme aggravating factor. The Third Circuit reversed. The number of weapons was specifically considered in the guidelines, as was the fact that the weapons governed by it were for the most part concealable firearms. Moreover, the conclusory finding that the sale was “on the streets” was unfounded, since the record indicated only that defendant “disposed of” the guns, not where, how, or to whom. U.S. v. Cicirello, 301 F.3d 135 (3d Cir. 2002).
3rd Circuit affirms departure for high-capacity semi-automatic weapon. (715) After contemplating suicide, defendant picked up his rifle, an AK-47, and loaded it. Instead of shooting himself, defendant shot a letter carrier delivering mail outside his apartment. The district court departed upward by two levels under § 5K2.17 for possession of a high-capacity semi-automatic weapon. Defendant argued that the weapon’s high-capacity was negated by the fact that he only fired twice. The Third Circuit rejected this narrow interpretation of § 5K2.17. First, contrary to defendant’s claim, the high capacity nature of the AK-47 did increase the risk of injury. Testimony indicated that the increased velocity of the bullets fired from an AK-47 would cause fragmenting and injuries to the bone upon impact, as well as increase the bullets’ accuracy and the capacity for causing death or serious bodily injury. The panel also disputed defendant’s claim that the increase applies solely where the weapon was used to fire a significantly large number of shots without reloading. Section 5K2.17 applies if the defendant merely “possessed” a high-capacity, semi-automatic firearm. There is no requirement that the defendant “use” that firearm to its full capacity, or even that the weapon be fired. U.S. v. Philiposian, 267 F.3d 214 (3d Cir. 2001).
3rd Circuit rejects downward departure designed to keep released defendants from reincarceration. (715) The district court originally sentenced defendants to erroneously lenient sentences. After remand, they agreed to modified offense levels that produced much longer guideline ranges. At the time of resentencing, defendants had completed their original sentences and had been released. The district court made 16- and 17-level downward departures in order to reimpose its original sentences. The Third Circuit reversed, rejecting all of the reasons cited by the district court. First, although post-offense rehabilitation was a proper basis for departure prior to the November 2000 amendments, see U.S. v. Sally, 116 F.3d 76 (3d Cir. 1997), neither defendant introduced evidence of extraordinary rehabilitation. There was no evidence of sentencing disparity or prosecutorial misconduct. Although reincarceration would result in a disruption of defendants’ family relationships, there was no evidence of extraordinary family circumstances. While the district court thought that it would be “cruel” to return the defendants to prison following the completion of their original sentences, error correction through reincarceration cannot alone take a case outside the heartland. “[R]eincarceration as a means to correct error is inherent in the process of Guideline sentencing…. [T]he correction of error through reincarceration provides the only means of preserving the appropriateness and uniformity of sentencing.” U.S. v. Yeaman, 248 F.3d 223 (3d Cir. 2001).
3rd Circuit holds that § 2S1.1 not limited to activity connected with drug trafficking and serious crime. (715) Defendant, a principal of a brokerage firm, stole $600,000 from the brokerage and its clients and fled to the Cayman Islands. He pled guilty to fraud and money laundering. Citing U.S. v. Smith, 186 F.3d 290 (3d Cir. 1999), the district court declined to sentence defendant under the money laundering guideline because it believed the § 2S1.1 heartland included only money laundering associated with extensive drug trafficking and serious crime. The Third Circuit held that the district court read Smith to create too narrow a heartland—Smith clearly contemplates applying § 2S1.1 to “typical” money laundering as well as to those activities connected with extensive drug trafficking and serious crime. “Typical” money laundering occurs when a defendant knowingly conducts a financial transaction to conceal tainted funds or funnel them into additional criminal conduct. Defendant’s activities appeared to constitute typical money laundering. After embezzling $600,000, defendant engaged in several acts to conceal the illegal source of the money. After wiring funds from the brokerage’s escrow account to an account in New York, defendant wired them a second time to casinos where he converted them to cash. He then secretly carried the cash to the Cayman Islands where he formed a corporation under a false name, and planned to deposit the money in bank accounts under different names in amounts under the $10,000 report limit. U.S. v. Bockius, 228 F.3d 305 (3d Cir. 2000).
3rd Circuit finds letters from policyholders insufficient to prove loss of confidence in insurance industry. (715) Defendant leased worthless stocks to Teale, who represented the stocks as assets available to pay claims under reinsurance contracts with World Life. When these assets were called upon to pay outstanding medical reinsurance claims, the stocks were deemed worthless. Note 10(e) to § 2F1.1 authorizes a departure where a defendant’s fraud causes a loss of confidence in an important institution. The government argued that the scheme had caused a loss of confidence in both the insurance industry and the stock market. It submitted a series of letters from policyholders of World Life and a letter from McLucas, the SEC’s Director of Enforcement. The Third Circuit found that the policyholder letters did not support a departure, since they demonstrated nothing more than the policyholders’ frustration with World Life. None of the letters suggested that the insureds would be unlikely to purchase medical insurance in the future. However, the McLucas letter supported a finding of loss of confidence in the stock market. The letter contained an expert opinion that manipulation of the market through such a scheme can destroy confidence in the securities market. The government was not required to produce someone whose confidence in the institution had diminished as a result of the scheme. U.S. v. Yeaman, 194 F.3d 442 (3d Cir. 1999).
3rd Circuit says loss from stealing cultural objects did not adequately reflect harm. (715) Defendants stole various cultural objects from a historical museum. Finding defendants’ sentencing range of 27 to 33 months did not sufficient capture the egregiousness of the offenses, the district court departed upward by four levels. The Third Circuit remanded because the district court departed without providing advance notice to defendants of its intention to depart upward, as required by Burns v. United States, 501 U.S. 129 (1991). However, the court agreed that a departure was warranted. The price of the stolen artifacts as set by the commercial market was insufficient to “fully capture the harmfulness of the [defendants’] conduct.” The stolen antiques had historical and cultural importance. Moreover, the thefts affected the museum by damaging its reputation. Finally, the monetary value of the objects did not adequately take into consideration the real but intangible harm inflicted upon all of the other victims of the offense, including the City of Philadelphia and the general public. U.S. v. Medford, 194 F.3d 419 (3d Cir. 1999).
3rd Circuit upholds departure for attorney’s extraordinary abuse of trust. (715) Defendant, a disbarred attorney and accountant, engaged in numerous schemes to defraud his clients and acquaintances. The Third Circuit affirmed a two-level upward departure for an extraordinary abuse of trust. The type and extent of defendant’s activities were beyond the court’s experience and were not of the kind envisioned by the § 3B1.3 abuse of trust enhancement. Defendant perpetrated various and distinct schemes, all involving abuse of positions of trust. He prepared legal documents out of whole cloth, and then forged the signatures of two federal judges. He defrauded clients, next-door neighbors, and investors. His activities were successful in eight separate schemes because of the positions of trust he held. Neither the 12-level loss enhancement under § 2F1.1(b)(1)(M) nor the more than minimal planning enhancement under § 2F1.1(b)(2)(A) accounted for defendant’s abuse of trust. The two-level departure was reasonable. U.S. v. Holmes, 193 F.3d 200 (3d Cir. 1999).
3rd Circuit includes suspended portion of sentence in “term of imprisonment” for aggravated felony. (715) Note 5 to § 2L1.2 provides that a defendant who receives a § 2L1.2(b)(1)(A) aggravated felony enhancement may be eligible for a downward departure in certain circumstances if “the term of imprisonment” imposed for the offense did not exceed one year. The district court ruled that note 5 did not apply to defendant because, notwithstanding the partial suspension of his prior crack sentence, the circuit court imposed a sentence exceeding one year. Defendant pointed to §§ 4A1.2(b)(1) and (2), which excludes from the definition of the term “sentence of imprisonment” any portion of the sentence that was suspended. The Third Circuit found this irrelevant, since § 4A1.2(b) defines “sentence of imprisonment” for purposes of computing a defendant’s criminal history category. What is implicated here is 8 U.S.C. § 1101(a)(48)(B), which provides that “[a]ny reference to term of imprisonment … is deemed to include the period of incarceration or confinement ordered by a court of law, regardless of any suspension …” Note 1 to § 2L1.2 incorporates the definition of aggravated felony in the last paragraph of 8 U.S.C. § 1101(a)(43), which uses the phrase “term of imprisonment” as defined in 8 U.S.C. § 1101(a)(48)(B). U.S. v. McKenzie, 193 F.3d 740 (3d Cir. 1999).
3rd Circuit reverses upward departure for defense contractors where no threat to national security. (715) Defendants supplied electronic components to the U.S. military. In direct violation of their agreement with the government, defendants contracted with foreign companies to build the components. Defendants pled guilty to various smuggling violations. The district court departed upward, finding the case atypical because defendants defrauded the government for their own financial gain, their actions compromised the national security of the U.S., and they violated the Arms Export Control Act (AECA) and the Buy American Act (BAA). The Third Circuit reversed. The dominant basis for the departure was the district court’s concern that defendants had threatened our national security. However, the government stipulated that defendants’ acts posed no threat to national security. In fact, some of the components represented a flow of technology into, rather than out of, the United States. Since fraud is a critical part of the crime of smuggling, the mere fact that the offense involved fraud did not make the case atypical. A violation of the AECA is arguable the archetypal smuggling offense. The violation of the BAA, a civil statute with minor penalties for violations, did not support a departure of the magnitude applied here. U.S. v. Nathan, 188 F.3d 190 (3d Cir. 1999).
3rd Circuit approves departure for combination of unmentioned factors. (715) Defendant solicited investors for his oil and gas leasing company, and used the money to pay his own personal expenses. The Third Circuit affirmed an upward departure based on a combination of factors, including that defendant: (1) masqueraded as a decorated veteran, a person in the witness protection program and a government agent on a secret mission; (2) misrepresented that he had received several combat medals; (3) faked his own death to conceal his fraud; (4) fabricated a story about his family’s having been killed by a drunk driver; and (5) caused severe psychological harm to his victims. This combination of “unmentioned” factors was sufficient to take defendant’s case out of the guidelines’ heartland. The seriousness of defendant’s conduct was not adequately captured by increases for the victims’ losses. Analogies to other guidelines show that the extent of the departure (two levels) was reasonable. For example, § 2F1.1(b)(3)(A) provides for a two-level enhancement where the offense involved a misrepresentation that the defendant was acting on behalf of a charitable organization or a government agency. In addition, § 5K2.3 encourages courts to depart if defendant’s conduct caused his victims extreme psychological injury. The court found defendant’s victims suffered psychological injury more severe than typical in a fraud case. U.S. v. Iannone, 184 F.3d 214 (3d Cir. 1999).
3rd Circuit says Koon does not permit substantial assistance departure without government motion. (715) Although defendant provided the government with a wide variety of information, the government refused to make a § 5K1.1 substantial assistance departure. Relying on In re Sealed Case, 149 F.3d 1198 (D.C. Cir. 1998), defendant argued that the district court had the authority to depart under § 5K2.0 based on a defendant’s substantial assistance, even in the absence of a government motion. The Third Circuit rejected In re Sealed Case, and held that a district court does not have the authority under § 5K2.0 to make a substantial assistance departure in the absence of a government motion. Substantial assistance to the government is taken into account in § 5K1.1, and therefore must be considered as a factor mentioned in the guidelines. In re Sealed Case found that the guidelines do not mention substantial assistance without a government motion as a sentencing factor. However, the existence of a government motion is not a sentencing factor. A sentencing factor is a relevant offense or offender characteristic. The requirement of a government motion under § 5K1.1 is a condition limiting a court’s authority to grant a defendant a substantial assistance departure. U.S. v. Abuhouran, 161 F.3d 206 (3d Cir. 1998).
3rd Circuit suggests government misconduct can justify downward departure. (715) Defendant, an attorney, agreed to launder funds for an undercover agent posing as a drug dealer. During the course of the 13-month investigation, however, the government agent insinuated himself into a close social relationship with defendant, which culminated, on one occasion, in sexual intercourse. Defendant argued to the district court that a downward departure was warranted because of the government’s misconduct. The Third Circuit found it unclear whether the court made a discretionary decision not to depart based on the facts, or whether it believed it lacked authority to depart. Because the case was being vacated on other grounds for resentencing, the court did not decide this issue. However, it noted that the district court was not precluded from departing. Absent an express prohibition by the Sentencing Commission, a sentencing court is free to consider, in an unusual case, whether or not the factors that make it unusual are sufficient to justify a departure. Departures based on investigative misconduct unrelated to a defendant’s guilt are not expressly prohibited as grounds for departure, and therefore should not be categorically proscribed. U.S. v. Nolan-Cooper, 155 F.3d 221 (3d Cir. 1998).
3rd Circuit approves upward departure where court ordered “resentencing, if appropriate.” (715) Defendant was originally convicted of an intentional killing in furtherance of a continuing criminal enterprise, and various related drug charges. On appeal, a Third Circuit panel reversed the murder conviction on the ground of trial error, and then said “We affirm the judgment of conviction as to the drug charges and remand for resentencing, if appropriate, on those counts.” On remand, the district court vacated the 10-year terms imposed on the two drug counts, and then departed upward to resentence defendant to life imprisonment. The court found that the murder was relevant conduct that justified an upward departure under § 5K2.1 (Death) and § 5K2.8 (Extreme Conduct). In this second appeal, the Third Circuit held that the district court had authority to resentence defendant on the drug counts. The appellate court mandate clearly gave the district court authority to “resentence, if appropriate on those counts.” Because defendant challenged his drug convictions on appeal, the panel’s authority to remand for resentencing on those counts came directly from 28 U.S.C. § 2106. The upward departure was reasonable. The district court followed U.S. v. Kikumura, 918 F.2d 1084 (3d Cir. 1990) and found that the government established by clear and convincing evidence that defendant intentionally killed the victim. U.S. v. Murray, 144 F.3d 270 (3d Cir. 1998).
3rd Circuit rejects downward departure for consent to deportation, age and hospitalization. (715) After arriving in the U.S. on a flight from Colombia, defendant was arrested by customs officials who found heroin in his shoes. He then informed officials that he also had ingested pellets of heroin. The agents took him to a hospital, where he remained for 11 days while he passed 90 pellets. He sought a downward departure based on his willingness to consent to deportation, his age and the deterrent effect of his hospitalization. The Third Circuit held that the district court did not err in refusing to depart. Consent to deportation is not a basis for a § 5K2.0 departure unless defendant has a non-frivolous defense to deportation. Moreover, because the judiciary has limited power with regard to deportation, a district court cannot depart downward on this basis without a request from the U.S. Attorney. Age is only relevant when the defendant is elderly and infirm. Defendant did not assert any extraordinary condition other than the fact that he was 67 years old at the time of sentencing. He did not suffer from any unusual impairments for a man his age. Finally, defendant admitted he was aware of the health risks involved in ingesting heroin prior to his trip. The physical trauma he experienced, which is inherent in smuggling drugs in this manner, cannot be considered an unusual characteristic. U.S. v. Marin-Castaneda, 134 F.3d 551 (3d Cir. 1998).
3rd Circuit upholds departure based on prior similar sexual assault. (715) Defendant kidnapped a woman and sexually assaulted her over a period of days. Based on note 7 to § 2A3.1, the district court departed upward because defendant’s criminal history included a prior sentence for similar conduct—a 1983 state conviction for sexually assaulting a jogger at knifepoint. The Third Circuit held that defendant waived any challenge to this departure by admitting at sentencing that the commentary was applicable to him. Moreover, even if defendant properly preserved this argument, the departure was proper. His prior conviction for a similar offense involving sexual abuse was an “encouraged factor” for departure. This factor was not adequately considered in his criminal history because there is a qualitative difference between a conviction for any offense resulting in a term of imprisonment of more than one year, and a conviction for a prior sexual assault. U.S. v. Ward, 131 F.3d 335 (3d Cir. 1997).
3rd Circuit rejects downward departure based on judge’s disagreement with verdict. (715) Defendants were convicted by a jury of arson. The district court made a six‑level downward departure because it found the prosecution’s witnesses so lacking in credibility that it would have acquitted the defendants. The Third Circuit held that the judge’s disagreement with the jury’s finding of guilt is not a proper ground for a downward departure. Such a departure would be at odds with both the intent of the guidelines and the division of responsibility that underpins the jury system. U.S. v. Haut, 107 F.3d 213 (3rd Cir. 1997).
3rd Circuit rejects departure by analogy to role in one-man pornography case. (715) Defendant received child pornography from a company taken over by postal inspectors. He pled guilty to possessing child pornography. In U.S. v. Bierley, 922 F.2d 1061 (3d Cir. 1990), the Third Circuit upheld a downward departure by analogy to § 3B1.2 because the defendant would have been entitled to the adjustment if the supplier, an undercover postal inspector, had been a criminally culpable participant. But the defendant in Bierley was convicted of receiving child pornography, which can involve concerted activity, while the defendant here was convicted of possessing child pornography, a single‑person offense. The Third Circuit reversed a downward departure based on Bierley, because defendant would not have been entitled to an adjustment under § 3B1.2 even if the person that delivered the pornography had been criminally responsible. Moreover, possessing child pornography is significantly less serious than Bierley‘s offense of receiving child pornography. Note 4 to § 3B1.2 says the § 3B1.2 reduction is not available where a defendant has already received a reduced offense level by virtue of being convicted of a offense less serious than his actual criminal conduct. U.S. v. Romualdi, 101 F.3d 971 (3d Cir. 1996).
3rd Circuit approves departure but finds extent violates rule of “declining marginal punishment.” (715) Defendant pled guilty to several child pornography counts. The district court departed upward under the commentary to § 3D1.4 for the additional, uncounted victims that defendant harmed. The Third Circuit agreed that the additional victims justified a departure, but found that the extent of the departure violated the rule of “declining marginal punishment.” Section 3D1.4 only accounts for six victims. The four additional identified victims justified a departure. But adding four levels for the four additional victims was contrary to the principle of declining marginal punishment set out in the commentary to Chapter 3D. Victims 2 through 6 raised defendant’s imprisonment by 55 months, or 11 months per victim. The court’s departure for victims 7 through 10 raised defendant’s sentence 84 months, or 21 months per victim. This was improper. U.S. v. MacLeod, 80 F.3d 860 (3d Cir. 1996).
3rd Circuit rejects downward departure where tax loss was foreseeable to defendant. (715) Defendant participated in a tax evasion scheme involving the use of “daisy chains,” a series of paper transactions through numerous companies, some of which were largely fictitious. The district court attributed to defendant about $1.4 million in tax losses from transactions in which he participated. Defendant requested a downward departure, arguing that the tax loss overstated his culpability. The Third Circuit upheld the refusal to depart, since the tax loss was foreseeable to defendant, who participated in a “very integral part” of the daisy chain. Nothing in § 2T1.1 or its commentary suggests that a court has the discretion to depart from the offense level established through the calculation of the tax loss. Although a court may have authority to depart even in the absence of explicit authorization, this is limited to instances where a particular guideline linguistically applies but the conduct of the defendant significantly differs from the norm. U.S. v. Veksler, 62 F.3d 544 (3d Cir. 1995).
3rd Circuit approves upward departure for numerous bribes and gratuities. (715) Defendant, an IRS agent, was convicted of demanding and receiving bribes and illegal gratuities to “fix” taxpayers’ problems with the IRS. The district court departed upward because of the magnitude of the scheme–defendant had accepted one bribe and five gratuities. The Third Circuit affirmed. Section 2C1.1(b)(1) requires a two-level increase if the offense involves more than one bribe. This did not apply because defendant’s offense only involved one bribe. Section 2C1.2(b)(1) requires a two-level increase if the offense involves more than one gratuity. This did not apply because defendant’s offense included a bribe. There is no provision increasing the offense level for one bribe and multiple gratuities. Nothing in the guidelines suggest that this type of repeated unlawful conduct involving a bribe and gratuities should be treated less harshly than repeated unlawful conduct involving only bribes or only gratuities. The departure was appropriate. U.S. v. Felton, 55 F.3d 861 (3d Cir. 1995).
3rd Circuit says 1989 guideline covered selling guns when defendant should have known they would be used in another crime. (715) Defendant and others conspired to illegally sell firearms. The district court departed upward, finding the 1989 guidelines did not account for the fact that defendant should have known that the weapons would be used to commit further crimes. The 3d Circuit reversed, holding that the 1989 guidelines took this into account. The fact that the 1991 firearms amendments added an enhancement under § 2K2.1(b)(5) for transferring a weapon with knowledge, intent or reason to believe that it would be used in another felony, did not prove that the 1989 guidelines failed to account for this. The 1991 amendments consolidated §§ 2K2.1 through 2.3 into a single guideline. The 1989 version of § 2K2.3 covered defendants who received or transferred firearms with intent or knowledge to commit another crime. The new § 2K2.1(b)(5) enhancement serves a part of the function that § 2K2.3 served in 1989. U.S. v. Bass, 54 F.3d 125 (3d Cir. 1995).
3rd Circuit says defendant’s disclosure of true identity might justify downward departure. (715) Defendant gave a false name at his arrest, and used that false name in at least three court appearances. Defendant disclosed his true identity to a probation officer after he pled guilty but before sentencing. The probation officer who prepared defendant’s PSR acknowledged that he would not have discovered defendant’s true identity without the disclosure. The use of defendant’s real identity raised his criminal history category from I to III. The district court held that it lacked authority to depart downward based on defendant’s disclosure of his true identity. The Third Circuit remanded, holding that defendant’s voluntary disclosure of identity might constitute a degree of acceptance of responsibility so substantially in excess of the norm as to justify a downward departure under U.S. v. Lieberman, 971 F.2d 989 (3d Cir. 1992). U.S. v. Evans, 49 F.3d 109 (3d Cir. 1995).
3rd Circuit finds 50-fold fine departure unsupported by clear and convincing evidence. (715) The district court departed upward from a guideline maximum fine of $125,000 to a fine of $7 million. The court determined that this was the amount necessary to disgorge defendant of illegal profits he kept hidden in foreign bank accounts. The 3rd Circuit held that this departure, by a factor in excess of 50, had to be supported by clear and convincing evidence. The court’s findings were not supported by the record, and therefore were clearly erroneous. Defendant and two co-conspirators did transfer millions of illegally gained profits to a foreign country. However, there was no evidence that defendant received control of the entire money. The district court assumed that defendant had control over the funds from the fact that the government obtained payments of less than $800,000 from defendant’s co-conspirators. This assumption could not withstand scrutiny under the clear and convincing evidence standard. U.S. v. Bertoli, 40 F.3d 1384 (3rd Cir. 1994).
3rd Circuit upholds refusal to depart based on sentencing entrapment. (715) Defendant argued that the district court should have departed downward based on “sentencing entrapment.” The 3rd Circuit refused to determine whether sentencing entrapment was a valid ground for departure, since it did not exist in this case. The government suggested that the conspirators import three to four kilograms of heroin, instead of some smaller amount, because it was not feasible for suppliers in Thailand or importers in the U.S. to set up such a big trip just to bring back one or two kilograms. Defendant was an experienced drug courier who demonstrated a “yeoman’s attitude” towards the venture. He indicated that he was willing to transport whatever quantity of heroin was available. U.S. v. Raven, 39 F.3d 428 (3rd Cir. 1994).
3rd Circuit says type of false statement and harmful financial consequences were not grounds for downward departure. (715) Defendant was convicted of making a false statement under oath. He argued that his false declaration was “atypical” because he had nothing to do with the underlying offense. He also contended that a downward departure was warranted because his conviction might result in the suspension of all future government contracts for himself and other businesses owned by his family. The 3rd Circuit found that it had jurisdiction to review the matter because the district court concluded that the guidelines did not authorize it to depart. However, neither of defendant’s reasons justified a downward departure. The fact that defendant had nothing to do with the underlying offense did not show that his offense differed from the norm. Note 3 to § 2J1.3 shows that the sentencing commission intended the perjury guideline to apply regardless of whether there was a conviction for the underlying offense. Nor did the financial consequences for defendant and his family justify a downward departure. Section 5H1.2 says that a departure based on a defendant’s vocational skills should only be granted in exceptional circumstances. U.S. v. Reilly, 33 F.3d 1396 (3rd Cir. 1994).
3rd Circuit says overstatment of seriousness of offense is no basis for downward departure. (715) The district court departed downward to a 12-month probation term, stating that the guideline sentence overstated the seriousness of defendant’s offense. The 3rd Circuit reversed. There is no provision in the guidelines authorizing a downward departure because the guidelines overstate the seriousness of the offense. However, on remand, the court might consider whether § 5H1.4 provided a basis for departure for an “extraordinary physical impairment.” Defendant tested HIV positive, and might have a related serious physical complication. U.S. v. Schein, 31 F.3d 135 (3rd Cir. 1994).
3rd Circuit rejects upward departure based on amount of loss and large number of victims. (715) Defendant, the president of an investment firm specializing in the management of “pre-need” funeral funds, was convicted of mail fraud and income tax evasion. The district court departed upward based on the large number of victims (31) and the amount of monetary loss ($4.9 million), purportedly following § 2F1.1(b)(2)(B). The 3rd Circuit reversed, finding that the guidelines adequately considered both the number of victims and the amount of loss. The $4.9 million loss fit squarely within the loss table’s range of $2000 to $80 million. Although 31 victims was far more than necessary to trigger the two level enhancement under § 2F1.1(b)(2), it was not so extraordinarily large a number in a case of this type that it fell outside the heartland of the fraud provisions. U.S. v. Copple, 24 F.3d 535 (3rd Cir 1994).
3rd Circuit rejects obstruction enhancement or departure even though defendant misled investigators about another offense., (715) Defendant was convicted of two armored truck robberies. The district court enhanced his sentence for obstruction of justice because he had given the government misleading information to avoid implicating his friends in a third armored truck robbery. The 3rd Circuit reversed, since the obstruction enhancement applies only when the defendant has obstructed or tried to obstruct the investigation, prosecution or sentencing of the offense of conviction. Moreover, defendant’s obstruction of justice was not a proper ground for an upward departure. Notes 3(g) and 4(b) demonstrate that the Sentencing Commission considered false statements like those involved here, and elected not to punish them as part of the conviction for the instant offense. U.S. v. Woods, 24 F.3d 514 (3rd Cir. 1994).
3rd Circuit approves downward departure where loss table overstated criminality. (715) Because defendant’s company was short of cash, defendant prepared false labor sheets which enabled the company to receive about $140,000 in accelerated payments from the government. When the company’s bank took over, it placed the company in Chapter 7 bankruptcy. As a result, what would have been merely an interest free loan from early payments became a loss of over $381,000 to the government. The 3rd Circuit upheld a downward departure based on overstatement of criminality by the loss tables, relying on note 11 to § 2F1.1. Defendant’s intent was not to steal money from the government, but to expedite payments that would have been due at some future time. Without the bankruptcy, it was possible that the loss to the government would have been far less. U.S. v. Monaco, 23 F.3d 793 (3rd Cir. 1994).
3rd Circuit suggests downward departure where large loss over magnifies sentence. (715) Defendant assisted a co-defendant in selling stolen government bonds with a face value of $129,000 and received a nine level enhancement under §2B1.1(b)(1)(J). He argued that he should only have received a two level enhancement, since the most he could have received from his participation in the scheme was $2,000. The 3rd Circuit approved the enhancement, since under application note 2 to §2B1.1, loss is the fair market value of the particular property at issue. However, the court suggested that, notwithstanding the proper application of the guidelines, the nine-level enhancement overstated both the degree of defendant’s criminality and his need to be corrected. Where application of the guidelines’ monetary tables bears little or no relationship to a defendant’s role in the offense, and greatly magnifies the sentence, the district court should have the discretion to depart downward. U.S. v. Stuart, 22 F.3d 76 (3rd Cir. 1994).
3rd Circuit says prisoners’ loss of good time credit is no basis for downward departure. (715) While in prison, defendants were involved in an altercation with several prison guards. As a result, they were found to have violated prison regulations and were deprived of good time credits they had previously earned. In addition, they were convicted in federal court of impeding and interfering with a federal prison guard. The 3rd Circuit held that even though loss of good time credits did not appear to have been addressed by the Sentencing Commission, it was not a proper basis for a downward departure. The gravamen of a mitigating circumstance is that it somehow reduces the defendant’s guilt or culpability. Loss of good time credits was not such a circumstance. Because of the different purposes that the disciplinary sanctions and criminal sentences are designed to serve, granting a downward departure to compensate for the defendants’ loss of good time credits would defeat the goals of the criminal justice system. U.S. v. Newby, 11 F.3d 1143 (3rd Cir. 1993).
3rd Circuit upholds departure by analogy to obstruction for fleeing to Cuba. (715) After being identified as a prime suspect in the murder of a police officer, defendant fled to Cuba, where he remained for 20 years. When he returned to the U.S., he pled guilty to unlawful flight to avoid prosecution. He was sentenced under section 2J1.6, Failure to Appear, as the most analogous guideline. The 3rd Circuit upheld a two level departure under section 5K2.0 by analogy to the obstruction of justice enhancement, section 3C1.1. The parties agreed that the obstruction guideline could not be applied to the Failure to Appear guideline. However, the aggravating circumstances surrounding defendant’s flight — the length of his absence, his flight to a country from which he could not be extradicted, the resulting difficulty in prosecuting the underlying offense — were extreme and had the effect of obstructing justice. The Sentencing Commission, in promulgating section 2J1.6, did not adequately consider such extreme aggravating circumstances. U.S. v. Cherry, 10 F.3d 1003 (3rd Cir. 1993).
3rd Circuit refuses to examine underlying crime in flight case to determine if there was official victim. (715) After being identified as a prime suspect in the murder of a police officer, defendant fled to Cuba. When he returned to the U.S., he pled guilty to unlawful flight to avoid prosecution. Since there was no guideline applicable to his offense, he was sentenced under section 2J1.6, Failure to Appear, as the most analogous guideline. The district court departed upward three levels by analogy to section 3A1.2 (Official Victim enhancement) because defendant’s unlawful flight was for the purpose of avoiding prosecution for killing a police officer. The 3rd Circuit concluded that there was no official victim of defendant’s flight and therefore the district court erred in using section 3A1.2 by analogy as a grounds for departure. The only victim of defendant’s unlawful flight were the government and the justice system, not the slain officer, his family or fellow officers. Defendant’s offense, the flight, was not motivated by the status of his victim, but by the fear of prosecution. U.S. v. Cherry, 10 F.3d 1003 (3rd Cir. 1993).
3rd Circuit rejects defendant’s media efforts as grounds for upward departure. (715) Defendant bribed government employees for confidential information, which he then resold to his clients for a profit. The district court departed upward because of the volume of defendant’s dealings in confidential information and the magnitude of the resulting invasion of personal privacy. The court also noted that defendant’s appearance on the Oprah Winfrey Show and elsewhere had significantly enhanced the loss of public confidence in government caused by his offense. The 3rd Circuit remanded. It agreed that defendant’s conduct went well beyond the heartland bribery offense covered by section 2C1.1 both because of its extent and because the consequences for the large number of victims involved. It was also appropriate to take into account the corruption of government caused by defendant’s conduct as well as the loss of public confidence necessarily occasioned by its original disclosure. However, it was inappropriate to enhance defendant’s sentence because he sought to call attention to a situation that was unquestionably a matter of public concern. U.S. v. Schweitzer, 5 F.3d 44 (3rd Cir. 1993).
3rd Circuit upholds downward departure for improper manipulation of indictment. (715) Defendant embezzled bank funds and was convicted of embezzlement and tax evasion. The district court found that grouping of the two counts was not permitted under the guidelines, but that it was highly unusual for a defendant to be charged with both embezzlement and tax evasion for the moneys he embezzled. The court departed downward by two levels to correct this “inappropriate manipulation of the indictment.” The 3rd Circuit upheld the departure, holding that a court may depart downward for manipulation of the indictment. Policy Statement 4(a) in Chapter 1, Part A in the Introduction to the Guidelines states that the Sentencing Commission recognized that a charge offense system has drawbacks and that a sentencing court may control any inappropriate manipulation of the indictment through use of its departure power. The district court properly fixed the amount of departure by reference to the two level increase caused by the failure to “group” the offenses. U.S. v. Lieberman, 971 F.2d 989 (3rd Cir. 1992).
3rd Circuit affirms downward departure for exceptional acceptance of responsibility. (715) Although defendant received an adjustment for acceptance of responsibility, the district court found that defendant’s conduct differed “from the norm” in terms of the kind and degree of his acceptance of responsibility and departed downward by one level. The 3rd Circuit held that a sentencing court may depart downward when the circumstances of a case demonstrate a degree of acceptance of responsibility that is substantially in excess of that ordinarily present. Here, there was a sufficient basis for the departure. Defendant, a bank vice president who embezzled bank funds, not only began to make restitution to the bank shortly after his embezzlement was discovered, but also entered into an agreement to pay about $34,000 more than he thought was owed and to which he pled guilty. Besides admitting the full extent of his wrongdoing when confronted by bank officials, resigning his position, and making voluntary and truthful admissions to authorities (acts which would not take him out of the usual case), he met with bank officials to explain how in the future they could detect improper transactions. U.S. v. Lieberman, 971 F.2d 989 (3rd Cir. 1992).
3rd Circuit affirms that section 3B1.3 does not bar upward departure based upon defendant’s high-ranking government position. (715) Defendant lied about his past and present cocaine use to obtain a position as assistant to the U.S. Attorney General. The district court departed upward because defendant held a high ranking position with the Department of Justice and because criminal behavior by public officials tends to erode public trust. Defendant claimed that the issues relating to his employment and to conduct affecting public trust were already considered by the guidelines in section 3B1.3. According to defendant, a combination of high-ranking position and criminal activity other than that which specifically falls under section 3B1.3 can never justify an upward departure. The 3rd Circuit rejected defendant’s claim that section 3B1.3 barred an upward departure based upon his high-ranking position. The court also affirmed the district court’s determination that in his position as assistant to the Attorney General, defendant was involved in preventing criminal activity by public officials. U.S. v. Barr, 963 F.2d 641 (3rd Cir. 1992).
3rd Circuit rejects upward departure designed to compensate for decision not to charge defendant with more serious offense. (715) Defendant pled guilty to four counts of making false statements in connection with the acquisition of firearms in return for the government’s agreement not to charge defendant with the more serious crime of possession of a firearm by a felon. The false statement convictions resulted in a guideline range of 24 to 30 months. The government argued that the district court’s departure to a 60 month sentence was justified by the fact that defendant could have been charged with the firearm possession charge, which would have resulted in a mandatory 15 year sentence. The 3rd Circuit held that it was error to depart upward to compensate for the government’s decision not to charge defendant with a more serious crime. An upward departure in offense level may not be based upon uncharged crimes. Fairness dictates that the government not be allowed to bring the firearm possession crime through the “back door” in the sentencing phase, when it had previously chosen not to bring it through the “front door” in the charging phase. U.S. v. Thomas, 961 F.2d 1110 (3rd Cir. 1992).
3rd Circuit permits downward departure for minimal role where 3B1.2 was inapplicable because other participant was government agent. (715) Defendant purchased child pornography from an undercover postal inspector. Since the postal inspector was not criminally responsible for the crime, defendant was the sole participant in his offense and thus not eligible for a “minimal role” reduction under guideline § 3B1.2. The district court stated that it would like to depart downward, but felt that the totality of the mitigating circumstances were not sufficient to permit the court to make the departure. The 3rd Circuit held that when an adjustment for mitigating role is not available, a court may depart downward if the departure is based on conduct similar to that encompassed § 3B1.2. A departure is appropriate where there has been concerted activity, but only one participant. The case was remanded for the district court to determine whether defendant’s conduct would qualify as minor or minimal had the government agent been a participant. U.S. v. Bierley, 922 F.2d 1061 (3rd Cir. 1990).
3rd Circuit reverses upward departure because factors for departure were already taken into account by guidelines. (715) At sentencing for receipt of stolen property, the court departed upward, relying in part on the great value of the property stolen and the “association” between defendants and the sophisticated burglars who stole the property. The 3rd Circuit reversed, holding these were not permissible bases for departure because they are already taken into account by the stolen property guideline. U.S. v. Chiarelli, 898 F.2d 373 (3rd Cir. 1990).
3rd Circuit holds downward departure in escape cases not warranted even though escape is considered in offense level and criminal history calculation. (715) Defendant argued that the Commission failed to consider that the guidelines provide for enhancement of criminal history categories in escape cases even though escape from prison is an essential element of the offense. The Third Circuit found no problem, holding that district courts have no authority to depart downward to compensate for the double counting effect. Relying on its prior decision in U.S. v. Ofchinick, 877 F.2d 251 (3rd Cir. 1989), the court held that the Commission was entitled to punish more severely one who commits another offense, including escape, shortly after conviction for an offense. U.S. v. Medieros, 884 F.2d 75 (3rd Cir. 1989).
3rd Circuit holds fact that prison was nonsecure facility is not grounds for departure in escape cases. (715) Affirming the district court’s order, the Third Circuit held that because the Sentencing Commission had adequately distinguished between escape from secure vs. nonsecure facilities, the fact that the defendant had walked away from a nonsecure facility was not grounds for departure. See § 2P1.1(b)(2). Furthermore, the district court’ finding that the circumstances were not atypical was not an abuse of discretion or clearly erroneous. U.S. v. Medieros, 884 F.2d 75 (3rd Cir. 1989).
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4th Circuit affirms above-Guideline sentence where court adequately explained sentence on alternate grounds. (715) Defendant pled guilty to multiple counts relating to his molestation of a minor. Based on nine additional victims, the district court departed upward from a range of 151-188 months to a sentence of 240 months. The Fourth Circuit found the sentence was procedurally reasonable. The criminal history departure was proper under §4A1.3(a)(1). Given defendant’s 20-year history of molesting middle school boys, the district court found that criminal history I seriously underrepresented defendant’s criminal history and the likelihood that he would commit future crimes. Although the district court may have erred in relying on §5K2.0 for the offense level departure, the resulting sentence was procedurally reasonable because the district court adequately explained its sentence on alternate grounds, by reference to the 18 U.S.C. §3553(a) factors. The court recounted defendant’s substantial uncharged conduct, both in the form of additional incidents of abuse against the victims identified in the charged offenses and additional victims not identified in those convictions. It also observed defendant’s persistent and increasing abuse over the years. U.S. v. Grubbs, 585 F.3d 793 (4th Cir. 2009).
4th Circuit holds that starting point for departure was mandatory minimum rather than lower guideline range. (715) Defendant pled guilty to drug charges carrying a minimum sentence of 240 months under 21 U.S.C. § 841(b)(1)(A). His guideline range was only 135-168 months. The government moved for a downward departure under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. The Fourth Circuit held that the district court properly used 240 months as the starting point for its downward departure. Moreover, the court was permitted to depart below the guideline range of 135-168 months, Section 3553(e) places no limit on the court’s authority to impose a sentence below the statutory minimum sentence or the low-end of the guideline range. U.S. v. Johnson, 393 F.3d 466 (4th Cir. 2004).
4th Circuit vacates where court may have incorrectly equated reckless indifference to knowing behavior. (715) Defendant intentionally set fire to an apartment building and caused the death of an occupant. Because death resulted from the fire, § 2K1.4(c)(1) cross-referenced § 2A1.1, the first degree murder guideline. Note 1 to § 2A1.1 authorizes a downward departure if “the defendant did not cause the death intentionally or knowingly.” In refusing to depart, the court did not make a finding that defendant actually knew that people were inside the building at the time of the fire. Rather, the court concluded that “the only reasonable belief would be there were people” present in the apartment building, which “creates a finding of reckless indifference, willful indifference, which equates to knowledge.” The Fourth Circuit held reckless indifference does not equate with knowledge, and if the court refused to depart based on this finding, it would be error. However, it was unclear whether the court also found that the evidence was sufficient to find that defendant knowingly caused the death of another. Therefore, the panel vacated defendant’s sentence and remanded for resentencing. U.S. v. Carr, 303 F.3d 539 (4th Cir. 2002).
4th Circuit says defendant must meet Note 5 criteria for departure from aggravated felony increase. (715) Defendant was convicted of being an illegal alien found in the U.S. after deportation, and received a 16-level aggravated felony enhancement based on a prior conviction for misdemeanor death by motor vehicle. § 2L1.2(b)(1)(A). Note 5 authorizes a downward departure from the aggravated felony enhancement where (1) the defendant has only one prior felony offense, (2) the offense was not a crime of violence or a firearms offense, and (3) the term of imprisonment did not exceed one year. Although defendant did not meet this criteria (his sentence for the aggravated felony exceeded one year), the district court nonetheless departed downward, finding that his prior conviction differed in kind from the offenses the Sentencing Commission intended to subject to the aggravated felony enhancement. The Fourth Circuit reversed, holding that because defendant did not meet the Note 5 criteria, the court lacked authority to depart based on the lack of seriousness of the aggravated felony. The Commission took into account the varying severities of aggravated felonies when it promulgated Note 5 and “defined by heartland of § 2L1.2 by exclusion.” The seriousness of the prior aggravated felony was “adequately taken into account” by the Sentencing Commission when § 2L1.2 was promulgated. U.S. v. Alejo-Alejo, 286 F.3d 711 (4th Cir. 2002).
4th Circuit approves departure for felon who brandished firearm in classroom. (715) Defendant, a convicted felon, brought a loaded handgun into a middle school classroom of students. Defendant told the teacher he was being pursued and asked for help. The teacher escorted him out of the room and persuaded him to accompany her to the principal’s office. Along the way, defendant grabbed the teacher and pointed the gun at her. Defendant was convicted of possessing a firearm in a school zone and being a felon in possession of a firearm. The district court departed upward under § 5K2.0 because defendant brandished a firearm in a crowded school classroom and in the hallway. The felon-in-possession guideline, § 2K2.1, does not distinguish the situation involving brandishing of the subject firearm from that where the weapon is passively possessed. U.S. v. Bellamy, 264 F.3d 448 (4th Cir. 2001).
4th Circuit rules combination of factors did not warrant downward departure. (715) Defendant was convicted of traveling in interstate commerce to engage in a sexual act with a minor. The Fourth Circuit rejected a downward departure, finding none of the factors either alone or in combination warranted a departure. Although a defendant’s extreme vulnerability to abuse in prison may warrant a departure, defendant did not demonstrate severe susceptibility or fragility. Defendant’s inability to find a halfway house to take him stemmed from the nature of his offense and not from his alien status. There was nothing atypical or extraordinary about an educator, convicted of sexual offenses involving a minor, to be barred from future employment in education. Although defendant’s case received some negative publicity, it was nowhere near the level in Koon v. United States, 518 U.S. 81 (1996). The fact that defendant was not a pedophile was not unusual. The fact that the minor was actually an FBI agent rather than a 14-year old girl was not extraordinary. The relevant concern is defendant’s intent rather than the true age or identity of the victim. None of the remaining factors considered by the court (post-offense rehabilitation, extreme remorse), when considered in combination with the previous factors, were sufficient to remove this case from the heartland. There was nothing extraordinary about this case – i.e., that defendant was an intelligent and well-educated adult, had a strong employment history, had no prior exposure to life in prison, was neither a chronic offender nor a pedophile, was caught in a sting operation, received coverage in the media, later attempted counseling, and experienced remorse. U.S. v. DeBeir, 186 F.3d 561 (4th Cir. 1999).
4th Circuit departs upward for extreme abuse of trust by FBI agent who sold secrets to Russians. (715) Defendant was an FBI agent who sold confidential information to the Soviet Union and later to Russia. In addition to applying a § 3B1.3 abuse of trust enhancement, the district court departed upward by one level because defendant’s abuse of trust was extraordinary. The Fourth Circuit affirmed. An upward departure based upon an extraordinary abuse of trust is warranted if the combination of the level of trust violated by the defendant and the level of harm created by the violation of that trust falls outside the heartland of cases that qualify for enhancement. The level of trust placed in defendant was nearly unmatched. Defendant was a supervisory special agent of the FBI and a foreign counterintelligence operative. His job was to thwart the espionage activities of the very foreign intelligence service with whom he conspired. Defendant cited other espionage cases with no abuse of trust departures where the material turned over was far more damaging than the material here. However, the harm resulting from the actual offense is irrelevant to a decision to depart based upon an extraordinary abuse of trust. The relevant harm is the harm created by the violation of trust. U.S. v. Pitts, 176 F.3d 239 (4th Cir. 1999).
4th Circuit departs upward for domestic terrorism activities. (715) Defendant was convicted of mail fraud, bank fraud, interference with IRS officials, and stolen property charges. The district court departed upward because of defendant’s involvement with the terrorist activities of the Montana-based Freemen. Defendant argued that this was improper because applicable version of § 3A1.4 only provided an increase for international terrorism. Section 3A1.4 was amended after he committed his crime to include domestic terrorism, but the amendment was inapplicable to defendant because it was a substantive amendment that would retroactively increase his sentence. The Fourth Circuit held that the district court properly departed under § 5K2.0 to account for defendant’s domestic terrorism activities. Defendant agreed to participate in a grand jury that the Freemen established to “try” government officials. This court was the forum for defendant’s “trial” of IRS agents. Defendant also brought a Chevrolet Suburban to Montana. The Freemen planned to use Suburbans to abduct government officials, who would later be hanged. Defendant was the only one supplying the Suburbans to the group. U.S. v. Wells, 163 F.3d 889 (4th Cir. 1998).
4th Circuit rejects departure based on firearm guideline’s cross-reference to murder. (715) Defendants were convicted of drug and firearms offenses. Based on their murder of a co-conspirator, and following the cross-reference in § 2K.1(c)(1)(B), the district court based one defendant’s sentence on the first-degree murder guideline and the other on the second-degree guideline. Defendants had been acquitted in state court of the murder. The Fourth Circuit held that the district court lacked authority to depart based on the application of the § 2K2.1(c)(1)(B) cross-reference. The cross-reference requires that when a firearm is illegally possessed in connection with another offense in which death results, the court must use the homicide guideline if it would result in sentence greater than the firearm guideline. Thus, the guidelines recognize that applying the § 2K2.1(c)(1)(B) cross-reference will result in an enhanced guideline range. The extent of the increase (from 43 years to 55 years for one defendant, and from 115 months to 210 months for the other) was not so great as to violate due process. U.S. v. Fenner, 147 F.3d 360 (4th Cir. 1998).
4th Circuit, by equally divided en banc court, affirms departure from 2nd-degree murder guideline. (715) Defendant pled guilty to second-degree murder after shooting a drug dealer. The district court, relying on evidence that the murder was planned, departed upward on the basis of premeditation. In U.S. v. Barber, 93 F.3d 1200 (4th Cir. 1996), vacated on grant of rehearing en banc (October 10, 1996), a Fourth Circuit panel rejected premeditation as a basis for departure from the second-degree murder guideline. On rehearing en banc, the Fourth Circuit affirmed by an equally divided court the district court’s decision to depart upward based on premeditation. Judge Wilkins wrote separately to explain why six judges believed that premeditation was a proper basis for departure. Judge Murnaghan wrote separately to emphasize that an affirmance by an equally divided court is not entitled to precedential weight. U.S. v. Barber, 119 F.3d 276 (4th Cir. 1997), replacing on rehearing en banc U.S. v. Barber, 93 F.3d 1200 (4th Cir. 1996).
4th Circuit approves upward departure for exceptionally complex fraud scheme. (715) In a complicated fraud scheme, defendant and others promised their victim a 15 percent commission on $28.5 million that they were allegedly owed by the Nigerian government. The victim paid almost $4.2 million to various “agencies” to facilitate the transfer, and never received any of the $28.5 million. The Fourth Circuit approved a two-level departure based on the exceptional complexity of the scheme. Because complexity is already a factor in finding more than minimal planning under § 2F1.1(b)(2)(A), a departure is permitted only for exceptionally complex frauds. That standard was met here. Defendant and his cohorts lured the victim to Nigeria, introduced him to several others posing as government officials and took him to an office building they claimed was the Central Bank of Nigeria. They prepared false documents that appeared to be official Nigerian government certificates and arranged for the money to be sent to foreign countries where it would be more difficult to trace. U.S. v. Achiekwelu, 112 F.3d 747 (4th Cir. 1997).
4th Circuit bars departure to credit defendant for discharged sentence. (715) In 1988, defendant pled guilty to marijuana charges and received a 63‑month sentence. Defendant was later indicted in the instant drug case. The district court departed downward under § 5G1.3 to account for defendant’s 63‑month sentence even though he had completed serving it. The Fourth Circuit held that the departure was an abuse of discretion. Section 5G1.3 expressly permits district courts to give sentencing credit only for undischarged terms of imprisonment. Because the Commission specifically limited this authority, the court could not base its departure on a sentence that had already been discharged. The 22‑month delay between defendant’s conviction and sentencing did not justify the downward departure, because defendant was principally responsible for the delay, and there was no indication that the government intentionally delayed defendant’s case. Judge Hall dissented. U.S. v. McHan, 101 F.3d 1027 (4th Cir. 1996).
4th Circuit says restitution was not extraordinary enough to warrant departure. (715) Defendant embezzled $607,777.08 from the bank where she worked. She reached a civil settlement with the bank under which she repaid the bank $250,000. The money came from the generosity of her friends and church. The district court departed downward based on defendant’s “extraordinary restitution.” The Fourth Circuit ruled that under these circumstances, restitution of less than half of the amount embezzled was not extraordinary. Since the guidelines consider restitution a form of acceptance of responsibility, restitution can provide a ground for departure only when it indicates an extraordinary acceptance of responsibility. Defendant did not make restitution until after she had been criminally indicted, in order to settle her civil liability, and in the hope of receiving a reduced sentence. Also, the generosity of defendant’s friends indicated little about defendant’s acceptance of responsibility for her conduct. U.S. v. Hairston, 96 F.3d 102 (4th Cir. 1996).
4th Circuit reverses downward departure based on confluence of six factors. (715) The district court departed downward based on the confluence of six factors: (1) defendant was a highly decorated war veteran, (2) he had a nine year old son with neurological problems and a wife with fragile mental health, (3) he was a recovering alcoholic, (4) his offense was not serious, (5) his imprisonment would be “more onerous” because he was a law enforcement officer, and (6) his status as a convicted felon prohibited him, as an experienced firearms instructor, from ever touching a firearm again. The Fourth Circuit reversed. Defendant’s alcohol problem was a “forbidden” basis for departure under § 5H1.4. His family responsibilities and military record were not generally relevant under §§ 5H1.11 and 5H1.6. A departure based on factors 4 and 5 would be inconsistent with the guidelines. Defendant was convicted of “real fraud.” Law enforcement officers, as a class, are not entitled to more favorable treatment. Finally, the effects of defendant’s status as a convicted felon were not atypical. Job loss or disqualification are not sufficient to warrant a downward departure. U.S. v. Rybicki, 96 F.3d 754 (4th Cir. 1996).
4th Circuit rejects exposure to civil forfeiture as basis for downward departure. (715) Defendant, a podiatrist, was convicted of submitting fraudulent health care claims to Medicaid and Medicare. Under his plea agreement, defendant agreed to pay restitution of $545,715. However, in a consent judgment in a civil forfeiture action, he agreed to forfeit over $600,000. This forfeiture was credited against the restitution in the plea agreement. At sentencing in the criminal matter, the district court departed downward because the court, through the forfeiture action, recovered a sum “beyond complete restitution.” The Fourth Circuit reversed, ruling that exposure to a civil forfeiture is not a basis for a downward departure. Forfeiture was considered by the Sentencing Commission and was intended to be in addition to, and not in lieu of, incarceration. Moreover, civil forfeiture actions do not suggest any reduced culpability or contrition on the part of a defendant that might warrant a sentence reduction. U.S. v. Weinberger, 91 F.3d 642 (4th Cir. 1996).
4th Circuit says victim’s wrongdoing must be real to justify departure for victim conduct. (715) Defendant fell in love with the wife of his mentor. Defendant claimed that the wife seduced him and told him that she was being abused by her husband. Defendant decided to hire a hit man to kill the husband and was convicted of murder‑for‑hire. The Fourth Circuit reversed a downward departure under § 5K2.10 based on the victim’s alleged misconduct, holding that the guideline requires that the victim actually have done something wrong. The only evidence that the victim did anything wrong was defendant’s recollection of a statement by the wife. However, all of defendant’s recollections were suspect given his psychiatrist’s testimony of delusions and the wife’s denial of an affair. It appeared that the victim’s misbehavior was imagined rather than real. Moreover, even if the victim had abused his wife, defendant’s response was disproportionate. Defendant’s offense did not fall outside the heartland of murder‑for‑hire. It appeared that defendant’s motive, even if delusional, was simply the elimination of a perceived competitor. U.S. v. Morin, 80 F.3d 124 (4th Cir. 1996).
4th Circuit says extreme vulnerability to victimization can support downward departure, but not here. (715) The district court, following the opinion in U.S. v. Lara, 905 F.2d 599 (2d Cir. 1992), departed downward based on defendant’s extreme vulnerability to victimization in prison. The Fourth Circuit agreed that this can support a downward departure, but defendant did not qualify. In Lara, the defendant’s vulnerability, appearance and sexual orientation rendered him particularly susceptible to victimization. Here, the district court found that defendant was easily led, was susceptible to misuse by others, was meek and cautious in demeanor, and was slight in appearance. Defendant’s intelligence was borderline and he suffered from a dependent personality disorder. However, psychologists familiar with prison populations testified that these conditions were not unusual among inmates and that a federal prison could adequately protect defendant. The only evidence to the contrary was from a psychologist with little experience in dealing with prisoners. U.S. v. Maddox, 48 F.3d 791 (4th Cir. 1995).
4th Circuit remands for explanation of upward departure on fine. (715) Defendant pled guilty to conspiring to defraud the U.S. Although defendant had a fine range of $6,000 to $60,000, the district court imposed a $100,000 fine, stating that defendant’s offense was “a crime of greed” and that the fine imposed would “take some of the profits out of it.” The Fourth Circuit remanded for the district court to articulate a more complete explanation of its reasons for the upward departure. The court’s conclusory statements did not give the appellate court a meaningful opportunity to determine whether the departure was based on a factor not adequately considered by the Sentencing Commission. U.S. v. Chatterji, 46 F.3d 1336 (4th Cir. 1995).
4th Circuit says lack of criminal history and lack of violence did not justify downward departure. (715) The district judge said it imposed a life sentence only because it was compelled by the guidelines. Defendant argued that the district court had the authority to make a downward departure. The 4th Circuit held that the factors listed by the district court (defendant’s criminal history category of I and the lack of violence in the offense) did not justify a downward departure. The Sentencing Commission adequately considered and rejected departures below category I based on lack of criminal history. Most of the guidelines’ base offense levels are predicated on an absence of violence, with the guidelines specifically allowing upward departures if the offense results in physical injury or a weapon is used. U.S. v. Harris, 39 F.3d 1262 (4th Cir. 1994).
4th Circuit distinguishes sentencing entrapment from sentencing manipulation. (715) Defendants argued that they were denied due process where police made purchases for the purpose of manipulating their base offense levels, and that this was a ground for departure. In rejecting this claim, the 4th Circuit distinguished between sentencing entrapment and sentencing manipulation. Sentencing entrapment involves overcoming the will of an individual predisposed only to dealing small quantities of drugs. A necessary element of sentencing entrapment, missing here, is the defendant’s lack of predisposition. Under sentencing manipulation, the defendant’s predisposition is irrelevant; the focus is on the motives of law enforcement. It is not outrageous for the government to continue to purchase narcotics from a willing seller. The government requires no motive other than its responsibility to enforce the criminal laws, to justify an extended investigation. Moreover, the district court is not required to speculate as to the motives of police. U.S. v. Penn, 17 F.3d 70 (4th Cir. 1994).
4th Circuit rejects sexually exploited minor’s lack of knowledge of videotaping as grounds for downward departure. (715) While on a camping trip with several children, defendant placed a video camera in his camper to record the children while they changed their clothes. He instructed them to take off their clothes, sit in certain positions, and examine themselves for ticks by spreading and examining their genitals. The children were unaware that the video camera was recording. The district court departed downward because the victims were not aware that they were being victimized until sometime after the events occurred. Thus, it reasoned that no harm was suffered and defendant’s conduct fell short of the sexual abuse required by the charging statute. The 4th Circuit rejected this as a ground for departure. Such a rationale improperly rejects Congressional belief that sexual exploitation of a minor in order to produce visual depictions constitutes a form of child abuse. The facts demonstrated that defendant victimized the children. Whether they were aware that he was videotaping them was irrelevant. U.S. v. Bell, 5 F.3d 64 (4th Cir. 1993).
4th Circuit rejects downward departure based upon deferral of parole. (715) Defendant was an inmate convicted of possession with intent to distribute crack cocaine. Defendant, a career offender, had a guideline range of 168 to 210 months. The district court departed downward by at least 120 months based solely upon a 26 month deferral of parole for unrelated crimes, and sentenced defendant to 48 months. The 4th Circuit reversed, finding that the sentencing commission adequately took parole deferral into consideration in formulating the guidelines. Moreover, consideration of parole deferral as a factor justifying leniency in sentencing undermines congressional intent to mete out more severe punishment for career offenders. In addition, a 120 month downward departure for a 26 month parole deferral was unreasonable. U.S. v. Wright, 924 F.2d 545 (4th Cir. 1991).
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5th Circuit upholds six-month upward departure for previous immigration encounters and removals. (715) Defendant pled guilty to illegal reentry of a deported alien, resulting in an advisory guideline range of zero to six months. The district court departed upward to 12 months based on defendant’s five previous immigration encounters and four prior removals. The Fifth Circuit held that the 12-month sentence was reasonable. The district court gave an individualized assessment of the § 3553(a) factors, and determined that, in light of defendant’s five previous immigration encounters and four prior removals, the maximum sentence under the guidelines range was inadequate to deter him from reentering the United States illegally. The district court did not abuse its discretion because it was permitted to consider the need for deterrence as a sentencing factor and defendant’s previous immigration encounters and removals in departing upward from his sentencing range. See § 4A1.3(a)(2)(C), (E); § 3553(a)(2)(B). U.S. v. Zelaya-Rosales, __ F.3d __ (5th Cir. Feb. 4, 2013) No. 12-31021.
5th Circuit approves upward departure for providing military-style assault weapons to drug cartels. (715) Defendant purchased guns for an organization involved in illegal firearm trafficking. Many of the guns defendant purchased were recovered from crime scenes in Mexico. The district court departed upward from his 51-63 month guideline range to a sentence of 97 months, based on the type of firearms (military-type assault weapons), the number of firearms (substantially more than 25), and the fact that defendant’s actions led to eight murders in Mexico. The Fifth Circuit held that the 97-month sentence was both procedurally and substantively reasonable. The court did not commit procedural error in weighing some factors (such as the military nature of the guns, the number trafficked, and defendant’s role in arming the drug cartels) more heavily than others (such as the applicable guideline range and defendant’s limited criminal history). The court was not required to explain in more detail why it chose the precise sentence it chose. The sentence was substantively reasonable. U.S. v. Hernandez, __ F.3d __ (5th Cir. Feb. 9, 2011) No. 09-20267.
5th Circuit rules court properly refused to depart based on defendant’s caregiver status. (715) Defendant was convicted of fraud charges. She argued that the district court erred in failing to consider whether she was entitled to a downward departure based on her caregiver status. Sentencing took place on August 21, 2008, more than two years after trial. Defendant had recently given birth to a daughter with Turner’s syndrome, and requested a departure for that reason. The court said defendant’s decision to conceive and carry a child to term, despite her imminent incarceration, “was a personal choice. … I cannot change my sentence for that reason. The Fifth Circuit held that the district court did not err in finding defendant was not entitled to a downward departure based on her caregiver status. The court’s statement did not indicate misapprehension of its authority to give defendant the sentence it deemed proper. The court also stated to defendant, “I’m going to give you the sentence that I think is the right sentence regardless of the Guidelines.” The court explicitly acknowledged that the Guidelines were not binding, and that the court had the authority to deviate if it so chose. U.S. v. Valencia, __ F.3d __ (5th Cir. Mar. 10, 2010) No. 08-20546.
5th Circuit holds that downward variance was unreasonable for offense involving “unusually reprehensible” child pornography. (715) Defendant pled guilty to possession and receipt of child pornography, resulting in a guideline range of 108-135 months. At sentencing, after discussing the crime’s severity (defendant possessed over 4,000 images of child pornography and some of the images were “unusually reprehensible”), the court departed downward to a sentence of 60 months’ imprisonment and 10 years of supervised release. The court noted that (1) defendant was a consumer but not a producer of child pornography; (2) defendant was not a risk to the community and there was no indication that he ever attempted to perform anything similar to the pictures he possessed; and (3) ten years’ supervised release would be onerous and was double the typical amount of time spent under supervision. The Fifth Circuit reversed, ruling that the 60-month sentence was unreasonable. The court did not give sufficient weight to the nature and circumstances of the offense. Although the court noted the severity of the offense, it failed to explain how this severity, particularly the images’ depravity and numerosity, factored into its decision to depart downward from the guideline range. The crime fell at the more severe end of possession of child pornography. The fact that defendant did not produce child pornography was already accounted for in the guidelines. Defendant’s contrition and his commencement of counseling were already accounted for in his acceptance of responsibility reduction. Finally, the 10-year term of supervised release was actually less onerous than the life term recommended for sex offenders. U.S. v. Perrin, 478 F.3d 672 (5th Cir. 2007).
5th Circuit holds that refusal to consider sentencing disparity caused by early disposition program did not make sentence unreasonable. (715) Defendant asked the district court to impose a sentence below the applicable guideline range because the Western District of Texas lacked a U.S.S.G. § 5K3.1 “early disposition” program, which would have permitted a four-level downward departure. The Fifth Circuit held that a court’s refusal to factor the disparity caused by the lack of a fast-track program did not render the sentence unreasonable. To require a court to vary from the advisory guidelines based solely on the existence of early disposition programs in other districts would conflict with the decision of Congress to limit the availability of such sentence reductions to select geographical areas, and with the Attorney General’s exercise of prosecutorial discretion to refrain from authorizing early disposition agreements. U.S. v. Aguirre-Villa, 460 F.3d 681 (5th Cir. 2006).
5th Circuit holds that HIV-positive status did not constitute “extraordinary physical impairment.” (715) The district court departed downward from the guidelines on the grounds that (1) defendant’s HIV-positive status constituted an extraordinary medical condition under § 5H1.4, and (2) the prosecutor’s disclosure in open court of defendant’s HIV-positive status was malicious and endangered defendant’s safety. The Fifth Circuit reversed. The court failed to offer any explanation for why defendant’s medical condition should be treated as an exceptional one. Other circuits have found that a defendant’s HIV-positive status alone is insufficient to justify a departure under § 5H1.4. The court’s finding that the prosecutor deliberately and maliciously made comments that endangered the defendant’s safety was wholly unsupported by the record. The court never explained how it knew that the prosecutor’s comments would lead to such danger, and did not order any special security precautions, which suggested that it was not overly concerned about his safety. The finding that the prosecutor acted deliberately and maliciously was also clearly erroneous. No rule prohibits a prosecutor from disclosing or discussing a defendant’s HIV-positive status at sentencing, and the court never ordered confidentiality at sentencing or took any steps to preserve confidentiality at sentencing. U.S. v. Castillo, 430 F.3d 230 (5th Cir. 2005).
5th Circuit rejects upward departure and remands to different judge. (715) Defendant and his mother defrauded their elderly neighbor of over $150,000. The Fifth Circuit reversed an upward departure based on (1) lack of acceptance of responsibility, (2) lack of punishment consequences, (3) comparison to other departures by the court; and (4) comparison of sentence for low-level drug offenses. The Fifth Circuit reversed. Instead of granting an upward departure for lack of acceptance of responsibility, the court should have denied defendant a three-level reduction under § 3E1.1. The fact that defendant would not face some of the losses that a wealthy fraud defendant might, such as the loss of a high income, was also an improper ground for departure. A defendant’s socioeconomic status is a prohibited departure factor. The court failed to provide adequate justification for comparing defendant’s case to other fraud cases in which departures were granted. The court merely cited the cases without any description of how defendant’s situation was similar. Finally, the court erred in considering the difference between drug and fraud sentences under the guidelines. Congress, through the Sentencing Commission, has made the determination of which crimes deserves more punishment, and the judge may not displace those legislative judgments. The panel reassigned the case to a different judge “because of the judge’s brazen antagonism to both the tenets of the guidelines and to [defendant] …” U.S. v. Andrews, 390 F.3d 840 (5th Cir. 2004).
5th Circuit approves departure for time served in state custody after being discovered by immigration authorities. (715) Defendant illegally reentered the U.S. after deportation. Immigration located him in June 2002 while he was in state prison on drug offenses. However, he was not released to immigration authorities until March 2003. Defendant sought a downward departure based on time served in state custody after he was found by immigration authorities in June 2002, but the district court ruled that it lacked authority to do so. The Fifth Circuit disagreed, holding that it is permissible for a sentencing court to grant a downward departure to an illegal alien for all or part of the time served in state custody from the time immigration authorities located the defendant until he is taken into federal custody. The Second Circuit has held that in order to warrant a departure, the prosecutorial delay that resulted in a lost opportunity to serve concurrent state and federal sentences must have been in bad faith or unreasonable. See U.S. v. Los Santos, 283 F.3d 422 (2d Cir. 2002). The Ninth Circuit, in contrast, has held that a defendant need not demonstrate the government acted in bad faith and that departure may be proper even in a case of innocent delay. U.S. v. Sanchez-Rodriguez, 161 F.3d 697 (9th Cir. 1998). The Fifth Circuit concurred with the Ninth Circuit’s analysis. Because the district court believed it was barred from considering defendant’s motion for a downward departure, the sentence was vacated. U.S. v. Barrera-Saucedo, 385 F.3d 533 (5th Cir. 2004).
5th Circuit approves upward departure for pornographer who distributed pictures of daughter. (715) Defendant was a member of an online group that traded child pornography. Agents searching his house and computer found thousands of images of child pornography. One of the tapes seized depicted defendant having actual or simulated sexual relations with his 12-year old daughter. The Fifth Circuit affirmed an upward departure under § 5K2.0 and § 5K2.8 based on the number of images transmitted and the distribution of images of defendant’s own 12-year old daughter. These factors placed this case outside the heartland of general child pornography cases. The degrading effect on defendant’s daughter from the mass distribution of these images was not contemplated as § 2G2.1. U.S. v. Froman, 355 F.3d 882 (5th Cir. 2004).
5th Circuit remands where basis for mental health related departure was unclear. (715) The district court departed downward from criminal history category VI to IV based on a overstatement of criminal history, as provided by U.S.S.G. § 4A1.3; however, the court also discussed defendant’s mental health and its concern that incarceration would lead to a break in her mental health treatment. The Fifth Circuit found it unclear as the court’s exact reasons for departure, and remanded for a clarification. The district court appeared to have concluded that defendant’s history of mental illness, in combination with her over-medication during the period in which some of her prior crimes were committed and the non-violent, “petty” nature of those crimes, made a criminal history category of VI inappropriately high. It would not be a per se abuse of discretion for the district court to find that a history of over-medication by psychotropic drugs, combined with prior offenses that are nonviolent and petty, justified a downward departure under U.S.S.G. § 4A1.3. It also would not necessarily be an abuse of discretion to depart under § 5K2.0 to prevent a break in mental health treatment. However, U.S. v. Thames, 214 F.3d 608 (5th Cir. 2000) forecloses consideration of mental health as the basis for a downward departure when that factor implicates diminished capacity regarding the crimes at issue, except under § 5K2.13. The court’s written statement of reasons was unclear as to which of these possibilities was applicable. U.S. v. Bell, 351 F.3d 672 (5th Cir. 2003), superseded, U.S. v. Bell, 371 F.3d 239 (5th Cir. 2004).
5th Circuit rejects departure where defendant also received vulnerable victim increase. (715) The district court departed upward in part based on the guidelines’ failure to adequately account for defendant’s exploitation of “vulnerable individuals” as both accomplices and victims in his schemes. However, two separate provisions accounted for the presence of multiple vulnerable victims/accomplices in the crime, and defendant received both of these increases. First, defendant received a § 3B1.1(a) increase for being the leader of criminal activity that involved five or more participants. Second, defendant received a § 3A1.1(b) vulnerable victim increase. Where a sentencing factor has been included in the guidelines, a departure is allowed only where there is an aggravating or mitigating circumstances of a kind or degree not contemplated by the guidelines. Since no such circumstances existed here, the Fifth Circuit reversed the departure. There were two provisions of the guidelines specifically tailored to deal with the district court’s concern about the crimes as it related to the participants/victims. Nothing about defendant’s relationship with the participant/ victims was of a “kind or degree” outside the ambit of these two sections. U.S. v. Messervey, 317 F.3d 457 (5th Cir. 2002).
5th Circuit rejects departure where pecuniary loss from each fraud was included in total loss. (715) The district court departed upward under Note 4 to § 3D1.3, which explains that where offenses are grouped together, sometimes one offense goes completely unconsidered for sentencing purposes. The district court found that defendant’s four separate fraud schemes were not accounted for because adding the value of all four schemes together resulted in the same penalty as if defendant had just committed one fraud. The Fifth Circuit found Note 4 inapplicable, because the pecuniary loss from each of the four frauds was considered in arriving at the amount of loss under § 2F1.1. The fact that one scheme was several magnitudes larger than the other schemes did not change the fact that all the smaller scheme were included in arriving at the offense level. As all four schemes were included in the guideline amount of total loss, it was an abuse of discretion to depart based on Note 4. U.S. v. Messervey, 317 F.3d 457 (5th Cir. 2002).
5th Circuit approves upward departure for multiple acts of abuse of the same victim. (715) Defendant tricked one of the girls at his lodging facility into going with him by the trees near the playground by asking her to find a place to go “pottie.” Once there, he coerced her to touch his penis. When others approached, he tricked her into selecting a new place for him to go to the bathroom. She suggested that he go by some garbage dumpsters located on the property. Once in the area, defendant forced her to perform oral sex on him. At the time of sentencing, Note 5 to § 2A3.1 provided that if a defendant is convicted of an act of criminal sexual abuse, but the court determines that the offense involved multiple acts of criminal sexual abuse, an upward departure may be warranted. Pursuant to this comment, the court departed upward by two levels. The Fifth Circuit found no error, agreeing that the offense at issue involved multiple acts of criminal sexual abuse of the same victim. U.S. v. Hefferon, 314 F.3d 211 (5th Cir. 2002).
5th Circuit holds that cultural assimilation is a permissible basis for a downward departure. (715) Defendant, a Mexican citizen, moved to the United States when he was three, obtained legal resident status, received his education, married, and settled down with his wife and four children. At the age of 25, he was convicted of drug charges and deported. Several days later, he was arrested for attempting to illegally re-enter the U.S. The district court denied defendant’s motion to depart downward on the ground of cultural assimilation, stating that this was not a recognized basis for departure. The Fifth Circuit held that cultural assimilation is a permissible basis for a downward departure. Under Koon v. U.S., 518 U.S. 81 (1996), except for those factors categorically proscribed by the Sentencing Commission, the guidelines “place essentially no limit on the number of potential factors that may warrant departure.” Previous unpublished opinions in the Fifth Circuit have appeared to recognize the authority to depart based on cultural assimilation, and two other circuit courts of appeal have decided that it is a legitimate ground for departure. See U.S. v. Lipman, 133 F.3d 726 (9th Cir. 1998); U.S. v. Sanchez-Valencia, 148 F.3d 1273 (11th Cir. 1998). U.S. v. Rodriguez-Montelongo, 263 F.3d 429 (5th Cir. 2001).
5th Circuit approves departure based on “systematic or pervasive corruption.” (715) Defendant, a Houston city councilman, was convicted of bribery and fraud for receiving kickbacks on city contracts. The district court departed under Note 5 to § 2C1.1, which authorizes a departure where “defendant’s conduct was part of a systematic or pervasive corruption of a governmental function, process, or office that may cause loss of public confidence in government.” The Fifth Circuit found that the factors considered by the district court in departing were proper. First, in finding systematic-or-pervasive corruption by defendant, the court relied on defendant’s role in the criminal activity. The court found that there were at least five criminally responsible participants, and defendant played an organizer role in the offense. The court’s finding with respect to defendant’s role in the corruption was in accord with the meaning of “systematic,” “pervasive,” or both. Second, in finding a loss of public confidence, the court noted that defendant, by his own admission, had “stained” the city counsel, that the mayor urged citizens not to let the verdicts reflect upon city officials generally; that a county judge, in his state-of-the-county address, spoke of “corruption in government” and “envelopes full of cash”; and that “widely reported media coverage of this case … has fueled the public perception of corruption of our own city counsel ….” U.S. v. Reyes, 239 F.3d 722 (5th Cir. 2001).
5th Circuit holds that status as deportable alien, where element of offense, not grounds for departure. (715) Defendant was convicted of being an alien unlawfully found in the country following deportation, in violation of 8 U.S.C. § 1326(b). He requested a downward departure based on his status as a deportable alien, citing cases in other districts and Koon v. United States, 518 U.S. 81 (1996), which held that federal courts can no longer categorically proscribe a basis for departure unless the guidelines have explicitly forbidden consideration of that factor. The Fifth Circuit found that the cases cited by defendant were clearly distinguishable from the current case, because here, defendant’s status as a deportable alien was an inherent element of his crime. Alienage is an impermissible basis for departure where a defendant’s status as a deportable alien has necessarily been taken into account by the Sentencing Commission in establishing the offense level for the crime. U.S. v. Garay, 235 F.3d 230 (5th Cir. 2000).
5th Circuit rejects departure for disclosure of crime, status as police officer, or mental condition. (715) Defendant argued for the first time on appeal that the district court sentenced him under the mistaken belief that it could not depart from the guidelines. He claimed the court had authority to depart (1) under § 5K2.16 for his voluntary disclosure of his first robbery, (2) under Koon v. United States, 518 U.S. 81 (1996), because he would be subject to abuse in prison as a former police officer, (3) under § 5K2.13 and § 5K2.0 for his mental condition (a gambling addiction and manic depressive mood swings). The Fifth Circuit found no error, let alone plain error, in the district court’s failure to depart. Defendant did not qualify under § 5K2.16 for the voluntary disclosure of his first robbery, since authorities were already “on to” him in connection with this robbery when he committed the second robbery. Defendant’s status as a former police officer was more an aggravating circumstance than a mitigating one. Finally, defendant did not qualify for a § 5K2.13 diminished capacity departure because his armed bank robberies were not “non-violent.” The guidelines have already taken into consideration a defendant’s mental capacity with § 5K2.13, and thus § 5K2.0 was inapplicable to defendant’s claim that his mental capacity entitled him to a downward departure. See U.S. v. Rosen, 896 F.2d 789 (3d Cir. 1990). U.S. v. Thames, 214 F.3d 608 (5th Cir. 2000).
5th Circuit holds that “term of imprisonment imposed” for aggravated felony includes suspended sentence. (715) Section 2L1.2(b) (1)(A) contains a 16-level enhancement for an alien who illegally reenters the country after being deported following conviction for an aggravated felony. Note 5 to § 2L1.2 permits a downward departure when the defendant has only a single non-violent underlying felony that resulted in a “term of imprisonment imposed” of less than one year. For his prior state drug conviction, defendant received a sentence of five years’ confinement, suspended for five years. The Fifth Circuit held that defendant’s five year suspended sentence was not a “term of imprisonment imposed” of less than one year. The phrase “term of imprisonment imposed” does not mean “term of imprisonment served.” A 1996 amendment did not show congressional intent to exclude suspended sentences, but was intended to simplify matters by reducing the number of parentheticals referring to suspended sentences. Because note 5 refers to “a term of imprisonment imposed” with respect to an offense defined by § 1101(a)(43), § 1101(a) (48)’s definition of a term of imprisonment, which includes suspended sentences, applied. U.S. v. Yanez-Huerta, 207 F.3d 746 (5th Cir. 2000).
5th Circuit rules that lack of predisposition to abuse children did not support downward departure. (715) Defendant was convicted of possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). The district court departed downward, finding most child pornography cases involve “perverted people with a long track record of harm to others.” The Fifth Circuit held that the fact that defendant had not abused children or produced or distributed child pornography, and had no inclination or tendency to do either, did not take his case out of the heartland of § 2252A(5)(B). Congress created a series of distinctly separate offenses for child pornography, with higher sentences for offenses involving conduct more likely to be harmful to minors than the mere possession offense. Similarly, the guidelines also reflect consideration of whether and the degree to which harm to minors is or has been involved. See, e.g. § 2G2.2 (containing a five-level increase if the offense involved the sexual abuse or exploitation of a minor); §§ 2G2.4(c)(1)) and 2G2.2(c)(1) (providing for higher offense levels for causing or seeking a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction). U.S. v. Grosenheider, 200 F.3d 321 (5th Cir. 2000).
5th Circuit says Koon did not create general rule authorizing downward departures for police officers. (715) Defendant, a state corrections officer, struck a prisoner several times on the head with his service revolver, knocking the prisoner unconscious. The district court departed downward in part because defendant’s status as a corrections officer made him highly susceptible to abuse in prison. The Fifth Circuit reversed, finding this case distinguishable from Koon v. United States, 518 U.S. 81 (1996), which involved the sentencing of the Los Angeles police officers convicted of beating Rodney King. Koon was an extreme case. The local publicity this case may have received could not compare to the national outrage emanating from the beating of Rodney King. Koon does not create a general rule that a defendant’s status as a police officer can justify a downward departure. Such a rule would suggest that “law enforcement officers, as a class, are entitled to more favorable treatment under the Sentencing Guidelines.” The guidelines surely considered the fact that some defendants convicted of violating a person’s civil rights under color of law would be law enforcement officers. U.S. v. Winters, 174 F.3d 478 (5th Cir. 1999).
5th Circuit rejects mandatory consecutive gun sentence as basis for departure. (715) Defendant, a state corrections officer, struck a prisoner several times on the head with his service revolver, knocking the prisoner unconscious. Defendant was convicted of civil rights violations, using a firearm during a crime of violence, and obstruction of justice. The district court departed downward, finding that in light of the mandatory 60-month sentence required for the gun charge, the guidelines on the other charges resulted in too harsh a sentence. The Fifth Circuit reversed. Under U.S. v. Caldwell, 985 F.2d 763 (5th Cir. 1993), a mandatory consecutive sentence under § 924(c) cannot justify a downward departure for the underlying offense. The other factors cited by the court did not justify the departure. The fact that defendant was a law enforcement officer who lawfully possessed the firearm did not remove this case from the heartland. Employment status and public service are discouraged factors that can only be grounds for departure in exceptional cases. USSG §§ 5H1.5 and 5H1.11. Defendant’s status as a corrections officer was closer to an aggravating factor than a mitigating one, since his conduct was an abuse of a public position. Finally, there was no evidence that defendant’s family would suffer any more than any family suffers when a member is sentenced to prison. U.S. v. Winters, 174 F.3d 478 (5th Cir. 1999).
5th Circuit approves downward departure where money laundering was incidental to gambling business. (715) Five defendants were convicted of conducting an illegal gambling business and money laundering. The district court departed downward, because the money laundering activities were “incidental” to the gambling operations, and defendants never used laundered money to further other criminal activities. The Fifth Circuit held that the district court did not abuse its discretion in departing. Neither of the cited factors are expressly forbidden by the guidelines, and thus under Koon v. United States, 518 U.S. 81 (1996), the district court was not precluded from relying on those matters. The court did not ignore the money laundering convictions and simply sentence defendants under the gambling provisions. Instead, the court used the applicable offense levels for money laundering as its baseline, and then departed to an offense level of 21, a far cry from the offense level of 12 for gambling. “Given the district court’s special competence in making the refined factual comparisons necessary to the determination of whether to depart in this case … we are not inclined to substitute our judgment for the considered findings of the district judge.” U.S. v. Threadgill, 172 F.3d 357 (5th Cir. 1999).
5th Circuit reconsiders and says no substantial assistance departures without government motion. (715) Before defendant’s sentencing, the government said it would not move for a substantial assistance departure. The court purported to make a five-level downward departure under § 5C1.2, stating that it appeared defendant provided substantial assistance. The Fifth Circuit held that § 5C1.2 was not applicable to defendant because his guideline range was higher than the applicable mandatory minimum sentence. In addition, the Fifth Circuit vacated its earlier opinion at 161 F.3d 281 (5th Cir. 1998), which held that a district court can depart under § 5K2.0 based on a defendant’s substantial assistance, even in the absence of a government motion. Instead, the court held that a district court has no more authority to depart for substantial assistance under § 5K2.0 than it has under § 5K1.1. The court was persuaded by the Third Circuit’s opinion in U.S. v. Abuhouran, 161 F.3d 206 (3d Cir. 1998) that a court may only depart under § 5K2.0 based on substantial assistance in those cases where § 5K1.1 permits a departure without a government motion — where the government has improperly refused to make a motion, either because it has an unconstitutional motive or because it has acted in bad faith. U.S. v. Solis, 169 F.3d 224 (5th Cir. 1999).
5th Circuit says cross-reference does not apply when gun used in foreign crime. (715) Defendant shot and killed a man in Mexico. He engaged in a gun battle with pursuing Mexican police, and then crossed the border into the United States. He pled guilty to illegally importing a firearm into the U.S. Sections 2K2.1(c)(1) and 2X1.1 direct a court to apply the guideline for the underlying offense, if the defendant used the gun in another crime. The district court applied § 2A2.1. The Fifth Circuit held that although defendant’s Mexican crimes did not count as relevant conduct, and thus could not be used to apply the cross-reference, the district court could have departed upward to impose the same sentence. Defendant’s foreign offenses did not literally fit the definition of relevant conduct under § 1B1.3. Although the foreign crimes were part of the same course of conduct as the offense of conviction, they were not the type of offenses for which § 3D1.2(d) would require grouping. Also, § 2K2.1’s cross-reference applies only where the gun was used in connection with another federal, state or local offense. However, under the unusual circumstances of the case, the district court could well have departed upward by analogy to impose the same sentence. U.S. v. Levario-Quiroz, 161 F.3d 903 (5th Cir. 1998).
5th Circuit departs upward for egregious behavior in stealing Social Security checks. (715) An unidentified person stole two bundles of mail from a postal worker at gunpoint. The mail, minus Social Security checks, was found several blocks away. Using false identification, defendant later cashed a check stolen from these bundles of mail. The Fifth Circuit upheld a two-level departure based on defendant’s egregious behavior. Social Security checks are government securities, recipients rely on these checks for subsistence, defendant had participated in this scheme for months, defendant had jointly participated with others, and defendant had used false identification. The vulnerable victim enhancement did not adequately account for defendant’s conduct. U.S. v. Nevels, 160 F.3d 226 (5th Cir. 1998).
5th Circuit approves upward departure for parole officer who facilitated parolee’s drug distribution. (715) Defendant, a parole officer, accepted bribes from one of her parolees in return for not reporting his numerous parole violations. She developed a romantic relationship with the parolee that enabled him to routinely violate the conditions of his parole. Most significantly, he distributed 1.5 kilograms of crack cocaine and 150 kilograms of powder cocaine to over a thousand customers across several states. Defendant knew of these parole violations, but she failed to report them. She was convicted of extortion and mail fraud, although the mail fraud charges were reversed on appeal. The Fifth Circuit held that an upward departure for the extortion convictions was warranted because defendant’s conduct facilitated the parolee’s massive drug dealing operation. Although violations of law and public hazard are foreseeable results of any extortion involving a public official, defendant’s case was truly extraordinary. The sheer scale of the violations and the extremely serious threat posed to public safety removed defendant’s case from the heartland. U.S. v. Evans, 148 F.3d 477 (5th Cir. 1998).
5th Circuit approves upward departure for providing false financial information to probation officer. (715) Defendant was convicted of drug charges. The district court applied a § 3C1.1 obstruction of justice enhancement for inducing a co-conspirator to sign a false affidavit exonerating defendant. The Fifth Circuit approved a one-level upward departure for willfully obstructing justice by providing materially false financial information to the probation officer. Multiple acts of obstruction of justice may warrant an upward departure. Here, several witnesses testified about various cars and jewelry purchased by defendant. They also testified that defendant made $5,000-10,000 profit per kilogram sold. Defendant did not report significant assets to the probation officer, and did not disclose his interest in the various cars and jewelry he was observed buying. This information was material to the probation officer’s determination of defendant’s ability to pay a fine. U.S. v. Milton, 147 F.3d 414 (5th Cir. 1998).
5th Circuit has no jurisdiction to review refusal to depart for government manipulation. (715) Defendant, a church pastor, was caught in a government sting operation after agreeing to launder what he believed to be drug money to help his church through some financial difficulties. He argued that he should have received a downward departure because the government intentionally manipulated his sentence by inducing him to launder three “test” amounts ($100,000, $100,000 and $150,000) as a precondition to receiving the $10 million that he was really seeking. These amounts mirror the sentence increases in § 2S1.1(b)(2). The Fifth Circuit held that it lacked jurisdiction to review the claim. Defendant did not contend that the denial of the departure was based on the court’s mistaken conclusion that the guidelines did not permit such departure. U.S. v. Brace, 145 F.3d 247 (5th Cir. 1998).
5th Circuit remands where consecutive sentences were imposed in disregard of § 5G1.2. (715) In November 1994, defendant pled guilty to transporting six illegal aliens. While released on bond pending sentencing, he was caught transporting seven more aliens. He pled guilty to two more counts and was sentenced for all three counts at a single consolidated sentencing hearing. The district court sentenced defendant to 18 months on the original counts, and concurrent 10-month sentences on the subsequent counts. Because the court believed that a concurrent sentence would not punish defendant for his additional crimes, the court ordered the concurrent 10-month sentences to run consecutively to the 18-month sentence. The Fifth Circuit remanded because § 5G1.2(c) required concurrent sentences, and the court did state that it was departing upward. The unique factor in this case¾the lack of sanction for repeated criminal conduct¾arguably warranted a departure. However, a reviewing court should not imply a departure. District courts must explain their reasons for departing from the guidelines. U.S. v. Candelario-Cajero, 134 F.3d 1246 (5th Cir. 1998).
5th Circuit affirms upward departure for attempted frauds not included in loss calculation. (715) Defendant used false Social Security numbers to mask her poor credit history and to secure credit to buy cars, to qualify for other bank loans, and to obtain an apartment lease. The Fifth Circuit affirmed an upward departure based on certain loans that defendant fraudulently attempted to obtain that were not included in the loss calculation. The intended loss from her scheme did not include two collateralized car loans, two attempts to secure loans for a Lexus automobile and furniture which also would have been collateralized. It also did not include another loan for which the application was terminated before completion. Note 7(b) to § 2F1.1 authorizes an upward departure where the intended monetary loss significantly understates the seriousness of the defendant’s conduct. There was never any actual risk from the additional loans. But, as in U.S. v. Bobowick, 113 F.3d 1302 (2d Cir. 1997), “the bank was being sucked into a transaction with a person insensitive to his credit obligations and skilled in the extraction of multiple loans from unsuspecting lenders.” U.S. v. Ravitch, 128 F.3d 865 (5th Cir. 1997).
5th Circuit permits upward departure for conduct that is not “relevant conduct.” (715) Defendant pled guilty to firearms charges. In departing upward, the court relied on a videotape of defendant demonstrating how to make a silencer. Defendant argued that it was improper to consider the videotape in its upward departure analysis because his participation in making the videotape was not itself illegal. The Fifth Circuit held that a court can consider conduct that is not itself criminal or “relevant conduct” under § 1B1.3 in determining whether an upward departure is warranted. A district court is not limited to considering only acts that are criminal or illegal when contemplating a departure. In November 1990, the Sentencing Commission eliminated language from § 5K2.0 which suggested that only relevant conduct could be considered in departing upward. The Commission stated that this language was “unclear and overly restrictive.” U.S. v. Arce, 118 F.3d 335 (5th Cir. 1997).
5th Circuit affirms departure based on multiple weapons and concealment, but rejects manufacturing. (715) Defendant pled guilty to firearms charges. The district court departed upward five levels based on three factors: (1) the possession of multiple weapons, (2) defendant’s deception and attempts to conceal his illegal conduct, and (3) defendant’s manufacturing of firearms. The Fifth Circuit found that the court properly considered multiple weapons and his attempt to conceal his illegal conduct, but rejected the third ground because § 2K2.1 does address the manufacture of firearms. Multiple firearms is authorized as a ground for departure in note 16 to § 2K2.1. Section § 2K2.1’s inclusion of two specific provisions relating to concealment did not preclude the district court from considering other types of concealment. The concealment factor is no different from any other factor that has already been considered to some degree in the offense—the court must determine if the factor exists to a degree not contemplated by the guidelines. However, the court erred in stating that § 2K2.1 did not address manufacturing. Section 2K2.1 governs those who are convicted of illegally manufacturing. This is not to say that manufacturing can never be the basis for departure in unusual circumstances, but the court made no such finding here. U.S. v. Arce, 118 F.3d 335 (5th Cir. 1997).
5th Circuit approves § 5K2.0 departure based on likelihood of recidivism. (715) While working as a bookkeeper, defendant embezzled over $290,000 from her employer. Defendant had been caught embezzling $10,000 from a previous employer only two months before she began working at this job. She had not been prosecuted because her mother made restitution to the employer. The Fifth Circuit approved an upward departure under § 5K2.0 based on the prior offense. Although the court referred to § 4A1.3, this was not a criminal history departure. The district court found a high probability of recidivism based on defendant’s prior conduct. Although § 4A1.3 deals with prior, uncharged conduct, the district court found aspects of this case atypical and the Fifth Circuit agreed that departure under § 5K2.0 was appropriate. On the other hand, it was improper for the court to depart based on the “inadequate” sentencing range. However, remand was not required because the court had authority to make the departure based only upon the likelihood of recidivism. U.S. v. McDowell, 109 F.3d 214 (5th Cir. 1997).
5th Circuit approves upward departure based on management of conspiratorial assets. (715) Defendant argued for the first time on appeal that the district court failed to make specific findings in imposing a role enhancement. The Fifth Circuit agreed that it was error to increase defendant’s sentence under § 3B1.1(c) based on his role in managing the assets of the conspiracy, but noted that the district court could have validly departed upward based upon this factor. The appellate court said there was little functional difference between an enhancement and an upward departure. The difference derives from notice considerations. Here, however, defendant had notice that the increase would be considered. Therefore, there was no “plain error, because the error did not implicate the integrity of the judicial process. U.S. v. Perkins, 105 F.3d 976 (5th Cir. 1997).
5th Circuit says control of bank accounts might support departure but not managerial role. (715) Defendant, the cashier and officer of a bank, was involved in an extensive check kiting scheme. In an earlier opinion, the Fifth Circuit affirmed a managerial role enhancement under § 3B1.1 because defendant controlled the accounts as cashier and head of the wire transfer room. On rehearing, however, the Fifth Circuit struck down the enhancement because defendant did not supervise, manage or control another individual. Note 2 to § 3B1.1 provides that an upward departure might be warranted for a defendant who exercises management responsibility over the property, assets or activities of a criminal organization, but the district court did not order a departure. The court said that on remand, an upward departure for defendant’s management responsibility over the assets involved in the scheme might be warranted. U.S. v. Jobe, 101 F.3d 1046 (5th Cir. 1996).
5th Circuit approves upward departure for non-monetary harm to fraud victims. (715) While employed as a substitute teacher, defendant searched through the desks of teachers for whom she was substituting, obtaining personal information and social security numbers. She used this information to obtain credit cards in her victims’ names, and used the cards to make purchases. The Fifth Circuit affirmed an upward departure based on the non‑monetary harm suffered by the victims of defendant’s fraud. The victims lost days from work, feared arrest, were forced to appear in court, struggled to repair their credit rating, and were not able to use the credit cards in their possession. The victims were forced to spend enormous time and energy to clear their credit, and faced embarrassment from stores and collection agencies. The application notes to § 2F1.1 specifically authorize a departure for non‑monetary harm and psychological harm. The three month upward departure was reasonable under the circumstances. U.S. v. Wells, 101 F.3d 370 (5th Cir. 1996).
5th Circuit approves downward departure where defendant received no personal benefit from money laundering. (715) Defendant, an insurance company employee, was convicted of money laundering and fraud in connection with a scheme to conceal the nature and source of payments his company made to a local politician as a fee for helping the company obtain a government insurance contract. The district court departed downward under note 10 to § 2F1.1, which authorizes a departure where the loss under § 2F1.1 overstates the seriousness of the harm caused by defendant’s crime. The Fifth Circuit held that the departure was justified under § 5K2.0, because the money laundering guidelines make no mention of the failure to receive a personal benefit as a mitigating factor. The six-month departure was reasonable, leaving defendant with a two‑year prison sentence. U.S. v. Walters, 87 F.3d 663 (5th Cir. 1996).
5th Circuit approves upward departure for extreme conduct and multiple victims and guns. (715) Defendant and some associates robbed and assaulted two men in a parking lot. The group ordered the victims to move to a van located 40 to 50 feet away. One of the victims was dragged by the hair with a gun to his stomach to the van, but refused to get in and was shot at pointblank range. Luckily, the gun misfired. The other victim was pushed in the direction of the van with a gun held to his head. This victim ran away when his companion was shot, and was shot multiple times in the back while escaping. The Fifth Circuit approved an upward departure under § 5K2.8 for extreme conduct and under § 5K2.0 for multiple victims and firearms. The victims were kicked and beaten even after surrendering their money and keys. Other circuits have found § 5K2.8’s extreme conduct applicable to similar carjackings. Section 5K2.0 states that departure may be warranted if several persons were injured. Although one victim miraculously escaped being shot, he had a justified fear for his life. Moreover, the use of three firearms by ten robbers, against only two victims, placed the carjacking outside the heartland of robberies. U.S. v. Hawkins, 87 F.3d 722 (5th Cir. 1996).
5th Circuit agrees that intricacy and repetitiveness of bank fraud warranted upward departure. (715) Defendant was hired by her mother’s employer to perform various accounting and bookkeeping functions. Over a ten month period, she embezzled large sums of money from three different bank accounts by forging her mother’s name and depositing the proceeds in her own accounts. The Fifth Circuit agreed that the degree of intricacy of the scheme was not accounted for by the more than minimal planning enhancement in § 2F1.1 and justified an upward departure. The offense involved multiple acts of forgery, fraudulent representations to set up an unauthorized account to route the embezzled funds, repeated acts of embezzlement from various accounts, the transfer of embezzled funds into several accounts belonging to defendant or her alter egos at different banks, and the skillful shifting of funds among all the accounts to conceal the embezzlement. The repetitiveness, intricacy, and sophistication of defendant’s scheme were substantially in excess of that which is ordinarily involved in bank fraud. U.S. v. Kay, 83 F.3d 98 (5th Cir. 1996).
5th Circuit agrees that extent of abuse of trust warranted upward departure. (715) Defendant was hired by her mother’s longtime employer to perform various accounting and bookkeeping functions. Over a ten month period, she embezzled large sums of money from the employers’ bank accounts by forging her mother’s signature. The Fifth Circuit agreed that the extent of defendant’s abuse of trust warranted an upward departure because the true insidiousness of defendant’s breach was not adequately taken into account by § 3B1.3 in light of the fact that defendant also abused and tainted her mother’s position of trust. The scope of the trust for her mother, a loyal senior employee, was shown by her position as a signatory on the employers’ bank accounts. The district court also considered defendant’s raids on the trust funds of the minor children. U.S. v. Kay, 83 F.3d 98 (5th Cir. 1996).
5th Circuit approves upward departure for multiple acts of obstruction. (715) Defendant was convicted of attempting to evade taxes by hiding his receipt of $150,000, and of making false statements to an IRS agent. The Fifth Circuit departed upward based on at least four instances of obstruction of justice. First, defendant intentionally misrepresented to his probation officer that a secured debt was unsecured, to influence the calculation of defendant’s ability to pay restitution. He also misled the IRS when he sold his stock to a trust in the name of his children, payable in installments over ten years. A day before the transaction, defendant had advised the IRS that his only option was to sell the stock back to the corporation. He was instructed to advise the IRS before finalizing any sale of the stock. The IRS never would have approved the sale given the ten year payment period. Defendant also failed to inform the IRS that the stock had been moved from the bank where, the day before, he had represented it was located. The four level departure was reasonable. U.S. v. Clements, 73 F.3d 1330 (5th Cir. 1996).
5th Circuit departs upward for felon with extensive drug and weapons violations who possessed paramilitary type gun. (715) Defendant was convicted of being a felon in possession of a firearm. The 5th Circuit found that the possession of a paramilitary-type weapon by a defendant with an extensive history of drug and weapons violations supported the district court’s 14-month upward departure. U.S. v. Helmstetter, 56 F.3d 21 (5th Cir. 1995).
5th Circuit holds that government reports did not negate grounds for upward departure. (715) Defendant, the president of a defense contractor, filled orders by substituting cheaper products than the ones ordered and providing stale or outdated products that were altered to appear fresh. In a habeas corpus motion, defendant argued that the government improperly withheld reports showing that the company’s customers found the products to be of acceptable quality. Defendant argued that these reports would have vitiated the basis for the court’s upward departure. The Fifth Circuit disagreed. The departure was based on defendant’s conduct, which put at risk multimillion dollar military equipment and the lives of American servicemen. An essential element of the government’s case was that the inferior materials would, over time, deteriorate more rapidly than expected by the user, creating commensurate risk to both equipment and personnel. The qualified satisfaction of a few customers did not negate this concern. U.S. v. Dula, 39 F.3d 591 (5th Cir. 1994).
5th Circuit approves upward departure despite partial reliance on socioeconomic factors. (715) Defendant, a former state judge, did not file tax returns or pay taxes from 1982 to 1989. He ultimately filed returns for 1984 to 1989, but never paid the $112,393 he owed. The district court departed upward because (1) defendant never filed returns for 1982 or 1983, (2) defendant was not charged with failure to file in 1982-1984, (3) defendant still had not paid any taxes, (4) defendant maintained “an excessive lifestyle,” (5) defendant also violated state tax laws, and (6) defendant was a judge for 20 years and “should have known better.” The 5th Circuit held that reasons 4 and 6 were improperly based on socioeconomic factors, but nonetheless upheld the departure. The other four acceptable reasons were sufficient to support the modest two month departure. The socioeconomic considerations raised by the district court were harmless error. U.S. v. Stout, 32 F.3d 901 (5th Cir. 1994).
5th Circuit upholds departure based on prior similar offense and sexual abuse of minor. (715) Defendant was convicted of receiving child pornography. The district court departed upward because of defendant’s sexual abuse of children and his possession of the same type of pornographic material in his previous conviction. The 5th Circuit affirmed. The essential similarity of a prior conviction supports a departure because it may indicate the defendant’s increased likelihood of recidivism or lack of recognition of the gravity of the original wrong. The application notes to §2G2.2 require an upward departure if the defendant sexually exploited or abused a minor at any time. U.S. v. Schmeltzer, 20 F.3d 610 (5th Cir. 1994).
5th Circuit says first-time offender, community service, employment record and potential for victimization are not departure grounds. (715) The guidelines specifically reject first-time offender status as a ground for a downward departure. First-time offenders are assigned criminal history category I, which adequately reflects the level of recidivism. Sections 5H1.5 and 5H1.6 also specifically reject community service and employment record as grounds for departure. Moreover, there is no authority in the 5th Circuit for departing based on the potential for victimization. U.S. v. Ardoin, 19 F.3d 177 (5th Cir. 1994).
5th Circuit concludes that alien’s deportation is not a basis for downward departure. (715) Defendant contended that he should have received a lower sentence because he was an alien under an order of deportation, and thus ineligible for release to home custody or a half-way house as a U.S. citizen might be. The 5th Circuit affirmed his sentence. To the extent defendant claimed his sentence within the guideline range was too harsh due to his alien status, the court declined to consider the argument. To the extent his claim was that the district court should have departed downward due to his alien status, the court concluded that this would not be an inappropriate ground for departure. U.S. v. Nnanna, 7 F.3d 420 (5th Cir. 1993).
5th Circuit affirms upward departure based on victim’s death and under representative criminal history score. (715) Defendant was convicted of being a felon in possession of a firearm based on an incident in which he fatally shot a victim. The district court departed upward by 33 months from the guideline sentence of 327 months under 4B1.4, relying on the death, the failure of defendant’s criminal history score to reflect offenses committed as a youth, defendant’s tendency toward recidivism, and defendant’s criminal history score of 20. The 5th Circuit affirmed. U.S. v. Ford, 996 F.2d 83 (5th Cir. 1993).
5th Circuit rejects possible §5K2.16 departure where discovery of defendant’s involvement in other crimes was likely. (715) The 5th Circuit affirmed the district court’s refusal to depart downward under §5K2.16 for voluntary disclosure of the offense prior to its discovery by the authorities. First, such a decision was not reviewable on appeal unless the court mistakenly believed it lacked authority to depart. Although the court did not state its reasons for denying the departure, there was no evidence the court was not aware of its discretion. Its decision to sentence defendant at the top of the guideline range showed that it did not believe defendant’s actions in confessing his involvement in other crimes warranted a departure. Second, departure under §5K2.16 was not available where, as here, discovery of defendant’s involvement in the other crimes was “likely.” U.S. v. Adams, 996 F.2d 75 (5th Cir. 1993).
5th Circuit upholds departure in fraud involving many victims. (715) Defendant insinuated himself into the good graces of between 31 and 56 women over an extended period of time and then got each to cash sizeable bad checks for him. He argued the district court erred in departing upward based on the number of victims. The 5th Circuit disagreed, holding that 2F1.1(b)(2), which permits a two-point enhancement when the scheme to defraud involves more than one person, does not preclude departure in this case. The court also upheld the scope of the departure in light of the extended period of time over which the fraud took place, the amount of planning involved, and the failure of the defendant’s criminal history score adequately to reflect foreign convictions. U.S. v. Barakett, 994 F.2d 1107 (5th Cir. 1993).
5th Circuit upholds upward departure where fraud caused many to lose life savings. (715) Defendant was involved in an extensive fraud scheme involving 2000 investors and eleven million dollars. The district court departed upward because of the “devastating impact” defendant, as the CEO of an investment trust company, had on investors, many of whom lost their life savings. The court also cited the scope of the scheme to defraud as a reason for the departure. The 5th Circuit affirmed, ruling that section 2F1.1 did not consider the factors cited by the district court, particularly that the scheme caused thousands to lose their life savings. The 1987 version of section 2F1.1 only considered the amount of loss and certain other non-relevant factors. U.S. v. Stouffer, 986 F.2d 916 (5th Cir. 1993).
5th Circuit rejects departure based on interplay between section 924(c) and guidelines. (715) Defendant pled guilty to carrying a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. section 924(c) and to a drug offense. The sentencing court departed downward because the possession of the firearm played a “minimal role” in the drug crime, and section 924(c) was severe. Defendant received a 30 month sentence for the drug crime, to be followed by the five year minimum sentence for the firearm offense. The 5th Circuit reversed. The district court departed because of concern that the guidelines did not adequately take into account the interplay of section 924(c)’s five year mandatory minimum sentence with the sentence to be imposed for the underlying drug offense. However, the guidelines do consider this interplay. Section 2K2.4, the guideline for the firearm offense, prohibits an additional enhancement under section 2D1.1(b)(1) for possessing or carrying a firearm when the defendant has been convicted under section 924(c). U.S. v. Caldwell, 985 F.2d 763 (5th Cir. 1993).
5th Circuit affirms extensive planning, rejects amount of fraud number of victims, as grounds for departure. (715) Defendant, her husband and her brother caused a sailboat to explode and falsely reported that the husband was killed. As a result, defendant received almost $800,000 in insurance and pension benefits from seven insurance companies. After a mock funeral and five years of active concealment, including a remarriage to the wife under the assumed name, the scheme was exposed. Although defendant had a guideline range of 15 to 21 months, the district court departed to a 24-month sentence, citing (a) the extensive planning and elaborate execution of the fraud, (b) the multiple victims, and (c) the large amount of money defrauded. The 5th Circuit affirmed the departure, although it found that the amount of money and the number of victims involved were not proper grounds for departure. The amount of money, $800,000, was well within the parameters in section 2F1.1(b)(1). The number of victims was not extraordinarily large. However, the elaborate planning and meticulous execution did justify a departure since it was “substantially in excess” of that generally found in mail fraud cases. U.S. v. Davidson, 984 F.2d 651 (5th Cir. 1993).
5th Circuit rejects departure for firearms offenses based on use of a weapon. (715) Defendant pled guilty to making false statements in connection with gun purchases. The 5th Circuit held that it was improper to base an upward departure in such a firearms case upon 5K2.6, which permits an upward departures if a weapon was used or possessed during the crime. Section 5K2.6 refers to crimes that may be committed with or without the use of a weapon, otherwise every firearms sentence would require an upward departure. However, it was proper to base the departure upon the repeated nature of defendant’s conduct. A criminal defendant who repeatedly engages in an illegal activity evidences a dangerousness not apparent in a defendant who has acted illegally only once. It was also proper under application note 2 of section 2K2.2 to base a departure upon the fact that the 20 semi-automatic weapons purchases were military-type weapons. U.S. v. Medina-Gutierrez, 980 F.2d 980 (5th Cir. 1992).
5th Circuit rejects departure despite departure for co-defendant, prosecutor’s statement and military record. (715) The 5th Circuit affirmed the district court’s refusal to depart downward based upon (a) the short sentence received by a cooperating conspirator, (b) the prosecutor’s statement at sentencing, and (c) defendant’s military service. The fact that another party received a lesser sentence for the same offense does not make a sentence within the guideline range improper. The prosecutor’s list of mitigating factors at sentencing was not a substantial assistance motion under section 51.1, but a suggestion for leniency within the guideline range. Defendant’s military service and receipt of two purple hearts and a distinguished flying cross did not compel a departure. U.S. v. Peters, 978 F.2d 166 (5th Cir. 1992).
5th Circuit affirms upward departure and abuse of trust enhancement for prison guard who introduced drugs into prison. (715) Defendant, a prison guard, was involved with drug offenses at the prison. He contended an upward departure for placing prison security at risk was improper because he had already received an enhancement under guideline section 3B1.3 for abuse of trust. The 5th Circuit affirmed the grounds for departure, ruling that the specific offense characteristic of using one’s role as a prison guard to commit the offense was not taken into account by the abuse of trust enhancement. The analogy to section 2P1.2 was not apt because defendant was sentenced under section 2D1.1 for unlawful drug trafficking. Defendant was more than a mere law enforcement officer who engaged in a prohibited transaction; he was prison guard who engaged in a prohibited transaction while charged with maintaining prison security. It was not improper for the district court to depart three levels, rather than the two, as defendant argued based upon an analogy to section 2P1.2. A sentencing court need not resort to analogies when departing under section 5K2.0. U.S. v. Siciliano, 953 F.2d 939 (5th Cir. 1992).
5th Circuit rules district court adequately stated grounds for upward departure. (715) The 5th Circuit rejected defendant’s claim that the district court failed to state reasons for his sentence and for the extent of an upward departure. The district court did state specific reasons for the departure, emphasizing that the guideline range was based on the small quantity of marijuana involved and did not take into account that defendant committed his offense as deputy and guardian of a prison’s security. These articulated reasons satisfied the requirements of 18 U.S.C. section 3553(c). Under 5th Circuit law, the judge was not required to state the reasons for the extent of the departure. U.S. v. Siciliano, 953 F.2d 939 (5th Cir. 1992).
5th Circuit upholds five level departure based on over $5 million in loss caused by fraud. (715) The 5th Circuit affirmed a five level upward departure in offense level based upon the district court’s determination that the loss caused by defendant’s fraud was well in excess of $5 million. The record supported the determination that the loss substantially exceeded $5 million. The presentence report calculated the loss at between $15 and $37 million, and defendant presented no evidence to controvert the government’s figures. Guideline section 2F1.1 in effect when defendant was sentenced contemplated losses of $5 million or less. It was reasonable for the district court to consider proposed amendments to section 2F1.1 as a yardstick to measure the appropriate number of levels to depart. U.S. v. Bachynsky, 949 F.2d 722 (5th Cir. 1991).
5th Circuit upholds upward departure based upon large number of aliens involved in smuggling offense. (715) Defendant was convicted of transporting undocumented aliens within the United States. The 5th Circuit affirmed a six-month departure based on the “large number” of aliens involved, in this case 21. Defendant did not dispute that this was a proper ground for departure, that 21 was a large number, or that the departure was unreasonable. Rather, he contended that the trial court must articulate how it determines why a given number of aliens is a large number. The appellate court held that the guidelines do not impose such a requirement. They simply require the sentencing court to state in open court the reasons for the departure. U.S. v. Hernandez, 943 F.2d 1 (5th Cir. 1991).
5th Circuit finds district court did not improperly depart based upon political considerations. (715) In sentencing defendant, the district court noted that defendant’s father ran for Governor of Texas and this was a reason for defendant to “follow the straight and narrow, even more reason for [defendant] not to disappoint” his parents. The district court then departed upward and sentenced defendant to a “boot camp” style prison. The 5th Circuit found that the district court did not improperly depart upward based upon politics and defendant’s socioeconomic background. These statements were “merely observations” made by the district court. “The ‘coincidence’ of [defendant’s] father’s political rhetoric and the trial court’s recommendation of ‘boot camp’ [might] be troubling, but [did] not rise to the level of reversible error.” U.S. v. Williams, 937 F.2d 979 (5th Cir. 1991), overruled on other grounds by U.S. v. Lambert, 984 F.2d 658 (5th Cir. 1993).
5th Circuit upholds departure in misprision case where defendant committed underlying offense. (715) Defendant, the Superintendent of Eduction for a local school system, was convicted of misprision of the felony of mail fraud. The district court departed upward from a guideline range of zero to four months and sentenced defendant to 15 months. The district court based the departure upon the fact that it had “no doubt” that defendant could have been convicted of the underlying offense of mail fraud, that defendant’s offense was a public trust offense, and that defendant had received no imprisonment for a recent state conviction for fraudulently claimed travel expenses. The 5th Circuit upheld the departure. The guideline range for misprision does not contemplate defendant’s guilt of the underlying offense. Defendant was correct that his sentencing range already included a two level increase for his role as a person occupying a position of trust. However, the appellate court found it “apparent” that the district court’s upward departure was not based upon that fact. U.S. v. Pigno, 922 F.2d 1167 (5th Cir. 1991).
5th Circuit remands case where district court failed to state specific reasons for upward departure. (715) The applicable guideline range for defendant was 37 to 46 months, and the district court departed upward to the statutory maximum and imposed a sentence of 120 months. The reasons articulated by the district court were “the nature and circumstances of the offense, the criminal history and characteristics of the defendant, the need to reflect the seriousness of the offense, the need to promote respect for the law and afford adequate deterrence to similar criminal conduct and protect the public from further criminal offenses of this defendant.” The 5th Circuit found that the district court’s recitation failed to list specific reasons for the upward departure. The case was remanded for the district court to identify the specific reasons of the case justifying the large departure. U.S. v. Mourning, 914 F.2d 699 (5th Cir. 1990), superseded on other grounds by guidelines stated in U.S. v. Castano, 999 F.2d 615 (2nd Cir. 1993).
5th Circuit upholds upward departure for defendant who fled between conviction and sentencing. (715) Based upon defendant’s flight before sentencing the district court departed upward from 21 months to 50 months. The 5th Circuit rejected defendant’s argument that he had not been afforded sufficient notice under Fed. R. Crim. P. 32(a)(1) and 18 U.S.C. § 3553(d) of the conduct on which the upward departure was based. Although the presentence report did not recommend an upward departure, defense counsel was given the opportunity to address the court concerning this matter. The 5th Circuit also found that the departure was reasonable. Defendant’s argument that he might receive even greater punishment because the government might file additional charges against him based upon his flight was speculative. Defendant’s flight caused significant disruption in the sentencing process. Moreover, the 50 month sentence, although almost triple the applicable range, was well below the statutory maximum of 15 years. U.S. v. George, 911 F.2d 1028 (5th Cir. 1990).
5th Circuit affirms upward departure based on defendant’s “unlawful conduct” while on bond. (715) While defendant was on bond for making a false statement in purchasing a firearm, he attempted to purchase another firearm and continued his use of controlled substances. The district court cited these actions to justify its upward departure under guideline § 5K2.0, finding that the guidelines did not take into account “continuing unlawful behavior” while on release. The 5th Circuit affirmed the departure, holding the reasons given by the district court for departure were not unreasonable. U.S. v. Sanchez, 893 F.2d 679 (5th Cir. 1990).
5th Circuit affirms upward departure for officials convicted of extortion. (715) Finding that the amount of the bribe involving public officials did not reflect the seriousness of the offense, the district court departed upward. The court also departed upward based on the fact that defendants had violated public oaths to faithfully and impartially discharge their duties. The 5th Circuit noted that although guidelines § 2C1.1(b) permits increases in offense levels corresponding with the dollar amount extorted, application note 4 recognizes that in some cases the monetary amount may not adequately reflect the seriousness of the offense. Therefore, an upward departure based on value not calculable under 2C1.1(b) was permissible. Although the “oath factor” cited by the judge was taken into account by the guidelines, the 5th Circuit held it would be error to conclude the guideline takes into account all public officials convicted of corruption and the manner and extent to which the public trust was violated. Therefore the departure on this ground was also warranted. U.S. v. Reeves, 892 F.2d 1223 (5th Cir. 1990).
5th Circuit holds large number of aliens smuggled is proper ground for departure. (715) The 5th Circuit affirmed a departure from the guideline range for alien smuggling on the ground that Application Note 8 to § 2L1.1 expressly recognizes that a large number of aliens is a proper ground for departure. U.S. v. Lopez-Escobar, 884 F.2d 170 (5th Cir. 1989).
5th Circuit holds conviction based upon circumstantial evidence is not grounds for departure. (715) The 5th Circuit held, without discussion, that the fact that a conviction for drug dealing was based largely upon circumstantial evidence does not warrant a departure from the guidelines. “No exceptional circumstances operated in [the defendant’s] favor; in fact, the evidence of his guilt was overwhelming.” Thus, the sentencing court’s decision that the defendant was not entitled to a departure for “exceptional circumstances” was not clearly erroneous. U.S. v. Randall, 887 F.2d 1262 (5th Cir. 1989).
5th Circuit holds it was error to depart downward to compensate for defendant’s failure to qualify for acceptance of responsibility. (715) The district court departed downward in the apparent belief that a failure to adjust defendant’s sentence downward would “penalize” him for pleading not guilty and for exercising his right to a jury trial. The 5th Circuit reversed, stating that the fact that a defendant may find it difficult, after conviction, to persuade the district court that he has accepted responsibility does not mean that he is penalized for failing to plead guilty. The failure to adjust the sentence for acceptance of responsibility did not amount to “charging for the use of the courthouse.” U.S. v. Reed, 882 F.2d 147 (5th Cir. 1989).
5th Circuit rules mail fraud conviction was not so unique as to warrant departure. (715) Defendant was convicted of mail fraud and conspiracy, and appealed, claiming the district court improperly departed based upon the “amount of money involved,” and “the multitude of victims” and the fact that the “offense required substantial planning.” The 5th Circuit vacated the sentence, holding that the offense was “not unlike that which is ordinarily involved in a mail fraud conviction.” A sentence 3-4 times the recommended range was unreasonable given the court’s justification for the departure, which was already considered in determining his offense level and was “not present to a degree substantially in excess of an ordinary mail fraud conviction.” U.S. v. Campbell, 878 F.2d 164 (5th Cir. 1989).
5th Circuit rules defendant’s status as illegal alien is not proper grounds for departure when it is already considered in base offense level. (715) Defendant pled guilty to falsely representing himself as a U.S. citizen. His adjusted offense level was calculated at 8 and no criminal history was level IV, resulting in an appropriate range of 10-16 months. The district court departed upwards and imposed the three year maximum sentence. The 5th Circuit vacated the sentence, holding that the stated grounds for the departure, his illegal status and cavalier attitude toward the requirements of U.S. citizenship were already considered as part of the offense of conviction. The district court should have considered a two point offense level adjustment under § 262.2(a) because the defendant had previously been deported. U.S. v. Rios, 876 F.2d 24 (5th Cir. 1989).
5th Circuit holds departure in “big” alien smuggling case where defendant “molested” women was proper. (715) The district court explained that defendant’s conduct was “more reprehensible” than that of other alien traffickers in that defendant “used [his] position to molest women,” and that this was a “big” [32 aliens] transporting case. Based on these findings, the Fifth Circuit upheld a six-month upward departure from 30 to 36 months. U.S. v. Velasquez-Mercado, 872 F.2d 632 (5th Cir. 1989).
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6th Circuit rejects departure for voluntary disclosure where offense was likely to be discovered. (715) Defendant pled guilty to wire fraud relating to a fraudulent investment scheme, in which he converted for his own purposes over three million dollars invested with him by approximately 25 clients. Defendant requested a downward departure under § 5K2.16 based on his voluntary disclosure of his offense to authorities. The district court denied the motion, recognizing that defendant was remorseful and voluntarily disclosed his criminal activity, but finding that the offense was likely to have been discovered otherwise. The Sixth Circuit held that the district court did not clearly err in finding that defendant’s offense was likely to be discovered. Defendant’s psychiatrist testified that defendant told him prior to meeting with the FBI that “he knew he was in serious trouble, that he had contacted family members about representation [be]cause he thought he was going to need an attorney.” Defendant also informed the doctor that he owed clients much more money than he could repay. In addition, the PSR contained several statements from victims indicating that, prior to defendant’s meeting with the FBI, they had demanded repayment. In light of this record, the district court did not err in denying the motion for a downward departure under § 5K2.16. U.S. v. Brinley, __ F.3d __ (6th Cir. July 9, 2012) No. 10-5829.
6th Circuit upholds refusal to depart based on medical conditions and public service. (715) Defendant argued that the district court erred by failing to depart downward under §5H1.4 because of his numerous medical conditions, including insulin-dependent diabetes, arthritis of the spine and hips, heart problems, and unspecified problems due to his exposure to Agent Orange. The Sixth Circuit found no error. The court concluded that the Bureau of Prisons was able to satisfy defendant’s medical requirements. The court also stated that it considered defendant’s health problems in imposing a sentence at the low end of the Guidelines range. The court also did not err in refusing to depart based on defendant’s military and public service (he had served in Vietnam and worked as a law enforcement officer). The court characterized defendant’s request for a downward departure based on his public service as “ironic,” because “the essence” of defendant’s criminal activity was “inextricably tied up with his official law enforcement position.” Moreover, the court’s denial of his request for departures was unreviewable. U.S. v. Theunick, __ F.3d __ (6th Cir. June 30, 2011) No. 08-1363.
6th Circuit upholds harsher sentence for shooting bank manager during robbery. (715) Defendant and three accomplices committed an armed bank robbery. During the robbery, defendant shot the assistant bank manager in the head, gravely injuring her. The district court found that defendant’s act constituted attempted first-degree murder, and departed upward. Defendant challenged the substantive reasonableness of his sentence based on the disparities between his 60-year sentence and the 211-, 162- and 60-month sentences received by his accomplices. However, the district court accounted for the disparity by explaining that defendant had separated himself from the rest of his co-defendants by firing the shotgun at the bank manager’s head. The court also noted the co-defendants’ acceptance of responsibility and/or cooperation with authorities. The Sixth Circuit held that the district court did not abuse its discretion when it sentenced defendant more severely than his co-defendants. U.S. v. Stewart, __ F.3d __ (6th Cir. Dec. 6, 2010) No. 08-4268.
6th Circuit finds court did not improperly double count victim’s injuries. (715) Defendant and several others committed an armed bank robbery. During the robbery, he shot an assistant manager in the head, gravely injuring her. The district court departed upward under Note 5 to §2B3.1 to reach a sentence in accordance with the guideline for assault with intent to commit murder, finding that that defendant’s act constituted attempted first-degree murder. The Sixth Circuit rejected defendant’s claim that the district court double counted the injuries suffered by the manager. The court did account for the victim’s injuries under both the robbery guideline and the assault with attempt to commit murder guideline. However, the injuries factored into defendant’s sentence just once – the six-level enhancement under the robbery guideline was rendered irrelevant when the court later departed from that guideline in favor of the assault with intent to commit murder guideline. The upward departure was based solely on defendant’s intent to kill the manager, pursuant to Note 5 to §2B3.1. The departure was warranted regardless of whether the victim actually sustained any serious physical injuries. U.S. v. Stewart, __ F.3d __ (6th Cir. Dec. 6, 2010) No. 08-4268.
6th Circuit approves one-level departure based on use of false identity for 20 years. (715) Defendant came into the United States from Nigeria in 1977 and never left. He obtained a Social Security number, claiming to be a U.S. citizen named O’Georgia, and used this alias for more than 20 years. He was later convicted of tax fraud, and during the proceedings, represented that he was a citizen of the U.S. Based on this and other misrepresentations, defendant made during the tax fraud proceedings, he was convicted of making false claims of U.S. citizenship, obstruction of justice and making false statements to judicial officers. The Sixth Circuit upheld a one-level departure under §5K2.0 based on the extensiveness and history of planning that went into defendant’s false claim of being O’Georgia. Defendant’s multi-decade, elaborate attempt to take on his invented identity involved an extraordinary number of “repeated acts over a period of time.” U.S. v. O’Georgia, 569 F.3d 281 (6th Cir. 2009).
6th Circuit rejects departure based on defendant’s move to another state in defiance of pretrial-services order. (715) After obtaining a continuance of his sentencing hearing, defendant moved to Arizona in direct defiance of his pretrial-services officer’s orders. After defendant was convicted of failure to appear at sentencing, the district court applied a two-level upward departure under §5K2.0 based on defendant’s move to Arizona by applying an analogy to §2F1.1(b)(6)(A) (a two-level enhancement where a defendant relocated a fraudulent scheme in order to avoid law enforcement). The Sixth Circuit held that the court erred in imposing this two-level departure. The court’s analogy to §2F1.1(b)(6)(A) was not persuasive. Nothing indicated that defendant relocated in order to avoid law enforcement or the authority of the court. Defendant’s wife provided a forwarding address to the pretrial-services officer and, as a result, defendant was promptly arrested after he failed to appear. Defendant’s move to Arizona did not take his failure to appear for sentencing out of the heartland of similar cases. U.S. v. O’Georgia, 569 F.3d 281 (6th Cir. 2009).
6th Circuit rejects upward departure based on filing of meritless appeals and motions. (715) In addition to a §3C1.1 obstruction of justice enhancement, the district court applied a two-level upward departure under §5K2.0, citing the fact that defendant also filed many appeals of unappealable orders during the trial, refused to accept case-related documents that his counsel ordered for review, and filed a meritless request for the judge to recuse himself. The Sixth Circuit reversed. The conduct relied upon by the district court was basically that of an overzealous pro se advocate. Although the behavior was undoubtedly annoying from the district court’s point of view, it was not “obstructive” in the sense suggested by §3C1.1. The Sentencing Commission makes no provision for upward departures based upon a pro se defendant’s meritless filings, however vexatious, numerous, or annoying. U.S. v. O’Georgia, 569 F.3d 281 (6th Cir. 2009).
6th Circuit bars consideration of defendant’s likely state sentence as factor in determining federal sentence. (715) Defendant was convicted of possession with intent to distribute marijuana. Although his guideline range was 51-63 months, the district court sentenced him to 24 months. At sentencing, the court noted that defendant was prosecuted in federal court under a cooperative state and federal government arrangement aimed primarily at firearms-related crimes. Defendant had been charged with both firearms and marijuana charges, but he was acquitted of the firearms charges. The court found that defendant’s acquittal on the firearms charges “mooted the reasons for the federal prosecution,” and as such, “[i]n a sense, the Court in this case acts as a Michigan State court would in considering the sentence since that is where the case would be now that the jury acquitted the defendant of the firearm charge.” Since defendant would have likely received a lower sentence in state court, the court found that the 24-month sentence was adequate. The Sixth Circuit reversed, holding that it was impermissible for the district court to consider defendant’s likely state court sentence as a factor in determining his federal sentence. Section 3553(a)(6)’s admonition that sentencing courts avoid unwarranted disparities is directed only at federal courts to federal court disparities, not those that may exist between federal and state courts. U.S. v. Malone, 503 F.3d 481 (6th Cir. 2007).
6th Circuit agrees that court did not have authority to depart downward based on severity of crime of violence. (715) Defendant, convicted of reentering the country after deportation, received a 16-level enhancement because he had previously been convicted of attempted burglary, which is a crime of violence under § 2L1.2(b)(1)(A)(ii). Defendant argued that the enhancement significantly overstated the severity of his attempted burglary conviction, pointing out that Note 5, which limited departures to certain specific situations, was deleted by the Sentencing Commission in 2001. The district court ruled that it did not have the discretion to depart downward, and the Sixth Circuit agreed. Even though the guidelines are now advisory, Booker requires the court to determine the applicable guideline range as well as a discussion of the reasonableness of a variation from that range. When Note 5 was removed, the wording of § 2L1.2(b)(1)(A)(ii) was also changed to expressly distinguish between crimes of violence and simple aggravated felonies. Under Note 1(B)(iii) to § 2L1.2, a crime of violence includes attempted burglary of a dwelling. Therefore, the district court was required to apply the 16-level enhancement. Nonetheless, because the Sentencing Guidelines as a whole are now advisory, the district court is free to depart from the overall sentence computed under the guidelines, provided that it considers the advisory provisions of the guidelines and the other factors identified in 18 U.S.C. § 3553(a). U.S. v. Ibarra-Hernandez, 427 F.3d 332 (6th Cir. 2005).
6th Circuit says failure to request downward departure based on post-offense behavior and disproportionality not ineffective assistance. (715) Defendant argued that his trial counsel rendered ineffective assistance by failing to request a downward departure at sentencing based upon his crime-free post-offense conduct and based upon the disproportionality between his sentence and those of his co-defendants. Neither ground is mentioned in the Sentencing Guideline as a basis for departure; thus, it can only warrant a departure if present to an extraordinary degree. Defendant’s lack of involvement in drug activity or other criminal conduct since his arrest did not constitute “extraordinary post-offense behavior.” Because defendant failed to show that he was prejudiced by his counsel’s failure to move for a departure based upon either ground, the Sixth Circuit affirmed the district court’s denial of relief. Campbell v. U.S., 364 F.3d 727 (6th Cir. 2004).
6th Circuit remands where court not aware of authority to depart for overstated loss. (715) Defendant submitted bad checks to the county treasurer’s office to purportedly pay the real estate taxes on the residences of a judge, two attorneys, and an IRS revenue agent. Defendant then filed four involuntary bankruptcy petitions against the four victims, using the statements from the treasurer’s office as evidence of his creditor status. Even though defendant would never have succeeded in obtaining possession of his victims’ residences, the district court felt obligated to use the residences’ value in its intended loss calculation because intended loss includes “harm that would have been impossible or unlikely to occur.” However, “out of an abundance of caution,” the court reduced the probation officer’s loss figure by 15 percent. The Sixth Circuit held that the intended loss properly included the total market value of the residences, despite the fact that defendant could never have caused the victims to lose their homes. See Amendment 617 to Sentencing Guidelines. However, Note 18(C) to § 2B1.1 provides that a downward departure may be proper where the offense level “substantially overstates the seriousness of the offense.” Here, the impossibility that defendant’s scheme would succeed, and the gross disparity between the actual loss of $800 and the intended loss (over $1 million) demonstrated such overstatement. Because the record suggested that the judge did not recognize his authority to depart, the panel remanded for resentencing. U.S. v. McBride, 362 F.3d 360 (6th Cir. 2004).
6th Circuit rejects downward departure based on cumulative application of enhancements. (715) Defendant, the superintendent of a city wastewater treatment plant, was convicted of violating the Clean Water Act. The district court enhanced defendant’s base offense level by four levels for both § 2Q1.3(b)(1)(B) and § 2Q1.3(b) (4), as the offense involved “a discharge” and “a discharge … in violation of a permit.” In doing so, the court specifically stated that applying both specific offense characteristics did “not constitute double counting.” The court later justified a four-level downward departure in part on the application of both enhancements, stating that “all discharges … necessarily must be accomplished in violation of or absent a permit. Where a single discharge occurred, the scoring of both these factors puts undue weight on these offense characteristics in this case.” The Sixth Circuit rejected this reasoning. Section 2Q1.3(b)(1)(B) and § 2Q1.3(b)(4) are two distinct offense level adjustments within an offense guideline and are intended to be applied cumulatively. The application of both enhancements is either double counting or it is not. The district court cannot first apply both specific offense characteristics and then revisit its decision when deciding whether to grant a downward departure. U.S. v. Kuhn, 345 F.3d 431 (6th Cir. 2003).
6th Circuit says abuse of trust and leadership increases did not “over-count” conduct. (715) Defendant, the superintendent of a city wastewater treatment plant, was convicted of violating the Clean Water Act. The district court applied a § 3B1.1 enhancement for defendant’s aggravating role in the offense and a § 3B1.3 increase for defendant’s abuse of a position of public trust. However, the court then departed downward, stating that the enhancements, if applied cumulatively, over-counted because “the offense in this case did not necessarily entail an abuse of trust that was separate and apart from the defendant’s position that permitted him to be a leader or organizer of the activity.” The court also said that the abuse of trust increase should be discounted because “a significant number of members of the general public did not enjoy a beneficial or quasi-fiduciary relationship with the defendant in his role as a public servant.” The Sixth Circuit rejected this reasoning. The abuse of trust increase was clearly proper. Defendant was a government employee, charged with the safe operation of the water treatment plant. He knowingly caused sewage sludge to be discharged into a navigable waterway and falsified reports. The members of the general public, who relied upon defendant to prevent water pollution in the area, were in a beneficial relationship with defendant. The aggravating role increase related to defendant’s role as a supervisor over others in the operation of the plant. Defendant directed others to discharge the sludge into a ditch, and directed technicians to change test results. Applying these increases cumulatively did not “over-count,” as each had elements that were not necessary for the determination of the other. U.S. v. Kuhn, 345 F.3d 431 (6th Cir. 2003).
6th Circuit says court misunderstood discretion to depart based on immigration factors. (715) Defendant assaulted a fellow inmate while in prison. He sought a downward departure for the two years he had been incarcerated already as an immigration detainee at the time of his offense. The district court denied the motion, noting that “there is nothing either in the Sentencing Guidelines or in the law that would allow [the Court] to depart downward.” The Sixth Circuit ruled that these comments reflected the court’s belief that it lacked the discretion to depart downward. Therefore, the refusal to depart was reviewable. In effect, the court inverted the rule. The court appeared to assume that, absent the guidelines’ reference to a particular factor, the court lacked authority to depart downward on that basis. The rule, however, is the opposite – unless the guidelines specifically proscribe consideration of the factor, then the factor is to be considered. Moreover, what little case law there is on the subject makes clear that district courts can depart downward on the basis of immigration-related factors. See, e.g. U.S. v. Farouil, 124 F.3d 838 (7th Cir. 1997). The district court should have gone on to determine whether defendant’s status as a previously confined immigration detainee removed his case from the heartland of the applicable guidelines. U.S. v. Camejo, 333 F.3d 669 (6th Cir. 2003).
6th Circuit holds that ten units, combined with six dismissed counts, was “significantly more than five.” (715) When counts are grouped together under U.S.S.G. § 3D1.4, the highest offense level of the counts in the group is used. The court then determines the combined offense level by increasing that offense level based on the number of “units” a defendant has. The commentary to § 3D1.4 provides that because the maximum increase provided in the guideline is five levels for more than five units, a departure may be warranted “in the unusual case where the additional offenses resulted in a total of significantly more than 5 Units.” Previous cases have held that seven units was not “significantly more than five.” See U.S. v. Valentine, 100 F.3d 1209 (6th Cir. 1996). Here, defendant had ten units for purposes of § 3D1.4. In addition, six bank robbery counts were dismissed pursuant to defendant’s plea. The Sixth Circuit held that defendant’s ten units, coupled with his acknowledged guilt with respect to six dismissed counts, satisfied the “significantly more than five” test set out in the guidelines. U.S. v. Wolfe, 309 F.3d 932 (6th Cir. 2002).
6th Circuit holds that small departure based on totality of circumstances was not abuse of discretion. (715) The district court departed downward by three offense levels based on a totality of the following circumstances: the death of defendant’s wife before sentencing; defendant’s age (72) at the time of sentencing; his physical deficiencies and condition; the absence of any physical threat to others; the absence of a risk of flight; and defendant’s minor role in the conspiracy. The court noted that this occasion was only the second time since 1987 that it had departed downward. In U.S. v. Coleman, 188 F.3d 354 (6th Cir. 1999) (en banc), the Sixth Circuit recognized that a combination or aggregation of factors can distinguish a case from the heartland of cases. However, a departure must be “reasonable in terms of the amount and the extent of the departure in light of the reasons for the departure.” U.S. v. Tocco, 200 F.3d 401 (6th Cir. 2000). In Tocco, the court reversed a 10-level departure based on the defendant’s overwhelming community service and support, the defendant’s age and debilitating health, and defendant’s wife’s poor heath. By analogy, the district court here departed by only three levels with the inclusion of more factors. Although most of the factors cited by the court do not ordinarily warrant a departure, the district court concluded that their confluence compelled a departure. Due to the relatively small departure, the Sixth Circuit held that the district court did not abuse its discretion in departing based on the totality of the circumstances. U.S. v. Sabino, 307 F.3d 446 (6th Cir. 2002).
6th Circuit approves departure despite consideration of invalid factor, but remands for explanation of extent. (715) Defendant, the county sheriff, took money from a local mobster in exchange for protection of the mobster’s gambling operation. The district court departed upward because defendant was the chief law enforcement officer for the county, the bribery offenses involved members of organized crimes, and defendant violated the state election laws in running for office. The Sixth Circuit found that the fact that defendant took bribes from organized crime was a proper ground for departure. Although the RICO guideline, § 2E1.1, takes into consideration the involvement of organized crime, defendant was sentenced under the bribery guideline, § 2C1.1. However, the fact that defendant was highest law enforcement officer in the country was not a proper ground for departure, because the § 2C1.1(b)(2)(B) enhancement defendant received (for payments to influence an official holding a high-level decision-making or sensitive position) took into consideration that fact. Finally, the district court properly relied on the fact that defendant violated state campaign laws. Campaign laws are separate, chargeable conduct for which defendant was not held accountable. Although one of the factors relied on was improper, the remaining two valid factors justified the departure. However, the court failed to adequately explain why a three-level departure was appropriate. U.S. v. Chance, 306 F.3d 356 (6th Cir. 2002).
6th Circuit says court’s rejection of factual basis for departure implicitly recognized authority to depart. (715) Defendant appealed the district court’s decision not to depart downward in sentencing him based on his government’s culpability for damaging his health in needlessly and (allegedly) vindictively transporting him from Minnesota to Detroit to testify in another case. The Sixth Circuit found that the matter was not reviewable because the court implicitly recognized its discretion to depart from the guidelines by calling into question the factual basis of the defendant’s motion. The court noted that, in certain circumstances, it would have to determine whether the government’s maltreatment of a prisoner could serve as an appropriate basis for a downward departure, but that, even if this were an appropriate basis for a downward departure, the facts of the case would not support it. In other words, the court concluded that even if it had discretion to depart downward on this basis, it would not. Thus, the issue was not reviewable on appeal. U.S. v. Corrado, 304 F.3d 593 (6th Cir. 2002).
6th Circuit holds that § 5K1.1 applies only to cooperation involving the investigation or prosecution of another person. (715) After being arrested for selling tablets containing controlled substances to an undercover agent, defendant confessed that when he worked as a machinist for a lab, he had stolen the tablets by secreting them in his sock. Defendant described in detail how he removed the tablets and described the lax security procedures at the lab. As a result of his disclosures, the lab implemented various security upgrades. Defendant moved for a downward departure under § 5K2.0 based on the significant cooperation he provided to DEA investigators in their effort to upgrade the lab’s security procedures. The district court found that it lacked the authority to depart in the absence of a government motion under § 5K1.1. The Sixth Circuit held that § 5K1.1 applies only to substantial assistance in connection with “the investigation and prosecution of another individual who has committed a crime.” Where the substantial assistance is directed other than toward the prosecution of another person, the limitation of § 5K1.1 (i.e. the requirement of a government motion as a triggering mechanism) does not apply. Thus, no government motion was required to consider defendant’s departure motion. The government contended that defendant’s statements to authorities were nothing more than an acceptance of his responsibility for his own conduct, which was already taken into account when he received a reduction under § 3E1.1. However, there was a basis in the record to conclude that defendant’s cooperation extended beyond the garden variety acceptance of responsibility, and the district court should make this finding in the first instance. U.S. v. Truman, 304 F.3d 586 (6th Cir. 2002).
6th Circuit holds that § 5G1.3(b) did not apply where defendant had previously discharged state sentence. (715) Defendant argued that pursuant to § 5G1.3(b), the district court was required to run his 60-month federal sentence concurrently with his previously discharged 19-month state sentence. The Sixth Circuit disagreed, since by its terms, § 5G1.3(b) only applies to a defendant serving an undischarged term of imprisonment at the time of his federal sentencing. Section 5G1.3 did not require the court to run his 60-month federal sentence concurrently to his previously discharged 19-month state sentence. Although defendant argued that the discharged term of imprisonment provided a basis for the district court to depart downward, given his extensive criminal history, the court did not abuse its discretion in refusing to depart downward from his 60-month basis. Section 5G1.3(b) does not violate equal protection. There is a reasonable justification for the distinction between discharged and undischarged state sentences. That distinction ensures that if two defendants who are convicted of identical state crimes are subsequently convicted on a federal charge for the same conduct, then those two defendants will serve an equal term of imprisonment upon their federal conviction, regardless of whether their state sentence had been fully discharged. U.S. v. Dunham, 295 F.3d 605 (6th Cir. 2002).
6th Circuit says defendant must meet application note requirements for departure based on seriousness of aggravated felonies. (715) Because defendant illegally reentered the country following his conviction for an “aggravated felony,” he received a 16-level enhancement under § 2L1.2. Defendant requested a downward departure to take into account the fact that his previous felonies were not serious ones. Former application note 5 to § 2L1.2(b)(1) says that a downward departure might be warranted where: (A) the defendant had only one previous felony conviction; (B) that previous felony was not a crime of violence or a firearms offense; and (C) the term of imprisonment imposed for that felony was not more than a year. The district court found that defendant was not eligible for a downward departure because he did not meet two of the three conditions stated in Note 5. The Sixth Circuit agreed, holding that a defendant who does not qualify for a departure under Note 5 is not eligible for departure on the ground of the seriousness of the earlier felony. U.S. v. Taylor, 286 F.3d 303 (6th Cir. 2002).
6th Circuit holds that defendant accountable for loss even though co-conspirator was more direct cause. (715) Defendant defrauded insurance companies by providing false information on applications for hospital indemnity policies, which pay a fixed amount directly to the insured for each day the insured spends in the hospital. He and his girlfriend, Long, obtained 12 such policies that listed defendant as the insured. Long later filed false claims under the policies. The district court held defendant accountable for a total loss of $26,717, which was the amount paid on claims made under all 12 of the policies that listed defendant as the insured. He argued that he was not directly responsible for any loss, since this amount was caused primarily by Long. The Sixth Circuit found no error, since loss is attributable to a defendant even where there are other, more direct causes for the loss. While a downward departure may be proper is certain cases where there are other, more proximate causes for a loss, U.S. v. Kopp, 951 F.2d 521 (3d Cir. 1991), defendant never sought a downward departure, instead claiming that none of the $26,717 loss was attributable to him under § 2F1.1(b). He therefore waived any claim for a downward departure. Moreover, he was not a compelling candidate for such a departure. He and his co-defendants executed a fraudulent scheme that caused a total loss of over $1 million. The $26,717 loss attributed to defendant did not overstate the seriousness of his conduct. U.S. v. Ware, 282 F.3d 902 (6th Cir. 2002).
6th Circuit rejects downward departure based on trade secret victim’s participation in prosecution. (715) Defendant, his corporation, and his daughter were convicted of attempting and conspiracy to commit theft of a trade secret. The district court made a 14-level departure for each defendant based on the victim corporation’s participation in the prosecution, about which the court said, “in my experience no victim has played a more direct role than Avery in prosecuting a criminal case…. With Avery’s participation and the acquiescence of the Government, the criminal case has become a tool for Avery to seek vengeance instead of a pursuit of justice.” The Sixth Circuit held that the departure was an abuse of discretion. Other than Avery’s providing the government the same loss evaluation experts Avery intended to use in a parallel civil case against defendants, the court pointed to no instances of Avery’s manipulation or control of the trial or sentencing. Nor did the court provide any insight into how or why Avery’s participation lessened defendants’ culpability or the seriousness of their crime, or how Avery’s participation in the prosecution constituted a mitigating circumstance not adequately taken into consideration by the Sentencing Commission. U.S. v. Yang, 281 F.3d 534 (6th Cir. 2002).
6th Circuit upholds court’s refusal to depart in money laundering case. (715) Defendant argued that the circumstances surrounding her money laundering conviction were atypical of what occurs in traditional money laundering offenses because she did not attempt to conceal her profits or use the laundered money to further other criminal activities. Therefore, she argued that the district court should have granted her a downward departure. The Sixth Circuit found that the court’s refusal to depart was unreviewable because the court was fully aware that it possessed the authority to grant a downward departure and simply declined to do so. The court specifically addressed the argument that defendant raised on appeal, stating that “the money laundering wasn’t incidental to the underlying offense.” A November 2001 amendment to the guidelines did not benefit defendant. U.S. v. Orlando, 281 F.3d 586 (6th Cir. 2002).
6th Circuit upholds decision to sentence defendant under money laundering guideline. (715) Defendant pled guilty to money laundering and his attorney was found guilty on that count by the trial court. The judge sentenced both defendants. However, the judge sentenced the attorney under the fraud guideline, § 2F1.1, and sentenced defendant under the money laundering guideline, § 2S1.1. Defendant argued, based on U.S. v. Smith, 186 F.3d 290 (3d Cir. 1999), that the district court should have applied the fraud guideline. In Smith, the Third Circuit held that the money laundering guidelines were too harsh to apply to what it described as a routine fraud case in which the money laundering activity was an “incidental by-product” of a kick-back scheme. The Sixth Circuit noted that it has previously rejected the idea that an offense is outside of the heartland of the money laundering guidelines merely because it involves proceeds from illegal activities other than drug trafficking and organized crime. See U.S. v. Ford, 184 F.3d 566 (6th Cir. 1999). In the current case, wire and mail fraud were the underlying illegal activities that generated the proceeds at issue, and both offenses are included within the money laundering statutes as “specified unlawful activities.” See 18 U.S.C. § 1956(c)(7)(A). Thus, the district court did not err in denying defendant’s motion to be sentenced under the fraud guideline. U.S. v. Rashid, 274 F.3d 407 (6th Cir. 2001).
6th Circuit rules court properly considered incidental nature of defendant’s money laundering. (715) Defendant, a criminal defense attorney, was convicted of a money laundering conspiracy after she allowed her office to be used as a drop-off and pick-up point for cash that a client was owed by one of his drug distributors. The client had told defendant that he could not pay her legal fees until this $400,000 drug debt was repaid. The district court made a nine-level downward departure based on a variety of factors. Although six of the seven grounds for departure were improper, the Sixth Circuit ruled that the district court properly considered the fact that defendant’s conduct was incidental to the underlying criminal activity. Defendant was a third-party launderer who participated in only two laundering transactions. She was not a member of the drug trafficking conspiracy, and she did not stand to benefit from the reinvestment of criminal proceeds back into the conspiracy, aside from assuring that she would be paid for her legal services. Nonetheless, the nine-level departure was an abuse of discretion. Assuming that § 2S1.2 was the most appropriate guideline for comparison (it deals with money laundering without an intent to further the underlying drug activity), defendant would have had an adjusted offense level only four levels lower than applied here. U.S. v. Reed, 264 F.3d 640 (6th Cir. 2001).
6th Circuit rejects numerous grounds for downward departure in attorney money laundering case. (715) Defendant, a criminal defense attorney, was convicted of a money laundering conspiracy after she allowed her office to be used as a drop-off and pick-up point for cash that a drug supplier client was owed by one of his distributors. The district court made a nine-level downward departure based on a variety of factors. The Sixth Circuit ruled that six of the seven grounds were improper. The court found that defendant entered the drug trafficking conspiracy at its conclusion, when all drug trafficking had ceased. However, both §§ 2S1.1 and 2S1.2 account for this by using the amount of laundered money as a specific offense characteristic. The court’s finding that defendant did not intend to facilitate additional drug trafficking conflicted with the jury’s verdict. The client received a more lenient sentence than defendant because he accepted responsibility, did not abuse a position of trust, did not obstruct justice, and cooperated with authorities. The client’s wife was not prosecuted because all of the information against her was gathered pursuant to her cooperation agreement. Whether or not the client was permitted to keep the laundered funds was not related to defendant’s criminal behavior. The government’s decision to prosecute defendant under a statute with a severe penalty was not cause for a downward departure. U.S. v. Reed, 264 F.3d 640 (6th Cir. 2001).
6th Circuit says departure based on combination of factors was abuse of discretion. (715) The commentary to § 5K2.0 “does not foreclose the possibility of an extraordinary case that, because of a combination of … characteristics or circumstances, differs significantly from the ‘heartland’ cases covered by the guidelines…, even though none of the characteristics or circumstances individually distinguishes the case.” In the current case, the district court departed downward without making an inquiry regarding the structure and theory of relevant individual guidelines or of the guidelines taken as a whole, and did not compare the current case to heartland cases. The Sixth Circuit held that the departure was an abuse of discretion, since there was nothing in the record to indicate that the case fell outside of the heartland of cases contemplated by the guidelines. Each of the suggested bases for departure were adequately discussed in the guidelines. The guidelines have already incorporated a weighted allowance for entering a timely guilty plea in 3E1.1(b). The consideration of health problems is discouraged by § 5H1.4. Aberrant behavior is listed as a valid reason for a departure, see Chapter 1, part A § 4(d), but defendant’s participation in at least five cocaine transactions could not be considered aberrant. There was nothing unusual or exceptional about defendant’s case. U.S. v. Saucedo, 226 F.3d 782 (6th Cir. 2000).
6th Circuit says note limits actual sentence imposed through departure. (715) Because defendant received a mandatory consecutive 60-month sentence for his § 924(c) conviction, Application Note 2 to § 2K2.4 barred the court from applying to his robbery offense level any specific offense characteristics for the use of a weapon. The note provides that when the combined sentences for the underlying offense and the § 924(c) conviction results in a maximum penalty that is less than the maximum that would have resulted had there not been a § 924(c) conviction, an upward departure may be warranted. The departure “shall not exceed the maximum of the guideline range that would have resulted had there not been a count of conviction” under § 924(c). Defendant’s combined sentencing range for both offenses was 157 to 181 months. If defendant had not been convicted under § 924(c), he would have had a sentencing range of 168-210 months. Following Note 2, the court departed upward by two levels, which, when combined with his 60-month sentence for his § 924(c) conviction, placed defendant in a range of 181-211 months. Because this range extended one month higher than the maximum allowed by Note 2, defendant argued that the court could depart upward by only one level. The Sixth Circuit refused to interpret the note as barring a departure to a level that include any months over the maximum permissible range; a better interpretation is that the actual sentence given cannot exceed the maximum range. Since defendant’s actual sentence did not exceed the maximum range, the extent of the departure was proper. U.S. v. Collins, 226 F.3d 457 (6th Cir. 2000).
6th Circuit upholds departure where aggravating factors not considered in guideline actually used. (715) Defendant pled guilty to assaulting a federal officer and numerous firearms charges. The district court departed upward based on: (1) defendant’s discharge of a weapon (§ 5K2.5); (2) his intent to conceal a second felony (§ 5K2.9); and (3) his infliction of serious bodily injury (§ 5K2.2). Defendant argued that these grounds were previously considered under § 2K2.1(c) through a cross-reference to § 2A2.2, the aggravated assault guideline. The Sixth Circuit found no double counting because even though those characteristics were considered in the cross-referenced guideline, they never impacted the offense level of the guideline section actually used by the district court. Following the cross-reference in § 2K2.1(c), the court considered the aggravated assault guideline, which contains specific offense characteristics for serious bodily injury and discharge of a firearm. However, the court ultimately applied § 2K2.1, rather than § 2A2.2, because § 2K2.1 provided for a higher offense level. U.S. v. Smith, 196 F.3d 676 (6th Cir. 1999).
6th Circuit, en banc, holds that court cannot categorically exclude any non-prohibited basis for departure. (715) Defendant moved for a downward departure based on the government’s improper investigative techniques, which allegedly included targeting and inducing parolees and African-Americans to commit crimes. The district court ruled that it lacked the legal authority to depart on this basis. The Sixth Circuit, en banc, held that under Koon v. United States, 518 U.S. 81 (1996), a trial judge cannot categorically exclude any non-prohibited factor from consideration for a downward departure. The only factors which are precluded from consideration are race, sex, national origin, creed, religion, and socio-economic status, § 5H1.10, lack of guidance as a youth, § 5H1.12, drug or alcohol dependency, § 5H1.4, and economic hardship, § 5H1.12. To the extent that prior cases have suggested that factors such as improper investigatory techniques may never warrant consideration for a downward departure, Koon overrules all such determinations. The en banc court further held that under Koon, the district court was required to consider the particular factors of the case as a whole, and in combination, in determining whether defendant’s case fell outside the heartland of crack cocaine cases. U.S. v. Coleman, 188 F.3d 354 (6th Cir. 1999) (en banc).
6th Circuit says court cannot rule out possible basis for departure in crack cocaine case. (715) Defendant moved for a downward departure based on the government’s improper investigative techniques, which allegedly included targeting and inducing parolees and African-Americans to commit crimes. The district court found this was not a sentencing issue, but rather a selective prosecution issue and thus an improper basis for a downward departure. The Sixth Circuit ruled that under Koon v. U.S., 518 U.S. 81 (1996), a judge cannot categorically exclude any non-prohibited factor from consideration for a downward departure. Because improper investigative techniques are not considered by the guidelines, the district court could properly consider them. The appellate court declined to consider whether these factors were present to such a degree as to warrant a downward departure. But it said that although the disparity between crack and powder cocaine is not sufficient in itself to justify a downward departure, such a disparity, when coupled with the improper targeting and inducement, might be sufficient to take a case outside the heartland of crack cocaine cases. Judge Norris dissented. U.S. v. Coleman, 188 F.3d 354 (6th Cir. 1999) (en banc).
6th Circuit rules money laundering transactions involving gambling proceeds not outside heartland. (715) Defendant and his wife were convicted of operating an illegal gambling business and money laundering. In refusing to depart downward, the district court (1) rejected defendant’s suggestion that the money laundering guideline only applies to transactions connected with drugs or organized crime, and (2) rejected as a factual matter defendant’s explanation that he was required by state law to deposit the charitable gambling proceeds in the bank. The Sixth Circuit held that the district court’s conclusion that transactions in gambling proceeds are not per se outside the heartland was a question of law reviewable on appeal. However, the court’s rejection of defendant’s claim that he was trying to comply with state law when he engaged in the transactions was a discretionary refusal to depart, not reviewable on appeal. The Sixth Circuit further held that inclusion of gambling within the money laundering statutes as “specified unlawful activities” showed conclusively that transactions in gambling proceeds are not outside the heartland of money laundering offenses. U.S. v. Ford, 184 F.3d 566 (6th Cir. 1999).
6th Circuit says attorney’s conduct not outside heartland of money laundering statute. (715) Defendant, a criminal defense attorney, acted as a conduit for the flow of money and information between a client and a distributor to whom the client sold drugs. The district court departed downward, finding defendant’s conduct was “on the outer edges of that” contemplated by the money laundering statute, 18 U.S.C. § 1956. The judge also took into account the time and cost involved in an interlocutory appeal. The Sixth Circuit held that the departure was an abuse of discretion, disagreeing with the district court’s conclusion that defendant’s conduct was outside of the heartland of § 1956 offenses. Although the district court did not view defendant’s conduct as typical money laundering, defendant’s interlocutory appeal established that defendant “clearly … effected a disposition of the proceeds.” This decision brought the Sixth Circuit in line with other circuits and the plain meaning of the statute. Although the district court found defendant less culpable than the typical money launderer, the court did not provide any specifics. Finally, neither defendant nor the district court provided the appellate court with any evidence that the length of the delay or the costs involved in resolving the interlocutory appeal were unusual. U.S. v. Reed, 167 F.3d 984 (6th Cir. 1999).
6th Circuit approves upward departure based in part on SCAMS act. 715) Defendant worked for a telemarketing company that defrauded hundreds of elderly victims out of money by convincing them they had won a valuable prize. The district court departed upward for five reasons: (1) the large number of victims (336), (2) the financial and psychological damage to the victims, (3) defendant’s repeated victimization of the same individuals, (4) defendant’s lack of remorse, and (5) the SCAMS Act. The Sixth Circuit affirmed. The purpose of the SCAMS act is to enhance the punishment for illicit telemarketers who target senior citizens. Given this purpose, there was no merit to defendant’s claim that the relevant conduct and role in the offense enhancement adequately addressed his fraudulent conduct. The vulnerable victim enhancement under § 3A1.1(b) also did not adequately address his conduct. The SCAMS Act is specifically designed to combat and punish severely the conduct in which defendant engaged, conduct that falls outside the heartland of cases addressed by the vulnerable victim guideline. The SCAMS Act authorized the district court to impose an additional ten-year sentence. Instead of doing so, the district court merely departed two levels, which increased defendant’s sentence by two years. U.S. v. Brown, 147 F.3d 477 (6th Cir. 1998).
6th Circuit reverses downward departure for good behavior, loss of reputation and disparity. (715) Defendant pled guilty to causing the interstate shipment of adulterated orange juice. After two appeals, during a third sentencing hearing, the district court departed to a sentence of 12 months’ home confinement. It based the departure primarily on defendant’s record of community service, but also cited his exemplary behavior during the pendency of his appeal, its desire for proportionality in sentencing co-conspirators, and defendant’s loss of reputation and of his business. The government did not challenge the court’s reliance on defendant’s charitable works, but appealed the other grounds. The Sixth Circuit reversed. Defendant’s good behavior during his appeal was an impermissible ground for departure. His good behavior was nothing more than refraining from committing further crimes. His loss of his reputation and business were expected consequences of his fraud and did not take his case out of the heartland. Finally, the guidelines do not allow a downward departure for a lesser role in the offense, because the guidelines account for that under § 3B1.1 and § 3B1.2. U.S. v. Crouse, 145 F.3d 786 (6th Cir. 1998).
6th Circuit rejects upward departure for loss, number of victims and number of fraud schemes. (715) Defendants were convicted of mail fraud and money laundering for creating and participating in three fraudulent schemes. The Sixth Circuit reversed an upward departure based on the monetary loss, number of victims and number of fraudulent schemes because each of these was already reflected in the guidelines. The amount of the loss was between $2.5 million and $5 million, which is well within the heartland of fraud losses. The number of victims is considered implicitly through the loss amount in § 2F1.1(b)(1), and explicitly in § 2F1.1(b)(2)(B), which authorizes a 2-point enhancement when the scheme defrauds more than one victim. The fact that defendant had been involved in at least three but possibly five or six scams was taken into account by the more than minimal planning provision in § 2F1.1(b)(2)(A). The fact that defendant engaged in several illegal schemes at the same time was not exceptional or atypical. U.S. v. Corrigan, 128 F.3d 330 (6th Cir. 1997).
6th Circuit rejects departure intended to overcome harsh guidelines for minor white-collar offenders. (715) Defendant, a letter carrier for the postal service, stole credit cards from the mail and used them to charge $11,000. The district court, sua sponte, departed downward based on the guidelines’ disparate treatment of defendant, a relatively minor white-collar offender, as compared with a more egregious offender who committed bank fraud in excess of $300,000. The Sixth Circuit held that the disproportionately harsh treatment of “minor” white-collar offenders as opposed to “serious” offenders was not a proper ground for departure. The Sentencing Commission intentionally gave low-level offenders sentences that appear harsh when compared with high-level fraud because of its belief that low-level fraud should be classified as “serious.” The Commission was concerned that in pre-guidelines practice, such offenders were often sentenced to probation. The Commission believed that the definite prospect of prison, even though for a short time, would serve as a significant deterrent to such offenders. The fact that this arrangement produces disproportionate results between high- and low-level offenders cannot serve as the legal basis for a downward departure absent unusual circumstances. U.S. v. Weaver, 126 F.3d 789 (6th Cir. 1997).
6th Circuit rejects physical restraint increase and upward departure where torture was not relevant to offense. (715) Defendant and his co-conspirators in a drug operation tortured a man they believed had stolen from them. One co-conspirator tortured the victim, defendant held the victim down and the other co-conspirator guarded the door. Defendant ultimately pled guilty to a single count of distributing crack cocaine. The Sixth Circuit rejected a § 3A1.3 enhancement for physically restraining the victim since the torture was not relevant conduct to the offense of conviction. Defendant’s distribution offense took place on December 28, 1994. The torture took place February 8 of the following year. None of the provisions of § 1B1.3 applied to the torture. The court also remanded to determine whether there was a sufficient connection between the offense of conviction and the torture to support an upward departure under § 5K2.2. Although district courts may consider more than “relevant conduct” in deciding whether to depart, a court may not base an upward departure on conduct that is completely unrelated to the offense of conviction. U.S. v. Cross, 121 F.3d 234 (6th Cir. 1997).
6th Circuit says mentally ill defendant requires civil commitment, not departure. (715) Defendant suffered from chronic paranoid schizophrenia. He purchased two firearms by falsely stating on an ATF form that he had never been committed to a mental hospital. The district court committed him to a mental hospital in lieu of imprisonment. After the doctors found a drug that partly controlled his delusions, they issued a Certificate of Recovery and Request for the Court to Proceed with Final Sentencing. However, they also certified that defendant’s mental condition created a substantial risk to the public. The district court departed upward under § 5K2.14 and § 5K2.0 to a sentence of 120 months based on defendant’s danger to the community. The 6th Circuit reversed, ruling that the appropriate mechanism for public protection was a commitment proceeding under 18 U.S.C. § 4246. Section 5K2.14 requires a court to look at the dangerousness of the defendant at the time of the crime, not his future dangerousness. Also, § 5H1.3 says mental and emotional conditions are not ordinarily relevant, and the need for psychiatric treatment does not justify a § 5K2.0 departure. U.S. v. Moses, 106 F.3d 1273 (6th Cir. 1997).
6th Circuit approves upward departure for decade‑long fraud scheme. (715) For a decade, defendant defrauded his family and others of over $1 million by pretending to operate an investment firm. The district court departed upward based on (1) the non-monetary harm and serious psychological injury suffered by the victims; (2) the jeopardizing of the victims’ solvency; and (3) the repetitive and prolonged nature of the scheme. The Sixth Circuit affirmed. Note 10 to § 2F1.1 lists as a justification for departure each of the reasons relied on by the district court. The district court heard at sentencing from numerous victims of the crime, and a number of letters from victims were incorporated into the record by stipulation. U.S. v. Dobish, 102 F.3d 760 (6th Cir. 1996).
6th Circuit holds court was not required to depart based on past abuse of minors. (715) Defendant pled guilty to knowingly receiving child pornography through the mails. The government sought an upward departure under note 5 to § 2G2.2 based on evidence that defendant was a predatory pedophile who for two decades had sexually abused and exploited more than a dozen minor females, including his first wife, his daughter, and her friends. The Sixth Circuit agreed that defendant’s past abuse of minors properly could have been considered under this note if the court had agreed that a departure was warranted. However, the commentary does not mandate a departure, but makes the departure discretionary. Because the district court was aware of its departure authority and correctly applied the sentencing guidelines, the decision not to depart under note 5 must be affirmed. U.S. v. Surratt, 87 F.3d 814 (6th Cir. 1996).
6th Circuit finds no error in refusing to consider evidence supporting departure. (715) Defendant pled guilty to knowingly receiving child pornography through the mails. The government had evidence that defendant was a predatory pedophile who for two decades had sexually abused and exploited more than a dozen minor females. It argued that departures under § 4A1.3, § 5K2.3 and § 5K2.8 were warranted because defendant’s criminal history underrepresented the seriousness of his past criminal conduct, his victims suffered extreme psychological injuries, and his conduct was unusually heinous and degrading to the child victims. The Sixth Circuit upheld the district court’s refusal to permit the government to introduce evidence to justify the departures. Sections 5K2.3 and 5K2.8 did not apply, because the subjects of the pornographic material were not the victims in this case. Moreover, the guidelines do not require the court to consider all information concerning the defendant in deciding whether a departure is required. The district court agreed that defendant likely was a predatory pedophile but decided that its sentence adequately addressed the government’s concerns. U.S. v. Surratt, 87 F.3d 814 (6th Cir. 1996).
6th Circuit calculates drugs in reverse sting based on price defendant “was used to paying.” (715) Defendant was caught in a government sting operation. Relying on note 15 to § 2D1.1, defendant argued that his mandatory life sentence should be reversed because the government encouraged him to purchase more cocaine than he would otherwise have bought. The government offered to sell him cocaine at less than half of the market price—$9,500 a kilogram. The Sixth Circuit found no error since the district court recalculated the amount of cocaine defendant would have purchased with the money he brought using the $22,500 a kilogram price he was accustomed to paying. The district court was not required to use the higher estimate of market value offered in a civil forfeiture proceeding against the home in which defendant lived. The district court properly relied on the price defendant usually paid. U.S. v. Anderson, 76 F.3d 685 (6th Cir. 1996).
6th Circuit says offering details of offense not worthy of downward departure. (715) Defendant, a bank officer, committed bank fraud. After the fraud was discovered and defendant’s employment was terminated, defendant offered to complete a transaction for the bank, and allow the bank to retain his $64,000 in commission to offset the loss. At sentencing, he requested a downward departure because he had voluntarily revealed information about the offense, and because he had intended to pay off the fraud during the offense and to provide virtually full restitution after the offense. The Sixth Circuit ruled that it could not review the decision not to depart. The district judge’s statements showed that she was aware of her discretion to depart under § 5K2.0, but that she chose not to exercise it. Moreover, there was no basis for a downward departure. There was nothing unusual about defendant’s cooperation with the government to mandate a departure. U.S. v. Scott, 74 F.3d 107 (6th Cir. 1996).
6th Circuit rejects deportable alien status as ground for departure in alien case. (715) Defendant pled guilty to being found in the U.S. without permission after being deported. He requested a downward departure based on his status as a deportable alien, noting that this made him ineligible for certain prison programs such as halfway houses or minimum security prisons. The Sixth Circuit held that a deportable alien status is not a basis for a downward departure from a sentence imposed under a guideline primarily applicable to deportable aliens. This case was distinguishable from U.S. v. Smith, 27 F.3d 649 (D.C. Cir. 1994), which held that a downward departure may be appropriate for a deportable alien. Unlike the crime in Smith, the offense here could only be committed by deportable aliens. The court did not decide whether deportable alien status can ever be a basis for departure in sentencing for other types of crimes. U.S. v. Ebolum, 72 F.3d 35 (6th Cir. 1995).
6th Circuit approves upward departure for police chief who embezzled funds from department. (715) During a seven year period, defendant, Detroit’s chief of police, embezzled over a million dollars from the city’s fund for financing covert police operations. The district court departed upward based on (1) the extreme duration and repetitive nature of the offense, (2) defendant’s violation of his unique responsibilities to the public as the chief of police, (3) the flagrant and devious efforts he made to conceal his crimes, (4) the loss of confidence in the police department, and (5) the harm to the city caused by the loss of funds. The Sixth Circuit upheld the departure based on the unusual nature of the case. Defendant’s diversion of resources interfered with the police department’s ability to prevent, investigate and prosecute crimes. Several departments had serious problems obtaining money to fund their operations. Defendant’s position, level of responsibility and trust, and extensive harm that resulted from his actions, were unusual factors that justified an upward departure. The degree of departure (from 63 months to the statutory maximum of 120 months) was not unreasonable under the circumstances. U.S. v. Hart, 70 F.3d 854 (6th Cir. 1995).
6th Circuit approves upward departure based on multiple victims in murder solicitation scheme. (715) Defendant solicited an FBI informant to murder defendant’s niece and her nine-year old daughter, because they had filed sexual molestation charges against him. The district court departed upward because the offense involved more than one victim. The 6th Circuit agreed that multiple victims is a proper ground for an upward departure. The guidelines applicable to defendant, §§ 2A1.5 and 2E1.4, do not mention multiple victims. The Sentencing Commission’s awareness that victimization of multiple persons during the same criminal activity is not reflected in all offense levels is demonstrated by § 5K2.0 (approving departures for multiple injuries in a robbery) and § 5K2.1 (suggesting departures in homicide cases involving multiple deaths). U.S. v. Pittman, 55 F.3d 1136 (6th Cir. 1995).
6th Circuit says defendant’s voluntary restitution did not justify departure. (715) Defendants executed a check-kiting scheme that caused a loss of $1.1 million. However, by the time they were sentenced, they had repaid the full amount. The Sixth Circuit found that the voluntary restitution, while commendable, was not a basis for a downward departure. The guidelines do not reward financially able defendants who voluntarily make restitution after they are caught. The restitution was considered in granting a two-level acceptance of responsibility reduction, and sentencing defendants at the bottom of the applicable guideline range. Defendants were not entitled to double credit for the restitution. U.S. v. Flowers, 55 F.3d 218 (6th Cir. 1995).
6th Circuit finds lack of weapon and small amount of cash no reason to depart downward for career offender. (715) Defendant pled guilty to two unarmed robberies. Because of his extensive felony record, he was sentenced as a career offender. Defendant sought a downward departure because he had no weapons and secured only a small amount of cash. He argued that these would have been relevant sentencing considerations if he were sentenced for bank robbery alone. The Sixth Circuit found that the lack of weapon and small amount of cash did not warrant a departure from the career offender guideline. The significance of the bank robbery charges stemmed from what they indicated as to defendant’s recidivist tendencies. His sentence was driven by his being a repeat offender, not the precise nature of the violent felony that made the career offender provisions applicable. U.S. v. Byrd, 53 F.3d 144 (6th Cir. 1995).
6th Circuit approves upward departure based on harassment of victims and disruption to IRS. (715) Defendant filed 79 false forms with the IRS, reporting that he had paid various individuals and businesses miscellaneous income, and also claiming a refund of $3,000,000. The district court departed upward under § 5K2.0, finding the applicable guideline (§ 2T1.3) did not consider defendant’s malice toward, and systematic harassment of, his victims. The court also relied on § 5K2.7, based on the disruption to the IRS caused by the 79 false forms. The 6th Circuit affirmed. Defendant’s activity went far beyond that contemplated by § 2T1.3. He not only attempted to evade paying his own taxes and impeded the collection of others’ taxes, but he used his scheme to harass people who had the misfortune to come in contact with him. Defendant caused substantial disruption to the government. IRS employees expended enormous effort to identify and correct the false information resulting from defendant’s filings. U.S. v. Heckman, 30 F.3d 738 (6th Cir. 1994).
6th Circuit says aggregation of factors did not justify downward departure. (715) Police found a sawed-off shotgun under defendant’s bed. The district court departed downward based on a combination of factors: (a) defendant did not actively seek the weapon, but purchased it from one of his bar patrons, (b) he was not the one who altered the weapon, (c) he did not use it to commit an offense, and (d) the weapon was only discovered because defendant’s girlfriend turned him in after a domestic dispute. Assuming without deciding that a totality of the circumstances approach to departures is proper, the 6th Circuit rejected the departure here because the guidelines contemplated all of the factors the district court considered. First, defendant’s illegal possession continued for 15 years. Second, both the guidelines and the statute recognize that possession of a sawed-off shotgun is distinct from the offense of altering a weapon. Third, § 2K2.1(b)(5) of the guidelines takes into account the fact that some illegal weapons are merely possessed, while others are used for illegal purposes, by providing for a four-level enhancement where the weapon is used for illegal purposes. Finally, § 5G1.3 instructs the court how to proceed when sentencing a defendant already serving a sentence for a related offense. U.S. v. Dalecke, 29 F.3d 1044 (6th Cir. 1994).
6th Circuit prohibits departure for prompt liquidation of assets to pay restitution. (715) The district court directed defendant to liquidate his assets and pay the proceeds to the government within two weeks as restitution. At sentencing a month later, defendant had liquidated all his assets except the clothes he was wearing and $20 in his pocket. The 6th Circuit rejected a downward departure based in part upon defendant’s prompt liquidation of assets. Defendant’s restitutionary payments were not made voluntarily before adjudication of guilt, but pursuant to a court order after adjudication of guilt. The court expressly demanded prompt compliance. A downward departure based on the ability to make restitution conflicts with § 5H1.10, which prohibits a departure based on socio-economic status. Senior Judge Celebrezze dissented. U.S. v. DeMonte, 25 F.3d 343 (6th Cir. 1994).
6th Circuit approves departure based on extraordinary level of cooperation. (715) The district court departed downward in part based on defendant’s “extraordinary level of cooperation” with authorities, since he had provided the government with information about previously undiscovered crimes that he had committed. The 6th Circuit held that defendant’s conduct was sufficiently unusual to warrant a downward departure. It was unlikely the authorities would have discovered defendant’s prior offense without his disclosure. Although the plea agreement technically required the disclosure, the agreement did not force defendant to reveal it. Defendant’s conduct did not fall under § 3E1.1, since the prior theft was not relevant conduct. The disclosure exposed defendant to potential liability, since even if the federal government could not prosecute, the state could. Judge Batchelder dissented. U.S. v. DeMonte, 25 F.3d 343 (6th Cir. 1994).
6th Circuit permits departure for career offender based on age of priors, rehabilitation, and family. (715) After drinking and using cocaine, defendant robbed a bank. Before his arrest, he voluntarily began a detoxification program, was referred for psychiatric treatment, and was prescribed anti-psychotic drugs. Because of an aggravated assault in 1976 and a felonious assault in 1985, defendant was classified as a career offender. This raised his criminal history category from IV to VI, and his offense level from 20 to 32. The district court departed down to category V and offense level 19 based on the age of the prior convictions, the time intervening between his convictions, and his family responsibilities (he was the sole caretaker for his ill elderly parents). The 6th Circuit affirmed. A court may consider the age of prior convictions in determining the likelihood of recidivism. U.S. v. Fletcher, 15 F.3d 553 (6th Cir. 1994).
6th Circuit reverses upward departure for old convictions and drunk driving offenses. (715) The district court departed upward because (a) four of defendant’s prior felonies did not appear in his criminal history score because they were too old, (b) his criminal history category was already at the highest level, (c) he continued to drive after numerous drunk driving convictions and after license revocation, (d) his purpose in using the false social security number was to obtain a new driver’s license, and (e) he was arrested for drunk driving while using the false license. The 6th Circuit reversed. The extent of defendant’s criminal history was not so severe that it justified an upward departure. Defendant had 13 criminal history points, the minimum number necessary for category VI. Moreover, section 4A1.2(e)(3) specifically excluded convictions more than 15 years old from a defendant’s criminal history score. The three remaining grounds for the departure, all concerning defendant’s underlying purpose in committing the offense, were adequately addressed in the guidelines. U.S. v. Eve, 984 F.2d 701 (6th Cir. 1993).
6th Circuit rejects upward departure based on defendant’s greed and danger of narcotics to society. (715) Defendant sold lidocaine hydrochloride, a non-controlled substance used to cut cocaine, to a cocaine dealer and eventually pled guilty to selling drug paraphernalia. Because no specific guideline applied to defendant’s offense, he was sentenced under the most analogous guideline, section 2D1.7 (Unlawful Sale or Transportation of Drug Paraphernalia). The district court departed upward from a guideline range of 6 to 12 months to a sentence of 30 months because (a) defendant was motivated by greed, (b) the danger of narcotics to society, and (c) the guidelines did not adequately take into account the seriousness of defendant’s offense. The 6th Circuit reversed, finding that greed and the danger of narcotics to society were not proper grounds for departure. Judge Kennedy dissented, since application note 1 to section 2D1.7 authorizes an upward departure in cases involving large-scale dealers or distributors. U.S. v. Gray, 982 F.2d 1020 (6th Cir. 1993).
6th Circuit reverses downward departure even though defendant never approached intended kidnap victims. (715) Police uncovered a plot by defendant to kidnap the owners of two jewelry stores, possibly murder them, and then rob their stores. Defendant was convicted of transporting a firearm in interstate commerce with intent to commit a felony, in violation of 18 U.S.C. section 924(b). As a result of the interplay between the firearms, conspiracy and kidnapping guidelines, defendant had a guideline range of 121 to 151 months. The district court departed downward to only 36 months, in part because section 924(b) is used almost exclusively after a crime has been committed, and the victims here were never even confronted by defendant. In addition, it found that the psychological evaluation was insufficient to determine defendant’s intent or a prognosis for future dangerous behavior. The 6th Circuit reversed, finding neither reason supported a downward departure. Nothing in the wording of section 924(b) or guideline sections 2K2.3 or 2X1.1 contains a requirement that the intended offense be consummated. U.S. v. Holmes, 975 F.2d 275 (6th Cir. 1992).
6th Circuit rules district court failed to state adequate reasons for downward departure. (715) Defendant was convicted of bond-jumping. The district court departed downward after noting that defendant’s psychological stress at the time of sentencing on the underlying charges might serve as a basis for departure. The 6th Circuit remanded for resentencing, finding this statement was not sufficient to permit meaningful review of the reasons for the departure. U.S. v. Kincaid, 959 F.2d 54 (6th Cir. 1992).
6th Circuit reverses downward departure based on dissatisfaction with harshness of career criminal provisions. (715) As a career offender, defendant had a guideline range of 210 to 262 months. The district court departed downward to 63 months because his two predicate offenses were more than 10 years old, and if sentenced as a career offender, he would receive a much harsher sentence than his more culpable co-conspirators. The 6th Circuit reversed, ruling that a court may not depart downward because it believes a career offender sentence would be excessive. With respect to the age of the prior convictions, the Sentencing Commission has specifically determined that offenses committed within 15 years of the instant offense are to be considered. Finally, the objective of the guidelines is not to eliminate disparity between defendants in the same case who have different criminal records, but to eliminate unwarranted disparities nationwide. To reduce a defendant’s sentence because of a perceived disparity with a co-defendant’s sentence creates a new and unwarranted disparity between the first defendant and the sentences of other defendants nationwide who are similarly situated. U.S. v. LaSalle, 948 F.2d 215 (6th Cir. 1991).
6th Circuit reverses upward departure which was based upon crime’s impact upon society. (715) Defendant was convicted of being a felon in possession of a firearm after being involved in a fight in a store. The district court departed upward because it found that defendant’s crime had a “major impact on society.” Defendant showed “a total disregard for any of the rules of society in relation to this particular crime. . . .[and] “has done so in relation to his whole total life.” The 6th Circuit found that the circumstances relied upon by the sentencing judge were not sufficiently unusual to warrant an upward departure. The very factors relied upon by the court were the same factors that led to a criminal history category of VI for defendant. U.S. v. Wolak, 923 F.2d 1193 (6th Cir. 1991).
6th Circuit upholds upward departure where guideline sentence would result in sentence less than defendant’s previous conviction for same offense. (715) Defendant pled guilty to being a felon in possession of a firearm. Defendant had several prior felony convictions, one of which was for being a felon in possession of a firearm. The 6th Circuit found that the fact that the prescribed guideline range would result in a sentence less than the sentence which the defendant had previously received for the same offense justified the upward departure. Judge Ryan, concurring in the result, argued that the analytical framework adopted by the 6th Circuit in U.S. v. Joan, 883 F.2d 491 (6th Cir. 1989), for analyzing a district court’s upward departure, was unduly complex and did not give enough discretion to the sentencing court. U.S. v. Barnes, 910 F.2d 1342 (6th Cir. 1990).
6th Circuit disapproves upward departure based on use of intermediary and “out of town” status. (715) Defendant pled guilty to aiding and abetting a false statement in the acquisition of a firearm. The sentencing court departed upwards because the defendant was involved with semi-automatic weapons, used an intermediary in buying the firearm, and came to Ohio from New York to work in crack houses. The 6th Circuit ruled that it was proper to consider the nature of the firearm. However, it was improper to depart on the basis of use of an intermediary because that factor had been accounted for when defendant received two points for being an “organizer”. Moreover, the fact that defendant came from out of town and, on that account, was treated more stringently than a resident, was an improper basis for departure. U.S. v. Robinson, 898 F.2d 1111 (6th Cir. 1990).
6th Circuit rules departure was warranted given circumstances of defendant’s offenses. (715) The district court departed upwardly from the guidelines by 35 months and the defendant appealed. The Sixth Circuit affirmed the sentence, holding the departure reasonable under the circumstances. The fact that the defendant had a prior drug conviction in a foreign country, had exhibited a propensity to commit future crimes, and had maintained himself primarily through criminal activity since his arrival in the U.S. all combined to constitute factors not adequately considered by the Commission. An extended discussion of the procedure for departure and appellate review. U.S. v. Rodriguez, 882 F. 2d 1059 (6th Cir. 1989).
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7th Circuit affirms failure to consider departure for voluntary disclosure of offense. (715) Defendant operated a Ponzi scheme. He argued for the first time on appeal that the court erred by failing to address § 5K2.16, which suggests downward departures may be appropriate for defendants who voluntarily disclose their crimes and accept responsibility for them “if such offense was unlikely to have been discovered otherwise.” The Seventh Circuit found no error, let alone a plain or obvious one. Section 5K2.16 applied only if defendant’s fraud was unlikely to have been discovered without his disclosure. It did not apply if his disclosure was motivated by his knowledge that discovery was likely or imminent. Defendant’s own account of his crimes showed that discovery was inevitable and probably imminent when he confessed in December 2008. One investor/victim was demanding the return of $500,000 in principal within ten days in November 2008. Defendant knew he could not make the payment, though he scrambled and continued to defraud new victims in those last weeks of 2008. U.S. v. Castaldi, __ F.3d __ (7th Cir. Feb. 24, 2014) No. 10-3406.
7th Circuit allows crack reductions for defendants who were sentenced below mandatory minimums. (715) In separate cases, defendants moved for sentence reductions based on amendments to the crack guidelines. They had both provided substantial assistance, and were both serving 100-month sentences, which fell below the 120-month mandatory minimum. Relying on guideline § 5G1.1, their judges found that defendants’ sentencing ranges had not been reduced by the guideline amendments. Section 5G1.1 provides that, when all or part of a guideline range lies below a statutory minimum sentence, the statutory minimum becomes the lower end of the range. If § 5G1.1 applied, then the amended range for defendant Moton was 120 months, and the amended range for defendant Wren was 120-125 months. The Seventh Circuit rejected this analysis. The court is supposed to start with its original sentencing calculation, then swap the amended guideline range into that calculation without making any other change. If § 5G1.1 did not affect the original calculation, it does not come into play when a court considers the effect of a retroactive change to the guidelines. The original calculations for defendants did not include the use of § 5G1.1 to set the range at a statutory minimum. U.S. v. Wren, 706 F.3d 861 (7th Cir. 2013).
7th Circuit rejects cultural assimilation departure where defendant did not move to U.S. until he was adult and had lengthy criminal history. (715) Defendant was convicted of illegal reentry after deportation, and was sentenced to 66 months. On appeal, he challenged the district court’s refusal to depart downward under Note 8 to § 2L1.2, on the ground that defendant had “assimilated” to the local culture. The Seventh Circuit found that defendant was ineligible for a cultural assimilation departure because he did not move to the U.S. until he was an adult (19), and because he had been convicted eight additional times after his illegal reentry. The district court recognized that the “draw of being a responsible parent” might explain why defendant illegally reentered the U.S. in the first place, but also found that these same strong familial ties continued to create a significant risk that he would reenter the country again in the future. U.S. v. Gonzalez-Lara, __ F.3d __ (7th Cir. Dec. 11, 2012) No. 11-3892.
7th Circuit rejects cultural assimilation departure for defendant with extensive criminal history. (715) Defendant pled guilty to being in the United States without permission after he had been deported. He was sentenced to 71 months, at the top of his advisory guideline range. He argued that he should have been given a lenient sentence because he had moved to the United States at the age of 3 and so had undergone “cultural assimilation,” i.e., he had become in a practical sense an American. However, under Note 8(C) to § 2L1.2, a departure based on cultural assimilation is proper only when “such a departure is not likely to increase the risk to the public from further crimes of the defendant.” Given defendant’s criminal record, which included both arrests and a conviction for crimes that he committed after his illegal reentry, the Seventh Circuit found no basis for a cultural-assimilation departure. U.S. v. Lopez-Hernandez, __ F.3d __ (7th Cir. July 27, 2012) No. 11-3854.
7th Circuit says court is not required to depart based on district’s lack of fast-track program. (715) Defendant pled guilty to illegal reentry. He argued that he should have received a downward departure based on the lack of a fast-track program in the district. He also contended that the district court falsely believed it could not consider the lack of a fast-track program. The Seventh Circuit rejected both arguments. The sentencing transcript indicated that the court was aware of its authority regarding fast-track considerations. The court rejected defendant’s request, noting that his violent felony conviction would likely disqualify him from fast-track treatment even in a district that had such a program. U.S. v. Garcia-Ugarte, __ F.3d __ (7th Cir. July 27, 2012) No. 11-1990.
7th Circuit outlines evidentiary requirements for reduction based on fast-track disparity. (715) In this consolidated appeal, the Seventh Circuit considered what evidentiary showing a defendant charged with being found in the U.S. after deportation must make before a court is obliged to consider his request for a lower sentence to account for the absence of a fast-track program in that judicial district. The panel held that a court need not address a fast-track argument unless the defendant has shown that he is similarly situated to persons who actually would receive a benefit in a fast-track district. That means the defendant must promptly plead guilty, agree to the factual basis proffered by the government, and execute an enforceable waiver of specific rights before or during the plea colloquy. The defendant must establish that he would be eligible to receive a fast-track sentence in at least one district offering the program and submit the likely imprisonment range in that district. Unless and until the defendant meets these preconditions, his “disparity” argument is illusory and may be passed over in silence. U.S. v. Ramirez, __ F.3d __ (7th Cir. Dec. 23, 2011) No. 09-3932.
7th Circuit affirms decision not to depart downward for cultural assimilation. (715) Defendant pled guilty to reentering the U.S. following deportation. He requested a sentence below the advisory sentencing range based in part on his “cultural assimilation,” as contemplated in a not-yet-effective amendment to the Guidelines. See §2L1.2, note 8 (2010). The district court declined to adjust his sentence on this basis because the amendment was not yet in effect and it considered defendant to be a risk to the public in light of his criminal past. The Seventh Circuit held that the district court adequately explained its reasons for denying the departure. First, the court did not commit any procedural error by applying the Guidelines in effect at the time of sentencing. While it could have considered the pending amendment, it was not required to do so. Second, the court noted that the departure was authorized only if it was not likely to increase the risk to the public of further crimes of the defendant. The court reviewed defendant’s criminal history, and found this was not the case. U.S. v. Lua-Guizar, __ F.3d __ (7th Cir. Aug. 26, 2011) No. 10-3042.
7th Circuit says conditions of pretrial confinement were not so egregious as to merit sentencing reduction. (715) Defendant argued that the district court ignored his argument that he should receive a shorter sentence to “compensate” for his two-and-one-half-month pretrial stay at a county detention center, where he clamed he was denied care for his toothache, lived in poorly ventilated quarters, and was not able to exercise. The Seventh Circuit found no error, since even if it accepted defendant’s descriptions of the conditions of his confinement as true, the conditions were not unusually harsh. Because defendant’s sentence fell within the guidelines’ recommended range, the appellate court would presume that the sentence was reasonable unless defendant could show that the court did not adequately consider the sentencing factors in 18 U.S.C. § 3553(a). Harsh or unpleasant conditions of pretrial confinement are not among the § 3553(a) factors. While other circuits have found, prior to Booker, that extraordinary conditions of pretrial confinement could justify a downward departure, the conditions involved in those cases were far more severe than the conditions alleged by defendant. The judge here said that he had read defendant’s submission, which was enough to show that he considered defendant’s argument and rejected it. U.S. v. Ramirez-Gutierrez, 503 F.3d 643 (7th Cir. 2007).
7th Circuit says disparity between state and federal penalties is not a basis for departure. (715) Defendant pled guilty to one count of possession of child pornography, resulting in a guideline range of 63-78 months. The court imposed a sentence of 63 months. The Seventh Circuit held that the district court properly refused to consider the sentence defendant might have received had he been charged with the same crime in state court. Allowing a departure because a defendant might have been subjected to different penalties in state court would make federal sentences dependent on the law of the state in which the sentencing court was located. U.S. v. Schmitt, 495 F.3d 860 (7th Cir. 2007).
7th Circuit holds that defendant’s status as deportable alien did not make guidelines sentence unreasonable. (715) Defendant argued that his status as an alien who would be deported immediately following his release from prison warranted a below-guideline sentence, since it precluded him from receiving an early release to a halfway house and otherwise affected the programs and services available to him while in prison. Prior to U.S. v. Booker, 543 U.S. 220 (2005), the Seventh Circuit held that these differences never justified sentence below the guidelines. Defendant argued that he was entitled to a reduction to avoid unwarranted disparities between the effective punishment meted out to citizens and the punishment of aliens. See 18 U.S.C. § 3553(a)(6). The Seventh Circuit held that the district court’s failure to reduce defendant’s sentence based on his status as an alien did not make the sentence unreasonable. Sentences within the guideline range are “the surest way to comply with § 3553(a)(6) for the guidelines are designed to ensure like treatment of like situations, and thus to avoid unwarranted disparities.” A sentence within a properly calculated guideline range is not unreasonable by reference to § 3553(a)(6). See U.S. v. Boscarino, 437 F.3d 634 (7th Cir. 2006). U.S. v. Babul, 476 F.3d 498 (7th Cir. 2007).
7th Circuit holds that sentencing disparity caused by fast-track program did not make defendant’s sentence unreasonable. (715) Defendant pled guilty to reentering the U.S. after deportation. The district court imposed a sentence of 41 months, which was at the low end of his advisory guideline range. Defendant had requested a sentence of 24 months, contending that a longer sentence would create a sentencing disparity between himself and similarly situated defendants prosecuted in districts that employ a “fast-track” sentencing program for this type of crime. The Seventh Circuit refused to hold that such a disparity made defendant’s sentence unreasonable. Congress expressly recognized that fast-track procedures would cause discrepancies. The fact that some courts have chosen to avoid disparities did not mean that all district courts are compelled to adjust a sentence downward from the advisory guideline range in order for that sentence to be reasonable. Such a disparity is merely one of several factors that must be considered by a court in crafting a particular defendant’s sentence. A sentence within the advisory guidelines range presumptively takes into consideration all of the other factors set forth in §3553(a), and defendant has not satisfied his burden of rebutting the reasonableness of his sentence. U.S. v. Martinez-Martinez, 442 F.3d 539 (7th Cir. 2006).
7th Circuit holds that departure for district court’s lack of fast track program was not reasonable. (715) Two defendants were convicted in Wisconsin district courts of entering the U.S. without permission after previously being deported. In sentencing the first defendant, the judge found noted that because the Eastern District of Wisconsin had not implemented a fast-track program to prosecute illegal-reentry cases, the use of fast-track programs in other districts created an unwarranted sentencing disparity between defendant and other immigration offenders. Accordingly, he departed downward and sentenced defendant to 27 months, below his guideline range of 41-51 months. A different Wisconsin district court declined to bestow a similar benefit on a second defendant because a fast track problem was not used in Wisconsin. The second defendant received a 30-month sentence. The Seventh Circuit held that the imposition of a sentence that reflected a downward departure for the district lack of fast-track program was not reasonable. A sentence imposed after a downward departure is not by itself reasonable simply because a district does not have a fast-track program. U.S. v. Galacia-Cardenas, 443 F.3d 553 (7th Cir. 2006).
7th Circuit upholds sentence for unrepentant, repeat pedophile that exceeded guideline range by 100 months. (715) Defendant was convicted of traveling in interstate commerce to engage in a sexual act with a juvenile and interstate stalking. Although the applicable sentencing range was 100-137 months’ imprisonment, the district court imposed the maximum sentence of 240 months. The Seventh Circuit found the sentence reasonable based on the factors listed in 18 U.S.C. § 3553(a). There were at least ten specific areas of concerns cited by the district court, including defendant’s history of “trolling” the Internet to solicit adolescent girls for sex, the prolonged duration of and manipulation involved in defendant’s sexual relationship with the 15-year old victim, his prior and repeated sexual abuse of his own daughter when she was three to five years’ old, his professed disagreement with “man’s law” that prohibited adult men was having sex with teenage girls, his belief that there was nothing wrong with his sexual activity with his daughter, his threats of violence against the victim’s family (including bringing a gun to stalk the victim and her family), his creation and possession of child pornography, and his suggestion that when he got out of jail he would reunite with the victim and move to Ecuador. These factors called for the maximum sentence possible. U.S. v. Jordan, 435 F.3d 693 (7th Cir. 2006).
7th Circuit remands where court gave inadequate explanation of why it imposed guideline sentence. (715) A confidential informant asked defendant for help in obtaining crack cocaine. Defendant introduced the informant to his marijuana dealer. On nine occasions, with defendant present but not participating in the transaction, the dealer sold crack to the informant. Defendant received payments of $10 to $20 from the informant on eight of the transactions, for a total of $100. Defendant’s attorney presented a number of mitigating factors, such as defendant’s long history of psychiatric illness, his meager earnings from the crack transactions, and the fact that defendant had only agreed to accompany the informant to the transactions because they would be taking place in a rough neighborhood and defendant was concerned for his “friend’s” safety. The district court imposed a 57-month sentence, refusing to impose a sentence below the guideline range because defendant had participated on nine different occasions and because he decided not to cooperate against his dealer. The Seventh Circuit remanded for resentencing, finding the court’s explanation inadequate. The judge should not have cited defendant’s “refusal” to cooperate, since there was no information as to why he did not cooperate. In addition, the judge failed to mention defendant’s psychiatric problem and substance abuse. “We cannot have much confidence in the judge’s considered attention to the factors in this case, when he passed over in silence the principal argument made by the defendant …. Diminished mental capacity is a ground stated in the Sentencing Guidelines themselves for a lower sentence. U.S.S.G. § 5K2.13.” A judge who fails to mentioned a ground of recognized legal merit (provided it has a factual basis) is likely to have committed an error or oversight.” U.S. v. Cunningham, 429 F.3d 673 (7th Cir. 2005).
7th Circuit looks at current version of § 2G2.2 to determine that upward departure was reasonable. (715) Defendant pled guilty to three child pornography charges. The district court, finding the images the most shocking he had seen in 16 years, departed upward from a range of 70 to 87 months to a sentence of 236 months. The judge (1) added the equivalent of four levels to account for defendant’s possession of 42 images of children engaged in bestiality; (5) added the equivalent of five levels for the number of images in defendant’s possession (4,638); and (3) increased defendant’s criminal history category from I to II to account for additional uncharged criminal conduct. The Seventh Circuit affirmed. “[A]fter Booker, what is at stake is the reasonableness of the sentence, not the correctness of the ‘departures’ as measured against pre-Booker decisions that cabined the discretion of sentencing courts to depart from guidelines that were then mandatory.” Although defendant’s sentence was substantially longer than the guidelines range under § 2G2.2 as it existed when he committed his crimes, § 2G2.2 has since been amended twice to increase the punishment for trafficking in child pornography. Viewing the current version of § 2G2.2 as one benchmark to gauge the reasonableness of defendant’s sentence, the 236-month sentence defendant received would fall within the advisory range instead of substantially above it, and thus would be presumptively reasonable. Given the reasons for departure, a sentence of this length was amply justified. U.S. v. Johnson, 427 F.3d 423 (7th Cir. 2005).
7th Circuit rejects downward departure based on more onerous imprisonment conditions for deportable alien. (715) The district court granted defendant a one-point downward departure based on its finding that his alien status and deportability would cause the conditions of confinement to be more “onerous.” The court found that defendant would suffer a substantial hardship because the Bureau of Prison’s placement policy for deportable aliens “limits the discretion of the Bureau of Prisons to take into account among other things factors that would warrant more humanitarian designations like family and other matters.” The Seventh Circuit reversed. Any defendant, citizen or alien, may be placed far from loved ones and family. Thus, this circumstance is not substantially more onerous than contemplated by the guidelines. Furthermore, “application of this logic would amount to a per se downward departure for any deportable alien, which standing alone, is an impermissible basis for granting a downward departure.” U.S. v. Macedo, 406 F.3d 778 (7th Cir. 2005).
7th Circuit finds no evidence that judge did not understand authority to depart. (715) Defendant entered the U.S. from her native Nigeria with 80 pellets of heroin in her stomach. At sentencing, she argued for a downward departure premised on her belief that after completing her sentence she would be deported to Nigeria and imprisoned again for the same conduct. Degree 33 of Nigeria’s National Drug Law Enforcement Agency subjects any Nigerian citizen who is convicted of a drug offense abroad and thereby “brings the name of Nigeria into disrepute” to five years’ imprisonment and forfeiture of all assets and property. The district court declined to depart, and the Seventh Circuit dismissed defendant’s appeal, rejecting defendant’s claim that the court erroneously believed that it lacked authority to depart. First, the court used no language that would evidence a belief that it could not depart. It did not explicitly assert that it lacked authority, nor did it express doubt as to its authority to depart. In fact, the court evidenced its belief that it had discretion by referring to Koon’s categories of sentencing factors: the court noted that defendant’s future punishment was not a prohibited factor like race or national origin. The comments cited by defendant should be read in the context of the judge’s other statements to the effect that Nigeria’s laws were for Nigeria alone, and that defendant’s prospect of future imprisonment in Nigeria was not the concern of a U.S. court. U.S. v. Abimbola-Amoo, 390 F.3d 937 (7th Cir. 2004).
7th Circuit says failure to sua sponte depart downward not in error. (715) Defendant argued that the district court should have granted a downward departure to no prison time as a remedy for what he saw as police misconduct. The alleged misconduct consisted of the officers’ possibly faulty estimate of the time at which they confirm that a license plate was registered to defendant and at which a canine unit arrived at a hotel to conduct a drug sniff of defendant’s car. The Seventh Circuit had “serious doubts about whether police misconduct that did not have any effect on the nature of the offense or the individual offender would ever be a permissible ground for departure.” Moreover, a district court’s failure to depart downward sua sponte is not erroneous. U.S. v. Washburn, 383 F.3d 638 (7th Cir. 2004).
7th Circuit rejects upward departure for unrealized appreciation of artwork. (715) Defendant was convicted of fraud in connection with the sale of Walt Disney animation cels. The district court originally found that the total loss stemming from defendant’s fraudulent activities (both charged and uncharged) was $231,000. A 7th Circuit panel remanded because there were no findings that defendant’s uncharged conduct was unlawful. On remand, a different judge found that the total loss from sales to the three identified victims was $81,801, and then sua sponte added a three-level upward departure because the identifiable losses grossly understated the actual loss: (1) one level because defendant’s overall earnings of $420,000 from 1994-1999 was virtually all fraudulently generated; (2) one level because the extent of the intended loss as shown by the seizure of $500,000 in inventory, and (3) one level because of the loss to purchasers from unrealized appreciation. The Seventh Circuit affirmed the first two grounds for departure, but rejected the departure based on unrealized appreciation. Although misrepresentation of a rate of return may in some circumstances be included in a loss calculation, unrealized appreciation may not be used without a guaranteed rate of return or other indication of a specific degree of appreciation. While defendant promised his customers they would realize an appreciation in value because he was selling his artwork at below market value, he did not make specific representations as to actual market value of those pieces. U.S. v. Schaefer, 384 F.3d 326 (7th Cir. 2004).
7th Circuit says difference in end-of-sentence confinement conditions not ground for downward departure. (715) Defendants received modest downward departures because they were aliens who would not receive certain “end of sentence” considerations (like a halfway house) that would be available to them if they were citizens of the United States. This perceived “disparate” treatment was ameliorated, according to the district court, by the sentence reduction it ordered. The Seventh Circuit reversed, holding that departures based merely on a defendant’s status as a deportable alien are not authorized. Denying certain end-of-sentence modifications to deportable aliens cannot be viewed as a term of imprisonment “substantially more onerous” than the guidelines contemplate in fixing a punishment for a crime. Their conditions of confinement will be exactly what the guidelines require, a sentence of imprisonment. Slight differences in end-of-sentence confinement conditions between citizens and aliens, without more, is not a proper ground for departure. U.S. v. Meza-Urtado, 351 F.3d 301 (7th Cir. 2003).
7th Circuit rejects upward departure given disparity between sentence imposed and maximum sentence calculated by probation department. (715) Just prior to defendant’s plea colloquy, the U.S. approved a plea agreement calling for a 57-month sentence. However, defendant was dissatisfied with the government’s refusal to move for a downward departure for his substantial assistance. Disregarding the court’s warning that a blind guilty plea could result in a more severe sentence, he opted to plead guilty on the advice of counsel. Based on a higher loss amount than contemplated, the probation department recommended an offense level that would have resulted in a sentence of 70-87 months. During the plea colloquy and interviews with the presentence investigator, defendant made inaccurate statements regarding his finances. However, these statements did not obstruct justice. Between the time of his decision to reject the plea agreement and his sentencing, neither the prosecution nor the court learned of additional aggravating factors that would constitute grounds for an upward departure. All of the factual basis for the upward departures had come to light prior to the plea colloquy. Nonetheless, at the sentencing the district court departed upward and imposed a prison sentence of 262 months, triple the maximum sentence recommended by the probation department. Defendant’s co-conspirator was sentenced several weeks later to a 38-month term under a plea agreement. Based on all of these factors, the Seventh Circuit found that the court’s upward departure, even if made on proper grounds and adequately supported by factual findings, resulted in a sentence that unreasonably exceeded the applicable guidelines and amounted to an abuse of discretion. The final offense level calculation of 27, which corresponded to a sentence of 70 to 87 months, adequately reflected the seriousness of and would provide a just punishment for defendant’s offenses, and would avoid an unwarranted disparity between the sentences of defendant and his co-conspirator. U.S. v. Carroll, 346 F.3d 744 (7th Cir. 2003).
7th Circuit rejects departure based on combination of factors. (715) The Seventh Circuit held that a two-level downward departure based on a combination of factors was not warranted. All of the factors but one reflected defendant’s nationality: he would be in prison far from his family; he might be ineligible for transitional release, such as a halfway house; and once the sentence ended, he might spend time in custody awaiting deportation. Section 5H1.10 provides that national origin is not relevant to the sentence. Moreover, defendant was eligible for transfer to the United Kingdom under the Strasbourg Convention but had not sought its benefits. Therefore, he could not complain about the distance to his family, diminished access to transitional release, or the potential for extra detention pending deportation. The only factor unrelated to defendant’s citizenship was his health. However, although defendant suffered from skin cancer and heart disease, the district court believed that these would be as treatable in prison as outside. None of these reasons, individually or in combination, justified a departure. U.S. v. Mallon, 345 F.3d 943 (7th Cir. 2003).
7th Circuit says guideline failure to include enhancement for possession of sadistic pictures did not bar departure. (715) Defendant was convicted of possessing child pornography. At the time of sentencing, the relevant guideline, § 2G2.4, did not account for the possession of sadistic, masochistic, or violent images. The district court departed upward under § 5K2.0, concluding that the disturbing nature of the images possessed by defendant was an aggravating factor. Defendant argued that the fact that § 2A2.2(b)(3) mandates an enhancement for sadistic, masochistic or violent depictions, and § 2G2.2 did not have a comparable provision, showed that the Sentencing Commission considered the factor in promulgating the guideline, but decided not to punish it. However, the Commission’s failure to include a comparable provision in § 2G2.4 did not mean that sentencing courts are prohibited from considering the possession of sadistic, masochistic, or violent depictions as an aggravating factor. The Seventh Circuit affirmed the departure. U.S. v. Miller, 343 F.3d 888 (7th Cir. 2003).
7th Circuit agrees that court could not depart in later prosecution for crime that was ongoing at time of first sentencing. (715) In 1996, defendant was sentenced for his involvement in a 1978-1992 bookmaking operation. Unbeknownst to the court, defendant had been participating in a second illegal gambling business for several years. Although the government knew of the other bookmaking enterprise at the time of sentencing, it did not disclose its investigation until four years later. Defendant was convicted of a second racketeering charge four years later. Citing U.S. v. Martinez, 77 F.3d 332 (9th Cir. 1996), defendant claimed that he was entitled to a downward departure based on the government’s pre-indictment delay, because the government’s failure to alert the 1996 sentencing court of his participation in the second enterprise prevented him from receiving a “single enhanced sentence” at his 1996 sentencing. The Seventh Circuit held that the district court lacked authority to depart on this ground, finding Martinez distinguishable. First, unlike the defendant in Martinez, at the time of his first sentencing, defendant was still engaged in the illegal conduct alleged in the second indictment. Moreover, the government had not completed its investigation of defendant’s second enterprise at the time of his first sentencing. Finally, defendant’s conduct in the second offense was distinct and separate from the activities involved in the first conviction, because they involved different co-conspirators and a different time period. U.S. v. Dote, 328 F.3d 919 (7th Cir. 2003).
7th Circuit rejects departure intended to avoid deportation that would separate defendant from children. (715) The district court departed downward by two levels because, without the departure, the guidelines would have required a sentence of more than one year, which would have required defendant’s deportation under INS regulations. Consequently, defendant’s two children, ages five and six and American citizens, would have to live with their father in the United States, or with their mother in the country to which she was deported. Such a result, the district court concluded, could not have been contemplated by the guidelines. The Seventh Circuit held that the departure constituted an abuse of discretion. The situation was not so different from other cases. The Commission could have anticipated that incarcerating a parent would have a disruptive impact on the family. “Although it is a sad fact that families are often separated by deportation, the situation in which one parent may remain in the country legally with children who are natural born American citizens, while the other parent is ordered deported, is by no means unique.” U.S. v. Hernandez, 325 F.3d 811 (7th Cir. 2003).
7th Circuit holds that voluntary payment of restitution was not sufficiently exceptional for departure. (715) The district court departed downward from a sentencing range of 18-24 months to a sentence of four months, citing defendant’s “exceptional acceptance of responsibility.” The basis for this was defendant’s partial payment of restitution before she was sentenced. The court also cited defendant’s family situation and her “horrible sexual abuse as a child.” The Seventh Circuit found that while defendant’s voluntary payment of partial restitution might support a reduction for acceptance of responsibility (which she received), it was not sufficiently extraordinary to warrant a downward departure. On the day of her sentencing, defendant pledged, in settling the victim’s civil suit, about $33,000, and paid roughly $4000 towards an $87,991 bill, just 42 percent of the amount she owed, not counting interest. There was nothing extraordinary about this or about the circumstances under which it was paid. U.S. v. Grasser, 312 F.3d 336 (7th Cir. 2002).
7th Circuit approves upward departure for defendant who managed property used to commit offense. (715) Defendant pled guilty to a number of firearms charges. He argued that the district court incorrectly applied an § 3B1.1(c) enhancement for his role in the offense, contending that the increase is proper only when there is another participant in the offense. The Seventh Circuit ruled that the district court properly departed upward under Application Note 2 to § 3B1.1. The Note provides that to qualify for an adjustment under § 3B1.1, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants. “An upward departure may be warranted, however, in the case of a defendant who did not organize, lead, manage, or supervise another participant, but who nevertheless exercised management responsibility over the property, assets, or activities of an organization.” The departure here was not an abuse of discretion. Defendant set up a sham corporation using friends and relatives to help him gain access to firearms he could not obtain personally. He recruited others to act as straw men in his gun purchase activities, and directed the operation himself. He maintained in his own home and business a veritable arsenal of weapons that were registered to this company, exercising management responsibility over the property, assets, or activities of a criminal organization. U.S. v. Fleischli, 305 F.3d 643 (7th Cir. 2002).
7th Circuit reverses departure for deportable alien where court did not examine how conditions of confinement would differ. (715) The district court made a four-level downward departure because of defendant’s status as a deportable alien. In U.S. v. Farouil, 124 F.3d 838 (7th Cir. 1997), the Seventh Circuit ruled that the district court violated Koon v. U.S., 518 U.S. 81 (1996) by refusing to consider whether defendant’s alienage warranted a downward departure. In U.S. v. Guzman, 236 F.3d 830 (7th Cir. 2001), the court clarified that a “defendant’s status as a deportable alien is relevant only insofar as it may lead to conditions of confinement, or other incidents of punishment, that are substantially more onerous than the framers of the guidelines contemplated in fixing the punishment range for the defendant’s offense.” Here, the district court made no finding that defendant would suffer conditions more onerous than those contemplated by the guidelines because of his status as an alien. Moreover, due to the nature of defendant’s offense and the probability of flight, it was unlikely that he would be entitled to participate in the types of discretionary prison alternatives often available to citizen-defendants. Since the court did not state how defendant’s conditions of confinement would differ as a result of his alienage, the Seventh Circuit vacated the sentence with instructions for the court to examine the actual effects that defendant’s alien status would have upon his sentence. U.S. v. Gallo-Vasquez, 284 F.3d 780 (7th Cir. 2002).
7th Circuit departs upward to take away benefit received at earlier sentencing. (715) 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 reaffirms that defendant must meet each of listed criteria for aggravated felony departure. (715) Defendant, convicted of illegally reentering the U.S. after deportation, received a 16-level increase under § 2L1.2(a) because the deportation followed a conviction for an aggravated felony. Under Note 5 to § 2L1.2, a court may depart downward if (a) the defendant has previously been conviction of only one felony offense; (b) the offense was not a crime of violence or firearms offense, and (c) the term of imprisonment imposed for the offense did not exceed one year. The district court denied defendant’s request for a departure under Note 5 because his 1998 conviction resulted in a term of imprisonment in excess of one year. Defendant argued that the judge erred in ruling that each of the Note 5 criteria must be satisfied in order to justify a departure. The Seventh Circuit found that defendant’s argument was precluded by its recent decision in U.S. v. Palomino-Rivera, 258 F.3d 656 (7th Cir. 2001), which held that a downward departure from the 16-point enhancement is authorized only if the defendant satisfies all three criteria listed in Note 5. U.S. v. Martinez-Garcia, 268 F.3d 460 (7th Cir. 2001).
7th Circuit says all three criteria in Note 5 needed for departure based on seriousness of aggravated felony. (715) Section 2L1.2(b)(1)(A) provides for a 16-level enhancement for defendants who illegally reenter the U.S. after being deported following the conviction of an aggravated felony. The district court ruled that defendant’s underlying felony – theft by taking – should not be treated the same as other, more serious aggravated felonies, and made an eight-level downward departure. Note 5 to § 2L1.2 authorizes a downward departure based on the seriousness of the aggravated felony if (A) the defendant has previously been convicted of only one felony offense; (B) the offense was not a crime of violence or firearms offense; and (c) the term of imprisonment imposed for such offense did not exceed one year. The Seventh Circuit held that a court may only depart downward based on the seriousness of the underlying aggravated felony if the defendant satisfied all three criteria listed in Note 5. The Sentencing Commission defined the heartland of § 2L1.2 by exclusion – if a defendant does not meet all three criteria listed in Note 5, then the case necessarily falls within the heartland of § 2L1.2. Although the government contended that defendant did not satisfy two of these three requirements, the record was unclear. On remand, the district court must make the required factual findings and only grant the departure if defendant qualifies under Note 5. U.S. v. Palomino-Rivera, 258 F.3d 656 (7th Cir. 2001).
7th Circuit holds that collateral consequences of deportation not extraordinary enough for departure. (715) Defendant, a resident alien of the U.S., pled guilty to traveling in interstate commerce for the purpose of engaging in sexual acts with a minor. At sentencing, his family testified that they came to the U.S. in 1987 from Peru to get away from defendant’s father, an alcoholic who physically and emotionally abused defendant, his mother, and siblings. Defendant had no family or friends in Peru other than his father. A psychologist opined that defendant had a “schizoid personality disorder,” and would suffer psychological harm if he returned to his father’s house. The district court departed downward by three levels based on “the enormously draconian deprivation that the deportation is going to effectuate in this case.” The Seventh Circuit reversed, holding that a departure based on the collateral consequences of deportation is justified only if the circumstances of the case are extraordinary. The facts in this case were not sufficiently extraordinary to warrant the departure. Departure on this basis would be akin to one based on “family ties” – a discouraged factor that is grounds for departure only in extraordinary circumstances. See USSG § 5H1.6. Similarly, to the extent that permanent separation from family, job, and the like are the necessary consequences of deportation for all aliens, an argument based on the effect of deportation comes very close to the deportation-as-punishment theory rejected in U.S. v. Guzman, 236 F.3d 830 (7th Cir. 2001). U.S. v. Bautista, 258 F.3d 602 (7th Cir. 2001).
7th Circuit refuses to overrule ban on departing in illegal re-entry case based on deportable alien status. (715) Defendant was convicted of illegally reentering the U.S. following deportation. The district court declined to grant a downward departure based on defendant’s status as a deportable alien, which would subject him to harsher conditions of confinement. See U.S. v. Gonzalez-Portillo, 121 F.3d 1122 (7th Cir. 1997) (barring departure based on deportable alien status for defendants convicted of illegal entry into the U.S. under 8 U.S.C. § 1326.) The Seventh Circuit refused to overrule Gonzalez-Portillo. The holding does not violate the mandate in Koon v. U.S., 518 U.S. 81 (1996) because it does not create a categorical ban on the use of deportable alien status for departure. Rather, it recognizes that the Sentencing Commission has already fully accounted for deportable alien status in fixing the penalty for offenses under 18 U.S.C. § 1326. U.S. v. Martinez-Carillo, 250 F.3d 1101 (7th Cir. 2001).
7th Circuit holds that father’s sexual assault on minor daughter was crime of violence. (715) Defendant received a 16-level aggravated felony enhancement based on his prior conviction for criminal sexual assault of his 13-year old daughter. Note 5 to § 2L1.2 permits a departure in certain circumstances if the aggravated felony increase overstates the seriousness of the defendant’s prior offense. This departure is not available if the aggravated felony constituted a crime of violence or a firearms offense. The Seventh Circuit held that defendant’s Illinois criminal sexual assault conviction constituted a crime of violence, and thus he was ineligible for the departure. A crime of violence includes “any offense … punishable by imprisonment for a term exceeding one year, that … presents a serious potential risk of physical injury to another.” Cases cited by defendant involved statutory rape and thus were distinguishable. Incest presents an aggravating factor that evokes a serious potential risk of physical injury. U.S. v. Martinez-Carillo, 250 F.3d 1101 (7th Cir. 2001).
7th Circuit says upward departure did not impermissibly double count use of firearm. (715) Defendant argued that the district court impermissibly double counted his use of a firearm by sentencing him to a seven-year consecutive sentence under 18 U.S.C. § 924(c) and USSG § 2K2.4(a), and departing upward from the guideline range to take into account the greater sentence he would have received had he not been convicted under § 924(c). The Seventh Circuit found no error. Sentencing courts may depart upward to ensure that defendants convicted under both § 924(c) and the underlying crime of violence do not receive a more lenient sentence by virtue of the § 924(c) conviction than if they had been convicted of the underlying offense alone. See, e.g. U.S. v. Ledford, 218 F.3d 684 (7th Cir. 2000). If defendant had not been convicted under § 924(c), the district court could have increase his base offense level by five under § 2B3.1(b)(2)(C), yielding a total offense level of 37 and a sentencing range of 360 months to life. See USSG § 2K2.4, Note 2. The district court’s upward departure placed defendant in the same sentencing range as if he had been convicted of the underlying offense alone. Nothing was counted twice. U.S. v. Banks-Giombetti, 245 F.3d 949 (7th Cir. 2001).
7th Circuit rejects departure where defendant confessed prior crimes while police searched house. (715) After police discovered defendant’s collection of child pornography and placed him under arrest, defendant admitted that he had sexually abused juveniles in the past and gave detectives the names of two boys. One of the “boys” confirmed that defendant had abused him 26 years earlier when the boy was 14 or 15. Defendant was convicted of enticing a minor to engage in a prohibited sexual act, and child pornography charges. Defendant moved for a downward departure under §§ 5K2.16 and 5K2.0 for his voluntary disclosure of his past instances of sexual abuse. The district court refused because it was not persuaded that “defendant’s disclosure of previous criminal conduct was not motivated by his belief that the conduct would be discovered inevitably in the course of the investigation.” The Seventh Circuit agreed that these were proper grounds for rejecting a § 5K2.16 departure. Under U.S. v. Besler, 86 F.3d 745 (7th Cir. 1996), a § 5K2.16 departure is warranted only when (1) the defendant voluntarily discloses the existence of, and accepts responsibility for, the offense prior to its discovery; and (2) the offense was unlikely to have been discovered otherwise. As a matter of law, the record contained sufficient evidence for the court to reach its finding. Defendant confessed once the police were searching his home and asking him whether he had sexually assaulted juvenile males. U.S. v. Lovaas, 241 F.3d 900 (7th Cir. 2001).
7th Circuit says defendant’s status as deportable alien relevant only as related to conditions of confinement. (715) The district court made a 25-level downward departure based in part on the fact that defendant was a deportable alien. The judge did not explain his reasoning but defense counsel argued that deportation was a form of punishment and therefore a given sentence imposed greater punishment on a deportable alien than on a citizen. The Seventh Circuit rejected this reasoning, since it implies that any alien who commits a crime should receive a shorter sentence than a citizen. However, a defendant’s status as a deportable alien could affect the conditions of imprisonment, by disentitling him from serving any part of his sentence in a halfway house, minimum security prison, or community confinement center. The Seventh Circuit has previously held that such harsher conditions of confinement can, in exceptional circumstances, justify a downward departure. See U.S. v. Farouil, 124 F.3d 838 (7th Cir. 1997). The Seventh Circuit noted that on remand, the district court was free to consider this possibility, although it would not justify a 25-level downward departure. U.S. v. Guzman, 236 F.3d 830 (7th Cir. 2001).
7th Circuit affirms acceptance departure for defendant who did not qualify for acceptance reduction. (715) Defendant sold equipment that buyers could use to transform cable television converters into devices that could descramble all encrypted cable programming. Although the district court found that he was not eligible for a § 3E1.1 acceptance of responsibility reduction, the court departed downward for acceptance of responsibility under § 5K2.0. The court found that defendant demonstrated a “non-heartland” acceptance of responsibility. He made early and consistent offers to the government to determine the legality of his business through a prompt civil declaratory judgment action. Moreover, he immediately discontinued his business following the verdict against him, froze his inventory, offered negotiation with the government concerning the disposal of his inventory, and offered his full assistance with respect to access to his inventory. The government argued that the district court did not have the authority to grant this departure after denying defendant a § 3E1.1 reduction. The Seventh Circuit disagreed, concluding that the district court correctly applied the applicable grounds for departure. U.S. v. Gee, 226 F.3d 885 (7th Cir. 2000).
7th Circuit approves upward departure based on SCAMS Act violation. (715) Defendants contacted over 65 people and informed them they had won prizes which they could only claim by sending defendants money for “taxes” and “fees.” The district court departed upward in part because defendants’ fraud violated the Senior Citizens Against Marketing Scams (SCAMS) Act, 18 U.S.C. § 2325 et seq. Defendant argued that the guidelines already adequately took into account the harm targeted by the SCAMS Act, noting that after Congress passed the Act, the Commission issued a report stating that it would review the Act, make any necessary changes, and submit those changes to Congress by May 1, 1995. Since that time, the Commission has not made any amendment that references the SCAMS Act. The Seventh Circuit was unconvinced that the Commission’s lack of action was proof that the SCAMS Act was considered by the Commission, and affirmed the departure. The existing guidelines, even including the 1998 amendment adding a two-level increase for use of mass marketing, do not contain the sharply increased penalties called for by Congress in the SCAMS Act. The conduct prohibited by the SCAMS Act merits more severe punishment than the guidelines provide, and the Commission has yet to adequately consider the increased punishments recommended by Congress and incorporate them into the guidelines. U.S. v. Coe, 220 F.3d 573 (7th Cir. 2000).
7th Circuit holds that consideration of amendment did not violate ex post facto clause. (715) The district court departed upward in part because defendants used mass marketing to commit their fraud. In concluding that the 1996 guidelines did not consider the use of mass marketing, the court considered a 1998 amendment to § 2F1.1 which called for a two-level increase where mass marketing was used to effectuate a fraud. The Seventh Circuit held that that the district court’s consideration of the amendment did not violate the ex post facto clause. A sentencing court may consider a subsequent guidelines amendment without violating the ex post facto clause for two purposes: (1) as evidence that a previous version of the guidelines did not adequately consider that factor, and (2) as a guide for determining how much of a departure is warranted for the aggravated conduct. The district court expressly stated that it considered the amendment solely as evidence that the Sentencing Commission had not adequately considered this factor in earlier versions of the guidelines, and as a framework for determining the degree of the departure. There was an adequate factual basis for the departure. Defendants used the telephones and mails to contact at least 65 victims. This number was sufficiently large to constitute a mass marketing scheme. U.S. v. Coe, 220 F.3d 573 (7th Cir. 2000).
7th Circuit departs upward where refusal to testimony against accomplice had elements of obstruction. (715) Defendant testified at trial against Reed, his robbery accomplice, and it ended in a mistrial. For his cooperation, defendant received a six-level downward departure. When Reed’s retrial began, defendant no longer wanted to testify against Reed. The district court warned defendant that he could be found in contempt. Defendant’s attorney then asked the government whether defendant would be entitled to additional sentencing credit, but the government refused. Defendant then refused to testify, claiming the government reneged on his plea agreement. He wrote a letter to Reed informing him that he had refused to testify or cooperate with the government in Reed’s prosecution. Reed presented the letter at his retrial to dispute the credibility of defendant’s original testimony. Defendant was convicted of criminal contempt. The Seventh Circuit affirmed an upward departure, finding defendant’s knowing refusal to testify, as well has his change of heart as evidenced by his letter to Reed, took his conduct outside the heartland of conduct contemplated by § 2J1.5(a). Section 2J1.5(a) applies in all cases where a material witness, for any reason, fails to testify in a criminal trial. Defendant’s refusal to testify despite a clear court order to do so, and his letter to Reed, which compromised the credibility of his previous testimony, contained many elements of obstruction of justice. U.S. v. Simmons, 215 F.3d 737 (7th Cir. 2000).
7th Circuit says court may have misunderstood discretion to depart. (715) Defendant contended that his acquittal on firearms charges perversely increased his sentence. Had he been convicted, his offense level, without any firearms adjustment, would have been 41, resulting in a range of 360 months to life. A 60-month consecutive sentence for the firearm charge would have resulted in a final range of 420 months to life. However, because defendant was acquitted of the gun charge, he received a § 2D1.1(b)(1) increase for an offense level of 43, which carries a life sentence. The Seventh Circuit noted that the district court had discretion to depart downward in this situation under 18 U.S.C. § 3553(b). Note 2 to § 2K2.4 states that “[i]n a few cases, the offense level for the underlying offense … may result in a guideline range that, when combined with the mandatory consecutive sentence [for the firearm offense], produces a total maximum penalty that is less than the maximum of the guideline range that would have resulted had there not been a [firearm conviction.] In such a case, an upward departure may be warranted so that the [firearm conviction] does not result in an decrease in the total punishment.”] Because it was unclear whether the district judge understood the extent of his discretion under § 3553(b), the panel remanded so that the judge could consider his options. The judge could go either way, but the record must reflect that he understood and exercised that discretion. U.S. v. Patterson, 215 F.3d 776 (7th Cir. 2000), vacated in part by Patterson v. U.S., 531 U.S. 1003, 121 S.Ct. 621 (2000).
7th Circuit directs court to tie extent of depart to structure of guidelines. (715) Defendant, a legal resident of the US since the age of 2, was deported to Mexico following his conviction for the statutory rape of a minor. He later pled guilty to illegally reentering the US after deportation and received a 16-level enhancement under § 2L1.2(a) because his deportation was based on an aggravated felony conviction. At sentencing, the court discussed a letter it had received from defendant’s family, in which the family declared its intent to sell its home and return to Mexico with defendant on his deportation. Based on defendant’s extraordinary family circumstances and cultural ties to this country, the district court departed downward from a 70-87 month range to a sentence of 24 months. The Seventh Circuit ruled that the district court improperly failed to justify the extent of its downward departure. The court departed without providing any analogy to the structure of the guidelines. On remand, the court should compare the seriousness of the mitigating factors at hand with those that the Sentencing Commission contemplated. If the court find that the facts underlying defendant’s prior conviction more closely resemble a felony than an aggravated felony, then the court should analogize from the guidelines and choose the extent of its departure accordingly. U.S. v. Cruz-Guevara, 209 F.3d 644 (7th Cir. 2000).
7th Circuit says defendant not entitled to additional departure for lack of personal gain. (715) Defendant, the controller for her family’s business, made false reports to the company’s lender in order to increase the company’s available credit. The court based her offense level on a stipulated loss of between $850,000 and $1.5 million. Defendant argued that the district judge wrongly concluded that a lack of personal gain from the crime could not be the basis of a downward departure. The Seventh Circuit found no error. First, the analysis in U.S. v. Seacott, 15 F.3d 1380 (7th Cir. 1994), a case in which the court reversed a downward departure based on lack of personal gain, was consistent with Koon v. United States, 518 U.S. 81 (1996). Second, defendant did receive a personal gain from the fraud. The business defendant set about to save was a family business: her father was a founder and owner, her brother worked for the company, and defendant herself earned a $56,000 salary. Finally, defendant already received consideration based on the circumstances of her crime. The court made a two-level departure because the loss overstated the seriousness of her conduct. Defendant’s claim that the loss overstated the seriousness of the offense was mixed in with her claim about the lack of personal gain. U.S. v. Corry, 206 F.3d 748 (7th Cir. 2000).
7th Circuit rejects absence of halfway house as grounds for downward departure. (715) Defendant argued that the district court erred when it refused to depart downward based on the fact that there was no halfway house near defendant’s residence or place of work. The First Circuit found no error. The authority on which defendant relied was U.S. v. Guiro, 887 F.Supp. 66 (E.D.N.Y. 1995), in which the court initially sentenced defendant to eight months in a halfway house. After the probation department found that no facility meeting the proposed sentence’s requirements existed in the state of New York, the district court departed to a sentence of home confinement. In the present case, unlike Guiro, there was no indication that the court ever considered placement in a halfway house as an alternative to imprisonment. The court also agreed with U.S. v. Pozzy, 902 F.2d 133 (1st Cir. 1990), which held that the absence of a halfway house did not warrant a downward departure. U.S. v. Thomas, 181 F.3d 870 (7th Cir. 1999).
7th Circuit rejects departure because defendant did not disclose his offense to authorities. (715) Defendant purchased products for his employer at vastly inflated prices from a company owned by his relatives. Defendant received kickbacks equal to one third of the company’s gross profits. When auditors for the employer finally questioned defendant, he admitted the scheme. The employer sued defendant and his relatives. The government, alerted to the lawsuit by a newspaper article, decided to prosecute defendant. Section 5K2.16 permits a downward departure if “the defendant voluntarily discloses to authorities the existence of, and accepts responsibility for, the offense prior to the discovery of such offense.” The Seventh Circuit held that § 5K2.16 was inapplicable because defendant did not disclose his offense to authorities, as § 5K2.16 explicitly requires, but to company officials. Also, the statute speaks merely of discovery of the offense, and not of discovery of the offense by authorities. An offense is “discovered” under § 2F1.1 when it is known by the victim or the proper authorities, whichever comes first. U.S. v. Ekeland, 174 F.3d 902 (7th Cir. 1999).
7th Circuit says court may depart based on seventh through ninth robberies. (715) Defendant pled guilty to nine bank robberies. When a defendant is convicted of multiple counts, § 3D1.4 increases a defendant’s offense level based on the number of “units” or groups. Each additional unit up to five causes a one-level increase in offense level. If there are “more than five” units, the court is directed to increase a defendant’s offense level by five. At defendant’s initial sentencing, the district court made a four-level upward departure, concluding that § 3D1.4 accounted for only five of the nine robberies. In U.S. v. Szabo, 147 F.3d 559 (7th Cir. 1998), the Seventh Circuit reversed, finding that the “more than five” language in § 3D1.4 encompassed six of the nine robberies. On remand, the district court made a three-level departure, resulting in a 87-month sentence. Defendant argued that the seventh bank robbery conviction, like the sixth, was taken into account under the “more than five” language of § 3D1.4. The Seventh Circuit upheld the district court’s decision to impose an additional level of punishment for each robbery beyond the sixth. The court rejected U.S. v. Valentine, 100 F.3d 1209 (6th Cir. 1996), in which the Sixth Circuit held that no upward departure beyond the five levels listed in § 3D1.4 was warranted for seven offenses. There is no requirement that offenses beyond the first six be sentenced according to the formula in § 3D1.4 for offenses one through five. The three-level departure was reasonable, given the overall leniency of defendant’s sentence. U.S. v. Szabo, 176 F.3d 930 (7th Cir. 1999).
7th Circuit approves upward departure for multiple vulnerable victims. (715) Based on a July 1, 1997 gathering at defendant’s residence where he served marijuana to minors, defendant pled guilty to various drug counts. One of the minors present July 1 stated that she had attended an earlier gathering at defendant’s condominium on June 26. She said she and a group of her friends, aged 14 to 17, were approached on the beach by defendant’s girlfriend, who then invited them to defendant’s residence where they could party and have free drinks. All the minors were served alcohol and offered marijuana. Defendant agreed to a § 3A1.1(b) vulnerable victim enhancement because one of the persons to whom he distributed a controlled substance on July 1 was a 15-year old female. The Seventh Circuit approved a one-level departure under § 5K2.0 because there were multiple vulnerable victims of defendant’s marijuana distribution. Defendant’s June 26 conduct was not an element of any of the crimes arising from the July 1 gathering. Defendant caused harm to a separate set of minors on June 26. The court did not err in considering this as an aggravating factor. U.S. v. Kahn, 175 F.3d 518 (7th Cir. 1999).
7th Circuit approves departure where defendant also convicted of separate firearm charge. (715) Defendant and two accomplices were convicted of conspiracy, carjacking and using a firearm during the commission of a crime of violence. During the carjacking, the three men repeatedly raped one of the carjacking victims. The district court ordered one upward departure for using a firearm during the crime and another under §5K2.8 for extreme conduct. The Seventh Circuit upheld both departures. The first departure was consistent with the second paragraph of note 2 to § 2K2.4, because this was an instance where not departing would have given defendant a shorter sentence because he was also convicted of a separate § 924(c) violation. The extreme conduct departure was “perfectly appropriate in this case, considering the cruel conduct” of defendant and the degradation suffered by the rape victim. U.S. v. Seawood, 172 F.3d 986 (7th Cir. 1999).
7th Circuit approves departure for defendant who produced deadly toxins at his house. (715) 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 court used wrong analogy to determine extent of departure. (715) Police recovered from defendant’s home a deadly toxin called ricin and a spray bottle containing a lethal mixture of nicotine sulfate and another chemical. He pled guilty to possessing a toxin for use as a weapon, in violation of 18 U.S.C. § 175(a). The district court applied § 2K2.1 as the most “analogous” guideline. The court then made a ten-level upward departure, relying upon § 3A1.4, the terrorism guideline, to justify the extent of the departure. The Seventh Circuit held that the extent of the departure was unreasonable. The district court chose an inappropriate analogy to determine the extent of the departure. There was no evidence that defendant sought to influence or affect the conduct of the government. Section 2332a, which penalizes the use or attempted use of “weapons of mass destruction,” including any toxin, more closely covered defendant’s conduct. Since no actual death was involved, either § 2A2.1 or § 2A2.2 would have been the appropriate guideline for the “threatened use” of a weapon of mass destruction. Under these guidelines, defendant’s offense level would at most be 29. In comparison, the district court found defendant’s adjusted offense level was 31. This made no sense. Defendant could have attempted to use the toxin, even causing a significant injury, and received a less severe sentence than he received for merely possessing the toxin. U.S. v. Leahy, 169 F.3d 433 (7th Cir. 1999).
7th Circuit upholds departure for aggravated use of gun. (715) Defendant sold cocaine from a tavern his father owned. He purchased a semi-automatic handgun and carried it in the small of his back and flashed it around to his customers. Shortly after obtaining the gun, he threatened two customers who owed him money for cocaine. He also pulled the weapon on a customer who complained about the poor quality of the cocaine. The district court applied a two-level enhancement under § 2D1.1(b)(1) based on defendant’s possession of the gun during his drug crimes. The court further made a three-level departure because defendant’s reckless behavior could have resulted in the discharge of the weapon. The Seventh Circuit affirmed the upward departure based on defendant’s aggravated use of the gun. The heartland of § 2D1.1(b)(1) cases is possession of a dangerous weapon. Defendant qualified for the enhancement simply by possessing a weapon connected with his offense. Defendant’s violent, threatening and out-of-control use of the gun during his drug dealing was sufficient to take his case out of the heartland of § 2D1.1(b)(1) cases. U.S. v. Raimondi, 159 F.3d 1095 (7th Cir. 1998).
7th Circuit holds departure did not meet requirements of fraud commentary. (715) Defendant bribed a mayor in order to obtain support for a bond offering. Defendant was convicted of RICO conspiracy and fraud charges. Section 2C1.1(b)(2)(A) references the § 2F1.1 fraud table if the value of the payment, the benefit to be received, or the loss to the government exceeds $2,000. Although defendant’s benefit was between $5 million and $10 million, corresponding to a 14-level increase, the district court only applied a seven-level increase. Note 7(b) to § 2F1.1 authorizes a departure where the loss significantly overstates the seriousness of the defendant’s conduct. The Seventh Circuit held that in applying the cross-reference, the court was entitled to consider the application notes to the fraud table. However, the departure here did not satisfy note 7(b)’s requirements. Rather than addressing the seriousness of defendant’s conduct, the judge departed simply because he believed the sentence should depend on the loss to third parties rather than the gain to the perpetrator. In addition, there was a loss. The bonds issued were tax-free. The U.S. Treasury lost a dollar in tax revenue for every dollar defendant saved from the lower interest rate. U.S. v. Krilich, 159 F.3d 1020 (7th Cir. 1998).
7th Circuit says improbability of intended loss might be basis for downward departure. (715) Defendants ran an organization that, for a $500 donation, provided a packet of blank Certified Money Orders (CMOs) to debtors. The debtors were told they could legally discharge a debt by sending a creditor a CMO. The CMO indicated that it could be redeemed by sending it to a post office box. If the lender sent it in, defendants sent the lender a Certified Bankers Check. If the creditor sent the check for redemption, it would be returned stamped “paid in full.” Over the course of several years, none of the debtors ever managed to use a CMO to discharge a debt. The district court found defendants intended to inflict a loss of over $80 million based on defendants’ records of the face value of the CMOs presented to creditors. Defendants argued that a loss of $80 million was not a realistic possibility. The Seventh Circuit affirmed, holding that economic reality is not a part of intended loss. The only hint that economic reality is relevant is the provision that allows a downward departure for transparently bogus schemes. Although the extreme improbability of a loss might undermine a finding of intent, defendants did not challenge the intent finding. However, the district court misunderstood its authority to depart based on the variance between the intended loss and the realistic possibility of such a loss. An $80 million loss might seriously overstate the seriousness of defendants’ offenses. U.S. v. Stockheimer, 157 F.3d 1082 (7th Cir. 1998).
7th Circuit says finding of vulnerability to abuse in prison cannot be based on nature of crime. (715) Defendant pled guilty to transporting child pornography in interstate commerce. The district court departed downward in part because of defendant’s vulnerability to abuse in prison, finding that defendant was likely to be exposed to extraordinary punishment because of his crime, his sexual orientation, and his passive, meek demeanor. The court also found defendant’s charitable activities were extraordinary. The Seventh Circuit reversed, holding that a departure based on vulnerability to abuse in prison cannot be based on the nature of the crime. If courts permitted child pornographers to use the crime as a reason for a downward departure, then every child pornographer would be eligible for the departure. Although defendant was of average height and weight, on remand, the court may consider defendant’s sexual orientation and demeanor in determining his vulnerability to abuse. If it chooses to consider defendant’s charitable contributions, the court must remember not to reward a defendant for community service that enabled him to further his criminal intent. U.S. v. Wilke, 156 F.3d 749 (7th Cir. 1998).
7th Circuit reverses extent of departure because § 3D1.4 accounted for sixth robbery. (715) Defendant pled guilty to nine charges of bank robbery. The district court sentenced defendant under § 3D1.4, which directed the court to take the highest adjusted offense level, and then add five levels because total number of robbery counts was “more than five.” The district court found that § 3D1.4 understated the seriousness of defendant’s multiple offenses. It departed upward by four levels because there were nine robberies, “only five of which were given credit for in computing the offense level.” The Seventh Circuit held that the court’s reasoning in choosing to depart by four levels was flawed, since the adjustment under § 3D1.4 for “more than five” additional counts encompasses the sixth charged offense. Thus, the court’s conclusion that § 3D1.4 credited only five of defendant’s nine robberies was erroneous. U.S. v. Szabo, 147 F.3d 559 (7th Cir. 1998).
7th Circuit reverses upward departure for brandishing gun in front of child. (715) Defendant told his seven-year-old stepson to clean his room. When the boy refused, defendant got a .38 revolver from a closet, pointed it at the boy, told the boy that he would shoot him, and pulled the trigger. Fortunately, the chamber was empty. Defendant was convicted of being a felon in possession of a firearm. The district court departed upward based on defendant’s brandishing the gun at the boy and threatening to shoot him. The Seventh Circuit reversed, since this conduct was already taken into account by § 2K2.1(c)’s incorporation of the aggravated assault guideline. Defendant’s offense level under § 2K2.1(a) (4)(A) was 20. However, § 2K2.1(c)(1) cross-referenced § 2X1.1 because defendant used the gun in connection with another felony. Section 2X1.1 bases the offense level on the underlying offense, which the parties agreed was an aggravated assault. Defendant’s offense level under the aggravated assault guideline, § 2A2.2, would be 18, which was less than the offense level under the felon-in-possession guideline. Thus, his conduct was fully taken into account by § 2K2.1(c)’s incorporation of the guideline for aggravated assault. U.S. v. Almaguer, 146 F.3d 474 (7th Cir. 1998).
7th Circuit affirms family circumstances departure even though facts not “compelling.” (715) Defendant was convicted of crack cocaine charges. He and his common-law wife had lived together for over 13 years and had three children, ages 6,7, and 11. The wife worked at a grocery store and defendant was employed by an upholstery company. Due to the flexibility of his work schedule, defendant cared for the children after school and helped them with their homework. He also spent time every day with his Down Syndrome brother. The wife testified that if defendant went to jail, she might have to move to public housing and receive welfare. The Seventh Circuit upheld a family circumstances departure. A district judge may have a better feel for what is or is not unusual or extraordinary. A district court’s finding of extraordinary family circumstances is entitled to considerable respect on appeal. Although this case did not involve the most “compelling” set of facts, the appellate court refused to second-guess the district judge’s decision. U.S. v. Owens, 145 F.3d 923 (7th Cir. 1998).
7th Circuit approves upward departure for involving minor in fraud scheme. (715) Defendant, a licensed stockbroker, misappropriated money entrusted to him by clients for investment. The Seventh Circuit approved a two-level upward departure for involving a minor in one of his mail fraud schemes. The fact that the Sentencing Commission chose to authorize an enhancement when a defendant involves a minor in certain drug offenses under § 2D1.2 did not mean that the involvement of a minor in other crimes cannot be the basis for a departure. The validity of the departure was bolstered by a 1995 amendment to § 3B1.4, which provides for a two-level enhancement for using a minor in the offense. The court’s reliance on the subsequent amendment to § 3B1.4 did not violate the ex post facto clause. The district court merely referenced the amendment to bolster its view that the version of the guidelines in effect at the time of defendant’s crime did not adequately consider defendant’s use of a minor. U.S. v. Porter, 145 F.3d 897 (7th Cir. 1998).
7th Circuit approves upward departure based on second murder conspiracy. (715) Defendant was convicted of seven counts based on two separate murder-for-hire schemes to kill her former lover. The district court grouped her convictions under § 3D1.2(b) because they involved the same victim and were part of a common scheme or plan. The court then departed upward because the second conspiracy was not adequately considered by the Sentencing Commission. The Seventh Circuit approved the upward departure based on the second murder conspiracy. Defendant’s decision to launch the second plan was not a case of “trying again” after the first conspiracy failed. Rather, by initiating the second conspiracy while the first conspiracy was still viable, defendant simply tried twice as hard to arrange the murder, and the intended victim was exposed to twice the risk of harm. The separate transactions enhanced the risk of harm because the likelihood that the victim would be killed increased twofold. U.S. v. Scott, 145 F.3d 878 (7th Cir. 1998).
7th Circuit bars departure based on disparity between federal and state sentences for child porn. (715) Defendant sent to an undercover agent via his computer 13 images of children engaged in sexual conduct. Police found additional child pornography at his home. Defendant pled guilty to one count of possessing child pornography. Although he had a guideline range of 15-21 months, defendant requested a downward departure because applicable state law punished the same crime much less severely (an average 3 months) than the guidelines. The Seventh Circuit held that a court cannot depart based on a disparity between the guidelines’ punishment and the sentence imposed for similar conduct under applicable state law. Such a ground for departure would undermine the operation of the guidelines, and “eviscerate the uniformity in federal sentencing that is the raison d’être of the Sentencing Reform Act of 1984.” U.S. v. Schulte, 144 F.3d 1107 (7th Cir. 1998).
7th Circuit bases increase on value of bribe rather than benefit to third party. (715) Defendant, the toll road manager for the Indiana Department of Transportation, was convicted of corruptly giving a $4,000 payment to a subordinate in violation of 18 U.S.C. § 666(a)(2). The government’s theory was that the payment was a bribe so that the subordinate would not disclose to anyone the favored treatment defendant was giving to a company that supplied fuel to the gas stations on the state’s toll roads. The district court found that defendant did not intend to receive any benefit, so it increased the sentence based on the value of the bribe itself, $4,000, under § 2C1.1(b)(2)(A). The government argued that the increase should have been based on the benefit to the gas supplier. The Seventh Circuit held that in these unique circumstances, the court properly based the enhancement on the value of the bribe. Although some cases suggest that a court may consider benefits flowing to third parties, these cases have required either a jointly undertaken criminal activity or that the defendant act as an agent of the third party. Here, there was no established link between defendant and the company that received the benefit. In such a case, the appropriate measure is the amount of personal benefit to the defendant. Because the government did not establish that defendant received a benefit, the court correctly used the amount of the payment. U.S. v. Agostino, 132 F.3d 1183 (7th Cir. 1997).
7th Circuit says deportable alien status may justify departure if exceptional hardship. (715) Defendant, a French citizen, was arrested attempting to smuggle heroin into the U.S. The district court refused to depart downward, ruling that defendant’s status as a deportable alien was not a proper basis for departure. The Seventh Circuit remanded for the court to consider whether defendant’s status as a deportable alien had resulted in unusual or exceptional hardship in his conditions of confinement. The cases relied on by the court to deny the departure preceded Koon v. United States, 116 S.Ct. 2035 (1996). Koon allows a court to take into consideration any unusual or exceptional factors that have not been considered by the guidelines. Unlike the offense of illegally reentering the U.S. following deportation, defendant’s drug crime did not account for his deportable alien status. Therefore, the district court was free to consider whether defendant’s status has resulted in unusual or exceptional hardship in his conditions of confinement. U.S. v. Farouil, 124 F.3d 838 (7th Cir. 1997).
7th Circuit rules that four goals of sentencing need not apply to every sentence. (715) Defendant argued that the Sentencing Guidelines were adopted to ensure that the four goals of sentencing (deterrence, incapacitation, retribution and correction) would be applied in sentencing determinations. He further contended that the district court erred by refusing to consider these goals when imposing sentence. The Seventh Circuit found that defendant misinterpreted Koon v. United States, 116 S.Ct. 2035 (1996). The Supreme Court held in Koon that courts are not limited to the goals of sentencing, not that the courts must abide by them. The Koon court actually rejected a limitation on sentencing discretion by holding that a departure from the guidelines does not always have to be consistent with the four goals. U.S. v. Carter, 122 F.3d 469 (7th Cir. 1997).
7th Circuit rejects departure in immigration case based on status as deportable alien. (715) Defendants were convicted of illegally reentering the U.S. after deportation. They requested downward departures based on their status as deportable aliens because it disqualified them from serving any portion of their sentences in minimum security institutions, halfway houses, community correction centers or home confinement. Also, they would face deportation upon completion of their sentences. The Seventh Circuit held that defendants’ status as deportable aliens was not a basis for departure because their crime could only be committed by a deportable alien. Therefore, it was clearly taken into consideration by the Commission in formulating § 2L1.2. This distinguished the case from U.S. v. Smith, 27 F.3d 649 (D.C. Cir. 1994), which held that the harsher conditions of confinement faced by a deportable alien might justify a departure. The defendant in Smith was convicted of drug charges, so his sentence did not already taken his deportability into account. U.S. v. Gonzalez-Portillo, 121 F.3d 1122 (7th Cir. 1997).
7th Circuit finds refusal to depart was reviewable because based on legal conclusion. (715) After robbing two banks, defendant was overcome by guilt and turned himself in to authorities. Section 5K2.16 permits a downward departure where the defendant voluntarily discloses to authorities the existence of the offense prior to the discovery of the offense, and such offense was unlikely to have been discovered otherwise. The district court ruled that § 5K2.16 was inapplicable to defendant’s case because it applies to the voluntary disclosure of the offense, not the voluntary disclosure of the criminal who committed the offense. The Seventh Circuit held that the refusal to depart was reviewable because it was based on the court’s legal interpretation of § 5K2.16 rather than on the court’s exercise of discretion. The district court ruled that as a matter of law § 5K2.16 only applies to voluntary disclosures of the offense. Unfortunately for defendant, this conclusion was correct. Section 5K2.16 does not apply to individuals who simply confess their involvement in a crime already known to the authorities. U.S. v. Aerts, 121 F.3d 277 (7th Cir. 1997).
7th Circuit approves upward departure based on RICO defendant’s involvement in organized crime. (715) Defendants were convicted of RICO charges for their involvement in a Chicago crime syndicate. The district court, relying on U.S. v. Rainone, 32 F.3d 1203 (7th Cir. 1994), made a two-point upward departure based on their involvement in organized crime. Defendants argued that Rainone was distinguishable because the base offense level was determined to be 19 under § 2E1.1(a)(1), while defendants were sentenced under § 2E1.1(a)(2), which references the guideline for the underlying offense. In defendants’ case, this was “loansharking.” The Seventh Circuit held that a defendant’s involvement in organized crime is not reflected in the base offense level under § 2E1.1, regardless of whether the offense level is established under subsection (a)(1) or (a)(2). Neither the RICO statute nor the underlying offenses to which it applies are limited to defendants engaged in organized crime. Thus, the departure was proper. U.S. v. Zizzo, 120 F.3d 1338 (7th Cir. 1997).
7th Circuit affirms upward departure for extreme obstruction and concealment of millions in illegal income. (715) Defendant leased illegal gambling machines to bars and clubs. None of the income from the gambling machines was reported. When defendant and his co-conspirators learned of an IRS investigation, they lied to investigating authorities, pressured bar owners to lie about how much income was generated from the machines, and intimidated the bar owners into signing backdated leased which misrepresented the income generated by the machines. Defendant ultimately was convicted of conspiracy to defraud the IRS, witness tampering, obstruction of justice and dealing in unregistered gambling devices. The Seventh Circuit affirmed an upward departure based on the extent and egregiousness of defendant’s obstructive conduct and his concealment of millions of dollars of income from the illegal gambling business. The egregiousness of defendant’s conduct in obstructing justice and hiding millions of dollars in assets took this case outside the heartland cases involving conspiracy to defraud the IRS. U.S. v. Furkin, 119 F.3d 1276 (7th Cir. 1997).
7th Circuit treats hiring scheme as single count of fraud. (715) Defendant, a county undersheriff, devised a scheme to provide jobs for personal or political reasons. One part of the scheme involved hiring favored individuals for various law enforcement positions, even though they had failed the qualifying examinations. The other part of the scheme consisted of hiring individuals who defendant knew would do little or no work in their designated positions. The district court departed upward based on the foreseeable non-monetary harm and the loss of public trust caused by putting unqualified people in the sheriff’s department. Defendant argued that court departed only because the government improperly charged him with just a single count of mail fraud. He argued that there were really two schemes—(1) a ghost payrolling scheme and (2) an unqualified hiring scheme, and that if the government had charged him with two fraud counts, they would have been grouped for sentencing, and the court would not have departed upward. The Seventh Circuit found no error. The scheme had a single purpose—to provide political “payoffs.” The result of both parts of the scheme was that qualified applicants were denied positions which were given to individuals who were either unqualified or who performed no work. U.S. v. Dvorak, 115 F.3d 1339 (7th Cir. 1997).
7th Circuit says 16-year-old prior was aggravated felony under immigration guideline. (715) Defendant pled guilty to illegally reentering the country following deportation. The district court applied a 16-level aggravated felony enhancement under § 2L1.2(b)(2) based on a 1980 firearms conviction. Defendant argued that any aggravated felony over 15 years old is too old to be counted. The Seventh Circuit disagreed, holding that the enhancement in § 2L1.2(b)(2) is not limited to aggravated felonies less than 15 years old. The definition in note 7 only contains a 15-year limit for convictions under foreign law. There is no such limit for domestic convictions. Section 2L1.2(b) need not be consistent with the criminal history rules in Chapter Four because the sections have different goals. The aggravated felony enhancement is a measure of the seriousness of the crime, while the criminal history category evaluates the likelihood that the defendant will commit another crime in the future. U.S. v. Gonzalez, 112 F.3d 1325 (7th Cir. 1997).
7th Circuit says court may depart and impose concurrent sentence despite § 5G1.3. (715) While in state prison on drug charges, defendant acted in furtherance of a federal drug conspiracy. The state conviction was based on a drug offense that was also part of the federal conspiracy. Section 5G1.3(a) provides that where the instant offense was committed while the defendant was serving a term of imprisonment, the court “shall” impose a consecutive sentence. Defendant argued for the first time on appeal that the court erroneously believed that it had no discretion under § 5G1.3(a) to order concurrent sentences. The Seventh Circuit held that under § 5G1.3(a), courts retain discretion to impose concurrent sentences by departing downward. But a judge’s personal belief that a guideline sentence is too harsh is an insufficient basis upon which to predicate a downward departure. Therefore, if the judge had imposed concurrent sentences as a downward departure based on this belief, the appellate court would have reversed. There was no plain error. U.S. v. Schaefer, 107 F.3d 1280 (7th Cir. 1997).
7th Circuit rejects departure for scope of crime, violence and low guidelines. (715) Defendant was convicted of drug charges. The Seventh Circuit reversed an upward departure based on (1) the geographic scope of the crime, (2) the violence connected with the crime, and (3) the judge’s belief that the sentence undervalued the seriousness of the crime. The fact that the drug conspiracy covered two states did not make the geographic scope of the conspiracy atypical. A major portion of drug trafficking flows through interstate commerce. The judge did not explain how the conspiracy’s violence was atypical. Although death or bodily injury can justify a departure under § 5K2.1 and § 5K2.2, the judge made no finding that defendant was accountable for any deaths or bodily injury. Defendant’s mere awareness of foreseeability of violence was insufficient. Drugs typically are associated with violence. Finally, the judge’s conclusory statement that a sentence is comparatively light does not justify a departure. U.S. v. Otis, 107 F.3d 487 (7th Cir. 1997).
7th Circuit says guidelines do not completely bar remorse as basis for departure. (715) At sentencing, the judge stated that defendant “deserves downward departure on remorse, but I don’t think she deserves downward departure on the law even if I were inclined to give her one, and so it’s denied.” The Seventh Circuit held that the judge incorrectly believed that he lacked the discretion to depart downward on account of defendant’s remorse. The judge’s statement should be taken at face value—as an expression of the idea that the law prohibited him from granting a downward departure for remorsefulness. Although the guidelines may discourage the consideration of a defendant’s remorse in most decisions about downward departures, they do not contain an absolute ban on a district court’s indulging in such a consideration. U.S. v. Jaroszenko, 92 F.3d 486 (7th Cir. 1996).
7th Circuit says § 5K2.16 requires finding of likelihood of discovery. (715) Defendant, a bank officer, misapplied bank funds. After making his last false journal entry, he submitted a letter of resignation detailing his offense. He wrote that he could no longer live with his life of lies and that he was sorry. Section 5K2.16 authorizes a downward departure where a defendant voluntarily discloses to authorities his offense prior to discovery, and such offense was unlikely to have otherwise been discovered. The Seventh Circuit held that a § 5K2.16 departure is warranted only where the disclosure was made for reasons unrelated to possible discovery, and discovery was unlikely. In departing under § 5K2.16, the district court here failed to make particularized findings regarding the likelihood of discovery. The judge improperly focused exclusively on defendant’s subjective reasons for the disclosure. U.S. v. Besler, 86 F.3d 745 (7th Cir. 1996).
7th Circuit approves upward departure based on nature and degree of harm to victims. (715) Defendants established a sham business to obtain a completed mortgage loan application. They used the social security numbers and other personal information contained in the applications to obtain credit cards, bank loans and checking accounts. They then used the cards, lines of credit and accounts to obtain cash, goods and services. The Seventh Circuit approved a two‑level upward departure based on the nature and degree of harm suffered by the victims of the scheme. The court did not make an improper analogy to the vulnerable victim guideline to justify the departure; the court examined § 3A1.1 only to determine the extent of the departure. Note 10 to § 2F1.1 states that a departure may be warranted where the financial loss does not fully capture the harmfulness of the defendant’s conduct. This was such a case. The victims testified about the aggravating and extremely time‑consuming credit problems they had as a result of the fraud. U.S. v. Akindele, 84 F.3d 948 (7th Cir. 1996).
7th Circuit says intervening causes do not reduce loss. (715) Defendants, bank officers, were convicted of fraud in connection with the bank’s $10 million offering of subordinated capital notes. They failed to approve an additional $9.3 million in loan loss reserves recommended by bank management. The district court concluded that the actual loss to the victims was the face amount of the notes. Defendants argued that they should not be charged with all this loss because other factors actually caused the bank’s demise. The Seventh Circuit held that intervening causes do not reduce the amount of loss attributable to a defendant’s fraud. They may be a basis for a downward departure under note 11 to § 2F1.1. But the district court understood that it could depart if it believed the loss overstated the seriousness of the offense. Its refusal to depart was not reviewable. U.S. v. Morris, 80 F.3d 1151 (7th Cir. 1996).
7th Circuit upholds departure based on special harm to fraud victims. (715) Defendant, the founder and officer of a business school, converted federal financial aid funds and student loans for his own use. The district court made a two-level upward departure based upon the special impact of defendant’s fraud on his victims. The Seventh Circuit affirmed under note 10 to § 2F1.1. Note 10 authorizes a departure where the loss does not fully capture the seriousness of the defendant’s conduct, including the knowing endangerment of the solvency of one or more victims, and foreseeable, substantial non-monetary harm. Almost all of the school’s students received federal financial aid. Where students withdrew from school but were fraudulently deprived of refunds, they remained liable for their loan obligations even though they never received an education. For many students, the crushing weight of their student loans meant certain insolvency. Many had tax refunds withheld, credit ruined, and personal property seized. These students were ineligible to receive further educational assistance, and thus could never attend another school. U.S. v. Ross, 77 F.3d 1525 (7th Cir. 1996).
7th Circuit approves departure where grouping caused offense not to affect offense level. (715) Defendant and his wife were arrested on drug charges. While they were out of bond, defendant severely beat and slashed his wife in retaliation for information she had given the police. Defendant was convicted of drug crimes and retaliating against a witness. The district court grouped the offenses together, but because of the disparity between offense levels, the retaliation offense did not contribute toward the final offense level. The district court departed upward by five levels, finding defendant’s vicious assault was substantially more serious that the generic “causing or threatening to cause physical injury to a person” to which § 2J1.2(b)(1) refers. The Seventh Circuit held that the five level departure was reasonable, when judged against other provisions of the guidelines. Defendant’s conduct amounted to attempted murder, which carries an offense level of 28, with a four level enhancement for permanent or life-threatening injuries. When an offense level of 32 is grouped with the 30 for the drug offense, this results in a total offense level of 34. Defendant’s 180-month sentence fell within the 151-188 month range that would have been applicable. Moreover, a departure for extreme psychological injury and for heinous conduct might have been warranted. U.S. v. Herrera, 70 F.3d 444 (7th Cir. 1995).
7th Circuit approves departure for continued criminal activity and additional loss. (715) While a prison inmate, defendant was involved in a scheme that filed 353 fraudulent tax returns claiming over $1 million in refunds. The district court departed under § 5K2.0 because defendant continued his criminal activity while awaiting trial and because that continued criminal activity resulted in an increased loss. The Seventh Circuit affirmed. In U.S. v. Jordan, 890 F.2d 968 (7th Cir. 1989), the court approved a criminal history departure under § 4A1.3 based on a defendant’s continuing criminal conduct. The potential financial loss from this activity was also a valid ground for departure. The three-point offense level departure was reasonably linked to the structure of the guidelines. If defendant had been convicted of this additional activity, he would have received three more criminal history points which would have increased his category by one. This would have the same affect as increasing his offense level by about two levels. Moreover, if the potential loss of $122,000 had been included in the instant indictment, defendant’s offense level would have increased by one level. U.S. v. Archambault, 62 F.3d 995 (7th Cir. 1995).
7th Circuit approves loss of public confidence in important institution as grounds for upward departure. (715) Defendant, the director of personnel for the sheriff’s office, manipulated the recruiting process for deputy sheriffs and corrections officers. The district court departed upward for several reasons. The Seventh Circuit held that the district court’s focus on the loss of public confidence in an important institution was sufficient to justify an upward departure. Defendant’s actions distorted the application process, causing the public to doubt the ability of the officers working for the county, whether hired fairly or unfairly. These considerations were not otherwise taken into account by § 2F1.1. However, the district court failed to adequately explain why a four-level increase was “reasonable.” On remand, the court should attempt to link the extent of the departure to the structure of the guidelines. U.S. v. Hogan, 54 F.3d 336 (7th Cir. 1995).
7th Circuit cannot review refusal to depart to give credit for time served on related offense. (715) Defendant sought credit for a 12-month federal sentence and a two-month state sentence because the underlying conduct was part of the instant conspiracy and was taken into account in defendant’s base offense level. Section 5G1.3 requires concurrent sentences for such offenses, but defendant had completed his sentences and therefore had no “undischarged term of imprisonment.” Note 2 to § 5G1.3 states that in such situations, the court should adjust the instant sentence to account for any sentence already served. The district court declined to depart downward and grant defendant the credit, because he had received a lower sentence than he should have for the earlier offense. The Seventh Circuit held that it lacked discretion to review the court’s refusal to depart under § 5G1.3. But it encouraged the court to revisit this issue on remand. The mistake in Kansas did not justify denying the departure, since any additional sentence in Kansas would have been added to his credit in this case. U.S. v. Blackwell, 49 F.3d 1232 (7th Cir. 1995).
7th Circuit approves upward departure for threats made against extortion victims, relying on later amendment. (715) Defendants were convicted of a RICO conspiracy. The 7th Circuit approved an upward departure based on the threats made by defendants against their extortion victims’ families. A later amendment to the guidelines (§ 2B3.2(b)(1)) authorizes a two-level adjustment for threats of bodily injury and death. Such an amendment is an appropriate guide for a departure. The addition of the adjustment shows that the previous guideline omitted a factor relevant to sentencing. It made no difference that the threats against the families of the extortion victims were not communicated directly to the family members. U.S. v. Rainone, 32 F.3d 1203 (7th Cir. 1994).
7th Circuit approves consecutive sentence for failure to appear where valid grounds for departure existed. (715) Defendant failed to appear for sentencing on counterfeiting charges. He was eventually sentenced to 87 months on the counterfeiting charges, and in a later proceeding, he received a consecutive 21 month sentence for failure to appear. Defendant challenged this, arguing that his failure to appear for sentencing was already considered as a ground for an obstruction of justice enhancement to his counterfeiting sentence. The 7th Circuit approved the consecutive sentence. Defendant’s calculation assumed that the only conduct relevant to determining the proper guideline range was the counterfeiting offense and the failure to appear. However, the district court properly considered defendant’s activities while he was a fugitive as an independent basis for the additional sentence. Defendant’s purchase of equipment to start another counterfeiting operation were grounds for departure from the 70 to 87 month sentencing range. Neither § 2J1.6 nor § 3C1.1 took into account defendant’s post-flight activities. U.S. v. Sarna, 28 F.3d 657 (7th Cir. 1994).
7th Circuit says reckless endangerment section should be used before departing upward. (715) When police tried to search defendant’s car for drugs, he led them on a 10-mile high speed chase along local roads, forcing about 30 cars off the road. He pled guilty to drug charges and assaulting or resisting an officer. The district court rejected a § 3C1.2 reckless endangerment enhancement since it covered conduct partially covered by the resisting arrest count. It departed upward, however, based on defendant’s reckless flight. The 7th Circuit held that the court lacked authority to depart without first applying § 3C1.2. The conduct on which the court based the departure was exactly the sort of reckless behavior covered by § 3C1.2. The enhancement was clearly appropriate because defendant not only resisted arrest and assaulted police, but also placed 30 lives in danger. U.S. v. Giacometti, 28 F.3d 698 (7th Cir. 1994).
7th Circuit rejects prompt payment of statutory forfeiture as grounds for downward departure. (715) Defendant pled guilty to money laundering and criminal forfeiture. As part of the plea agreement, defendant was required to pay a mandatory forfeiture of $742,555 pursuant to 18 U.S.C. §982. The district court departed downward, finding defendant’s payment of the forfeiture reflected extraordinary acceptance of responsibility. It reasoned that basing the guideline range on the amount of money laundered without regard to the actual profit (defendant’s profit was $10,000) exaggerated the harm. The 7th Circuit reversed, holding that payment of a mandatory forfeiture can never be the basis for finding extraordinary acceptance of responsibility. The Sentencing Commission adequately considered the possibility of statutory forfeiture and the degree of hardship a forfeiture would work. The court agreed with the 9th Circuit’s view that forfeiture, unlike extraordinary restitution, is not a voluntary act which demonstrates acceptance of responsibility. U.S. v. Hendrickson, 22 F.3d 170 (7th Cir. 1994).
7th Circuit finds restitution may show acceptance of responsibility but did not justify departure. (715) Defendant kited checks, obtaining $75,000 to cover his business’s cash-flow problems. At trial, he denied intending to defraud a bank. Although he repaid all of the money prior to trial, the district court refused to reduce his sentence for acceptance of responsibility under § 3E1.1. The court believed that a defendant who insisted even after conviction that he did not violate the law was not eligible for the reduction. However, the court did depart downward six-levels based on the restitution for “extraordinary acceptance of responsibility.” The 7th Circuit held that defendant was eligible for the § 3E1.1 reduction, but not the additional downward departure. Application note 1(c) to § 3E1.1 lists voluntary restitution prior to adjudication of guilt as an independent reason for a two-level § 3E1.1 reduction. Since defendant repaid the bank before trial, the district court was entitled to award the reduction, even though defendant denied guilt. However, defendant was not entitled to a departure. This is particularly true since this was defendant’s third conviction for defrauding a bank. U.S. v. Bean, 18 F.3d 1367 (7th Cir. 1994).
7th Circuit finds lack of profit motive and opportunity for restitution no basis for departure. (715) Defendant, a loan officer, approved loans to third parties for the benefit of a bank client who was unable to qualify on his own. Defendant pled guilty to willfully misapplying bank funds. The district court departed downward to a period of work release and home detention because (a) defendant was not motivated by self gain, but by a desire to prevent one of the bank’s debtors from defaulting on its loan, and (b) so that defendant would be able to provide restitution to his victim. The 7th Circuit found that both were improper grounds for departure. First, because there are numerous places in the guidelines where a sentence is adjusted based on a defendant’s lack of profit motive, the sentencing commission would have provided for such an adjustment for § 2B1.1 crimes if they had intended for it to apply. Second, since a court may not depart downward as a reward for restitution already made to the victim, a departure based on the promise of future restitution was also improper. U.S. v. Seacott, 15 F.3d 1380 (7th Cir. 1994).
7th Circuit rejects departure based on sixth charged bank robbery. )(715) Defendant pled guilty to six counts of bank robbery. The district court departed upward based on the sixth charged count, relying on background commentary to §3D1.4 which states that “inasmuch as the maximum increase provided in the guideline is five levels, departure would be warranted in the unusual case where the additional offenses resulted in a total of significantly more than five units.” The 7th Circuit held that §3D1.4 does take into account six charged offenses, and therefore a departure based on the sixth charged bank robbery was double counting. Under §3D1.4, the offense level is increased by five when six units are included in the calculation. For three and one half to five units, the offense level is increased by four levels; for more than five units, the offense level is increased by five. Thus, the section does not ignore or discount a sixth charged offense. U.S. v. Dawson, 1 F.3d 457 (7th Cir. 1993).
7th Circuit says 1989 arson guideline did not adequately cover defendant’s crime. (715) Defendant hired several men to burn down his competitor’s restaurant. The 7th Circuit affirmed an upward departure, finding that the 1989 version of section 2K1.4 did not adequately address this crime. Unlike most arsons, defendant did not destroy his own property to collect insurance proceeds. Instead he tried to put others out of business. He endangered others and at least temporarily ruined the reputation of his competitors, who were initially suspected by police of setting the fire. It was proper to use the 1990 amendment to section 2K1.4 as a framework for the departure. In this amendment, the Sentencing Commission acknowledged that arson was a more serious crime than it thought in the past. There was no ex post facto violation, since the court did not retroactively apply the 1990 amendment, but instead used the 1989 guidelines and then properly departed upward. The fact that the court did not similarly depart upward for a co-defendant was not an abuse of discretion. U.S. v. Willey, 985 F.2d 1342 (7th Cir. 1993).
7th Circuit reverses downward departure based on feeling that imprisonment was unnecessary. (715) The district court departed downward and imposed a five year period of probation, based in part on the district court’s feeling that there was “nothing to be gained” by imprisoning defendant and that imprisonment was not necessary to deter similar crimes in the future. The 7th Circuit ruled that these reasons were inadequate to support a downward departure. Courts may not depart based on their perception of a lack of a need for general deterrence. Departures must be linked to the structure of the guidelines. The district court’s generalized assertions were not linked in any way to the structure of the guidelines, nor did they represent factors particular to the defendant that the guidelines inadequately considered. U.S. v. Frazier, 979 F.2d 1227 (7th Cir. 1992).
7th Circuit upholds upward departure based on Hobbs Act violator’s use of organized crime connections. (715) Defendant was convicted of various Hobbs Act violations for extorting money from local businessmen. The 7th Circuit upheld a seven level upward departure based upon defendant’s use of organized crime connections in committing the offense. Since an organized crime connection is not an element of the Hobbs Act offense, it could not have been taken into consideration by the sentencing commission in determining the appropriate offense level under sections 2E1.5 and 2B3.2(a), and was an appropriate ground for a departure. The seven level departure was appropriate. The judge found the use of organized crime to be most analogous to the discharging of a firearm, which required a five level enhancement under section 2B3.2(b0(2)(A). The judge then found that the analogy was not perfect, and that use of organized crime was more harmful than discharging a weapon, and increased by two more levels. U.S. v. Schweihs, 971 F.2d 1302 (7th Cir. 1992).
7th Circuit holds that it cannot review refusal to grant government’s motion for substantial assistance departure. (715) Despite the government’s motion for a substantial assistance departure, the district court refused to depart downward, stating that it could not evaluate the significance of defendant’s cooperation “at this time,” and that it would “partially deny” the government’s motion and sentence defendant at the bottom, rather than the top, of his guideline range. Defendant argued that the district court improperly believed that it did not have to act on a section 5K1.1 motion at sentencing, but could postpone the question until Rule 35(b) proceeding, when more would be known about the actual value of the assistance. The 7th Circuit agreed that this would be an improper interpretation of Rule 35, which is designed to recognize assistance rendered after the defendant is sentenced. It did not believe, however, that the district judge was laboring under this misconception. The judge’s comments merely meant he could not ascertain the significance of defendant’s cooperation at the time of sentencing. Although some might argue that a judge should give the defendant the benefit of the doubt in this situation, an appellate court lacks authority to review a district court’s refusal to depart downward. U.S. v. Mittelstadt, 969 F.2d 335 (7th Cir. 1992).
7th Circuit affirms four level departure for unlawful restraint of fraud victim. (715) During an eight-month relationship with a 20-year old girl, defendant misrepresented that he would give her a modeling contract, caused her to quit her job, fraudulently obtained $46,500 from her parents, administered massive doses of drugs to her, used threats to compel her to have sex with him, and otherwise physically and psychologically abused her. The district court departed upward by four levels based on defendant’s unlawful restraint of his victim, basing it upon the restraint provision applicable to kidnapping cases. The judge did not mention the restraint provision in section 3A1.3,which is applicable to any crime but only provides a two level increase in offense level. The 7th Circuit affirmed, since no one asked the judge to consider the two level departure, and the failure to do so was not plain error. (Defendant’s conduct did involve kidnapping, and the unlawful restraint provision applicable to kidnappings was therefore the natural place to look for guidance on a departure in a case where kidnapping was not charged.?) It was highly unlikely that the judge would have applied the two level provision even if it had been brought to his attention. U.S. v. Newman, 965 F.2d 206 (7th Cir. 1992).
7th Circuit upholds offense level departure where criminal history category was under-representative. (715) The 7th Circuit upheld the district court’s addition of two points to defendant’s offense level because defendant’s criminal history category did not properly reflect the seriousness of defendant’s criminal record. Defendant had 22 criminal history points, which was nine more than the minimum needed to place him in criminal history category VI, the highest category. Guideline section 4A1.3 authorizes a departure where a defendant’s criminal history is significantly more serious than that of most defendants in the same criminal history category. Moreover, defendant had two prior sentences that substantially exceeded one year. Guideline section 4A1.3(b) permits an upward departure if there are prior sentences of substantially more than one year as a result of independent crimes committed on different occasions. U.S. v. Lewis, 954 F.2d 1386 (7th Cir. 1992).
7th Circuit rejects comparison to pre-guidelines sentence as grounds for upward departure. (715) In 1982, under pre-guidelines law, defendant received a 10-year sentence for threatening the life of the President. Defendant was convicted in 1990 for a similar offense, and was sentenced under the guidelines. The sentencing judge said that giving defendant less than another 10 years for the renewed threats would “not only deprecate the seriousness of this repeat offense behavior, but also would represent a disparate sentence.” The 7th Circuit rejected this as a ground for an upward criminal history departure. A five-year guideline sentence might be more severe than a 10-year pre-guideline sentence, since there is no parole and good time credits have been cut back severely. “It would perpetuate the disparities that the guidelines aim to root out to use pre-guideline sentences as benchmarks for sentence under the new rules.” U.S. v. Fonner, 920 F.2d 1330 (7th Cir. 1990).
7th Circuit determines that district court did not articulate a sufficiently reasoned basis for upward departure. (715) Defendant was a gang member convicted of being a felon in possession of a firearm. The district court departed upward from the 10 to 16 month guideline range and sentenced defendant to 5 years. The court based its departure on its determination that the sentencing commission did not adequately take into consideration the different circumstances under which felons can possess guns. The 7th Circuit found that the district court’s departure was improperly based on its “generalized dissatisfaction” with the guidelines. The district court failed to explain how the guidelines failed to take into account defendant’s particular offense. The district court also failed to employ the proper methodology in calculating the departure. The case was remanded for the district court to more specifically state its reasons for departure. U.S. v. Scott, 914 F.2d 959 (7th Cir. 1990).
7th Circuit rejects upward departure based on high degree of violence in community, need for general deterrence and finding that defendants were gang members. (715) Defendants pled guilty to various drug and weapons related charges. The sentencing judge departed upward, noting that the guidelines inadequately addressed the serious problems in the city, and that a “message” needed to be sent to gang members and others who ran drug houses. The 7th Circuit found that these reasons for an upward departure were inappropriate. A court is not free to base sentencing on a purely local condition such as the degree of violence in a particular city, since this is not based on the relevant conduct of the offender. A court may also not base a departure on the need to send a message, since the Sentencing Commission already considered the general deterrent effect of the sentences. The 7th Circuit did suggest that involvement in gang activities might provide a basis for departure under certain circumstances, but in this case the district court failed to provide “specific reasons for departing, preferably tying the reason for and extent of departure to a circumstance inadequately considered by a specific section or portion of the Guidelines.” U.S. v. Thomas, 906 F.2d 323 (7th Cir. 1990).
7th Circuit holds that giving a false name when arrested did not justify upward departure. (715) Defendant gave a false name when he was arrested, because at the time he was on bail pending trial on two state cocaine-related charges. The district court departed upward on three grounds, one of which was giving the false name. The 7th Circuit held that the false name was an improper basis for departure. U.S. v. Franklin, 902 F.2d 501 (7th Cir. 1990).
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8th Circuit approves upward departure for serial arsonist who endangered others. (715) Defendant was convicted of three counts of arson. His advisory range was 130-162 months. The district court departed upward to 240 months under § 2K2.0(a)(3) for circumstances inadequately considered by the guidelines. Alternatively, the court deemed the sentence a variance under 18 U.S.C. § 3553(a), finding that the advisory range did not reflect the serious impact of the fires on the victims, including property loss, emotional distress, and substantial risk of injury or death. Specifically, it noted that defendant knew “all of the structures were occupied” when he set the fires. Children (including one of his own) were in the targeted house during a fire in October 2009. Another fire in an apartment building in May 2010 endangered the lives of all the building’s tenants. The Eighth Circuit held that district court did not abuse its discretion in departing under § 5K2.0(a)(3). Defendant also claimed the sentence was unreasonable because the district court ordered it to run consecutive to an existing 10-year federal sentence. However, the court determined his danger to society and recidivism risk merited a consecutive sentence. The court found the guidelines failed to account for defendant being a “serial arsonist.” This determination was not unreasonable. U.S. v. Gant, 721 F.3d 505 (8th Cir. 2013).
8th Circuit approves departure where defendant accused innocent persons of assault and murder. (715) Defendant made false statements to FBI agents about the disappearance of Lufkins in an attempt to divert FBI attention from another person. At sentencing, the district court departed upward in part based on the seriousness of the offense. The commentary to the applicable guideline, § 2B1.1, says that an upward departure may be warranted where “the offense level determined under this guideline substantially understates the seriousness of the offense.” The Eighth Circuit agreed that defendant’s case differed significantly from the norm for false statement offenses because of the seriousness of the offense. Defendant’s conduct—accusing two innocent persons of the assault and murder of a missing person, and reporting that they burned the body and disposed of it in a river—went well beyond other offenses falling within § 1001, which includes offenses such as giving a law enforcement officer a false name, falsifying federal regulatory reports, or lying about marital status on a tax return. The district court rightly emphasized the seriousness of accusing an innocent person of a crime, particularly where the accusation was murder and there was a possibility of the death penalty. U.S. v. Never Misses a Shot, __ F.3d __ (8th Cir. May 21, 2013) No. 12-3267.
8th Circuit says defendant subject to mandatory minimum was not eligible for sentence reduction. (715) In 2006, defendant pled guilty to cocaine base charges. His guideline range was 262-327 months, but based on his cooperation, the district court departed downward, and sentenced him to 160 months. A 2008 guideline amendment made defendant’s guideline range 210-262 months, but he still faced a 240-month mandatory minimum. The court departed from 240 months, and resentenced him to 146 months. In 2010, the Sentencing Commission again amended the guidelines, and defendant moved for another reduction. The district court found that defendant was still subject to the 240-month statutory minimum, and thus was not affected by the 2010 amendment, and denied his motion. The Eighth Circuit agreed that defendant was not eligible for a sentence reduction. The 2010 amendment did not alter his guideline range. Note 1 to § 1B1.10 instructs that a reduction is not authorized when an otherwise applicable amendment does not lower “the defendant’s applicable guideline range because of the operation of … a statutory mandatory minimum.” U.S. v. Golden, 709 F.3d 1229 (8th Cir. 2013).
8th Circuit affirms increasing defendant’s sentence by six months after he smiled. (715) Defendant pled guilty to assault with a dangerous weapon. At sentencing, the district court initially imposed a sentence of 78 months. After he pronounced that sentence, the district court noted that defendant was “smiling.” The court then imposed an additional six months, stating that the 84 months’ sentence was based upon §§ 5K2.21, 5K2.3, 5K2.8, the “[p]sychological injury, unusual cruelty, torture, and other reasons listed by the probation officer in the presentence report.” Defendant claimed that the district court abused its discretion by considering an improper factor – his smile. The Eighth Circuit found that the district court did not abuse discretion by increasing defendant’s sentence by six months after he smiled. The court was uniquely situated to observe defendant’s demeanor, and personally charged with reviewing the § 3553(a) factors. The district court based its increase in the sentence not solely on the smile, but a combination of it and other factors. U.S. v. White Twin, 682 F.3d 773 (8th Cir. June 27, 2012).
8th Circuit holds that any error in relying on government exhibits was harmless. (715) Defendant was convicted of making a threatening phone call to destroy a building by fire or explosives. The district court departed upward under §4A1.3 and §5K2.21 to the statutory maximum sentence of 120 months. Defendant argued that the district court procedurally erred by considering various government exhibits as reliable proof of his previous arson activity. The Eighth Circuit agreed that the contested exhibits were not reliable proof of defendant’s criminal history—they merely described fires that were tangentially related to defendant, if related at all. All but one of the contested exhibits deemed the reported fires accidental. However, the district court received the exhibits “for whatever relevance they have.” Therefore, the panel presumed that the court only considered the exhibits that corroborated the criminal conduct described in the PSR, and did not consider the exhibits that were irrelevant to defendant’s uncharged criminal conduct. Based on the totality of the evidence, the court concluded that the advisory guideline range did not reflect defendant’s criminal history, his likelihood to recidivate, or his escalating violent behavior. U.S. v. Gant, 663 F.3d 1023 (8th Cir. 2011).
8th Circuit says court in non-fast track district may consider disparities created by fast track programs. (715) Defendant pled guilty to illegal reentry into the U.S. after being deported, in violation of 8 U.S.C. § 1326(a). He moved for a downward departure to compensate for the sentencing disparity based on the unavailability of a “fast track” early disposition program in the district. Previous Eighth Circuit cases have concluded that variances based on the absence of fast track programs were impermissible. Here, the Eighth Circuit held that Kimbrough v. U.S., 552 U.S. 85 (2007), undermined the rationale of its prior decisions that disallowed variances based on the unavailability of fast track in a particular district. The focus is not on whether Congress, through the PROTECT Act, blessed a sentencing disparity, making it warranted and thereby consistent with 18 U.S.C. § 33553(a)(6). Rather, the question was whether Congress, through the PROTECT Act, expressly curtailed a district court’s sentencing discretion under the entire array of § 3553(a). Congress did not. Nowhere in the PROTECT Act does Congress purport to limit a district court’s sentencing discretion under all the § 3553(a) factors. U.S. v. Jimenez-Perez, __ F.3d __ (8th Cir. Oct. 18, 2011) No. 10-3757.
8th Circuit affirms upward departure for distribution of heroin resulting in death. (715) Defendant was convicted of distributing heroin. The district court departed upward from the 10-16 month range to a 60-month sentence, finding that defendant’s conduct resulted in the death of Gunderson, § 5K2.1. The Eighth Circuit ruled that the district court did not clearly err in determining that defendant’s conduct led to Gunderson’s death. The autopsy showed that the cause of Gunderson’s death was heroin toxicity, and that cocaine was also in Gunderson’s system. The only drugs found in the apartment where Gunderson overdosed were leftover from the packages defendant admitted mailing to Gunderson. Although defendant did not intend Gunderson’s death, and her addiction and co-dependent relationship with Gunderson likely influenced her conduct, the 60-month sentence was reasonable. These circumstances were only mitigating factors to be considered in deciding whether and to what extent to depart upward. The court gave due consideration to these mitigating circumstances in finding a sentence of 60 months was appropriate, as opposed to a longer sentence. U.S. v. Nossan, __ F.3d __ (8th Cir. Aug. 3, 2011) No. 10-2502.
8th Circuit approves above-guideline sentence for murder. (715) Defendant pled guilty to two counts of assault with a dangerous weapon. The district court departed upward, finding that defendant committed an execution-style murder, as alleged in a dismissed count. The Eighth Circuit affirmed the sentence, upholding the court’s murder finding. Defendant’s children discovered the victim dead on a bed with two knife cuts on his head and a deep, fatal stab wound to his heart. Defendant was on the floor with several knife wounds on her arm and back. Although defendant claimed the victim attacked her and she acted in self-defense, the government argued that defendant had stabbed herself in order to fabricate a self-defense claim. Defendant did not have any defensive wounds and there was no evidence of a struggle. A crime-scene expert explained that the blood patterns showed victim received his fatal stab wounds when he was lying down or when standing defenseless at the foot of the bed, immediately before being forced down onto the bed by the stabbing. The blood patterns on the bedcover were consistent with defendant stabbing the victim’s body while straddling his prone body. U.S. v. Azure, 596 F.3d 449 (8th Cir. 2010).
8th Circuit rejects sentencing manipulation claim based on six controlled buys. (715) Police engaged in a series of six controlled buys of methamphetamine from defendant. Defendant was arrested after the last controlled buy. Based on the quantity involved in all six buys, the district court found that defendant was responsible for at between 50 and 150 grams of actual methamphetamine, resulting in a guideline range of 121-151 months. Defendant argued that the district court abused its discretion by failing to grant a downward departure or variance based on sentencing manipulation, and that the police conducted the later controlled buys solely to increase his sentence. The Eighth Circuit found that the investigative purposes identified by the district court were sufficient to support a finding of no sentencing manipulation. The district court credited testimony from police officers that they were attempting to locate accomplices and the source of the drugs, learn the structure of the criminal enterprise, and build a strong case against defendant. The court did not abuse its discretion in sentencing defendant to 121 months. U.S. v. Torres, 563 F.3d 731 (8th Cir. 2009).
8th Circuit approves departure for psychological harm to woman defendant married using false identity. (715) Defendant lived under a number of aliases, running up credit card bills, and then fleeing to avoid prosecution. Using one of the aliases, he married a woman. Two years later, she discovered his past, and filed for an annulment. The district court applied a three-level upward departure under Note 20(A)(ii) to § 2B1.1 for substantial non-pecuniary harm based on the emotional and psychological harm to defendant’s “wife” and her family. The woman and her daughter testified regarding the substantial emotional psychological toll that defendant’s deceit and misrepresentations had taken on their family and particularly the woman’s grandchildren. The district court also departed by two levels under Note 20(A)(i), which authorizes an upward departure if “[a]primary objective of the offense was an aggravated, non-monetary objective.” The district court found that defendant’s primary objective in assuming new identities was to avoid criminal prosecutions in Arizona and California and that his base offense level “substantially understate[d]” the seriousness of his offenses. The Eighth Circuit affirmed, finding that the record supported both upward departures. U.S. v. Kowal, 527 F.3d 741 (8th Cir. 2008).
8th Circuit finds 40 percent downward variance resulted in a reasonable sentence. (715) While serving a prison sentence for mailing threatening letters, defendant mailed additional threatening letters to a federal judge and defendant’s public defender. The district court found that the case fell outside the heartland, but concluded that a departure under § 5K2.13 was not authorized because the offense “clearly involved a serious threat of violence.” Nonetheless, the court found that it could depart under § 5K2.0. Based on the same circumstances, the court alternatively found that a non-guidelines sentence was appropriate. The Eighth Circuit held that the § 5K2.0 departure was not proper. The Sentencing Commission adequately considered reduced mental capacity when it formulated § 5K2.13, so this foreclosed consideration of diminished mental capacity under § 5K2.0. The error, however, was harmless, because the alternative ground for the sentence, a variance based on the § 3553(a) factors, supported the sentence. The 60-month sentence, which represented a 40 percent variance from the guideline range of 100-125 months, was reasonable. The court reviewed each § 3553(a) factor, and based the variance on a number of findings, including that defendant was a seriously mentally ill individual who had been institutionalized or incarcerated most of his life, his mental illness interfered with his ability to control his impulses, he acknowledged his mental impairment and expressed a desire to obtain help, he never carried through with a threat, and the threats were designed to get attention. The court carefully considered each § 3553(a) factors, and did not abuse its discretion in finding that a shorter period of incarceration, with mental health treatment and supervised release, was the most effective sentence. U.S. v. Myers, 503 F.3d 676 (8th Cir. 2007).
8th Circuit approves departure where buyer who purchased heroin from defendant died. (715) Defendant pled guilty to conspiring to distribute at least 100 grams of heroin. The district court departed upward finding that defendant had sold heroin to a buyer who died as a result. The court based the departure on U.S.S.G. § 5K2.21, “Dismissed and Uncharged Conduct.” Defendant argued that the Sentencing Commission took the uncharged conduct (distribution of heroin resulting in death) into consideration when it crafted § 2D1.1(a)(2). The Eighth Circuit found no error. Although § 2D1.1(a)(2) does specifically provide for this conduct, it did not figure into the determination of defendant’s base offense level. The district court had previously dismissed an indictment charging defendant with distributing heroin resulting in death, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(c), because it violated a prior plea agreement. Thus, the government was not allowed to charge defendant with distribution resulting in death. Section 2D1.1 (a)(2) applies only if “the offense of conviction established that death or serious bodily injury resulted from the use of the substance.” Thus, the district court’s finding that defendant’s base offense level did not take death into account was not erroneous, and the uncharged relevant conduct was a proper ground for departure. U.S. v. Bradford, 499 F.3d 910 (8th Cir. 2007).
8th Circuit approves downward departure based on contributions to community and commingling of funds. (715) Defendant was convicted of fraud, tax fraud and money laundering based on a scheme to obtain more farm program benefits than were warranted by defendant’s farming operations. The district court found that because defendant’s legitimate farming funds were inextricably commingled with funds obtained illegally in the farm program scheme, the seriousness of the offense was substantially overrated. The court also found that defendant’s past record of providing for his community supported a minimal departure. Thus, the court departed downward by three levels under § 5K2.0. The Eighth Circuit found no error. The commingling of funds, as well as the relatively small net profit that defendant actually realized, took this money laundering scheme out of the garden variety. The court also properly found that defendant’s lifetime contributions to his community warranted a minimal departure. Defendant had loaned money to neighbors and fellow farmers in need, over a number of years, and this generosity had saved farms from foreclosure and helped finance the start-up and continuation of businesses in the local community. U.S. v. Huber, 462 F.3d 945 (8th Cir. 2006).
8th Circuit holds that manipulation of unwitting participants supported departure. (715) 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. He argued that a § 3B1.1 aggravating role enhancement should not apply because the government did not offer evidence of any other criminally responsible participants. The government argued that defendant used multiple other people to facilitate his criminal conduct, including his mother (who mailed packages for him), two of the minor’s friends (who received packages from him for the girl) and two fellow residents of the treatment center where he lived. The Eighth Circuit found that any error was harmless, since the district court made clear that even if the adjustment did not apply, it would have departed upward to impose the same sentence. The factors described by the court were sufficient to justify a two-level upward departure from the advisory guideline range. Even if defendant’s mother, the girl’s friends, and the other civilly committed patients were unwitting participants in defendant’s criminal scheme, the evidence established that he manipulated these persons to assist in the child pornography offenses. Although defendant may not have managed or supervised these persons, the nature of the activity was sufficient to justify an enhanced sentence. U.S. v. Mentzos, 462 F.3d 830 (8th Cir. 2006).
8th Circuit approves upward departure for defendant who robbed 22 banks in 18-month period. (715) Over an eighteen-month period, defendant committed 22 bank robberies. His guideline range was 87-108 months’, but the court departed upward by six offense levels, and imposed a sentence of 180 months. The court found that the guidelines did not adequately account for the magnitude of defendant’s crime spree, since it stops counting at more than five offenses. Thus, a defendant who commits six bank robberies is treated the same under the guidelines as a person who has robbed 22 banks. The court also considered the impact of defendant’s threats of violence on bank personnel and the community as a whole. The Eighth Circuit affirmed the sentence, ruling that defendant failed to demonstrate that his sentence was unreasonable. The guidelines did not adequately account for his robbery of 22 banks. U.S. v. Whitrock, 454 F.3d 866 (8th Cir. 2006).
8th Circuit approves upward departure for statutory rape defendant who videotaped his sexual encounters with minor. (715) Defendant pled guilty to sexual abuse of a minor (statutory rape) in connection with his one-year sexual relationship with a 14-year old girl. Defendant videotaped them engaging in sexual acts on at least six different occasions. The district court departed upward under § 5K2.21 (based on a dismissed possession of child pornography count) from a guideline range of 30-37 months to a sentence of 51 months. The Eighth Circuit affirmed. The district court found that defendant’s possession of child pornography that he produced by not taken into consideration by the guidelines, and the video was disrespectful and degrading to the victim and to everyone who might see it. The court was struck by defendant engaging in sexual activity with a girl young enough to have Winnie-the-Pooh décor in her bedroom and who looked embarrassed and ashamed during parts of the video. Because the uncharged conduct, i.e., the possession of child pornography produced by defendant, was related to the underlying crime, the district court did not err in departing upwards. The sentence imposed was reasonable. U.S. v. Mack, 452 F.3d 744 (8th Cir. 2006).
8th Circuit approves upward departure based on assault on illegal alien. (715) Defendant pled guilty to being an illegal alien in possession of firearms and ammunition, and knowingly concealing and harboring an illegal alien. The district court made a six-level upward departure under § 5K2.21 based on defendant’s uncharged assault on an illegal alien. The Eighth Circuit affirmed, ruling that the assault was related to the offense of conviction. The victim, an illegal alien, was one of defendant’s employees and was assaulted during the course of his employment by defendant. Defendant concealed, harbored, and shielded illegal aliens by employing them at his restaurant. The court did not improperly consider the vulnerability of the victim. The court did not apply a vulnerable victim enhancement under § 3A1.1(b)(1), but limited consideration of the vulnerability of the victim to its § 5K2.21 departure analysis. The court noted that the employee was “particularly vulnerable” to this type of abuse because, as an illegal alien, he could not report the assault to law enforcement. Defendant’s choice of victim was a fact related to the uncharged conduct, and demonstrated the actual seriousness of defendant’s criminal actions. The 47-month sentence imposed was reasonable. It exceeded the advisory range by only one month, and was reasonable under the circumstances. U.S. v. Ademi, 439 F.3d 964 (8th Cir. 2006).
8th Circuit holds that sentencing disparity resulting from limited availability of fast-track programs did not make defendant’s sentence unreasonable. (715) Defendant was convicted of illegal reentry to the U.S., and was sentenced to 46 months’ imprisonment, the bottom of the advisory guideline range. He argued that the use of “fast-track” programs for immigration cases in certain judicial districts creates unwarranted sentence disparities among defendants based only on the location in which an alien is apprehended. Thus, he contended that the more favorable treatment of aliens with similar records and offenses in judicial districts with fast-track programs made it unreasonable to apply the advisory range to him. The Eighth Circuit acknowledged that the existence of early disposition programs in certain districts did create sentence disparities among defendants with similar records who commit similar offense conduct, and the disparity is based purely on geography. However, the command that courts should consider the need to avoid “unwarranted sentence disparities” emanates from a statute, and it is within the province of the policymaking branches of government to determine that certain disparities are warranted, and thus need not be avoided. By directing the Sentencing Commission to provide for guideline departures in certain judicial districts, Congress and the President have concluded that the advantages of fast-track programs outweigh the disadvantages. While there may be good reasons to question this policy, such reasons cannot be grounds for concluding that the guideline sentence is unreasonable. U.S. v. Sebastian, 436 F.3d 913 (8th Cir. 2006), abrogated by U.S. v. Jimenez-Perez, 659 F.3d 704 (8th Cir. 2011).
8th Circuit rejects downward departure for diminished capacity, lack of intent to cause harm, “exceptional circumstances,” and uncertainty of guidelines. (715) Defendant was convicted of mailing threatening communications and related charges. The district court made a substantial downward departure on a variety of grounds, and the Eighth Circuit reversed. First, the district court erred in finding that defendant suffered from diminished capacity under § 5K2.13. The court identified no basis for its conclusions regarding defendant’s mental problems, stating only that defendant suffered psychiatric problems and a “defiant personality.” Defendant’s lack of serious intent to cause harm was not a proper ground for departure because intent to carry through on a threat was not an element of any of his crimes of conviction. The court’s finding that “few” people took his threats seriously was belied by the conduct of the recipients of his threatening letters – they forwarded the letters to law enforcement authorities. Finally, the “exceptional circumstances” identified by the court (defendant’s long standing history of animosity with the local police department and his obsessive efforts to garner attention to his civil rights action) did not take his case out of the heartland of applicable guidelines. Further, the uncertainty as to whether the Sentencing Guidelines would ultimately be invalidated was not a basis for departure. U.S. v. McMorrow, 434 F.3d 1116 (8th Cir. 2006).
8th Circuit holds that court gave adequate reasons for upward departure. (715) Defendant argued that the district court erred in departing upward without adequately stating, in open court and in the written judgment, “the specific reason for the imposition of a sentence” outside the guidelines sentencing range. 18 U.S.C. § 3553(c) (2). The Eighth Circuit disagreed. The government’s departure motion relied on specific guideline provisions – §§ 2G2.4, 4A1.3, 5K2.2 and 5K2.8. Defendant’s pre-hearing memo responded on each issue. At the end of the hearing, the court stated that it was departing because of the numerous images of child pornography, extreme conduct and physical injury. It rejected the government’s motion for departure under § 4A1.3. Thus, the court stated “specific reasons,” reasons specifically addressed in the guidelines, in the parties’ pre-hearing memo, and at the hearing. The court’s written statement of reasons was consistent with its statement in open court. U.S. v. Rogers, 423 F.3d 823 (8th Cir. 2005).
8th Circuit holds that state charges for medical procedure were sufficiently related to obscenity counts to support departure. (715) Defendant pled guilty to possession and distribution of child pornography, and distribution of obscene materials. The obscene materials were photographs that defendant emailed to others of defendant posing with severed male genitals. The PSR reported that state charges were pending against defendant, who had no medical license, accusing him of surgically removing the male genitalia of a person who wanted a sex change in a motel room while an assistant photographed the “nullification” procedure, keeping the severed genitalia, and telling the assistant he ate them. There was evidence that defendant had previously performed similar operations. The district court departed upward based on extreme conduct and physical injury (the victim bled profusely for six days after the procedure and almost died). The Eighth Circuit affirmed the departure, ruling that the facts supporting the departure were sufficiently related to defendant’s offenses of conviction. A court is not limited to relevant conduct, but may consider “without limitation, any information concerning the background, character and conduct of the defendant …” Defendant’s conduct in performing the “heinous and dangerous” motel room nullification was sufficiently related at least to the obscenity counts of conviction to be considered for upward departure purposes. The extent of the departure – over 24 years – was not unreasonable given defendant’s performance of numerous surgical nullifications without a medical license, his brutal and degrading conduct toward the victim, his ingestion of the severed genitals and publication of this heinous conduct on the Internet, in addition to his expressed interesting in torturing children, and his boast that he had kidnapped, tortured, raped and killed a child. U.S. v. Rogers, 423 F.3d 823 (8th Cir. 2005).
8th Circuit upholds departure based on vulnerability of victim, uncharged conduct and extreme conduct in father’s abuse of four-year old son. (715) Defendant pled guilty to assault resulting in serious bodily injury in connection with a broken leg and other injuries suffered by his four-year old son. The Eighth Circuit held that the district court properly departed under § 5K2.0 based on the vulnerability of the victim. The young child was in defendant’s care and custody, and was much more vulnerable to him due to defendant’s access to him, the ease in hiding the conduct, and the difficulty the victim would have in reporting the defendant’s conduct. Punishment in excess of the two-level adjustment under § 3A1.1 may be proper in certain cases involving vulnerable victims who have multiple vulnerabilities. The vulnerability of defendant’s young son was a circumstances existing “to a degree” not considered by the Sentencing Commission when it promulgated § 3A1.1(a) (1). The district court also properly found that defendant caused numerous burns on the boy, which supported a departure under § 5K2.21 (uncharged conduct). The district court did not abuse its discretion in considering defendant’s history of relatively minor offenses that were not counted in his criminal history score. Between 1996 and 2002, defendant had one violation of law after another, including three convictions for exhibition driving, four convictions for driving with a suspended license, four convictions for speeding, one conviction for disorderly conduct, and four convictions for passing checks with insufficient funds. Finally, the court properly departed under § 5K2.7 for extreme conduct. The district court found defendant’s conduct was “heinous, cruel, and brutal beyond the characteristics associated with the crime of assault resulting in serious bodily injury,” and involved ‘the gratuitous inflictions of injury.” U.S. v. Schwalk, 412 F.3d 929 (8th Cir. 2005).
8th Circuit rejects downward departure based on lack of criminal history and diminished capacity. (715) Defendant was convicted of interstate travel with the intent to engage in a sexual act with a minor. The district court granted defendant’s motion to depart downward after finding that defendant lacked a criminal history, was unlikely to reoffend, and suffered from diminished capacity. The court also granted a departure based upon a convergence of these facts. The Eighth Circuit reversed. Lack of criminal history can never furnish the basis for a downward departure because the guidelines have already set Category I to accommodate the first-time offender. The district court did not specify any facts relevant to rehabilitation that made defendant’s case exceptional. The doctor’s report submitted by defendant was insufficient, by itself, to support a finding of diminished capacity. Although the doctor diagnosed defendant as suffering from depression and anxiety, as well as a language disorder, the doctor did not suggest that these conditions impaired defendant’s ability to understand the wrongfulness of his behavior or his ability to control behavior he knew was wrong. U.S. v. McCart, 377 F.3d 874 (8th Cir. 2004).
8th Circuit approves downward departure where co-conspirator’s death was unintentional. (715) Defendant hired a friend to burn down defendant’s nightclub so that defendant could collect the insurance proceeds. The nightclub ended up exploding, and the friend died in the explosion. Section 2K1.4(c)(1) directs a court to apply “the most analogous guideline” if death resulted from the offense. The district court found that § 2A1.1, First-Degree Murder, was the most analogous, but then departed downward to an offense level of 33, the same offense level as under § 2A1.2, Second Degree Murder. The court relied upon the fact that the victim’s death was not intentionally or knowingly caused by defendant. In a pre-Blakely case, the Eighth Circuit affirmed. Note 1 of the commentary to § 2A1.1 provides that if the defendant did not cause the death intentionally or knowingly, a downward departure may be warranted. The ten-level departure reflected the district court’s belief that defendant’s responsibility for his friend’s death was peripheral, that this was a botched insurance scam with a tragic result – both of which are factual findings. The commentary gives broad discretion to the district court to determine the extent of such a departure. U.S. v. Manfre, 368 F.3d 832 (8th Cir. 2004).
8th Circuit holds that argument for departure was impermissible collateral attack on prior conviction. (715) At sentencing, the district court departed downward from a total offense level of 21, which included a 16-level increase based on a prior conviction for an aggravated felony. The court based its departure decision on the “disproportionate impact” of applying the “entire 16-level increase” to defendant’s total offense level. In U.S. v. Dyck, 334 F.3d 736 (8th Cir. 2003), the court held that the circumstances of a prior offense is not a proper basis to support a sentencing departure under U.S.S.G. § 2L1.2. Defendant tried to get around Dyck by arguing that the court’s departure was a finding that the prior crime of violence did not occur at all. Defendant’s argument was essential a collateral attack on the validity of his state court conviction. However, absent express statutory authorization, a prior conviction used to enhance a sentence cannot be collaterally attacked unless a complete deprivation of counsel existed. The Eighth Circuit concluded that the district court erred in granting defendant a downward departure. U.S. v. Rodriguez-Ceballos, 365 F.3d 664 (8th Cir. 2004).
8th Circuit reverses downward departure based on payment of full restitution, overstated role, and economic impact on community. (715) The court cited three reasons for its decision to depart downwards: (1) defendant’s extraordinary restitution effort in taking out a bank loan to pay full restitution immediately; (2) defendant’s role in the offense had been overstated; and (3) the economic impact on the community if defendant were to be absent from his businesses. The Eighth Circuit reversed. Although defendant went to great lengths to have a cashier’s check for over $450,000 available at sentencing, to treat such efforts as warranting a departure would differentiate defendants on the basis of their economic resources. A defendant’s minor or minimal role in the offense is already considered in the guidelines in § 3B1.2; thus, a departure is proper only if the guideline level attached to that factor was inadequate. Defendant did not receive a § 3B1.2 mitigating role reduction, and did not object to the PSR for its lack of such a recommendation. There was nothing unusual in defendant’s case to warrant a downward departure on this basis. Section 5H1.6 expressly discourages community ties as a ground for departure; thus, a departure is permitted only if defendant’s community ties are truly exceptional. The mere fact that a business faces likely failure and innocent others will be disadvantaged when its key person goes to jail its not by itself unusual enough to warrant a departure. U.S. v. O’Malley, 364 F.3d 974 (8th Cir. 2004).
8th Circuit approves departure for pharmacist who diluted chemotherapy drugs to cancer patients. (715) Defendant, a pharmacist, diluted several chemotherapy drugs before distributing them for administration to cancer patients. The district court made a three-level upward departure on four grounds: (1) the grouping rules disregarded defendant’s significant number of additional offenses; (2) defendant significantly endangered public health; (3) defendant’s conduct caused extreme psychological injury to his victims; and (4) the guidelines did not take into account defendant’s uncharged criminal conduct. The Eighth Circuit affirmed, finding that at least two of the cited reasons solidly supported the departure. The background commentary to § 3D1.4 authorizes an upward departure when the flat five-level increase for more than five “units” disregards a significant number of units. Defendant’s offenses of convictions, combined with his other admitted relevant conduct (diluting 50 additional doses to eight patients named in the indictment, and 102 doses of drugs to 26 other patients) easily resulted in significantly more than five units. Moreover, Note 1 to § 2N1.1 authorizes an upward departure where the offense caused “extreme psychological injury.” The PSR was replete with victim impact statements illustrating the extreme psychological harm suffered by defendant’s patients. U.S. v. Flores, 362 F.3d 1030 (8th Cir. 2004).
8th Circuit rejects upward departure in false anthrax case for disruption of government function and threat to public safety. (715) Defendant called a 911 operator and stated that anthrax was in one of the local schools. At sentencing, the district court departed upward based on (1) the disruption of governmental functions; (2) the significant danger to the public heath and safety; (3) defendant’s recidivist tendencies; and (4) the timing of the offense. The Eighth Circuit reversed. Section 2K2.7 permits a departure based on a “significant disruption of a government function.” While there was evidence of a disruption (law enforcement were dispatched to the local post office and school to intercept mail), evidence concerning the significance of the disruption was not in the record. Moreover, § 2A6.1(b)(4)(A) already provided for an increase if government functions are disrupted, and the court chose not to apply that enhancement. Thus, the court implicitly found the governmental functions of the school and mail delivery system were not disrupted to a substantial degree. The facts in the record did not support a departure under § 5K2.14 for threatening national security or public health. Defendant’s threat was empty. While the response to an empty threat might endanger the public, that was not the case here. Finally, it was unclear how the timing of the offense affected the court’s reasoning. U.S. v. Cole, 357 F.3d 780 (8th Cir. 2004).
8th Circuit remands for consideration of departure based on time served. (715) Note 7 to § 5G1.3 says that in “the case of a discharged term of imprisonment, a downward departure is not prohibited if subsection (b) would have applied to that term of imprisonment had the term been undischarged.” Subsection (b) mandates that terms of imprisonment for essentially the same conduct shall run concurrently. Thus, the application note permits a departure for time previously served where the current and prior offenses involve the same conduct. Defendant argued that the district court did not recognize its authority to depart pursuant to this application note, and the Eighth Circuit agreed. The district court’s statements indicated that it believed that the determination of whether to credit defendant for time already served rested with the Bureau of Prisons. The panel remanded for consideration of whether a departure was proper. U.S. v. White, 354 F.3d 841 (8th Cir. 2004).
8th Circuit rejects departure for cultural assimilation in drug case. (715) The district court departed downward of account of defendant’s “cultural assimilation.” The court relied on U.S. v. Lipman, 133 F.3d 726 (9th Cir. 1998), in which the court discussed departing for a defendant who was convicted of illegal reentry after deportation had lived for some time and established himself in the U.S. Here, the district court, noting that defendant had lived in the U.S. since 1987 and had children here, granted a one-level downward departure for cultural assimilation. The Eighth Circuit reversed. Even if it agreed with Lipman, cultural assimilation has no role in sentencing for drug crimes. U.S. v. Aguilar-Portillo, 334 F.3d 744 (8th Cir. 2003).
8th Circuit rejects downward departure in illegal reentry case. (715) Defendant was convicted of illegal reentry after deportation subsequent to an aggravated felony conviction in violation of 8 U.S.C. § 1326(a) and (b). The district court thought it unfair that defendant’s prior conviction could be used both to increase his base offense level and his criminal history category, and therefore reduced the 12-level enhancement required by § 2L1.2(b)(1)(B) to only four levels. The Eighth Circuit held that the departure was an abuse of discretion. The Sentencing Commission has specifically provided that defendant’s prior conviction be used both to enhance his base offense level and to calculate his criminal history score. The court’s mere “dissatisfaction with the available sentencing range” is not a proper basis for a departure. The fact that defendant played only a minor role in the prior basis also was an impermissible basis for departing. Defendant’s role in the prior offense would have been addressed when he was sentenced for it. The court’s conclusion that a departure was warranted because defendant did not enter the country for illegal purposes was also erroneous. The harm sought to be presented was the illegal reentry itself, for whatever purpose. The record was devoid of facts supporting the court’s assertion that the conditions at the county jail facility were so poor as to warrant a departure. In addition, defendant’s educational experience did not render his case outside the heartland of cases. U.S. v. Dyck, 334 F.3d 736 (8th Cir. 2003).
8th Circuit approves upward criminal history departure for defendant with 45-year record. (715) Because the convictions were too old to be counted in his criminal history, defendant received no criminal history points for four prior burglary convictions, two prior convictions involving firearms, seven prior convictions for theft, four prior conviction for offenses involving motor vehicles, two prior convictions for assault, and one prior conviction for fraud. The district court departed under § 4A1.3 and § 5K2.21 from category II to V. The Eighth Circuit affirmed. Defendant was a recidivist criminal. During the last 45 years, he had been convicted of about 20 crimes. Defendant failed to cite even a single case in support of his claim that an upward departure was unwarranted in these circumstances. Moreover, the district court properly ruled that defendant’s possession of six firearms amounted to six different felonies. The government charged defendant with only one count of being a felon in possession of a firearm, but each firearm could have been charged as a separate federal crime. U.S. v. Chesborough, 333 F.3d 872 (8th Cir. 2003).
8th Circuit approves departure where aggravated assault guideline did not adequately account for psychological injury. (715) Defendant drove while intoxicated and caused a head-on collision with another vehicle, seriously injuring the elderly driver and his wife. The district court found that the driver suffered a “permanent or life threatening bodily injury,” which warranted a six-level enhancement under U.S.S.G. § 2A2.2(b)(3)(C). The court relied on the psychological injury to the driver in combination with his physical injuries. The court also departed upward under § 5K2.3 based on the driver’s extreme psychological injury. Because this psychological injury was already taken into consideration in § 2A2.2, a departure under § 5K2.3 was only permissible if the factor was present “to an exceptional degree.” The district court set forth detailed findings concerning the causes of and severity of the driver’s depression: the loss of a spouse of 53 years, the extensive treatment required by his physical injuries, confusion regarding the moves between hospitals and assisted living facilities, and the substantial impairment of the victim’s mental function due to the aggravation of his dementia. The Eighth Circuit upheld that the district court’s finding that psychological injury was present to an exceptional degree and that the § 2A2.2(b)(3)(C) increase alone failed to adequately account for the driver’s injuries. The departure was not an abuse of discretion. U.S. v. Thin Elk, 321 F.3d 704 (8th Cir. 2003).
8th Circuit affirms departure for defendant who controlled assets of money laundering scheme. (715) Defendant, the owner of a bar, helped Godfrey, a customer who had embezzled money from local college and deposited the checks into a bank account. Godfrey needed a way to withdraw the cash without triggering federal reporting requirements. Over a several-year period, Godfrey wrote more than 60 checks to the bar. Defendant added the checks them to the day’s receipts for the bar. Defendant then delivered cash to Godfrey, keeping a percentage for himself. Defendant could not receive a § 3B1.1 organizer enhancement because he did not exercise control over another person. However, the district court departed upward under note 2 to § 3B1.1, which provides that a departure may be warranted for a defendant who did not organize another participant, but who nevertheless exercised management responsibility over the property, assets, or activities of a criminal organization. Defendant argued that this was improper because his offense did not involve any management of property other than that inherent in the offense of money laundering. The Eighth Circuit affirmed the departure. Defendant decided when and in what amounts to withdraw the money from the bank, and even to some extent decided what amount he would keep. The extent of defendant’s control over the assets was shown by Godfrey’s testimony that defendant kept an accounting of their transactions, whereas Godfrey did not. Exercise of such discretion is not inherent in the offense of money laundering. U.S. v. Lalley, 317 F.3d 875 (8th Cir. 2003).
8th Circuit holds that ineffective assistance of counsel is not grounds for downward departure. (715) Defendant argued that the district court should have granted him a downward departure under § 5K2.0 because the attorney who represented him prior to his flight from justice labored under a conflict of interest and provided ineffective assistance of counsel. The Eighth Circuit found that defendant failed to demonstrate either an actual conflict or constitutionally substandard performance and resulting prejudice as required by Strickland v. Washington, 466 U.S. 668 (1984). Moreover, even assuming that defendant were able to establish an ineffective assistance of counsel claim, a § 5K2.0 departure would not be his remedy. The fact that a defendant received ineffective assistance of counsel does not speak to “the nature and circumstances of the offense and the history and characteristics of the defendant.” Ineffective assistance of counsel is not a valid ground for a downward departure under § 5K2.0. U.S. v. Young, 315 F.3d 911 (8th Cir. 2003).
8th Circuit affirms departure for threatening woman who had previously been victim of similar crimes. (715) Defendant sent threatening and vulgar email and telephone messages to a woman he met over the Internet. The messages included threats to murder the woman’s two children, to put pictures of her children on pornographic web sites, and to send letters to the woman’s neighbors. Defendant did in fact post pictures of the woman’s children along with their full names, address, and telephone number, on web sites soliciting sexual activity. Defendant also sent letters to defendant’s neighbors, warning that a “path of terror” was coming soon to their neighborhood. The district court departed upward based on § 5K2.0 (general departure provision), § 5K2.3, (extreme psychological injury to the victim), and § 5K2.8 (extreme conduct). The Eighth Circuit affirmed. From prior communications with the woman, defendant knew that she had already suffered through acts similar to those which defendant threatened (i.e. she was raped as a young woman and her brother was murdered). This similarity caused the victim more psychological harm than a victim without such experiences. Additionally, posting picture of the victim’s children on pornographic web sites and publishing their names, addresses, and phone number constituted extreme conduct. U.S. v. Rose, 315 F.3d 956 (8th Cir. 2003).
8th Circuit approves departure for resident alien who waived deportation hearing, even though government did not join the motion. (715) Defendant, a lawful permanent resident of the U.S., was convicted of drug charges. The district court granted defendant a four-level downward departure based on his waiver of the right, as a resident alien, to an administrative deportation hearing. In U.S. v. Cruz-Ochoa, 85 F.3d 325 (8th Cir. 1996), the Eighth Circuit held that a sentencing court may grant a downward departure under § 5K2.0 for a defendant’s willingness to waive resistance to deportation. The government contended here that because it did not join in the motion for departure, as was the case in Cruz-Ochoa, the court did not have the authority to depart. The Eighth Circuit ruled that a waiver of the administrative deportation proceeding due a resident alien is a sufficient basis for departure, notwithstanding the government’s decision not to join the motion. Defendant, as a resident alien, gave up substantial rights in waiving an administrative deportation hearing, and it was within the sound discretion of the district court to conclude that in doing so he substantially assisted in the administration of justice. U.S. v. Jauregui, 314 F.3d 961 (8th Cir. 2003).
8th Circuit denies departure based on aggregation of non-extraordinary factors. (715) Defendant pled guilty to aggravated sexual abuse of a child. The district court granted defendant’s motion for a downward departure on the basis of an aggregation of factors which it said were individually insufficient, but together were enough to remove the case from the heartland of the offense. The factors were (1) aberrant behavior, (2) diminished capacity, (3) significant post offense efforts at rehabilitation, (4) recurrent depressive disorder, and (5) avoidance of an extended investigation and trial. The Eighth Circuit reversed, finding none of the factors were exceptional, and the aggregation “came to no more than a sum of its insufficient parts.” A departure for aberrant behavior is specifically precluded by the guideline § 5K2.20 if a defendant has more than one criminal history point, and defendant had six. Although the court mentioned the issue of diminished capacity, it did not make a finding that defendant acted with a diminished capacity. Moreover, § 5K2.13 specifically precludes a downward departure if a defendant’s reduced mental capacity was caused by the voluntary use of drugs or other intoxicants. Defendant’s post offense rehabilitation efforts were not extraordinary because he was not working or supporting his son. There was no evidence that defendant was suffering from depression at the time he abused the child. Finally, as to defendant’s cooperation, he received a three-level acceptance of responsibility reduction, confessed only after being approached by FBI agents, and attempted to minimize his responsibility. U.S. v. Roberts, 313 F.3d 1050 (8th Cir. 2002).
8th Circuit holds that lack of distribution of child pornography is not ground for departure. (715) Defendant pled guilty to possession of child pornography. He argued that his lack of participation in the distribution of child pornography should serve as a mitigating factor. Counsel argued that the crime was “probably as much ignorance as much as anything. Picking it up off the internet, putting it on a computer. No distribution, no harm done to anyone from it.” The Eighth Circuit found that the court was aware of its discretion to depart, and therefore, its refusal to depart was not reviewable. However, even if the court believed it had no authority to depart, as a matter of law defendant’s lack of distribution of the child pornography was not grounds for a downward departure. The guidelines already treat possession of child pornography in § 2G2.4 as a less serious offense than distribution, which is treated under § 2G2.2. U.S. v. VanHouten, 307 F.3d 693 (8th Cir. 2002).
8th Circuit approves upward departure for less severe crimes disregarded by combined offense level. (715) Defendant was convicted of three counts of assault resulting in substantial bodily injury to a child under 16 and one count of assault resulting in serious bodily injury. See 18 U.S.C. §§ 113(a)(6) & (7), 1153. Under § 3D1.4, the combined offense level is determined by taking the offense level for the most serious crime of assault and increasing that level by the amount of levels listed in a table in § 3D1.4. Because the offense levels for defendant’s three less serious counts of assault fell more than nine levels below the offense level for the most serious assault, § 3D1.4(a) required the district court to disregard the less-severe assaults in determining the combined offense levels. The Eighth Circuit approved an upward departure based on the guidelines’ failure to provide any additional punishment for the less severe assaults. The background commentary to § 3D1.4 authorizes a departure for precisely this reason, and the departure was well justified here. The operation of § 3D1.4 entirely withdrew from the combined offense level computation three separate counts of assault to a defenseless toddler. Those assaults occurred on three separate days and involved three separate and traumatic injuries to a very small child, including a fractured skull, burns to his face, and a bite to his leg. U.S. v. Brown, 287 F.3d 684 (8th Cir. 2002).
8th Circuit affirms departure for physical injury, use of weapon and extreme conduct. (715) Defendant was convicted under the Mann Act of charges relating to the recruitment, transportation, control and abuse of prostitutes. The district court departed upward by 135 months under § 2K2.2 (significant physical injury), § 5K2.6 (use of a weapon), and § 5K2.8 (extreme conduct). Defendant argued that because the court used § 2A3.1 (criminal sexual abuse) as the base offense level and enhanced that base under § 2A3.1(b)(1) (for committing the offense through certain aggravated means), further departure was impermissible, because the factors the court relied on were incorporated into his enhanced offense level. The Eighth Circuit found no abuse of discretion. Regarding physical abuse, there was sufficient testimonial evidence of significant injury to Schaper (broken wrist, dislocated shoulder, head trauma), May (temporary hearing loss, cuts and contusions), and Frazier (a broken rib, facial trauma, and blackened and swollen eyes) as a result of defendant’s physical abuse to satisfy to the court that there was no abuse of discretion. Regarding use of a weapon, Schaper testified that defendant put a gun to her head, and Frazier testified that defendant threatened her by putting a hot steam iron to her face. Finally, regarding extreme conduct, in addition to various assaults, assaults with weapons, and sexual assaults, Schaper testified that defendant forced her to work as a prostitute up to the seventh month of her pregnancies. He also forced May to work after being released from the hospital with pneumonia. U.S. v. Evans, 285 F.3d 664 (8th Cir. 2002).
8th Circuit says court erred in finding defendant was victim of sentencing entrapment. (715) On defendant’s first appeal, the Eighth Circuit found that the district court had used the wrong standard in rejecting defendant’s sentencing entrapment claim. The sentencing entrapment analysis must focus on the defendant’s predisposition, not on whether the government’s conduct had been outrageous. U.S. v. Searcy, 233 F.3d 1096 (8th Cir. 2000). On remand, the district court found that defendant was not predisposed to deal in crack and resentenced defendant by treating all of the drugs sold as powder cocaine rather than crack. The Eighth Circuit reversed, finding defendant was predisposed to sell crack in the quantities sold. Although defendant had never sold crack before, and initially told Watkins, an informant, that “he doesn’t sell crack cocaine,” defendant had been present during the manufacturing of crack in the past, had used it, and had distributed it as gifts. Significantly, he displayed no reluctance to sell crack to Watkins in the very first conversation they had, a conversation that contained no particular signs of pressure or coercion on Watkin’s part. The actual agreement for sale did not take place until later, but there was no particular difficulty in getting defendant to entertain the idea. Although there was some evidence that the government sought a higher quantity in order to secure a severe sentence, defendant was not an all unwilling to sell the larger quantity. U.S. v. Searcy, 284 F.3d 938 (8th Cir. 2002).
8th Circuit rejects downward departure based on variety of factors already accounted for in guidelines. (715) The court specifically found that defendant’s case fell within the heartland of the appropriate guideline. Nonetheless, the district court departed downward because defendant (1) was not the “most active participant” in the offense, (2) did not derive any dollar or cash benefits from the offense, and (3) showed “at least a degree of contrition.” The Eighth Circuit held that the departure was an abuse of discretion, since the court found that defendant’s case fell within the heartland of the appropriate guideline, and all of the listed factors were taken into account by the guidelines. The court’s finding that defendant received no pecuniary benefit from the crime was in apparent conflict with the evidence that she made about $50,000 a year working for the leader of the conspiracy. Moreover, the guideline for counseling or advising tax fraud specifically takes into account the extent to which the defendant made her living by the pattern of conduct that included the crime. USSG § 2T1.4(b)(1). Defendant’s role in the offense was taken into account by § 3B1.2. The court already found that defendant was not entitled to this reduction. Finally, § 3E1.1 provides for a reduction based on a defendant’s acceptance of responsibility. The court did not give defendant this decrease; in fact, she received an obstruction of justice increase. U.S. v. Reinke, 283 F.3d 918 (8th Cir. 2002).
8th Circuit rejects downward departure based on minor role, lack of weapon, and aberrant behavior. (715) Defendant committed perjury before a grand jury investigating a bank robbery committed by two friends. The court sentenced her as an accessory after the fact because she committed perjury “in respect to a criminal offense.” The district court made a three-level downward departure based on (1) defendant’s minimal participation in the crime; (2) the lack of evidence that a weapon was used in the offense; and (3) aberrant behavior. The Eighth Circuit reversed. A defendant’s mitigating role in an offense is already taken into account by USSG § 3B1.2. Moreover, a defendant who commits perjury can never be a minor or minimal participant in the crime of perjury. Although defendant may have only been minimally involved in the bank robbery, the guidelines contemplate that the defendant be sentenced based on the gravity of the underlying crime, less six levels. See § 2X3.1. The court’s reliance on the lack of a weapon was puzzling, given (1) it was undisputed at defendant’s sentencing that weapons were used in the robbery, and (2) the district court applied a five-level increase because defendant either knew, or reasonably should have known, that weapons had been used during the robbery. Finally, defendant’s perjury was not aberrant behavior. Given her criminal record, the perjury could not “be characterized as a marked deviation from an otherwise law-abiding existence.” U.S. v. Jimenez, 282 F.3d 597 (8th Cir. 2002).
8th Circuit says that forced entry into home in violation of restraining order was not atypical. (715) Defendant broke into the home of his estranged wife, in violation of a temporary protection order, and beat and raped her. The district court departed downward under § 5K2.0 in part because it found that defendant’s act of burglary was “atypical” in that he broke into his own home. While the Eighth Circuit agreed that engaging in a burglary of one’s own home would not be typical, the conduct in this case, in light of the protection order, did not support a downward departure. Certain facts here were typical of burglary: defendant parked his car off the premises, implying concealment, he forced entry into the home, and he wore rubber gloves while inside the home. Defendant’s right of access to the home had been temporarily restrained. The departure was unreasonable. U.S. v. Petersen, 276 F.3d 432 (8th Cir. 2002).
8th Circuit says evidence did not support finding of minimal force. (715) Defendant broke into the home of his estranged wife, in violation of a temporary protection order, and beat and raped her. The district court departed downward in part because it found that defendant only used force during the assault, and not during the rape. The court noted that the “victim ultimately succumbed to the defendant’s request for sexual intercourse because she was afraid of the defendant. The parties were still married.” The Eighth Circuit reversed, since the district court’s finding of minimal force could not be reconciled with the evidence. Defendant used a flashlight to beat his wife, he strangled her until she was unconscious, he dislocated her shoulder, he sexually assaulted and then raped her, and threatened to kill her. Under these circumstances, the fact that the rape victim was his wife did not warrant a downward departure. It was impossible to reconcile the jury’s finding of aggravation with a downward departure for minimal force. U.S. v. Petersen, 276 F.3d 432 (8th Cir. 2002).
8th Circuit says failure to seek departure based on willingness to be deported and alien status not ineffective. (715) Defendant argued that his counsel was ineffective in not moving for a downward departure based on his willingness to waive resistance to deportation and the effect on his sentence of being a deportable alien. The Eighth Circuit held that defendant did not show that his counsel was ineffective. Although a court may depart under § 5K2.0 based on a defendant’s willingness to waive resistance to deportation, the decision to depart is within the district court’s discretion. This court has not addressed whether being a deportable alien can warrant a departure in a non-immigration offense case, but many other courts have held that it is not a valid basis for departure. See, e.g. U.S. v. Bautista, 258 F.3d 602 (7th Cir. 2001); U.S. v. Charry Cubillos, 91 F.3d 1342 (9th Cir. 1996). “Failure to move for a downward departure on these bases cannot be said to be outside the broad range of reasonable assistance in this case where counsel chose to pursue a successful alternate strategy at sentencing and § 2255 counsel has not even identified what factors related to [defendant’s] status might support such a departure.” Defendant’s counsel was successful in obtaining a significant reduction in his sentence by concentrating on disputed drug quantity issues. “We cannot say that it was not sound strategy to avoid the risk of diverting the court’s focus from drug quantity.” U.S. v. Sera, 267 F.3d 872 (8th Cir. 2001).
8th Circuit says collateral consequences from alien status may be grounds for departure in exceptional cases. (715) Before sentencing, the INS filed a detainer against several drug defendants. The district court departed downward because defendants would not be eligible to spend the last six months of their sentence in a half-way house, nor would they be eligible for early release upon successful completion of a drug treatment program. The Eighth Circuit ruled that as a factor unmentioned in the guidelines, alien status and the collateral consequences flowing therefrom may be an appropriate basis for departure. However, this does not give courts “unfettered authority to depart whenever that factor is involved.” The court must still articulate why that factor is sufficiently atypical to justify a downward departure. Many types of defendants other than those subject to an INS detainer are ineligible for early release. If departure is appropriate for deportable aliens who are categorically prohibited from early release, then a departure would also be appropriate for the other groups categorically excluded from eligibility. In addition, the fact that a deportable alien may be subject to some increases in the severity of the conditions of confinement is not sufficient to make his case atypical or unusual. Departure on this basis is only appropriate in exceptional circumstances, such as where there is a substantial, undeserved increase in the severity of conditions of confinement, which would affect a substantial portion of a defendant’s sentence. Here, given the substantial minimum sentences defendants faced, the fact that they were ineligible for the half-way house assignment for the last six months was not exceptional. U.S. v. Lopez-Salas, 266 F.3d 842 (8th Cir. 2001).
8th Circuit rejects departures based on interdistrict disparities in availability of use immunity. (715) The defendant in each of these separate cases pled guilty to at least some of the charges against him. Several entered pleas without cooperating with the government, each making the decision to not cooperate, at least in part, because they were not offered § 1B1.8 use immunity. Without this protection, any information they gave to authorities about the activities of others could be used against them in calculating their sentences. In this consolidated appeal, the Eighth Circuit held that a district court may not depart downward based on an interdistrict sentencing disparity arising from the practice of the U.S. Attorney for the Northern District of Iowa to rarely agree to grant § 1B1.8 use immunity. A general policy or practice of rarely granting § 1B1.8 protection is within the government’s proper exercise of prosecutorial discretion. The guidelines say nothing about how often § 1B1.8 immunity should be granted. Faced with a disparity in prosecutorial policy between the Northern and Southern Districts of Iowa, court have no way of knowing which prosecutor’s office is reaching an agreement the proper number of times. “[A]ny effort to police this area would improperly infringe upon the discretion of the prosecutor’s office to determine enforcement priorities, resource allocations, and other decisions which courts are institutionally unsuitable to make.” U.S. v. Buckendahl, 251 F.3d 753 (8th Cir. 2001).
8th Circuit affirms upward departure where guideline loss did not adequately reflect loss caused by fraud. (715) Defendant convinced victims that he could solve their tax problems and negotiate Offers of Compromise with the IRS. Defendant did not file or obtain any Offers of Compromise, but forged documents indicating that he had. The victims paid directly to defendant the amounts allegedly owed to the IRS, in addition to defendant’s fees. Defendant did not forward any of the funds to the IRS. Defendant also prepared taxes for individuals. In some cases he inflated the amount owed and then failed to submit the returns to the IRS. The Eighth Circuit affirmed an upward departure from a range of 18-24 months to a sentence of 48 months. Note 11 to § 2F1.1 authorizes a departure where the guideline loss does not fully capture the harmfulness of defendant’s conduct. Here, the victims suffered complicated tax issues as a result of defendant’s conduct. The guideline loss did not take into account the substantial financial steps taken by the victims as a result of defendant’ conduct, that defendant’s past conviction for impersonating a federal employee was not included in his criminal history, and that defendant’s failure to handle one victim’s child support payments exposed the victim to criminal liability. U.S. v. Kingston, 249 F.3d 740 (8th Cir. 2001).
8th Circuit holds that deportable-alien status cannot be grounds for departure from illegal reentry sentence. (715) Defendant was convicted of illegally reentering the country after deportation. He moved for a departure based on his status as a deportable alien, claiming that this status rendered him ineligible for certain Bureau of Prisons benefits, thus subjecting him to harsher prison conditions than other prisoners. The district court ruled that deportable-alien status cannot be a valid basis for departure under § 2L1.2, because a defendant’s alien status is an element of the crime and thus cannot be a factor the Sentencing Commission did not consider in formulating § 2L1.2. The Eighth Circuit agreed. The Commission clearly considered deportable-alien status in formulating § 2L1.2. The panel rejected defendant’s argument that its approval of departures for voluntary consent to deportation indicated that the Commission did not take deportable-alien status into account. Departures on the basis of consent to deportation are distinguishable because defendants can chose whether to consent, and because consent saves the government time and expense. U.S. v. Cardosa-Rodriguez, 241 F.3d 613 (8th Cir. 2001).
8th Circuit approves upward departure for extraordinary obstruction of justice. (715) The district court made a two-level upward departure based on defendant’s obstructive conduct, finding that § 3C1.1 did not adequately capture defendant’s obstructive conduct—”the most pervasive this Court has seen.” While in jail, defendant communicated with her sons, a co-defendant and a material witness, respectively, by having another inmate mail defendant’s letters to a friend who would then remail them to the sons. Defendant tried to convince one son to give authorities the same untruthful story she had given. She also made threats against a fellow inmate, who had met with a government attorney prior to sentencing and provided information about defendant’s statements concerning the offense. Further, defendant offered yet another fellow inmate $1,000 to testify that another inmate who had spoken to the government was lying. The Third Circuit held that the district court did not abuse its discretion in departing upward based on defendant’s exceptional efforts at obstruction of justice. U.S. v. Lewis, 235 F.3d 394 (8th Cir. 2000).
8th Circuit affirms departure for psychological injury, unlawful restraint, and extreme conduct in immigration case. (715) Defendant was convicted of harboring an illegal alien after Warner, an illegal alien, was found dead and buried in her backyard. Prior to Warner’s death, defendant and members of her family had essentially held the Warner captive, forcing him both to work as a servant in her household and to turn over his wages from outside employment to defendant. Further, Warner had been deprived of adequate nourishment and medical care, and subjected to physical and psychological humiliation and abuse. The district court found that § 2L1.1 did not adequately account for defendant’s aggravating conduct, and that an additional departure was warranted on account of extreme psychological injury, § 5K2.3; unlawful restraint, § 5K2.4; and extreme conduct, § 5K2.8. The Eighth Circuit affirmed. Note 5 to the 1995 version of § 2L1.1 states that an upward departure might be warranted if “the offense involved dangerous or inhumane treatment, death or bodily injury.” There was ample evidence in the record to support the imposition of a departure on these grounds. Although the 14-level departure was exceptional, it was not unreasonable. U.S. v. Lewis, 235 F.3d 394 (8th Cir. 2000).
8th Circuit says departure could not have been implicit safety valve reduction. (715) Defendant pled guilty to traveling interstate to promote and facilitate the commission of felony drug offenses, in violation of 18 U.S.C. § 1952(a)(3). He had two criminal history points, one from a conviction for trespass to his father’s vehicle—that would have resulted in a category II criminal history and a guideline range of 63 to 78 months. However, comparing the trespass offense to a family feud, the court excluded the criminal history point for that conviction, thus lowering the criminal history to category I, and announced a guideline range of 57-71 months. The court then imposed a 48-month sentence. Defendant attempted to support the departure by claiming that the court also decreased his offense level by implicitly granted him a safety valve reduction. See USSG § 2D1.1(b)(6) (granting two-level decrease in offense level if defendant’s meets § 5C1.2 criteria). The Eighth Circuit ruled that the sentence was an abuse of discretion because defendant was ineligible for safety valve relief. Defendant pled guilty to violating 18 U.S.C. § 1952, not 21 U.S.C. § 841. Section 5C1.2 applies only to statutes with mandatory minimum sentence. Moreover, defendant could not have received safety valve relief because of his two criminal history points. U.S. v. Heilmann, 235 F.3d 1146 (8th Cir. 2001).
8th Circuit upholds refusal to depart for deportable alien. (715) Defendant was convicted of drug trafficking charges and received a sentence of 168 months. He argued that the district court should have departed downward because, as a deportable alien, the sentence has inflicted an exceptional hardship on him. His status will result in his being incarcerated under more severe conditions, perhaps being excluded from community confinement programs or incarceration in minimum security facilities. The Eighth Circuit found it had no jurisdiction to review the argument. First the district court was aware of its authority to depart, but declined to exercise it, finding that defendant’s status as a deportable alien “has not resulted in unusual or exceptional hardships in his conditions of confinement to an extent sufficient to warrant a departure.” Since defendant was convicted of trafficking in a large quantity of drugs, the court found it unlikely that defendant would have been placed in a minimum security facility anyway. Moreover, even if the decision were reviewable, the refusal to depart was not an abuse of discretion. Defendant’s status as a deportable alien was entirely attributable to his own voluntary acts. U.S. v. Bahena, 223 F.3d 797 (8th Cir. 2000).
8th Circuit says Koon does not authorize substantial assistance departures under § 5K2.0. (715) Defendant conceded that the district court could not grant a downward departure under § 5K1.1 without a motion from the government. However, he argued that “substantial assistance” was an unmentioned factor in § 5K2.0, and therefore a permitted departure factor under Koon v. United States, 518 U.S. 81 (1996). The Eighth Circuit refused to read Koon as authorizing substantial assistance departures under § 5K2.0. Part K of the guidelines, which covers departures, contains two provisions. The first is “substantial assistance to authorities,” and the second is “other grounds for departure.” This clear division means that “substantial assistance” cannot be ground for departure under the second. A defendant cannot avoid the § 5K1.1 government-motion requirement by moving for a substantial assistance departure under § 5K2.0. U.S. v. Fountain, 223 F.3d 927 (8th Cir. 2000).
8th Circuit upholds refusal to depart based on status as deportable alien. (715) The district court rejected defendant’s request to depart downward based on his status as a deportable alien. Defendant argued that the court’s denial of his motion was reviewable because (1) the court made an erroneous factual finding that defendant’s benefit from not having to serve the supervised release portion of his sentence outweighed the more onerous conditions of confinement, and (2) the decision not to depart had subjected him to harsher conditions of confinement based on his alienage. The Eighth Circuit ruled that the district court chose not to depart for permissible reasons, and its exercise of discretion was not reviewable. The court did not make a factual finding that avoiding three years of supervised release outweighed the detriment of having to leave the country. The court’s comparison was not a finding of fact, but simply a discretionary weighing of the circumstances of defendant’s case. Defendant was not subjected to harsher punishment because of his alienage, but because of his deportability, which was a result of his voluntary act of entering the country illegally and committing an aggravated felony. U.S. v. Navarro, 218 F.3d 895 (8th Cir. 2000).
8th Circuit upholds refusal to depart for lack of notice that possession of gun was a crime. (715) Defendant was convicted of possessing a firearm after being convicted of a domestic violence misdemeanor, in violation of 18 U.S.C. § 922(g)(9). At sentencing, he moved for a downward departure on the ground that he had no reason to believe that his conduct constituted a crime. His contention was that his alleged lack of notice left him with an “incomplete defense,” analogous to the “imperfect defenses” that are sometimes present when a defendant pleads coercion or duress as a defense. Such circumstances can be the basis for a downward departure under § 5K2.12. Assuming, without deciding, that such an analogy was apt, the Eighth Circuit nonetheless held that the district court’s refusal to depart was not an abuse of discretion. It was well within the district court’s discretion to decide that there was nothing about the facts of this case to take it outside the heartland of § 922(g)(9) cases. Nothing about the circumstances of defendant’s offense gave him less notice than any other offender would have had with respect to the lawfulness of the conduct in question. U.S. v. Hutzell, 217 F.3d 966 (8th Cir. 2000).
8th Circuit approves departure based on emotional trauma suffered by victims of identity theft. (715) Defendant engaged in an elaborate financial fraud and identity theft scheme that caused her victims to lose more than $70,000. Note 11(c) specifically permits a departure if “the offense caused reasonably foreseeable, physical or psychological harm or severe emotional trauma.” Two of defendant’s victims testified at sentencing regarding the degree of disruption and turmoil in their lives caused by defendant’s actions. One victim testified about spending hours on the phone and going in person trying to prove her real identity, being treated like a criminal, being rejected credit, having checks refused, and almost being arrested after a minor traffic accident because of warrants listed under her social security number. She testified about suffering anger, fear, anxiety and humiliation from these events that would leave her scarred forever. The other victim’s testimony was similar. The Eighth Circuit affirmed an upward departure under Note 11 based on the victims’ severe emotional distress and trauma. Although defendant might not have been able to understand the precise effects of the harm caused by her actions, she could foresee the level of personal upheaval likely to result from an identity theft scheme. U.S. v. Sample, 213 F.3d 1029 (8th Cir. 2000).
8th Circuit departs for number of victims and schemes, abuse of trust, damage to law firm and legal profession. (715) Defendant, a shareholder in a law firm, embezzled about $2.4 million from clients, referring attorneys, and his own law firm. The Eighth Circuit affirmed an upward departure based on: (1) the large number of vulnerable victims; (2) the extraordinary manner defendant manipulated the victims to gain their trust; (3) the number of methods he used to defraud his victims; (4) the damage to his law firm’s goodwill and standing in the legal community; and (5) the adverse impact on the legal profession and the system of justice. A defendant qualifies for a § 3A1.1(b) increase if he has only one vulnerable victim; defendant defrauded at least 33 clients who met the criteria of § 3A1.1(b). Although defendant received a § 3B1.3 abuse of trust enhancement, the means defendant used to gain their trust exceeded that contemplated by the guidelines. He mowed his clients’ lawns, took them to movies, sent them flowers and wedding presents, and used his religion to create the impression that he was a man of integrity. Although defendant received a more than minimal planning increase under § 2F1.1(b)(2)(A), his level of planning was exceptional when compared to that contemplated by the guidelines. His law firm’s goodwill with the public and standing in the legal community were irreparably harmed. Defendant’s conduct also damaged the legal profession and the public’s confidence in the justice system. U.S. v. Moskal, 211 F.3d 1070 (8th Cir. 2000).
8th Circuit upholds increase for physical restraint despite court’s incorrect citation to departure section. (715) Defendant taunted his assault victim, encouraged her to try to escape, locked the doors to the residence, and pinned her with her arms behind her back. The district court applied a two-level increase for defendant’s restraint of his assault victim, citing § 5K2.0 as authority. This section relates to upward departures, not enhancements. Nonetheless, adding two levels for restraint was permissible under § 3A1.3, since the use of restraint is not an element of the assault offense itself. The Eighth Circuit affirmed the increase, ruling that the court’s confusion between a departure and an enhancement and the use of the wrong citation was harmless error. U.S. v. Waugh, 207 F.3d 1098 (8th Cir. 2000).
8th Circuit holds that court not required to advise of possibility of departure for consenting to deportation. (715) Defendant argued that the district court failed to inform him at the change-of-plea hearing that he could receive a downward departure by consenting to deportation, and his counsel failed to argue for such a departure at sentencing. The Eighth Circuit held that in taking his plea, the district court was not required to advise defendant of the possibility of receiving a downward departure by consenting to deportation. To the extent defendant sought to raise ineffective assistance of counsel, such a claim should be pursued in a 28 U.S.C. § 2255 proceeding. Defendant also contended that he was never informed of his eligibility for a downward departure based on the sentencing disparity that arises from differing prosecution and plea bargaining practices among federal districts. However, the case defendant relied on, U.S. v. Banuelos-Rodriguez, 173 F.3d 741 (9th Cir. 1999), has been withdrawn and is not the law of this circuit. Accordingly, no error occurred when defendant was not informed of his eligibility for a departure on this basis, since, in fact, he was not eligible for such a departure. U.S. v. Guzman-Landeros, 207 F.3d 1034 (8th Cir. 2000).
8th Circuit says proceeds from unpledged assets did not reduce loss but did support downward departure. (715) Defendant misrepresented the amount of cattle he owned in order to secure a loan. At the time the fraud was discovered, defendant owed the bank $894,000. Defendant immediately began making extraordinary efforts to insure that his debt to the bank was repaid, including pledging to the bank assets not previously pledged. The district court found that the intended loss was zero, and the actual loss was $58,000, the amount of debt remaining after defendant’s payments. The Eighth Circuit held that the district court was not permitted to reduce the actual loss by the amount of payments made after the fraud was discovered, unless the payments were proceeds from the sale of pledged assets. Of the $808,000 paid to the bank, only $65,000 was from the sale of pledged assets, making the actual loss $829,000. However, note 8(b) to § 2F1.1 permits a departure if the loss significantly overstates the risk to the lending institution. In the present case, the $829,000 loss significantly overstated the bank’s risk. Defendant had sufficient unpledged assets to support the loan and to pay the bank most of the amount it was owed. Thus, a downward departure was warranted to a level that corresponded to a loss of $58,000. U.S. v. Oligmueller, 198 F.3d 669 (8th Cir. 1999).
8th Circuit approves departure for unusual amount of loss and multiple victims. (715) Defendants were convicted of RICO charges stemming from the fraudulent operation of several insurance companies. The district court departed for each defendant under § 5K2.0 based upon the unusual amount of fraud loss and the large number of fraud victims. Note 10(c) and (f) encourage upward departures if the loss “does not fully capture the harmfulness and seriousness of the conduct,” such as when the offense involves “the knowing endangerment of the solvency or one or more victims,” or causes “reasonably foreseeable, physical or psychological harm.” The court heard testimony from health insurance claimants whose medical bills were never paid in full and heard evidence that the insurance companies controlled by defendants became insolvent. The district court found that defendants’ actions caused $5 million in debts to one company, $13 million in debts owed by their companies, and at least $1 million in unpaid insurance claims with resulting “emotional harm to sick and debilitated individuals.” On this record, the Eighth Circuit held that the upward departure was not an abuse of discretion. U.S. v. Coon, 187 F.3d 888 (8th Cir. 1999).
8th Circuit says doctor’s theft of narcotics from patients fell within heartland of tampering cases. (715) Defendant, a physician, stole morphine from the intravenous units of four patients under her care in the intensive care unit of a hospital. On each occasion, defendant inserted a hypodermic needle and syringe into the patient’s morphine delivery device, removed some of the morphine, and replaced the stolen morphine with saline solution. A jury convicted defendant with four counts of tampering with a consumer product, 18 U.S.C. § 1365(a)(4). The Eighth Circuit upheld the denial of a downward departure, agreeing with the trial court that defendant’s conduct fell within the heartland of the tampering statute. Note 1 to § 2N1.1 provides, “[i]n the unusual case in which the offense did not cause a risk of death or serious bodily injury, a downward departure may be warranted.” Defendant’s actions exposed her patients to risks of death or serious bodily injury, and thus her case was typical of the heartland of cases covered by the guidelines. U.S. v. Moyer, 182 F.3d 1018 (8th Cir. 1999).
8th Circuit presumes judge not misled by erroneous suggestion that BOP could grant sentence credit. (715) Defendant pled guilty to 11 counts of bank fraud based on a check-kiting scheme. At sentencing, defendant requested a downward departure because his offense conduct included a Kansas conviction for which he had already served his sentence. Because the court could not credit his time served under § 5G1.3(b), defendant argued that he should be granted a downward departure. The government argued at sentencing that it should be left to the Bureau of Prisons (BOP) to account for the amount of time that defendant should receive as a result of the Kansas sentence. The government acknowledged at oral argument that its position at sentencing was improper because the BOP did not have authority to grant defendant credit for time served under his discharged Kansas sentence. Defendant argued that his case should be remanded because the district court was misled by the government at sentencing. The Eighth Circuit found remand unnecessary. Judges are presumed to know the law and to apply it in making their decisions. The court denied defendant’s request for a departure without making a recommendation to the BOP as suggested by the government. It could be presumed that the district court knew that the BOP could not credit defendant with time that he had already served on his Kansas sentence. U.S. v. Otto, 176 F.3d 416 (8th Cir. 1999).
8th Circuit upholds refusal to depart for former police officer who beat prisoner. (715) Defendant, a former police officer, was convicted of civil rights violations for beating a prisoner in the city jail. He requested a departure for three reasons: (1) as a former police officer, he would he unusually susceptible to abuse in prison; (2) the prisoner had provoked defendant’s conduct; and (3) the imprisonment would cause hardship for defendant’s three children and the woman to whom he was engaged. In Koon v. United States, 518 U.S. 81 (1996), the Supreme Court approved a downward departure based on the susceptibility of a police officer to abuse in prison and the fact that the victim had provoked the officer’s conduct. The Eighth Circuit found that the refusal to depart was not an abuse of discretion. Koon was distinguishable, since the incident in which the officer was involved had caused a torrent of national publicity, and the victim of the crime had physically threatened the officer. Here, there was no extraordinary publicity, and the prisoner never physically threatened defendant. Defendant’s family circumstances were also not extraordinary. U.S. v. Colbert, 172 F.3d 594 (8th Cir. 1999).
8th Circuit says defendant’s conduct did not constitute “serious” money laundering. (715) Defendant did not disclose to her bankruptcy trustee certain stock she owned. She sold the stock and deposited the proceeds into her husband’s bank account. The next day, she and her husband obtained cashier’s checks from the account, and used the money to pay personal expenses. She pled guilty to bankruptcy fraud and money laundering. The Eighth Circuit approved a downward departure that was based on the district court’s finding that defendant’s actions were not the type of serious money laundering contemplated by the Sentencing Commission when it promulgated the money-laundering guideline. Because defendant’s underlying offense was bankruptcy fraud, and not drug trafficking or some other offense typical of organized crime, the facts of her money laundering did not fall into the “heartland” of money laundering cases. U.S. v. Woods, 159 F.3d 1132 (8th Cir. 1998).
8th Circuit says full restitution did not warrant four-level departure. (715) Defendant, the assistant manager of a grocery store, ordered large volumes of baseball cards on the store account, intercepted the shipments, took them home, sold some cards, and kept the remainder. As part of the plea agreement, he agreed to forfeit the sports cards still in his possession, the money gained from selling the cards, and other personal property, as well as a large portion of an employee retirement account he had through the grocery. As a result, by the time he entered his plea of guilty, he had made complete restitution. The district court granted a three-level § 3E1.1(b) reduction and then departed down four more levels for unusual acceptance of responsibility. The Eighth Circuit reversed, holding that although restitution can warrant a departure, defendant’s circumstances were not sufficiently extraordinary. Defendant was actively involved in plea negotiations for over a year, and the government dropped 23 of 25 charges against him. Further, although defendant stipulated to the amount of restitution in the plea agreement, he disputed it at sentencing and again in his briefs. Finally, although he admitted much of his conduct to investigators, he did not voluntarily disclose the largest purchaser of his stolen merchandise. U.S. v. O’Kane, 155 F.3d 969 (8th Cir. 1998).
8th Circuit departs down to give credit for time served on expired sentence. (715) Defendant, a senior partner in a large law firm, made $4 million in the stock market using inside information. He used the profits to conceal previous embezzlements and conversions of clients’ trust funds. Defendant was convicted of various securities fraud offenses. At sentencing, the district court gave him credit for 23 of the 30 months he served in state prison for state law convictions arising from his theft of the client trust funds. Defendant had already served his state sentence in full at the time the district court sentenced him. The Eighth Circuit upheld the departure. The conduct underlying the state law convictions was “inextricably intertwined” with the federal convictions. Nothing in the guidelines forbids a departure when the defendant has already served a state sentence for relevant conduct. The inclusion of unexpired sentences without providing for expired sentences in § 5G1.3 indicates that the Sentencing Commission may not have considered this. Nothing in the 1987 guidelines suggests the Commission rejected the idea of giving credit for expired sentences. In fact, the commentary to the 1987 version of § 5G1.3 states that departure is warranted when independent prosecutions produce anomalous results that circumvent or defeat the intent of the guidelines. U.S. v. O’Hagan, 139 F.3d 641 (8th Cir. 1998).
8th Circuit departs down for deported alien because prior aggravated felony was not serious. (715) Defendant was convicted of unlawfully reentering the U.S. after deportation. He was subject to a 16-level enhancement under § 2L1.2(b)(2) because the deportation occurred after his conviction for an aggravated felony. However, the district departed downward from a guideline range of 63-78 months to a sentence of 10 months on the ground that the underlying conviction did not warrant such a heightened sentence. On appeal, the Eighth Circuit upheld the departure based on the November 1997 amendment to note 5 to § 2L1.2, which states that a downward departure may be warranted based on the seriousness of the aggravated felony. The commentary to the amendment described the amendment as making clarifying changes to the commentary. Therefore, appellate courts must apply the amendment retroactively. Under the amendment, the seriousness of the aggravated felony is an encouraged factor upon which a departure may be based. U.S. v. Diaz-Diaz, 135 F.3d 572 (8th Cir. 1998).
8th Circuit rejects departure for financial burden and susceptibility to abuse but affirms for rehabilitation. (715) Defendant exposed himself in front of a 13-year-old girl. In his truck and home, police found pictures and computer files of child pornography from the Internet. The district court departed downward based on the financial burden of defendant’s imprisonment on his family, his susceptibility to abuse in prison, and his post-offense rehabilitation efforts. The Eighth Circuit reversed, finding the first two reasons did not justify a departure, but that the third ground was valid. The financial burden on defendant’s wife and two children was to be expected when a family member engages in criminal activity that results in incarceration. The fact that defendant, as a child pornographer, would be susceptible to abuse in prison was not a ground for departure. Otherwise, every child pornographer would be eligible for a departure. Nevertheless, the district court did not abuse its discretion in finding defendant’s post-offense rehabilitation was exceptional. After 8 months of sex offender and chemical dependency treatment, the director of the sex offender treatment program was “extremely impressed” with defendant’s efforts, and believed that defendant had a high probability of success. His chemical dependency counselor had never had a client work harder than defendant and believed his prognosis was “very good.” Finally, a doctor experienced in addiction medicine described defendant’s recovery up to that point as “truly outstanding.” Since it was unclear whether the court would have departed absent the invalid factors, the case was remanded. U.S. v. Kapitzke, 130 F.3d 820 (8th Cir. 1997).
8th Circuit says fact that child pornographer is not a pedophile does not justify departure. (715) Defendant sent image files of children engaged in sexually explicit conduct to an undercover agent by computer. Police searched defendant’s home and computer files and found additional child pornography materials. He pled guilty to possessing and distributing child pornography. The district court applied § 2G2.4 and then departed downward because defendant was not a “typical child predator” or pedophile. The court also relied on the amount of pornography possessed, and defendant’s lack of criminal record and otherwise exemplary lifestyle. The Eighth Circuit reversed, rejecting the assumption that typical possessors of child pornography are also pedophiles. The other grounds relied on by the court also did not warrant a departure. Defendant pled guilty to possessing 15 items. He received a two level enhancement for possessing 10 or more items. Thus, the amount of items was not less than typical for such cases. The guidelines accounted for defendant’s lack of criminal history. The fact that he was “inherently an honest, thoughtful, and compassionate person” did not justify a departure. U.S. v. Wind, 128 F.3d 1276 (8th Cir. 1997).
8th Circuit holds that court properly understood its authority to depart. (715) Defendant moved for a downward departure based on his status as a political refugee. He presented evidence that he resided in a refugee camp for ten years beginning at age 6, had no formal education, and was likely to be deported after his incarceration. The district court found that defendant’s status as a political refugee was not, by itself, grounds for departure, but that under Koon, it was free to take into account defendant’s personal circumstances. The court then found that defendant’s circumstances did not warrant a downward departure. The Eighth Circuit held that the court properly understood its authority to depart and therefore its refusal to depart was not reviewable. The court was correct that defendant’s status as an alien was not, by itself, sufficient to warrant a departure. Thus, the court correctly understood that its discretionary authority to depart rested upon a determination that the circumstances of the case were exceptional and atypical. Its decision not to exercise that discretion was not reviewable. U.S. v. Saelee, 123 F.3d 1024 (8th Cir. 1997).
8th Circuit approves departure for knowingly endangering solvency of defrauded victims. (715) Defendant, a licensed insurance salesman and securities broker, sold over $2.2 million worth of counterfeit certificates of deposit to his customers. He also diverted substantial sums of money from his customers, including money intended for insurance premiums and investments in mutual funds. The Eighth Circuit approved an upward departure under note 10(f) for knowingly endangering the solvency of one or more victims. In many instances, defendant defrauded victims whose investments in defendant’s counterfeit CDs seriously endangered their solvency. Some of these people were at or near retirement age, relying on small, fixed incomes in conjunction with their investments to maintain solvency. Others were dealing with serious medical conditions and were depending on their investments to pay medical bills. Still others were depending on their investments to pay their college education. Defendant knew some of his victims quite well, since they were his friends and relatives. The district court could reasonably infer defendant knew his criminal activity endangered the solvency of at least one victim. U.S. v. Hogan, 121 F.3d 370 (8th Cir. 1997).
8th Circuit holds drug convictions prior to 1988 can be “aggravated felonies.” (715) In 1987, defendant, an illegal alien, was convicted of drug charges and sent to prison. In 1988, the Anti-Drug Abuse Act was amended to increase to 15 years the maximum penalty for reentering the U.S. after having been deported following an aggravated felony. In 1990, the Act expanded the definition of aggravated felonies to include drug trafficking crimes. In 1992, defendant was deported. In 1995, he was arrested in the U.S., and convicted of illegally reentering the U.S. following deportation. He argued that his 1987 drug offense was not an aggravated felony because it was not so classified when he committed it. The Eighth Circuit held that the term “aggravated felony” included drug crimes committed prior to 1990. The statute expressly states that a money laundering or crime of violence cannot be the basis for an aggravated felony enhancement unless it is committed after November 1990. However, drug offenses are treated as if they were included in the 1988 Act. The language and design of the 1988 Act make clear that Congress intended to include drug convictions prior to 1988. The application of the enhanced penalties did not violate the ex post facto clause. Defendant was not being punished for his 1987 crime, but for the offense of reentry. The application of the aggravated felony enhancement based on pre-1990 drug felonies did not provide a basis for departure. Moreover, the refusal to depart was not reviewable. U.S. v. Baca-Valenzuela, 118 F.3d 1223 (8th Cir. 1997).
8th Circuit permits denial of § 3E1.1 reduction and upward departure for same conduct. (715) While free on bond pending sentencing, defendant embezzled funds from her employer. Based on this crime, the district court refused to grant a § 3E1.1 acceptance of responsibility reduction and also departed upward under § 5K2.0. Agreeing with U.S. v. Aimufua, 935 F.3d 1199 (11th Cir. 1991), the Eighth Circuit affirmed, holding that double counting is permissible if the Sentencing Commission intended the result and the statutory sections are conceptually separate. The policy statement for § 5K2.0 specifically provides that a court may depart even for factors considered by the guidelines if the guideline level for that factor is inadequate. Section 3E1.1 and Chapter 4 allow a court to consider criminal conduct that occurred before sentencing. Section 5K2.0 and § 3E1.1 are conceptually separate notions. Section 3E1.1 reduces a sentence for a defendant who has shown sincere remorse for his crime while an upward departure under § 5K2.0 enhances an otherwise inadequate sentence. U.S. v. Hipenbecker, 115 F.3d 581 (8th Cir. 1997).
8th Circuit rules court did not make mechanical decision not to depart. (715) Defendant pled guilty to reentering the U.S. after having been arrested and deported. In the plea agreement, defendant agreed to an administrative order of deportation and waived his right to appeal that order. In return, the government moved for a downward departure under § 5K2.0 based on the administrative deportation. The district court denied the motion after considering “all of the circumstances,” including both defendant’s and societal concerns about recidivism of aliens. The court explained that unless there was an extraordinary situation it would not grant such a motion, and that its decision was consistent with the policy that it had adopted. Defendant argued that the court reached its decision “mechanically,” i.e. did not exercise its discretion but made a predetermined mechanical decision not to depart. The Eighth Circuit ruled that the court did not make a mechanical decision not to depart. The court considered defendant’s individual circumstances. The judge noted that while he was generally opposed to downward departures on this basis, he departs downward in extraordinary situations. Because the court occasionally grants a downward departure, it was forced to examine defendant’s situation to determine whether it was extraordinary. U.S. v. Hernandez-Reyes, 114 F.3d 800 (8th Cir. 1997).
8th Circuit says guidelines did not contemplate unique child pornography case. (715) In 1983, defendant pled guilty to transmitting and producing pornography. His plea agreement provided that the guilty plea was “in full satisfaction of all Federal charges” that could be brought against him. In 1995, police searched his residence and discovered child pornography. Most of the photos were the same as those that formed the basis for defendant’s 1983 conviction. He was convicted of possessing child pornography. Possession of such photos was not illegal in 1983 when defendant possessed the photos. The district court rejected defendant’s request for a downward departure, but the Eighth Circuit remanded for reconsideration in light of Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996). The guidelines do not contemplate a situation where an individual enters plea bargain “in full satisfaction of all Federal charges which may be brought” and the government later prosecutes the individual for non-criminal conduct known to the government at the time of the plea bargain, but which later became criminal. Judge Wollman dissented. U.S. v. Paton, 110 F.3d 562 (8th Cir. 1997).
8th Circuit says court erroneously believed it could not depart based on waiver and consent to deportation. (715) The Eighth Circuit ruled that the district court erred as a matter of law in concluding that it could not depart downward on the basis of defendant’s waiver and consent to administrative deportation upon the filing of a joint motion by the parties for a two‑level downward departure on defendant’s plea of guilty to illegal re‑entry. On remand, the court may consider whether departure is warranted. U.S. v. Cruz-Ochoa, 85 F.3d 325 (8th Cir. 1996).
8th Circuit says “safety valve” does not authorize departure from guidelines. (715) The mandatory minimum for defendant’s drug crime was five years, but his guideline range was 63-78 months. Defendant challenged his 63-month sentence, arguing that 18 U.S.C. § 3553(f), which provides a “safety valve” from mandatory minimums in certain situations, allowed the court to depart from the guidelines. The Eighth Circuit disagreed, holding that § 3553(f) and guideline § 5C1.2 only authorize a downward departure from the statutory mandatory minimum, not from the guidelines. [Ed. Note: Effective November 1, 1995, the Commission amended § 2D1.1(b) to provide a two level decrease for defendants who qualify for the safety valve, if the base offense level is 26 or greater.] U.S. v. Collins, 66 F.3d 984 (8th Cir. 1995).
8th Circuit rejects role increase for managing drug conspiracy’s assets and activities. (715) The district court applied a § 3B1.1(b) enhancement based on defendant’s control over the assets and activities of a drug conspiracy. The court specifically found that defendant did not control five or more participants. The Eighth Circuit reversed, finding Amendment 500 to § 3B1.1’s commentary, effective November 1, 1993, precluded a § 3B1.1 enhancement based on a defendant’s management over the property, assets or activities of a criminal organization. The district court did have discretion, however, to depart upward based on defendant’s control over the conspiracy’s assets and activities. Such an upward departure need not directly correspond to the tri-partite adjustment scheme detailed in § 3B1.1. Since it was unclear whether the district court would have made a three-level departure if it had been aware of its discretion, the case was remanded. U.S. v. McFarlane, 64 F.3d 1235 (8th Cir. 1995).
8th Circuit rejects disparate impact of cocaine base sentencing ratio as basis for departure. (715) The district court departed downward on the ground that the 100:1 ratio between cocaine base and cocaine powder disparately impacted African-Americans. The 8th Circuit held that the ratio’s disparate impact was not a proper ground for a downward departure. It is for Congress, and not the courts, to determine whether a racially disparate impact mandates a change in the guidelines. A downward departure based on a racially disparate impact will ultimately result in class-wide downward departures and impede Congress’s policy decision to treat cocaine base more harshly than powder cocaine. U.S. v. Maxwell, 25 F.3d 1389 (8th Cir. 1994).
8th Circuit rejects early nolo plea and settling civil suit as grounds for downward departure. (715) The district court departed downward, finding defendant’s actions in entering an early nolo contendere plea and assisting in the settlement of a related civil suit assisted the court in administering justice and saved court resources. The 8th Circuit reversed. These factors were more properly considered, if at all, in the determination of acceptance of responsibility. Moreover, substantial assistance to the administration of justice is also counted, to some degree, under §5K1.1. U.S. v. Haversat, 22 F.3d 790 (8th Cir. 1994).
8th Circuit remands where court believed government motion was required for all departures. (715) The district court rejected defendants’ request for a downward departure, stating that absent a motion from the government, it was bound by the offense level determined under the guidelines. It also stated that the sentence was the minimum sentence it could impose. The 8th Circuit remanded to consider defendants’ motions to depart under § 5K2.0. Factors warranting a departure under § 5K2.0 might well exist in this case. U.S. v. Parham, 16 F.3d 844 (8th Cir. 1994).
8th Circuit rejects downward departure for ancient felony in deportation case. (715) Defendant illegally reentered the country after being deported. He received a 16-level enhancement under section 2L1.2(b)(2) because his deportation followed an aggravated felony conviction. The district court departed downward, finding that because defendant’s 1977 burglary conviction was too old to be counted for criminal history purposes, it should not be the basis of a 16-level enhancement. The court also found that the 16-level enhancement significantly overrepresented defendant’s criminal history. The 8th Circuit reversed, noting that the Sentencing Commission took its definition of “aggravated felony” directly from the statute, and thus expressly considered this factor in § 2L1.2. The departure based on the overrepresentation of defendant’s criminal history was a misapplication of the guidelines. Section 4A1.3 authorizes departures from a defendant’s criminal history category, while section 2L1.2 provides an enhancement to a defendant’s base offense level. The court did suggest, however, that in unusual circumstances, a downward departure might be appropriate. U.S. v. Maul-Valverde, 10 F.3d 544 (8th Cir. 1993).
8th Circuit says more than minimal planning enhancement and upward departure were not double-counting. (715) The 8th Circuit rejected defendant’s claim that it was impermissible double-counting to both adjust his offense level under § 2F1.1(b)(2)(A) and depart upward for more than minimal planning. A two-level adjustment is required under § 2F1.1(b)(2) if any one of four specific offense characteristics are present. If several of the enumerated factors are present, then upward departure might be warranted. Defendant’s offense level was adjusted upward two levels for the first factor, more than minimal planning. The district court then found that three of the four factors were present — defendant had engaged in more than minimal planning, he had defrauded more than one victim (57 investors), and he had violated an administrative decree issued by the Minnesota Department of Commerce. Relying on the additional factors, the district court properly departed upward. U.S. v. Beatty, 9 F.3d 686 (8th Cir. 1993).
8th Circuit approves downward departure for lack of violent history, strong family ties and life on an Indian reservation. (715) While drunk, defendant pointed a gun at a youth he suspected of beating his companion’s son. Defendant had one prior felony conviction in 1975 for assault, and was therefore convicted of being a felon in possession of a firearm. The district court departed downward to five years probation because: (1) defendant was not dangerous, and any proclivity towards violence while drunk was adequately addressed by the no-alcohol condition of probation; (2) defendant possessed the revolver in self-defense, and (3) he had strong family ties and responsibilities. The court also considered the mitigating circumstances of life on an Indian reservation. The 8th Circuit affirmed, noting that U.S. v. Big Crow, 898 F.3d 1326 (8th Cir. 1990) upheld a departure under similar circumstances. U.S. v. Star, 9 F.3d 60 (8th Cir. 1993).
8th Circuit reverses downward departure based on variety of invalid factors. (715) The district court departed downward, citing a variety of factors. The 8th Circuit remanded because it could not determine whether the court relied on an invalid ground. The court then discussed each ground. Defendant’s status as a first-time offender was an improper ground for departure. Family ties and responsibilities and employment record are not ordinarily relevant. A defendant’s post-offense rehabilitative efforts do not warrant a departure absent extraordinary circumstances. The short period of time in which the offense took place would seem an unreasonable ground for departure, since the conduct only terminated on arrest. However, a departure based on a single act of aberrant behavior could be considered. The record did not show that the government acted egregiously to warrant a departure. Finally, the totality of the circumstances might converge to create a situation not contemplated by the Guidelines, but it was unclear whether the court relied on the totality of the circumstances here. U.S. v. Simpson, 7 F.3d 813 (8th Cir. 1993).
8th Circuit finds no sentencing manipulation despite 12 transactions with increasing drug quantities. (715) Over a nine month period, an undercover agent made 12 drug purchases from defendant, starting with a $25 purchase of one-fifth gram of crack, and ending with 218.6 grams of cocaine. The 8th Circuit rejected defendant’s sentencing entrapment claims. It is legitimate for police to continue to deal with someone in order to establish that person’s guilt beyond a reasonable doubt or to probe the depth and extent of a criminal enterprise. The course of transactions here showed a legitimate pattern of increasing amounts of drugs culminating with the final 218 gram sale, which indicated that police did no more than persist in ascertaining what quantity defendant was willing and able to deal. Defendant’s arguments that he was entrapped into selling crack rather than cocaine and into accepting food stamps were not properly sentencing entrapment arguments, but rather theories of entrapment on the elements of his crime. The jury rejected these theories. U.S. v. Shephard, 4 F.3d 647 (8th Cir. 1993).
8th Circuit rejects disparity between theoretical state sentence and guidelines as ground for departure. (715) The 8th Circuit rejected the potential disparity between an actual federal guidelines sentence and a theoretical state-imposed sentence as a ground for a downward departure. Such an approach would “fracture” the Sentencing Commission’s goal of imposing uniformity upon federal sentences for similarly situated defendants. The Commission must have recognized that a defendant might be subject to prosecution in both a state and federal forum for the same criminal activity. Senior Judge Bright dissented. U.S. v. Deitz, 991 F.2d 443 (8th Cir. 1993).
8th Circuit rejects sentencing entrapment claim despite concern about government conduct. (715) Defendants fraudulently exchanged mislabeled computer parts for new parts during a computer company’s exchange program. They received a nine-level sentence enhancement based on the loss involved in the fraud. They claimed that sentencing entrapment compelled a downward departure, since the company and the government knew about the first mislabeled part in 1988, and the loss would have been far less if the government had stopped the fraud then. The 8th Circuit expressed concern about the government’s conduct in the case, but nonetheless rejected the entrapment argument since defendants were predisposed to commit the offenses. U.S. v. Nelson, 988 F.2d 798 (8th Cir. 1993).
8th Circuit rules pregnancy resulting from forcible rape is not bodily injury, but may justify departure. (715) Defendant raped a 15-year old girl who became pregnant as a result. The 8th Circuit affirmed the district court’s determination that a pregnancy resulting from a forcible rape was not a bodily injury justifying enhancement under section 2A3.1(b)(4). However, it also found that such a pregnancy was a proper grounds for an upward departure under section 5K2.0. The court rejected the sentencing court’s conclusion that the sentencing commission must have considered rape induced pregnancy in formulating the guidelines but did not include any sanctions for it. The case was remanded for the district court to consider the government’s motion for a departure on its merits. U.S. v. Yankton, 986 F.2d 1225 (8th Cir. 1993).
8th Circuit approves upward departure based on receiver’s abuse of trust. (715) Defendant, a court receiver, pled guilty to embezzlement. The 8th Circuit approved an upward departure based upon defendant’s abuse of trust, even though he had already received a two-level abuse of trust enhancement under section 3B1.3. A court may depart under section 5K2.0 based on a factor already considered by the sentencing commission if the factor is “present to a degree substantially in excess of that which ordinarily is involved in the offense of conviction.” Defendant was appointed by the court to assist the victims of fraudulent activity. He victimized these same individuals a second time by embezzling over $1.5 million. As a court officer, defendant’s actions amounted to a degree of abuse of trust not adequately taken into account in the guidelines. The extent of the departure, from a range of 24 to 30 months to a sentence of 72 months, was also upheld. Defendant’s six-year sentence was within the range agreed to in the plea agreement. U.S. v. Bartsh, 985 F.2d 930 (8th Cir. 1993).
8th Circuit upholds departure for fraud defendant who was sexually involved with 11-year old girl. (715) Defendant, a 32-year-old man, met and lived with an 11-year-old girl, regularly having sex with her. The girl had a child by defendant at the age of 15. To support themselves, they operated at least four fraudulent schemes to induce people to call toll free numbers and send them money for non-existent merchandise. Defendant was convicted of mail fraud relating to one of these schemes. The 8th Circuit affirmed a four level upward departure under section 5K2.0 based upon (a) defendant’s illicit relationship with the young girl, (b) defendant’s inducing the girl to enter into a life of crime, and (c) the pervasive character of the fraud schemes. Given the girl’s young age, the court could properly find that defendant’s conduct had an adverse effect on the girl without expert psychological evidence. Finally, the pervasive nature of defendant’s crime was not already reflected in the enhancements based upon his leadership role, the monetary gain involved, or more than minimal planning. Judge McMillian dissented. U.S. v. Passmore, 984 F.2d 933 (8th Cir. 1993).
8th Circuit affirms lack of discretion to make substantial assistance departure under section 5K2.0. (715) Defendant argued that the government refused his offer to cooperate in exchange for a motion for a substantial assistance departure under section 5K1.1. At sentencing, he moved under section 5K2.0 for a departure on the ground that his willingness to cooperate was not adequately rewarded by a section 3E1.1 reduction for acceptance of responsibility. The 8th Circuit affirmed that the district court lacked authority to depart downward without a government 5K1.1 motion. Although a district court has authority to depart under section 5K2.0 for extraordinary restitution not addressed by section 3E1.1, this does not apply to a claim of substantial assistance or cooperation. Cooperation with the prosecutors simply cannot be sufficiently extraordinary to warrant a departure under section 5K2.0 absent a government motion under section 5K1.1. U.S. v. Aslakson, 982 F.2d 283 (8th Cir. 1992).
8th Circuit affirms upward departure based on extent of defendant’s obstruction of justice. (715) Because of the extent of defendant’s obstruction of justice, the district court chose not to enhance defendant sentence under section 3C1.1, instead departing upward under section 5K2.0. The 8th Circuit upheld the departure, finding the circumstances justified a departure and defendant’s 58-month sentence was reasonable. Defendant’s behavior included perjury, suborning perjury, an extensive and long term participation in the instant tax fraud offense, and flooding the court with frivolous motions, including some challenging the court’s Article III status. U.S. v. Jagim, 978 F.2d 1032 (8th Cir. 1992).
8th Circuit affirms departure for suborning perjury and bringing family members into conspiracy. (715) The district court departed upward, finding that defendant obstructed justice by suborning perjury, even though he was never charged with the offense, and that defendant’s nephew, although not a “vulnerable victim,” was “dragged” into the conspiracy by his uncle because of their relationship. Moreover, defendant was involved in an extensive and long-term criminal activity. The 8th Circuit agreed that the “totality of circumstances” supported the departure. U.S. v. Jagim, 978 F.2d 1032 (8th Cir. 1992).
8th Circuit affirms upward departure based on police officer’s use of force in raping minor. (715) Defendant was convicted of a single count of sexually abusing a minor. The 8th Circuit affirmed an upward departure based upon the pervasiveness of defendant’s conduct and his use of force. Although defendant was only convicted of a single count of abuse, the district court found that defendant raped the victim several times during the months of July through September. Moreover, the court believed that force was used. There was sufficient evidence that the circumstances justifying the departure actually existed. The court’s findings were supported by the testimony of a fellow police officer and the testimony of the victim. Moreover, there was scientific evidence that defendant was the father of the victim’s child. U.S. v. Claymore, 978 F.2d 421 (8th Cir. 1992).
8th Circuit rejects mandatory minimum sentence as grounds for downward departure. (715) Defendant’s guideline range was 78 to 97 months, but the district court departed downward to 60 months, citing the Sentencing Commission’s failure to consider the mandatory minimum sentences contained in 21 U.S.C. section 841(b). The 8th Circuit reversed, noting that the commentary to section 2D1.1 indicates that the base offense levels in section 2D1.1 are either provided directly by the Anti-Drug Abuse Act of 1986 or are proportional to the minimum levels established by statute. Offense levels 26 and 32 establish guideline ranges with a lower limit as close the statutory minimum as possible. Had defendant possessed between five and 20 grams of crack, he would have received an offense level of 26 and a sentencing range of 63 to 78 months, which is close to the mandatory minimum 60 months. However, defendant possessed 23 grams of crack and so had an offense level of 28, which produced a guideline range of 78 to 97 months. Judge Bright dissented. U.S. v. Lattimore, 974 F.2d 971 (8th Cir. 1992).
8th Circuit rejects alleged racial disparity as basis for downward departure. (715) Defendant was convicted of a drug offense involving crack cocaine. In departing downward on other grounds, the district court also noted the disparate impact the guidelines’ treatment of crack offense had on minorities. The 8th Circuit ruled that the alleged racial disparity in sentencing was not a basis for a downward departure. In five prior opinions, the 8th Circuit rejected the argument that harsher penalties for crack violate the equal protection clause. Congress had rational motives for the distinction, including the potency of crack, the ease with which drug dealers can carry and conceal it, the highly addictive nature of the drug, and the violence which often accompanies trade in it. Although the guidelines have a racially discriminatory impact, there is no evidence that Congress or the Sentencing Commission had a racially discriminatory motive when they promulgated the harsher penalties for crack. Judge Bright dissented, believing that even if the disparities do not violate the constitution, they constitute a mitigating factor which would justify a downward departure. U.S. v. Lattimore, 974 F.2d 971 (8th Cir. 1992).
8th Circuit affirms departure for serious nature of defendants’ obstructive conduct. (715) Defendants were convicted of drug charges and of threatening a witness. The latter conviction arose from defendants’ threats to a co-defendant to kill him, his wife, family and anybody he cared about if he cooperated. The district court departed upward four points based on the serious nature the threats. The court reasoned that the eight-level increase authorized by the obstruction guideline, section 2J1.2(b)(1), for threats to cause physical injury, would have no effect because the offense level for the drug charges exceeded the adjusted offense level for obstruction. The 8th Circuit agreed. Application note 6 to section 3C1.1 directly addresses this situation and mandates that the offense level equal the offense level for the underlying offense plus a two level enhancement for obstruction of justice. The two level enhancement, however, did not adequately account for the nature of defendants’ conduct, so the equivalent of a four level departure was proper. Judge Bright concurred. U.S. v. Wint, 974 F.2d 961 (8th Cir. 1992).
8th Circuit upholds upward departure for “incorrigible recidivist.” (715) Defendant pled guilty to illegally re-entering the United States after deportation. He had been in the United States almost continually since 1980, had been arrested 15 times and deported eight times. He fell within criminal history category V and had a guideline range of 21-27 months. The district court first departed to criminal history category VI based on the seriousness of his past criminal conduct and high risk of recidivism. Finding that the additional three months incarceration provided by such a departure was inadequate, the court then departed under 5K2.0, and imposed a 48-month sentence. The reasons were (1) defendant’s proclivity for recidivism, (2) defendant’ need to be deterred from future criminal conduct, (3) the inadequacy of defendant’s criminal history, and (4) the serious danger defendant represented to the community. The 8th Circuit upheld the departure. U.S. v. Lara-Banda, 972 F.2d 958 (8th Cir. 1992).
8th Circuit upholds upward departure for threat to kill a policeman after release from prison. (715) Defendant was convicted of several counts of assaulting a federal officer. Defendant’s probation officer reported that defendant stated that the day he was released from prison, a police officer was going to die. He was planning to shoot the first police officer who pulled him over “right in the face, that’s how cold-blooded I’ll be.” The district court departed upward from offense level 26 to 28 based on the nature of the offense and defendant’s failure to conform to the rules and regulations of society. The court also referenced defendant’s history of “violent episodes.” The 8th Circuit held that the district court was clearly permitted to consider defendant’s significant history of violent episodes, use of weapons and continuing pattern of disrespect for, flight from and assault upon police officers. The district court was also permitted to consider defendant’s capacity for future violence and recidivism, based upon the threats he made to his probation officer. U.S. v. Cook, 972 F.2d 218 (8th Cir. 1992).
8th Circuit rejects upward departure based upon extent of defendant’s perjury. (715) Defendant received an enhancement for obstruction of justice for committing perjury before a grand jury. The district court also departed upward for the same perjury before the grand jury, plus defendant’s perjury at trial and his subornation of perjury by his wife. The 8th Circuit rejected defendant’s perjury as grounds for an upward departure, finding that his conduct was not significantly in excess of the acts of obstruction contemplated by section 3C1.1. Although the presentence report did not list defendant’s perjury at trial and subornation of perjury as reasons for the obstruction enhancement, committing, suborning or attempting to suborn perjury are examples of the very type of conduct to which the obstruction enhancement applies. Defendant’s perjury was not extensive, since all instances related to the same subject matter. Moreover, the conduct did not involve any significant collateral consequences. U.S. v. Griess, 971 F.2d 1368 (8th Cir. 1992).
8th Circuit rejects finding that defendant was “incorrigible.” (715) The district court departed upward in part based upon defendant’s likelihood of future criminal activity, and the fact that he was “incorrigible.” The 8th Circuit found that although the likelihood that a defendant will continue criminal activity is a proper ground for an upward departure, there was insufficient evidence to support that determination here. Defendant had only one adult conviction and several juvenile convictions before his present offense. Based on those offenses (driving under the influence of alcohol, possession of alcohol as a minor, possession of a controlled substance, and burglary), all of which occurred seven to 15 years before the instant offense, it could not be said that defendant was so incorrigible as to warrant a departure from the guidelines. U.S. v. Griess, 971 F.2d 1368 (8th Cir. 1992).
8th Circuit affirms upward departure despite reliance upon some improper factors. (715) In departing upward, the court properly relied on the similarity of defendant’s prior offense, and the need for deter him from further such activity. However, the 8th Circuit held that it was improper, to rely on the defendant’s dangerous high speed chase. Effective November 1, 1990, the Sentencing Commission added section 3C1.2, which authorizes a two-point enhancement for high speed chases, but defendant had already received a two level enhancement for obstruction of justice. The court’s reliance on defendant’s exploitation of a trusting, vulnerable woman who he used as a pawn in his drug operation did not justify a departure because there was no support in the record for the court’s finding. Nevertheless, although the court relied upon some improper grounds, the departure was upheld because the district court placed no special reliance upon the improper factors and only a minimal departure was involved. U.S. v. Estrada, 965 F.2d 651 (8th Cir. 1992).
8th Circuit upholds refusal to depart based upon extraordinary rehabilitation but notes that government motion is not required. (715) The district court denied defendant’s request for a downward departure based upon her rehabilitation, finding that the circumstances did not warrant a downward departure. However, the court also expressed its view that it could not depart in the absence of a government motion. The 8th Circuit affirmed, since it lacked authority to review a sentencing court’s exercise of its discretion to refrain from departing downward. However, it noted that contrary to the judge’s view, a sentencing judge may depart downward without a government motion in unusual circumstances such as extraordinary restitution. U.S. v. Condelee, 961 F.2d 1351 (8th Cir. 1992).
8th Circuit rejects delay in release date on unrelated conviction as basis for departure. (715) As a result of defendants’ failure to appear to serve a pre-guidelines sentence, the Parole Commission added 10 months to their probable release dates. Defendants subsequently pled guilty to failing to surrender for service of sentence, and each received an eight-month sentence for this offense. The 8th Circuit rejected defendants’ claim that the district court should have departed downward because the total 18 months imprisonment they received as a result of their failure to surrender (eight-month sentence plus a 10-month delay in release on the other charge) exceeded the guideline range of 8 to 14 months. There is no caselaw or sentencing guideline that requires a court to depart downward because conduct that resulted in a criminal conviction also resulted in a delay in a defendant’s probable release date from a prison sentence for a prior, unrelated conviction. Moreover, the court lacked authority to review the district court’s refusal to depart downward. U.S. v. McGowan, 960 F.2d 716 (8th Cir. 1992).
8th Circuit approves upward departure for repeated frauds, past lenient treatment, and harm caused. (715) Defendant was convicted of six counts of social security number misuse after using various names and social security numbers to obtain jobs and credit in different cities. The 8th Circuit affirmed an upward departure based upon defendant’s repeated use of the same fraudulent scheme, two prior offenses which were not counted because of their age, two additional pending fraud charges, an outstanding warrant for a probation violation, the lenient treatment defendant received in the past, and the fact that the dollar loss did not fully take into account the harm caused by defendant’s fraud. Based upon all these factors, the decision to depart upward from a range of 18 to 24 months to a sentence of 36 months was reasonable. U.S. v. Saunders, 957 F.2d 1488 (8th Cir. 1992).
8th Circuit refuses to review failure to depart downward. (715) Defendant spent 10 months between his federal indictment and sentencing in federal custody because when indicted, he was serving a two-year sentence on related state charges. He received no credit toward his federal sentence for this time served, but did receive credit toward his state sentence. Defendant argued that he would have been paroled by the state had he not been in federal custody, and therefore was forced to serve two sentences consecutively that would otherwise have been served concurrently, thus justifying a downward departure. The 8th Circuit held that it lacked discretion to review a district court’s discretionary decision to deny a downward departure under section 5K2.0. U.S. v. Wilson, 955 F.2d 547 (8th Cir. 1992).
8th Circuit holds court may depart downward for extraordinary restitution. (715) Before learning of the FBI’s investigation into his fraudulent activities, defendant discussed a settlement under which he would give the banks which he defrauded all of his assets, totaling $1.4 million. The loss attributable to defendant’s scheme was $253,000. Before he was indicted, defendant entered into the settlement with both banks. The district court denied defendant’s request for a downward departure. The 8th Circuit remanded for resentencing because it was not clear that the district court knew it could depart downward based on defendant’s extraordinary restitution. On the other hand, the district court correctly determined that it lacked discretion to depart downward based on defendant’s guilty plea, employment record, community ties and family responsibilities. Defendant’s actions took place over a one-year period, and thus did not constitute an act of aberrant behavior. U.S. v. Garlich, 951 F.2d 161 (8th Cir. 1991).
8th Circuit finds district court properly refused to depart based on government misconduct. (715) Defendant contended that the district court incorrectly believed that it lacked authority to depart downward under guideline § 5K2.10 (victim’s conduct contributed significantly to provoking the offense) and § 5K2.12 (offense committed because of serious coercion). He claimed that the government agents “entrapped” him by reducing the price at which they would sell cocaine to him, offering to deliver the drugs to him at no extra charge, and funding the purchase of airline tickets for him. The 8th Circuit found that the district court correctly applied the guideline and that the government’s conduct was not an instigating factor. U.S. v. Olson, 931 F.2d 1250 (8th Cir. 1991).
8th Circuit affirms refusal to depart based on state’s concurrent prosecution of same offense. (715) Defendant pled guilty in state court to drug charges and received a suspended sentence. Viewing this punishment as too lenient, the federal government decided to prosecute defendant for the same offense and related firearms charges. The 8th Circuit rejected defendant’s argument that the court should have departed downward because he had already been sentenced in state court for the same crime. The state did not prosecute him for one of the firearms charges. Also, there was no double jeopardy violation, since the federal crime of drug possession is a separate offense from the state crime of drug possession, even if based upon the same act. Finally, even if the district court believed, as misrepresented by the government, that the firearm offense carried a five-year minimum, this had no “substantial influence on the sentence imposed.” Judge Bright dissented. U.S. v. Woodard, 927 F.2d 433 (8th Cir. 1991).
8th Circuit reverses upward departure based upon defendant’s escape. (715) Defendant escaped while in custody on a robbery charge. He was apprehended and eventually pled guilty to both the robbery and escape charges. The offense level for the robbery charge was 22 and for the escape charge 13, for a combined offense level of 22. The district judge sentenced defendant to eight years for the robbery, and departed upward an additional two years for the escape, stating that an eight year guideline sentence for armed robbery was too lenient, and that absent the guidelines, he would have sentenced defendant to 15 years. The 8th Circuit reversed. The guidelines merged defendant’s escape charge into his robbery charge, preventing the district court from imposing a separate sentence for the escape charge. The Sentencing Commission determined how to calculate an offense level when multiple offenses are sentenced in the same proceeding. The judge’s belief that defendant deserved a stiffer sentence did not justify the departure. U.S. v. Cox, 921 F.2d 772 (8th Cir. 1990).
8th Circuit reverses upward departure based on hearsay about “organized crime.” (715) Three FBI agents testified at defendant’s sentencing hearing that defendant was a leader of a local organized crime group, and that he was involved with, and may have committed, two murders. The agents’ testimony was based upon information supplied by two different confidential informants and FBI files. The district court departed upward based upon defendant’s involvement in organized crime and its finding that defendant’s criminal history category underrepresented his involvement in crime. The 8th Circuit reversed, finding that the testimony of the FBI agents was unreliable hearsay because it lacked insufficient corroboration. The fact that each confidential informant corroborated the other did not make the hearsay reliable because this was merely “hearsay upon hearsay upon hearsay.” The court declined to decide whether, in appropriate circumstances, ties to organized crime might provide a basis for an upward departure. U.S. v. Cammisano, 917 F.2d 1057 (8th Cir. 1990).
8th Circuit upholds upward departure for bankruptcy trustee who embezzled funds. (715) Defendant pled guilty to embezzlement by a bankruptcy trustee. The district court departed upward on the basis of Application Note 9(e) to § 2F1.1, which provides that an upward departure may be warranted when the offense causes a loss of confidence in an important institution. Defendant argued this was improper, because in setting the sentencing ranges for embezzlement the Sentencing Commission took into consideration the possibility of a defendant’s abusing a position such as a bankruptcy trustee. The 8th Circuit rejected this argument, finding that since neither the guidelines, the policy statements, nor the official commentary indicated that the Commission considered the circumstance of a bankruptcy trustee embezzling estate funds, embezzlement by a bankruptcy trustee was atypical of the embezzlement contemplated by the Commission. The 8th Circuit also rejected defendant’s argument that in order to consider the impact of his crime upon the institution of bankruptcy trustee, there must be evidence that there was a loss of confidence in the bankruptcy trustee system. U.S. v. Fousek, 912 F.2d 979 (8th Cir. 1990).
8th Circuit holds that neither entrapment nor prosecutorial misconduct should mitigate sentence of “admittedly guilty” defendant. (715) Defendant argued that the district court erred in refusing to consider substantial evidence of government misconduct, either as a mitigating factor warranting a downward departure, or as an offset to any aggravating factor the court found. The 8th Circuit found no outrageous misconduct, but added that in light of defendant’s guilty plea, “the government’s conduct, as it might relate to a violation of due process or a defense of entrapment, is no longer material to his guilt.” The court saw “no warrant for the argument that governmental or prosecutorial misconduct should mitigate the sentence of an admittedly guilty defendant.” U.S. v. Streeter, 907 F.2d 781 (8th Cir. 1990), overruled on other grounds by U.S. v. Wise, 976 F.2d 393 (8th Cir. 1992).
8th Circuit upholds downward departure for defendant who voluntarily turned himself in nine days late. (715) Defendant pled guilty to failing to surrender himself to service his sentence. He voluntarily surrendered himself nine days late after his probation was revoked. The 8th Circuit upheld a fifteen month sentence, which was a downward departure from the 24-30 month guideline range. Under the three-part test of U.S. v. Diaz-Villafane, 874 F.2d 43 (1st Cir. 1989) the departure was permissible. Guidelines § 2J1.6 does not allow for the widely varying times between when defendant first fails to appear and when he actually appears. Nor does it consider the voluntariness of the surrender. The defendant was sentenced to over one month in prison for each day he was late. The court found the fact that the defendant had also received credit for acceptance of responsibility did not preclude a downward departure. U.S. v. Crumb, 902 F.2d 1337 (8th Cir. 1990).
8th Circuit affirms upward departure for attempted murder of government witness. (715) The district court departed upward under guideline § 5K2.0 for a drug defendant who was also convicted of attempted murder of a government witness. The 8th Circuit held that the upward departure was not an abuse of discretion even though defendant’s sentence was also adjusted upward under guideline § 3C1.1 for willful obstruction of proceedings. The court ruled that § 3C1.1 does not adequately take into account attempts to murder a government witness. U.S. v. Drew, 894 F.2d 965 (8th Cir. 1990).
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9th Circuit affirms large departure based on finding that defendant killed his wife. (715) Defendant was convicted of bank fraud, fraudulent use of an access device, and money laundering. Defendant committed these offenses by obtaining money from his wife’s checking account. Shortly before defendant committed the offenses, his wife disappeared, and her whereabouts are unknown. At sentencing, the district court calculated defendant’s sentencing range as 41-51 months. Finding that the defendant had murdered his wife in order to commit the offenses, the district court departed upward by 15 levels and sentenced defendant to 262 months. The Ninth Circuit held that defendant’s sentence was not substantively unreasonable. U.S. v. Fitch, __ F.3d __ (9th Cir. Sept. 23, 2011) No. 07-10607.
9th Circuit upholds finding that wife’s killing was reason for fraud. (715) At defendant’s sentencing for bank fraud and fraudulent use of an access device, the district court found that defendant murdered his wife in order to commit the offenses. In support of that finding, the district court found that defendant failed to report his wife’s disappearance, told inconsistent stories about her whereabouts, tried to sell her clothing and car, remarried shortly after her disappearance without obtaining a divorce, had possession of her checkbook and credit cards, and raided her accounts by using disguises and forgery. Based on these findings, the district court departed from a guidelines range of 41-51 months to a sentence of 262 months. The Ninth Circuit held that the district court’s factual finding that defendant murdered his wife was not clearly erroneous. U.S. v. Fitch, __ F.3d __ (9th Cir. Sept. 23, 2011) No. 07-10607.
9th Circuit finds that defendant’s plea shows that prior burglary was a crime of violence. (715) The guideline for illegal reentry, § 2L1.2, requires a 16-level enhancement if the defendant has a conviction for a prior “crime of violence.” The term “crime of violence” is defined to include “burglary of a dwelling.” Defendant had a prior conviction for burglary under Californian law. The Ninth Circuit held that although the California burglary statute encompasses burglaries of structures other than dwellings, defendant’s conviction under that statute constituted a crime of violence because he specifically pleaded guilty to burglary of an inhabited dwelling. U.S. v. Rodriguez-Rodriguez, 393 F.3d 849 (9th Cir. 2004).
9th Circuit says minimal consequences from state prosecution did not support departure. (715) Defendant illegally diverted a waterway. He was charged under state criminal law, and he paid a fine to resolve those charges. Defendant was then convicted under the federal Clean Water Act based on the same conduct. The district court departed downward in part because defendant had already been prosecuted by the state. The Ninth Circuit reversed, holding that the minimal consequences defendant suffered as a result of the state prosecution could not support a downward departure. U.S. v. Phillips, 367 F.3d 846 (9th Cir. 2004).
9th Circuit says that being shot by police during offense may support downward departure. (715) Defendant was shot twice during an encounter with police in which he brandished a sawed-off shotgun. After his conviction for possession of the shotgun, in violation of 26 U.S.C. § 5861(d), he argued that the shooting and the injuries he suffered were a form of punishment that justified a downward departure. The district court found that it lacked discretion to depart on that ground, but the Ninth Circuit reversed and held that “it is theoretically possible that being shot by law enforcement personnel can constitute punishment” and therefore could support a downward departure. U.S. v. Clough, 360 F.3d 967 (9th Cir. 2004).
9th Circuit reverses departure based on sentence defendant would have received if prior charges brought with current charges. (715) In 1998, defendant pleaded guilty to bank fraud charges arising out of a 1992 transaction. In 1999, he was sentenced 20 months’ imprisonment on that plea. In 2001, defendant was charged with fraud arising out of a 1996 transaction, and he pleaded guilty to those charges as well. At sentencing on the 2001 charges, the district court departed downward on the ground that if the charges arising out of the two transactions had been brought at the same time, defendant would have fallen into criminal history category I and had a sentencing range no higher than his sentencing range on the 2001 charges. The district court acknowledged that the government had not completed its investigation of the 1996 offense at the time that defendant was sentenced on the 1992 offense, but held that defendant should not be punished more severely than he would have been if the charges had been brought together. The Ninth Circuit reversed, holding that the two offenses were factually distinct and that the government was not required to bring charges based on the two transactions at the same time. For that reason, the court held, the court should not have “unified” them for sentencing purposes. U.S. v. Defterios, 343 F.3d 1020 (9th Cir. 2003).
9th Circuit allows departure for susceptibility to abuse in prison. (715) A defendant’s unusual susceptibility to abuse by other inmates while in prison may warrant a downward departure. Koon v. U.S., 518 U.S. 81, 111-12 (1996); U.S. v. Lara, 905 F.2d 599, 603 (2d Cir. 1990). Here, the district court found that the defendant – who was convicted of child pornography – was susceptible to abuse in prison because of a “combination” of factors: “his stature, his demeanor, his naiveté, [and] the nature of the offense.” On appeal, a divided Ninth Circuit affirmed, even though it was unclear from the record how defendant’s 5’11” height and 190 pounds made his “stature” a basis to depart. As for his demeanor, described as “positive and caring,” the defense expert said that “these are not good characteristics to have in prison.” Although the district court did not describe what it meant by “naiveté,” the majority thought this characteristic might make defendant “less able to protect himself from ill-meaning inmates.” The majority also held that the district court could consider the nature of the offense in deciding whether defendant was susceptible to abuse in prison. Judge Graber dissented. U.S. v. Parish, 308 F.3d 1025 (9th Cir. 2002).
9th Circuit permits downward departure for “minimal” child pornography offense. (715) A defense expert testified that defendant’s child pornography offense was “significantly less serious” than other cases. He noted that defendant had not affirmatively downloaded the pornographic files, indexed the files, or created a search mechanism on his computer to retrieve them. Rather, they had been downloaded automatically into defendant’s Temporary Internet Cache file. The expert opined that this offense was “pretty minor” compared to content of images possessed by other offenders, and was “outside of the heartland, definitely.” Based on this testimony, the district court departed downward by eight levels. On appeal, the Ninth Circuit affirmed, finding no abuse of discretion, “[e]ven if reasonable minds might differ.” U.S. v. Parish, 308 F.3d 1025 (9th Cir. 2002).
9th Circuit says provision allowing longer community confinement does not allow offense level departure. (715) Application Note 6 to Guideline § 5C1.1 says that a court may depart by substituting a longer period of community confinement for an equivalent period of imprisonment in order to accomplish a specific treatment purpose. The Ninth Circuit held that this provision does not authorize a district court to depart downward in the defendant’s offense level or otherwise to reduce the length of the sentence imposed. U.S. v. Malley, 307 F.3d 1032 (9th Cir. 2002).
9th Circuit affirms upward departure for interstate stalking. (715) Defendant was convicted of interstate stalking, in violation of 18 U.S.C. § 2261A(2)(B), based on his persistent efforts to retaliate against IRS agents. The district court departed upward based on (1) defendant’s 17-year history of anti-government behavior; (2) the increasing intensity of the behavior; (3) defendant’s disregard for prior sanctions; (4) his use of deadly chemicals; (5) his intense fixation on particular victims; and (6) his delusional belief in a conspiracy against him. The Ninth Circuit held that the departure was reasonable. U.S. v. Bell, 303 F.3d 1187 (9th Cir. 2002).
9th Circuit says departure request based on prior court’s lack of jurisdiction was a prohibited collateral attack. (715) Defendant argued that the district court erred in concluding it had no discretion to depart downward based on defendant’s claim that he was a minor at the time of the prior offense underlying his conviction for illegal re-entry after deportation. He acknowledged that collateral attacks at sentencing on prior state court convictions are prohibited by Custis v. U.S., 511 U.S. 485, 490-97 (1994) and U.S. v. Gutierrez-Cervantez, 132 F.3d 460, 462 (9th Cir. 1997). However, he argued that under Koon, the district court could not categorically exclude departures based on a prior court’s lack of jurisdiction. The Ninth Circuit rejected the argument, ruling that defendant’s request for a downward departure was based on the “legitimacy,” not the “nature” of the prior conviction and that a motion for a downward departure on such grounds “constitutes a collateral attack prohibited by Custis.” U.S. v. Martinez-Martinez, 295 F.3d 1041 (9th Cir. 2002).
9th Circuit says extent of aberrant behavior departure cannot be based on consecutive mandatory minimum sentence nor low risk of recidivism. (715) Defendant was convicted of assault with intent to kill and using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). At sentencing, the district court decided to depart downward because the defendant’s conduct was aberrant behavior. In determining the extent of the departure, the court considered the fact that the § 924(c) offense carried a mandatory minimum five-year sentence. It also found that imprisoning defendant would serve no purpose and that defendant had a very low chance of recidivism. On these grounds, the court departed downward 21 levels and sentenced the defendant to one day on the assault offense. The government appealed and the Ninth Circuit reversed, holding that the mandatory consecutive sentence required by § 924(c) and the defendant’s low risk of recidivism were already taken into account by the Guidelines and could not form the basis for a downward departure. U.S. v. Working, 287 F.3d 801 (9th Cir. 2002).
9th Circuit says advice that guilty plea would foreclose reduction for sentencing entrapment was ineffective assistance. (715) The government’s plea offer included an agreement to a three-level reduction in defendant’s offense level. Defense counsel mistakenly told defendant that if he accepted the offer, he would not be able to argue for a reduction in his sentence based on sentencing entrapment. Defendant rejected the plea offer, went to trial, and was convicted. At sentencing, the district court declined to give defendant an offense level reduction for acceptance of responsibility. The Ninth Circuit held that counsel’s mistaken advice constituted ineffective assistance because it prevented defendant from intelligently considering the government’s plea offer and resulted in his going to trial and being deprived of an acceptance-of-responsibility reduction. U.S. v. Day, 285 F.3d 1167 (9th Cir. 2002).
9th Circuit rejects downward departure on ground that defendant would have received lesser sentence in state court. (715) At defendant’s sentencing for being a felon in possession of a firearm, the district court noted that if defendant had been prosecuted in state court he probably would have received a 9- to 12-month sentence, instead of the 37-46 months required by the Guidelines, and that the case had been brought into federal court “for no apparent reason.” On this basis, the court departed downward to 24 months. The Ninth Circuit held that the district court abused its discretion in departing because the disparity between state and federal penalties does not take a felon-in-possession case out of the heartland of the guideline range. U.S. v. Williams, 282 F.3d 679 (9th Cir. 2002).
9th Circuit says departure for likelihood of recidivism must use criminal history category, not offense level. (715) Because the guidelines take the likelihood of defendant’s recidivism into account in setting defendant’s criminal history score, the Ninth Circuit held that a district court may not depart upward in setting the defendant’s offense level based on that ground. Instead, a departure for likelihood of recidivism must rest on a finding that defendant’s criminal history score fails to account for the possibility of defendant’s recidivism, and must be accomplished by an adjustment in defendant’s criminal history category. U.S. v. Martin, 278 F.3d 988 (9th Cir. 2002).
9th Circuit rejects departure for nondisclosure of alleged Brady material and ineffective assistance. (715) Defense counsel asserted during cross-examination that a law enforcement agent made anti-Semitic remarks about her. She then submitted declarations from both her and the defendant stating that the agent made the remarks. Also, defendant testified at trial that he was not in the United States to pick up cocaine, but had come to do Christmas shopping. After his conviction, defendant argued that his trial attorney had advised him to lie in his defense and had supplied a false affidavit about the anti-Semitic remarks. Based on these allegations, the court found defendant had received ineffective assistance. The court also found that the government had not disclosed prior to trial that some of the Customs agents who testified at trial had received small cash or time-off awards for their work in other investigations and that one had received a gift certificate for her work on this case. Although the district court found that this was not Brady material, it held that it was prosecutorial misconduct not to disclose it because it would have been another “arrow in the defendant’s quiver during plea negotiations.” On these two grounds, the court departed downward eight levels. The government appealed, and the Ninth Circuit reversed. The panel held that government misconduct may be a basis for a downward departure if it causes demonstrable prejudice at sentencing, but here (1) the district court had found that the information was not Brady material; (2) a Brady departure is improper because it simultaneously assumes the validity of the defendant’s conviction while calling its validity into doubt; and (3) disclosure of the information would not have affected the defendant’s decision to proceed to trial. Ineffective assistance of counsel is not a permissible ground for departure. U.S. v. Basalo, 258 F.3d 945 (9th Cir. 2001).
9th Circuit says refusal to depart for ineffective counsel was discretionary and unreviewable. (715) The Ninth Circuit found that “[a]lthough the district court did not specifically address its authority to depart downward on the basis of ineffective assistance of counsel, it is clear from the record that his refusal to depart downward was not based on a belief that it lacked the authority to depart downward for that reason, but rather, was an exercise of its discretion.” The district court considered the arguments and found that defendant himself was responsible for his higher sentence by failing to accept the plea agreement. Moreover, the government never argued that the court lacked authority to depart on the basis of ineffective assistance of counsel. Finally, the fact that the district court cited Koon v. U.S., 518 U.S. 81 (1996) demonstrated that the court was aware that it had authority to depart. Accordingly, the Ninth Circuit held that it lacked jurisdiction to review the district court’s failure to depart down based on ineffective assistance of counsel. U.S. v. Rivera-Sanchez, 222 F.3d 1057 (9th Cir. 2000).
9th Circuit affirms four-level departure where death of defendant’s husband left son without a custodial parent. (715) The district court departed downward by four levels because the death of defendant’s common law husband left her son without a custodial parent. On appeal, the Ninth Circuit acknowledged that guideline § 5H1.6 “discourages” a departure based on family ties, and therefore “the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present.” U.S. v. Klimavicius-Viloria, 144 F.3d 1249, 1267 (9th Cir. 1998). Nevertheless, because district courts are “particularly suited” to determine whether a given factor makes a case unusual, the panel said it would not “second guess” the district court’s determination that this case involved an unusual family situation. There was no abuse of discretion. U.S. v. Aguirre, 214 F.3d 1122 (9th Cir. 2000).
9th Circuit reverses downward departure in child pornography case. (715) Defendant pled guilty to possession of child pornography in violation of 18 U.S.C. § 2252(A)(a)(5)(B). He was sentenced under § 2G2.4, and the district court departed downward by three levels under § 5K2.0. The court distinguished between “heartland” and “least offenders” based on Congress’s intent in prohibiting possession of child pornography. The court found that defendant did not fall within the “heartland” because he was not a “worst offender,” and because his conduct did not significantly harm the victims of child pornography or contribute to creating a permanent record of past abuse. On appeal, the Ninth Circuit reversed, holding that the district court’s reliance on Congress’ intent contradicted the statutory mandate in 18 U.S.C. § 3353(b), which requires the court to consider “only the sentencing guidelines, policy statements and official commentary of the Sentencing Commission.” It was also improper for the court to consider the absence of additional crimes by the defendant. Finally, the fact that defendant obtained his pornographic images from the Internet did not make him less culpable, because the guidelines require an increase for using a computer. U.S. v. Stevens, 197 F.3d 1263 (9th Cir. 1999).
9th Circuit upholds vulnerable victim increase plus departure for targeting elderly victims. (715) The Ninth Circuit upheld a two-level departure because defendant targeted the elderly in his advance-fee “sweepstakes” telemarketing scheme, even though the district court also increased the offense level because the victims were vulnerable under § 3A1.1. The district court used the rationale behind the recently passed Senior Citizens Against Marketing Scams Act (the “SCAMS Act”), 18 U.S.C. § 2335 et seq. The SCAMS Act and the vulnerable victim enhancement are sufficiently distinct to avoid double counting. The court thus agreed with the Sixth and Tenth Circuits in U.S. v. Brown, 147 F.3d 477, 487 (6th Cir. 1998) and U.S. v. Smith, 133 F.3d 737 (10th Cir. 1997). [Ed. Note: Effective Nov. 1, 1998, §2F1.1 was amended to provide increased penalties for “sophisticated means,” and a two-level increase for mass-marketing offense conduct. In addition, §3A1.1 was amended to add two levels for offenses that involve a large number of vulnerable victims.] U.S. v. Scrivener, 189 F.3d 944 (9th Cir. 1999).
9th Circuit affirms upward departure for volume of false immigration documents. (715) Defendant submitted at least 2,700 false documents to the Immigration Service. The district court increased the sentence by six levels under the applicable 1994 version of § 2L2.1 for “100 or more” false documents, and then departed upward two more levels because of the great number of false documents. On appeal, the Ninth Circuit affirmed, holding that even before the November, 1997 amendment authorizing an upward departure “if the offense involved substantially more than 100 documents,” a court could depart upward based on the large number of false documents. U.S. v. Velez, 185 F.3d 1048 (9th Cir. 1999).
9th Circuit says Koon overruled case that rejected departure for large quantity of drugs. (715) In U.S. v. Martinez, 946 F.2d 100 (9th Cir. 1991), the Ninth Circuit held that it was impermissible to depart upward based on possession of a large quantity of cocaine, because the guidelines’ phrase 50 kilograms “or more” took anything “more” into account. In the present immigration case, the district court departed upward for 2,700 false documents even though § 2L2.1 used the same “or more” language for false documents over 100. On appeal, in its first opinion, the panel reversed, refusing to find that a later 1997 amendment was “clarifying” when it expressly authorized departures for “substantially more than 100 documents.” On rehearing, the panel withdrew its first opinion, but still avoided the easy solution, this time reaching out to hold that Martinez was “implicitly overruled” by Koon v. U.S., 518 U.S. 81 (1996), and U.S. v. Sanchez-Rodriguez, 161 F.3d 556 (9th Cir. 1998). which held that Koon made it clear that appellate courts cannot “categorically forbid” most departures. The panel then upheld the departure, stating that its review was “highly deferential.” U.S. v. Velez, 185 F.3d 1048 (9th Cir. 1999).
9th Circuit says status as a deportable alien is not basis for departure if it is an element of the crime. (715) Defendant was convicted of re-entry after deportation, in violation of 8 U.S.C. § 1326. He sought a downward departure on the ground that his status as a deportable alien subjected him to a harsher sentence than citizens and non-deportable aliens because he was ineligible to serve the final portion of his sentence somewhere other than in prison. Previous Ninth Circuit cases have held that courts have discretion to depart on this basis. U.S. v. Charry Cubillos, 91 F.3d 1342 (9th Cir. 1996); U.S. v. Davoudi, 172 F.3d 1130 (9th Cir. 1999). However, the Ninth Circuit distinguished these cases on the ground that they did not involve defendants whose deportable aliens status was an element of the crime. Thus, the Ninth Circuit agreed with U.S. v. Gonzalez-Portillo, 121 F.3d 1122 (7th Cir. 1997) and U.S. v. Ebolum, 72 F.3d 35 (6th Cir. 1995) that where deportable status is an element of the offense, the Sentencing Commission must be presumed to have considered it. Therefore defendant’s status as a deportable alien is not a ground for downward departure where the defendant is convicted of violating 8 U.S.C. § 1326. U.S. v. Martinez-Ramos, 184 F.3d 1055 (9th Cir. 1999).
9th Circuit, en banc, holds Koon permits departure in alien cases based on nature of aggravated felony. (715) Guideline section 2L1.2 requires a 16-level increase if the alien defendant re-entered the United States after deportation following conviction of an “aggravated felony.” The definition of “aggravated felony” includes a variety of crimes that vary in seriousness. Overruling U.S. v. Rios-Favela, 118 F.3d 653 (9th Cir. 1997), cert. denied, 118 S.Ct. 730 (1998), the en banc Ninth Circuit held that in light of Koon v. U.S., 518 U.S. 81 (1996), a district court may depart downward based upon the “nature and circumstances” of the underlying aggravated felony. The Eighth Circuit in U.S. v. Diaz-Diaz, 135 F.3d 572 (8th Cir. 1998), reached the same conclusion, relying on the November 1997 amendment to § 2L1.2, Application Note 5, which authorizes departures in certain circumstances. However, the Ninth Circuit did not rely on the new amendment, Thus, this opinion applies even to offenses committed before November, 1997, and departures are not limited to Note 5 circumstances. Judge Trott dissented, joined by Judges Brunetti, O’Scannlain and Kleinfeld. U.S. v. Sanchez-Rodriguez,161 F.3d 556 (9th Cir. 1998) (en banc).
9th Circuit, en banc, says Koon permits downward departure where delay prevented concurrent sentences. (715) Overruling U.S. v. Huss, 7 F.3d 1444 (9th Cir. 1993) and U.S. v. Daggao, 28 F.3d 985 (9th Cir. 1994), the en banc Ninth Circuit upheld the district court’s decision to depart downward based on the fact that the delay in indicting and sentencing defendant caused him to lose the opportunity to serve a greater portion of his state sentence concurrently with his federal sentence. The court said that the absolute bar to downward departure pronounced in Huss and Daggao was no longer appropriate in light of the Supreme Court’s intervening decision in Koon v. U.S., 518 U.S. 81 (1996). After Koon, courts can no longer categorically forbid departure unless the Commission has expressly forbidden the consideration of that factor as a categorical matter. Judge Trott dissented, joined by Judges Brunetti, O’Scannlain and Kleinfeld. U.S. v. Sanchez-Rodriguez,161 F.3d 556 (9th Cir. 1998) (en banc).
9th Circuit says court need not analogize extent of departure to comparable guidelines. (715) The district court departed downward by eleven levels based on defendant’s rehabilitation before his resentencing after reversal on appeal. Relying on U.S. v. Sablan, 114 F.3d 913, 919 (9th Cir. 1997) (en banc), the court said that the district court “does not need to analogize to comparable guideline provisions to explain the extent of its departure so long as its explanation justifying departure and the extent of departure is reasonable.” “[W]here, as here, a district court sets out findings justifying the magnitude of its decision to depart and the extent of departure from the Guidelines, and that explanation cannot be said to be unreasonable, the sentence imposed must be affirmed.” Id. U.S. v. Green, 152 F.3d 1202 (9th Cir. 1998).
9th Circuit rejects departure for California’s view of marijuana. (715) The district court departed downward in part, based on California’s legalization of medicinal uses of marijuana. The Ninth Circuit held that the departure was inappropriate because there was no argument in this case that defendant was growing the marijuana for medicinal purposes and in any event, “a state’s definition of a crime is not controlling in the context of sentencing guidelines.” Nevertheless, the court did not reverse the downward departure because the record suggested that the district court’s reference to it was “more of an offhand, stray remark” than an intended sentencing consideration. The primary basis for the departure was defendant’s rehabilitation before he was resentenced and the Ninth Circuit did not believe “that the district court’s level of departure would have been different had it not taken into account California’s view of marijuana.” U.S. v. Green, 152 F.3d 1202 (9th Cir. 1998).
9th Circuit agrees with three other circuits that post-sentencing rehabilitation may justify departure. (715) The Ninth Circuit agreed with the Second, Third and D.C. Circuits that post-sentencing rehabilitation may be a basis for departure upon resentencing. See U.S. v. Rhodes, 145 F.3d 1375 (D.C. Cir. 1998); U.S. v. Core, 125 F.3d 74, 77 (2d Cir. 1997), cert. denied, 118 S.Ct. 735 (1998) and U.S. v. Sally, 116 F.3d 76, 80 (3d Cir. 1997). In addition, the court noted that several circuits have already determined that post-offense rehabilitation may be a basis for departure. See U.S. v. Brock, 108 F.3d 31, 35 (4th Cir. 1997); Sally, 116 F.3d at 80 (3d Cir. 1997). Like the Second Circuit, the Ninth Circuit said it could not ascertain “any meaningful distinction between post-offense and post-sentencing rehabilitation.” In the present case, the district court departed eleven levels based on defendant’s work in assisting needy and deprived youths while complying with the court’s order for him to perform community service. While it was true that defendant was merely following the requirements of his probation, “not everyone who follows the terms of his probation achieves rehabilitation, let alone extraordinary rehabilitation.” U.S. v. Green, 152 F.3d 1202 (9th Cir. 1998).
9th Circuit reverses departure for smuggling 180 aliens. (715) Defendant was convicted of money laundering, alien smuggling, and possessing counterfeit immigration documents. The district court found that he was responsible for smuggling at least 180 aliens and departed upward by six levels. The Ninth Circuit reversed, finding the departure unreasonable because the six level adjustment in § 2L1.1(b)(2)(C) for smuggling 100 or more aliens includes the 180 aliens in this case. Moreover, the adjusted offense level for alien smuggling was lower than the offense levels for gratuities, § 2C1.2 and money laundering § 2S1.1, so that (under the multiple count section, 3D1.4) the sentence depended on these other offenses¾not on the alien smuggling offense. Therefore, “even if the Guidelines had provided for an 8 or 10-level adjustment for smuggling 180 aliens, [defendants’] total offense levels would have remained unchanged because their alien smuggling offense levels would still be exceeded by their bribery offense levels.” Accordingly, the decision to depart was unreasonable and was reversed. U.S. v. Nagra, 147 F.3d 875 (9th Cir. 1998).
9th Circuit reverses upward departure for multiple counts. (715) Defendant wrecked two vehicles shortly after stealing them. As he was driving off with a third automobile, he struck and killed a person before rolling the stolen car. He was convicted of manslaughter and theft. The offense level for the manslaughter was 14, and under the grouping rules in § 3D1.4, one additional level was added to account for the theft. The district court departed upward by two levels on the ground that defendant’s additional conduct in stealing the cars “should result in a higher offense level.” The Ninth Circuit reversed, concluding that “involuntary manslaughter predominates in seriousness over the theft and destruction of three relatively inexpensive cars, and even if the district court thought otherwise, that is not a sufficient reason to depart.” The additional punishment for additional crimes is already taken into account by § 3D1.4. Under U.S. v. Luscier, 983 F.2d 1507, 1513 (9th Cir. 1993), the correct course is a sentence in the upper regions of the guidelines range rather than a departure. U.S. v. G.L., 143 F.3d 1249 (9th Cir. 1998).
9th Circuit permits departure based on alien’s “cultural assimilation.” (715) Defendant argued that he was not the typical illegal reentry defendant because he was a “de facto American” with “significant ties” to the United States. He was brought to the U.S. by his mother at the age of 12 and until his deportation, legally resided in the U.S. for an uninterrupted period of 23 years. He attended New York public schools through high school. He married a U.S. citizen with whom he raised five U.S. citizen children. The 9th Circuit held the “cultural assimilation” is a valid basis for departure from the sentencing guidelines. This is because a defendant’s unusual cultural ties to the U.S.—rather than ordinary economic incentives—provided the motivation for the defendant’s illegal reentry or continued presence in the United States. It may lessen the defendant’s culpability if his or her motives were “familial or cultural rather than economic.” “Thus, unlike the general threat of deportation, cultural assimilation is a fact-specific ground for departure that may speak to an individual defendant’s offense, his conduct and his character.” Nevertheless, in the present case, the district court declined to exercise its discretion to depart downward and the Ninth Circuit held that decision was unreviewable. U.S. v. Lipman, 133 F.3d 726 (9th Cir. 1998).
9th Circuit again rejects departure for defendants who face future deportation. (715) The 9th Circuit has “consistently” held that a sentencing court cannot depart downward based on the fact that a defendant faces future deportation. See U.S. v. Alvarez-Cardenas, 902 F.2d 734, 737 (9th Cir. 1990) (deportability is not a valid factor for departure because it merely describes a defendant’s status, and does not “affect [defendant’s] culpability or the seriousness of the offense”). See also U.S. v. Ceja-Hernandez, 895 F.2d 544, 545 (9th Cir. 1990) (rejecting use of deportability as basis for upward departure). “The possibility of deportation does not speak to the offense in question, nor does it speak to the offender’s character” and thus is not a proper ground for departure. Alvarez-Cardenas, 902 F.2d at 737. “Moreover if deportability were held to be a valid ground for departure, aliens and citizens would always be treated differently simply because of their citizenship status.” U.S. v. Lipman, 133 F.3d 726 (9th Cir. 1998).
9th Circuit says decision not to depart for imperfect entrapment or extraordinary citizenship was not reviewable. (715) The Ninth Circuit held that to the extent that defendant was claiming that his case fell outside the “heartland” based on imperfect entrapment or extraordinary citizenship, the district court declined to depart downward on those claims. Because the district court exercised its discretion, the court of appeals “has no jurisdiction to review that decision.” U.S. v. Tucker, 133 F.3d 1208 (9th Cir. 1998).
9th Circuit says “dissatisfaction” with the required sentence is not a valid basis for departure. (715) Relying on U.S. v. Cervantes Lucatero, 889 F.2d 916, 918 (9th Cir. 1989), the Ninth Circuit held that a district court’s dissatisfaction with the required sentence is not a valid basis for departure. Thus, the district court properly declined to depart downward on this basis. U.S. v. Tucker, 133 F.3d 1208 (9th Cir. 1998).
9th Circuit, en banc, finds extent of departure not unreasonable in grenade explosion. (715) The en banc Ninth Circuit held that the extent of a departure cannot be so great as to be unreasonable within the meaning of 18 U.S.C. § 3742(f)(2). In this case, the district court identified three reasons for its decision to depart upward: (1) significant injuries suffered by three of the bombing victims, (2) the extent and value of the property damaged in the blast and (3) the need for greater deterrence than usual because the judge knew that the criminal who had asked defendant to throw the grenade into the police station had bought at least one more and the man who sold it to him might well have more. In a 6-5 decision, a majority of the Ninth Circuit held that the district court’s explanation “cannot be said to be unreasonable.” Therefore, the majority affirmed an upward departure to the statutory maximum of 20 years in prison. The court overruled U.S. v. Lira-Barraza, 941 F.2d 745 (9th Cir. 1991) (en banc) which held that an upward departure requires a comparison to analogous guideline provisions. “In light of Koon [v. U.S. 116 S.Ct. 2035 (1996)], we now reject such a mechanistic approach.” Judges Tashima, Hug, Browning, Schroeder and Reinhardt dissented. U.S. v. Sablan (David), 114 F.3d 913 (9th Cir. 1997) (en banc).
9th Circuit adopts abuse of discretion standard to review departures after Koon. (715) In Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996), the Supreme Court held that a “district court’s decision to depart from the guidelines . . . will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court.” Accordingly, in a 6-5 decision, the en banc Ninth Circuit held that the Supreme Court effectively rejected multi-step approaches to reviewing departures and “collapsed” the steps into a single inquiry. The majority concluded that Koon overruled U.S. v. Lira-Barraza, 941 F.2d 745 (9th Cir. 1991) (en banc), which had adopted a three-step standard for reviewing departures. In applying this unitary standard however, the court must consider the following four factors: “(1) What features of this case, potentially take it outside the Guidelines’ ‘heartland’ and make of it a special, or unusual, case? (2) Has the Commission forbidden departures based on those features? (3) If not has the Commission encouraged departures based on those features? (4) If not has the Commission discouraged departures based on those features?” U.S. v. Sablan (David), 114 F.3d 913 (9th Cir. 1997) (en banc).
9th Circuit rejects departure based on disparity between money laundering and fraud guidelines. (715) At sentencing, the government asserted that the Sentencing Commission intended to impose harsher punishments on those who violate 18 U.S.C. § 1957 (money laundering) in addition to committing fraud. On appeal, the Ninth Circuit held that the government was correct in asserting that the district court had no authority to depart downward under the circumstances. In U.S. v. Rose, 20 F.3d 367, 374 & n.6 (9th Cir. 1994), the court concluded that no legal basis exists for departing downward to reduce sentencing disparity between § 2S1.1 money laundering and the underlying wire fraud. U.S. v. Ripinski, 109 F.3d 1436 (9th Cir. 1997), amended, 129 F.3d 518 (9th Cir. 1997).
9th Circuit bars departure for stipulated deportation unless government requests it. (715) Defendant asked the district court to issue a judicial order of deportation pursuant to 8 U.S.C. § 1252a(d)(1), and to depart downward from the guidelines on that basis, under § 5K2.0. The Ninth Circuit held it had no authority to order deportation because § 1252a(d)(1) is triggered only on a request by the U.S. Attorney with the concurrence of the INS Commissioner. On appeal, the Ninth Circuit agreed, noting that by its terms § 1252a(d)(1) permits a judicial order of deportation at the time of sentencing only “if such an order has been requested by the United States Attorney with the concurrence of the Commissioner and if the court chooses to exercise such jurisdiction.” Defendant’s “Stipulation to Deport” had no practical or legal effect since the district court lacked jurisdiction to enter a deportation order, and therefore had no basis for a § 5K2.0 departure. U.S. v. Flores-Uribe, 106 F.3d 1485 (9th Cir. 1997).
9th Circuit departs downward for prejudice caused by government’s misconduct. (715) The district court originally dismissed the indictment in this drug case because the government had engaged in misconduct by entering into plea negotiations with defendant in the absence of his attorney. The Ninth Circuit reversed the dismissal in U.S. v. Lopez, 4 F.3d 1455, 1464 (9th Cir. 1993), ruling that this was the wrong remedy. On remand, defendant was convicted after a trial. At sentencing, the district court departed downward by three levels due to prejudice defendant suffered as a result of the government’s misconduct. On appeal, the Ninth Circuit affirmed, noting that defendant’s opportunity for full and fair plea negotiations was seriously affected by the government’s conduct. The district court noted that “although it cannot be determined what the result of those negotiations might have been, it is clear that he reasonably believed he had no choice but to go to trial.” The Ninth Circuit ruled that “[t]he prejudice [defendant] encountered as a direct result of the government’s conduct was, in our view significant enough to take this case out of the heartland of the Guidelines.” U.S. v. Lopez, 106 F.3d 309 (9th Cir. 1997).
9th Circuit upholds refusal to depart for sentencing entrapment. (715) In U.S. v. McClelland, 72 F.3d 717, 726, n.5 (9th Cir. 1995), the Ninth Circuit noted that “the amount of inducement, the level of reluctance on the defendant’s part, and who acted first should all be relevant factors for the district court to weigh” in deciding whether a departure is warranted on the ground of sentencing entrapment. McClelland was decided after the sentencing hearing in this case, but the district court found that defendant in this case “did not show any reluctance to come forward with” the amount of cocaine and heroin the government suggested. The district court’s decision on the sentencing entrapment issue was not based on a misunderstanding of the law. Accordingly, the Ninth Circuit found that the district court did not abuse its discretion in declining to depart downward on the basis of sentencing entrapment. U.S. v. Lopez, 106 F.3d 309 (9th Cir. 1997).
9th Circuit says status as deportable alien may not justify departure. (715) The district court departed downward by three levels on the ground that defendant’s status as a deportable alien made her ineligible for (1) incarceration at a minimum security facility and (2) community confinement, which can be for up to ten percent of the sentence but no more than six months. The D.C. Circuit held that this could be a basis for departure in rare cases. U.S. v. Smith, 27 F.3d 649 (D.C. Cir. 1994). However, other circuits have held that this basis for departure is not appropriate. U.S. v. Restrepo, 999 F.2d 640, 645 (2d Cir. 1993); U.S. v. Nnanna, 7 F.3d 420, 422 (5th Cir. 1993); U.S. v. Mendoza-Lopez, 7 F.3d 1483, 1487 (10th Cir. 1993). In this case, the Ninth Circuit held that the district court did not make sufficient findings to satisfy the requirements for a departure under the Supreme Court’s new decision in Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996). The case was remanded with instructions to consider why defendant was ineligible for minimum security and community confinement “bear[ing] in mind the Commission’s expectation that departures based on grounds not mentioned in the guidelines will be “highly infrequent.” U.S. v. Cubillos, 91 F.3d 1342 (9th Cir. 1996).
9th Circuit suggests basing departure for injury to bystanders on bodily injury guideline. (715) Defendant threw a hand grenade into a parking lot. It bounced off a car and rolled toward some bystanders, injuring them when it exploded. The government argued that the district court’s upward departure for injury to the bystanders could be justified by analogy to the aggravated assault guideline in § 2A2.2(b)(3). However, the Ninth Circuit found no specific intent to injure, and therefore suggested that, on remand, if the court decides to depart upward for bodily injury under § 5K2.2, a better analogy would be the increases for permanent or serious bodily injury under § 2B3.1 (Robbery) and § 2B3.2 (Extortion by Force or Threat of Injury or Serious Damage). U.S. v. Sablan, 90 F.3d 362 (9th Cir. 1996).
9th Circuit says basing departure on “deterrence” was abuse of discretion. (715) The district court was concerned that other contraband hand grenades were at large, and indicated it wished to deter their use when it sentenced defendant for tossing a hand grenade into a parking lot. The Ninth Circuit concluded that, to the extent that the court may have increased the magnitude of the departure “for reasons of deterrence,” it abused its discretion. Deterring the use of explosives lies within the “heartland” of 18 U.S.C. § 844, and its guideline, 2K1.4. There was nothing in the record to indicate that any other stolen grenades at large in the community created a need for deterrence “substantially in excess” of that ordinarily involved in 2K1.4 offenses. U.S. v. Sablan, 90 F.3d 362 (9th Cir. 1996).
9th Circuit reverses departure that was intended to facilitate payment of restitution. (715) The Ninth Circuit joined the Second, Fourth, Sixth, and Seventh Circuits in holding that a sentencing judge may not depart to facilitate payment of restitution. Payment of restitution is not an appropriate basis for departure because it is adequately taken into account by Guideline 3E1.1, dealing with acceptance of responsibility. Allowing a judge to reduce a defendant’s sentence to preserve a defendant’s job and facilitate restitution “would introduce precisely the type of socio-economic disparity into sentencing that the guidelines were designed to eliminate.” U.S. v. Chastain, 84 F.3d 321 (9th Cir. 1996).
9th Circuit denies departure for voluntary disclosure of offense even though defendant turned himself in. (715) After robbing two federally insured banks, defendant voluntarily notified police and confessed. He pled guilty and at sentencing sought a downward departure under § 5K2.16 for “voluntary disclosure of offense.” The district court denied the departure and on appeal the Ninth Circuit affirmed. Under § 5K2.16, the defendant must show that the offense was unlikely to have been discovered without his confession. The section does not apply to individuals who simply confess involvement in a crime already known to the authorities. U.S. v. Brownstein, 79 F.3d 121 (9th Cir. 1996).
9th Circuit upholds downward departure for “imperfect entrapment.” (715) Relying on U.S. v. Garza-Juarez, 992 F.2d 896 (9th Cir. 1991), the district court departed downward by six levels for “imperfect entrapment.” The government appealed, arguing that the departure should not apply where the defendant initiated the criminal activity and was predisposed to commit the crime. The Ninth Circuit found no merit in the argument, because it would eliminate all “imperfect entrapment” departures. Such departures are appropriate because imperfect entrapment may show that a defendant is “both less morally blameworthy than an enthusiastic [defendant] and less likely to commit other crimes if not incarcerated.” U.S. v. McClelland, 72 F.3d 717 (9th Cir. 1995).
9th Circuit holds court may depart downward from 16-level increase for aliens convicted of aggravated felonies. (715) Guideline § 2L1.2(b)(2) requires a 16-level upward adjustment for defendants who are convicted of reentering the United States following conviction of an aggravated felony in violation of 8 U.S.C. § 1326(b)(2). The district court refused to depart downward in this case, stating that it lacked authority to do so. The Ninth Circuit reversed and remanded, holding that the downward departure sought by defendant “is within the district court’s authority.” The court noted that in U.S. v. Estrada-Plata, 57 F.3d 757 (9th Cir. 1995) the Ninth Circuit held that the 16 level increase did not violate due process precisely because “the district court [is] free to consider [defendant’s] individual circumstances.” The court also cited with approval U.S. v. Hines, 803 F.Supp. 675, 676-79 (W.D.N.Y. 1992), affirmed 992 F.2d 321 (2d Cir. 1993) (table), where the court departed downward under authority of § 3553(b) in an illegal entry case in which defendant’s “aggravated felonies” were comparatively minor drug offenses. Thus, “the district court does indeed possess the authority to consider whether [defendant’s] individual circumstances warrant a downward departure.” U.S. v. Cuevas-Gomez, 61 F.3d 749 (9th Cir. 1995).
9th Circuit reverses upward departure in carjacking case. (715) Normally, under § 2B3.1(b)(2)(A), defendants’ carjacking sentence would have been increased by seven levels because a gun was discharged during the offense. But since they were also convicted of using a firearm under 18 U.S.C. § 924(c), the enhancement did not apply. Nevertheless, the firearms guideline, § 2K2.4, authorizes a departure where, as here, the sentence is less than what the defendant would have received if he had not been convicted of the 924(c) offense. But the departure may not exceed the sentence that would have resulted without the 924(c) conviction. In this case, the judge departed beyond the maximum possible sentence without the 924(c) conviction. The sentence was reversed and the case was remanded for resentencing. U.S. v. Oliver, 60 F.3d 547 (9th Cir. 1995).
9th Circuit says departure may be based on offenses committed while awaiting sentencing. (715) Believing it could not depart based on offenses committed while the defendant was awaiting sentencing, the district court did not consider the fact that defendant escaped, allegedly assaulted a sheriff’s deputy and used her gun to kill a passing motorist. In reversing the sentence on other grounds, the Ninth Circuit noted in a footnote that that it recently held that “a district court may take postconviction offenses that occur pending sentencing into account in deciding whether to depart upward from the guidelines.” U.S. v. Myers, 41 F.3d 531, 534 (9th Cir. 1994). The court said that on remand, the district court “may properly consider the alleged escape and murder in arriving at a new sentence.” U.S. v. George, 56 F.3d 1078 (9th Cir. 1995).
9th Circuit permits departure in sexual abuse case for extreme repetitive conduct and psychological injury. (715) Defendant pled guilty to one count of sexual abuse of a 13-year-old girl, and the court found by a preponderance that he had also repeatedly sexually abused his 11-year-old stepdaughter. The Ninth Circuit held that the guidelines permitted departures in this case based on “extreme conduct” under § 5K2.8, “extreme psychological injury” under § 5K2.3, and “repetitive conduct,” which has been recognized as a basis for departure under § 5K2.0. The defendant’s conduct and its effect on the victims was more extreme than is “normal” is sexual abuse cases. However, the extent of the departure was based in part on an analogy to aggravated sexual abuse. This deprived the defendant of the benefit of his plea bargain, and required resentencing. U.S. v. Chatlin, 51 F.3d 869 (9th Cir. 1995).
9th Circuit does not decide whether cultural differences in medicinal use of opium justified departure. (715) Defendant argued that the court of appeals should remand to determine whether defendant should get a downward departure because of cultural differences in the medicinal use of opium. The 9th Circuit declined to reach the question because defendant had the burden of proving the factual basis for the departure and failed to do so. The court noted that the district judge must decide the facts for himself and not uncritically defer to “experts” or accept representations about a culture with which he is unfamiliar. U.S. v. Khang, 36 F.3d 77 (9th Cir. 1994).
9th Circuit says INS warning of 2 year sentence did not bar 70 month sentence. (715) Defendant reentered the U.S. after deportation, in violation of 8 U.S.C. § 1326. Since he had a prior aggravated felony conviction, the district court added 16 levels and sentenced him to 70 months in prison. Defendant complained that the Immigration and Naturalization Service had erroneously told him he would be subject to no more than two years imprisonment if he re-entered illegally. He argued that therefore he had no “fair notice,” and the government was “estopped,” and a departure downward to two years was appropriate given the “unique circumstances.” The 9th Circuit rejected each argument in turn, relying on its recent decision in U.S. v. Arzate-Nunez, 18 F.3d 730 (9th Cir. 1994) which rejected defendant’s argument that principles of due process prevented his conviction when he was given a copy of the same erroneous INS form that defendant here received. The sentence was affirmed. U.S. v. Ullyses-Salazar, 28 F.3d 932 (9th Cir. 1994), overruled on other grounds by U.S. v. Gomez-Rodriguez, 96 F.3d 1262 (9th Cir. 1996).
9th Circuit rules post-arrest emotional trauma does not justify downward departure. (715) At his sentencing hearing, defendant urged a downward departure for “self-inflicted punishment.” He said that after arrest he experienced anxiety attacks, had trouble sleeping, and was placed on anti-depressant medication. He feared that if he was incarcerated he would lose his employment and be unable to support his family. The 9th Circuit upheld the district court’s refusal to depart downward on the basis of “self-inflicted punishment.” Defendant’s claim was nothing more than “post-arrest emotional trauma” which is a “natural consequence of being charged with a crime.” “It is irrelevant for sentencing purposes.” The court noted that in U.S. v. Harpst, 949 F.2d 860, 863 (6th Cir. 1991) the 6th Circuit had rejected a similar argument based on defendant’s self destructive tendencies. U.S. v. Walker, 27 F.3d 417 (9th Cir. 1994).
9th Circuit reverses “unusual circumstances” upward departure in extortion case. (715) Defendant was convicted of attempting to extort money from his former homosexual lover. At sentencing, the court departed upward two and a half times above the guidelines, based on the “unusual circumstances.” Among other factors, the district court said defendant’s behavior was “cruel and ruthless” because of the victim’s advanced age and fear of exposure as a homosexual. The district court also found “extreme psychological injury” because the victim tried to commit suicide twice. The 9th Circuit found no support for several of the facts cited by the district court. There was no involuntary payment of money by the victim before September 4, 1991, and therefore the victim’s impoverishment was not caused by defendant’s threats. The suicide attempts also preceded the attempted extortion and defendant was acquitted of the count involving anti-Semitic language. The sentence was vacated and the case was remanded for resentencing. U.S. v. Marsh, 26 F.3d 1496 (9th Cir. 1994).
9th Circuit upholds departure for “convergence of factors” but remands as to extent. (715) The district court found that defendant’s “extremely dangerous” mental state was not adequately considered by the guidelines, and that his criminal history category did not reflect his dangerousness and the “significant likelihood that he will commit additional serious crimes.” The 9th Circuit found that defendant’s criminal history and hospitalizations supported the court’s findings. The threats and descriptions contained in defendant’s letters and diary portrayed a man who was “obviously mentally disturbed.” Accordingly, it was proper for the court to depart under both §4A1.3 and §5K2.0. However, since the district court did not explain why it chose to depart three levels, the case was remanded to permit the court to explain its reasons for the extent of the departure. U.S. v. Hines, 26 F.3d 1469 (9th Cir. 1994).
9th Circuit says court may not depart downward to punish government officials. (715) Defendant pled guilty to being a deported alien found in the United States. The district court departed downward from the applicable guideline range by three months on the ground that defendant may have been stopped by the police because he was Mexican appearing, rather than for good cause. The government appealed and the Ninth Circuit reversed. Even if the stop of defendant had not been proper, that was not related to his culpability or to the severity of his offense. Sentencing is not designed to punish, deter or educate government officials but to punish, deter and educate defendants. U.S. v. Pacheco-Osuna, 23 F.3d 269 (9th Cir. 1993).
9th Circuit upholds departure for profit motive and more than minimal planning. (715) Defendant had a profit motive for hiring a “hit man” to kill his wife because he would receive the proceeds of a life insurance policy. The offense also involved more than minimal planning. Accordingly, the 9th Circuit upheld a departure was proper based on both grounds. The extent of the departure was reasonable on either ground. U.S. v. Fontenot, 14 F.3d 1364 (9th Cir. 1994).
9th Circuit reverses departure for high speed chase in alien smuggling case. (715) Defendant was transporting a load of illegal aliens. He led border patrol agents on a five-mile high speed chase on freeways near the border. The district court imposed an upward adjustment of two levels for “reckless endangerment during flight” under § 3C1.2. In addition, the court departed upward six levels for using the vehicle as a “dangerous instrumentality” under § 5K2.6, and because defendant abandoned the moving car and ran across the freeway. The 9th Circuit reversed, holding that defendant’s conduct in this case came within the “heartland” of dangerous flight from authorities that is covered by § 3C1.2. The high speed chase was relatively short, the aliens were not injured, and defendant’s flight after the automobile chase ended did not threaten the aliens. Moreover “a car is not a dangerous instrumentality under section 5K2.6 unless it is used with the intent to cause harm.” U.S. v. Torres-Lopez, 13 F.3d 1308 (9th Cir. 1994).
9th Circuit says guidelines do not allow for departure for a civil forfeiture. (715) The district court departed downward one level because defendant lost his family home in civil forfeiture proceedings after he was convicted of manufacturing marijuana plants. On appeal, the 9th Circuit agreed with the 3rd Circuit’s opinion in U.S. v. Shirk, 981 F.2d 1382, 1397 (3rd Cir. 1992), that a court may not base a downward departure on the fact that defendant has had property taken by civil forfeiture. As noted in Shirk, the guidelines state in section 5E1.4 that “forfeiture is to be imposed . . . as provided by statute.” This means that the Commission viewed monetary forfeiture as entirely distinct from the issue of imprisonment. In a footnote, the court noted that the Supreme Court in Austin v. U.S., 113 S.Ct. 2801 (1993) held that forfeiture is a form of punishment which is subject to the limitations of the Excessive Fines Clause of the 8th Amendment. The fact that a given offense may result in several types of punishment “does not restrict the power of Congress to provide, within Constitutional boundaries, how the various types of punishment are to be imposed.” U.S. v. Crook, 9 F.3d 1422 (9th Cir. 1993).
9th Circuit says amendment precluding departure for lack of youthful guidance cannot be applied retroactively. (715) Effective November 1, 1992, the Sentencing Commission added guideline section 5H1.2 to declare that “[l]ack of guidance as a youth and similar circumstances indicating a disadvantaged upbringing are not relevant grounds for imposing a sentence outside the applicable guideline range.” The Commission did not say that the amendment was intended to be clarifying in nature, and the 9th Circuit held that it was a substantive change. Thus, the court held that the new prohibition against departures based on lack of youthful guidance could not be applied to this defendant without violating the ex post facto clause. The sentence was vacated and the case was remanded to the district court to permit the judge to consider whether to depart downward for youthful lack of guidance. U.S. v. Johns, 5 F.3d 1267 (9th Cir. 1993).
9th Circuit upholds departure, rather than vulnerable victim adjustment, for racial motivation. (715) Defendant pled guilty to mail fraud, mailing threatening communications and threatening the President. The district court departed upward based in part on its finding the offenses were racially motivated. Defendant’s conduct involved an 11-month harassment of interracially married couples including having their mail forwarded to different addresses, sending them unordered books and magazines for which they were billed, mailing threatening communications, and signing their names to threatening letters sent to President Bush. Defendant maintained the crimes were not racially motivated but were his delusional reaction to feeling sexually inferior to minority males. The 9th Circuit found the conduct was racially motivated and a basis for upward departure. The vulnerable victim adjustment, §3A1.1, was not available unless defendant knew or should have known of the vulnerability of the victim. §3A1.1 turns on the status of the victim, not the actions of the defendant. As a result departure, rather than the adjustment, was proper. U.S. v. McAninch, 994 F.2d 1380 (9th Cir. 1993)
9th Circuit says persons in bank were “physically restrained” and departure was proper. (715) Defendant went into the bank, grabbed an elderly female customer around the neck and shoved a hard object that felt like a gun into her back. He then dragged her by the neck toward a gate that led to the teller station. He let go of the woman, and grabbed a customer service representative. The district court imposed a two level increase under 2B3.1(b)(4)(B) for the physical restraint of the woman and departed upward by nine months for the restraint of the customer service representative. On appeal, the 9th Circuit affirmed, holding that the phrase “physically restrained” in U.S.S.G. section 1B1.1 is not limited to being tied, bound, or locked up. The departure was proper because the defendant restrained more than one person and the extent of the departure was reasonable. U.S. v. Foppe, 993 F.2d 1444 (9th Cir. 1993).
9th Circuit upholds departure for coercion not amounting to entrapment. (715) In sentencing defendants on firearm offenses, the district court stated that “the conduct of this investigation, although not amounting to entrapment, was sufficiently coercive in nature as to warrant a downward departure under guideline 5K2.12.” On appeal, the 9th Circuit affirmed, noting that the policy statement for section 5K2.12 permits a downward departure if “the defendant committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to a complete defense.” The court noted that in U.S. v. Takai, 941 F.2d 738 (9th Cir. 1991) the court said a downward departure may be appropriate when government agents used persuasion alone, not threats. Moreover, other circuits have recognized that section 5K2.12 “was meant to apply precisely to those situations where a complete defense was not present.” The court distinguished U.S. v. Dickey, 924 F.2d 836 (9th Cir. 1991) which held that a downward departure based on “imperfect entrapment” was not appropriate, “at least where the defendant pleads guilty to an offense,” on the ground that here the defendants contested their guilt at trial. U.S. v. Garza-Juarez, 992 F.2d 896 (9th Cir. 1993).
9th Circuit upholds downward departure for “panic disorder with agoraphobia.” (715) The district court based its downward departure in part on defendant’s mental condition, i.e. panic disorder with agoraphobia. Although the policy statement for guideline section 5H1.3 states that mental and emotional conditions are not ordinarily relevant in departing from the guidelines, the district court had authority to depart downward in this case under section 5K2.0. The departure was based on evidence that the disorder first appeared in 1972 and had developed into a serious problem, totally debilitating defendant at times. The disorder caused the defendant to suffer panic attacks when in airplanes, driving in large cities, and in unfamiliar areas, with symptoms similar to those of a heart attack. The four level downward departure was not unreasonable. U.S. v. Garza-Juarez, 992 F.2d 896 (9th Cir. 1993).
9th Circuit remands for explanation of reasons for departure based on restitution. (715) One reason the district court gave for departing was that defendant paid $58,000 restitution, which was, in the court’s view, substantially more than the amount for which she was responsible. The 9th Circuit noted that departure for restitution was constrained in three ways. First, the departure must show acceptance of responsibility under section 3E1.1 note 1(b). Second, the court may depart only for extraordinary acceptance of responsibility. Third, the magnitude of the departure must be commensurate with the level of the defendant’s acceptance of responsibility. The case was remanded for the district court to reconsider its decision to depart. Judge Tang dissented, arguing that the departure was not clearly erroneous given the combination of factors here. U.S. v. Miller, 991 F.2d 552 (9th Cir. 1993).
9th Circuit authorizes 1-to-1 departure for time served on home detention. (715) At the original sentencing the district court departed downward to probation with 6 months home detention. The government appealed, and on remand, the court imposed the same sentence, giving as one of the reasons, that it would be “a travesty of justice” to put the defendant in prison after she had completed 6 months of home detention. The 9th Circuit agreed that this was a proper basis for departure, but remanded for an explanation of the extent of departure. The court noted that departing from defendant’s guideline sentence by exactly six months “would leave her with a lighter punishment than congress authorized, though not unacceptably lighter.” (Emphasis added). When home detention is an appropriate punishment . . . the Guidelines approve of crediting home detention time for prison time on a one-for-one basis.” See U.S.S.G. section 5C1.1(e)(3). Thus, on remanded, the district court “may depart downward by up to six months to take into account her home detention.” U.S. v. Miller, 991 F.2d 552 (9th Cir. 1993).
9th Circuit upholds departure for egregious perjury in addition to two levels for obstruction. (715) Defendant argued that once a court has adjusted a sentence upward under section 3C1.1 for perjury at trial, as a matter of law the court may not depart from the sentence on the basis of the same perjury. The 9th Circuit rejected this argument based on the controlling authority of U.S. v. Ward, 914 F.2d 1340 (9th Cir. 1990). Ward held that after granting an upward adjustment under section 3B1.1, the sentencing court may in addition depart upward if the defendant’s perjury is “significantly more egregious than the ordinary cases of obstruction listed in the application notes to section 3C1.1.” Here, the district judge found that defendant “had engaged in the greatest fraud upon this court which has ever been perpetrated in my courtroom.” The departure was upheld. U.S. v. Momeni, 991 F.2d 493 (9th Cir. 1993).
9th Circuit authorizes downward departure for career offender based on nature of priors and defendant’s youth at the time. (715) Defendant argued the nature of his prior crimes (several DUI’s) and his youth at the time of one of the prior convictions (age 18) rendered his criminal history significantly less serious than a typical career offender. The 9th Circuit held that while age is not ordinarily relevant it becomes relevant when it causes a defendant’s criminal history score to significantly overstate the severity of his or her criminal record. Accordingly, a downward departure from the career offender guideline range could be justified based on the nature of prior convictions and the defendant’s youth at the time of a prior conviction. The case was remanded to permit the court to consider whether to depart. U.S. v. Brown, 985 F.2d 478 (9th Cir. 1993).
9th Circuit says extraordinary acceptance of responsibility can justify departure. (715) Defendant was convicted of bank robbery, and was found to be a career offender. Nevertheless, the 9th Circuit concluded that the record contained evidence to support a departure for “extraordinary” acceptance of responsibility. The existence of section 3E1.1 does not preclude the sentencing court from making an additional departure where a defendant manifests an extraordinary acceptance of responsibility. The fact that defendant’s confession was not detailed and that it occurred after a high speed pursuit and arrest did not prevent the court from finding the district court erred in concluding it lacked authority to depart. U.S. v. Brown, 985 F.2d 478 (9th Cir. 1993).
9th Circuit finds extraordinary childhood abuse may justify departure. (715) In U.S. v. Roe, 976 F.2d 1216 (9th Cir. 1992), the 9th Circuit held that extraordinary childhood abuse constituted a valid ground for departure. In the present case, defendant, a career offender, offered into evidence a letter recounting his childhood of severe abuse and neglect. He also produced a psychologist’s report that concluded his childhood trauma was the primary cause of his criminal behavior. The 9th Circuit concluded that the district court acted under the erroneous impression it lacked authority to depart and remanded the case for resentencing. U.S. v. Brown, 985 F.2d 478 (9th Cir. 1993).
9th Circuit reverses departure for assaults that were “disregarded” under the “grouping” rules. (715) The 9th Circuit noted that the court’s decision to depart was unquestionably influenced by the fact that under the “grouping” rules in 3D1.4(c), the two assaults would be “disregarded” in determining defendant’s combined base offense level because they were more than nine offense levels below the level for his second degree murder offense. The district court believed the assaults should not go unrecognized in the offense level. However, by adding one point for each of the two assaults, the district court gave defendant an offense level equivalent to what he would have received if he had committed two additional offenses of seriousness equal to or only slightly less than that of the murder. Thus, the departure distorted the guidelines. Defendant’s sentencing range from 188 to 235 months offered the district court “adequate opportunity” to take the assaults into account. The departure was reversed. U.S. v. Luscier, 983 F.2d 1507 (9th Cir. 1993).
9th Circuit says agent’s perjury before grand jury is not a basis for downward departure. (715) One of the arresting agents perjured himself before the grand jury by omitting certain facts when directly questioned by a grand juror. Concurring with the First Circuit’s decision in U.S. v. Valencia-Lucena, 925 F.2d 506, 515 (1st Cir. 1991), the court found that the perjury before the grand jury was not a basis for a downward departure because it did not relate to the offense or offender. The only purpose of the departure would be to deter government misconduct, a purpose that has no relation to the goals of the Sentencing Reform Act. U.S. v. Williams, 978 F.2d 1133 (9th Cir. 1992).
9th Circuit upholds downward departure for abusive childhood. (715) Defendant pled guilty to bank robbery and received a sentence of 145 months. She appealed, arguing that the district court erred in refusing to depart downward based on her history of childhood abuse. As a youth, the defendant lived with her drug-addicted mother and her mother’s narcotics dealer boyfriend. The defendant was often beaten, routinely raped and sodomized and the mother’s boyfriend urinated in her mouth. Several medical experts agreed that the defendant’s history of abuse was exceptional. The district court erred in holding that the tragic circumstances of the abusive upbringing were not extraordinary and the case was remanded to determine whether a departure was warranted. In addition, the court suggested the district court may also wish to consider a “youthful lack of guidance” departure. U.S. v. Roe, 976 F.2d 1216 (9th Cir. 1992).
9th Circuit says court may consider loss of parole eligibility in deciding whether to depart downward. (715) Defendant argued that the court erred by ordering his sentence to run consecutively to the pre-guidelines sentence he was serving when he escaped. He argued that there should be a per se rule requiring the court to depart downward by ordering a concurrent sentence for a defendant who commits a subsequent crime while serving a pre-guidelines sentence, because the Parole Commission is almost certain to increase the time that the defendant will serve on his original sentence. The 9th Circuit, following the 6th Circuit’s decision in U.S. v. Stewart, 917 F.2d 970, 974 (6th Cir. 1990), rejected the argument, stating that although the district court “may consider a defendant’s loss of parole eligibility as a factor in its decision whether to depart downward, it is not required to grant the departure.” Since all parties agreed that the district court exercised its discretion here, the appeal was dismissed. U.S. v. Moss, 972 F.2d 273 (9th Cir. 1992).
9th Circuit says defendant waived departure argument by failing to raise it in district court. (715) At oral argument, the defendant asked the court to remand the case to permit the district court to exercise its discretion to depart downward on the basis of such factors as youthful lack of guidance. The 9th Circuit rejected the argument, stating that because the defendant failed to present this issue to the district court, “we deem it waived.” U.S. v. Quesada, 972 F.2d 281 (9th Cir. 1992).
9th Circuit upholds two level upward departure for “sophistication” of alien smuggling organization. (715) The district court stated that its upward departure was based on the length of time the conspiracy lasted, its sophistication and the large number of aliens. The 9th Circuit held that these were proper reasons for an upward departure of two levels. Contrary to the defendant’s argument, a district court is not required to find both a large number of aliens and dangerous and inhumane treatment of aliens in order to depart upward. Moreover, at least 146 illegal aliens were transported in a ten week period. This constituted “large numbers of aliens” for the purpose of upward departure under 2L1.1. In reviewing the reasonableness of the extent of the departure, the court found a useful analogy in the two levels for “more than minimal planning” provided in several other guidelines. U.S. v. Martinez-Gonzalez, 962 F.2d 874 (9th Cir. 1992).
9th Circuit holds that ineffective assistance in prior state proceeding is not a basis for departure. (715) Defendant rejected a plea offer in an earlier criminal state proceeding on the advice of his counsel. He was then indicted and convicted in federal court for the same conduct, and sentenced far in excess of the sentence he would have received in state court. Arguing that he rejected the state plea offer because of ineffective assistance of counsel, defendant moved for a downward departure. The district court denied the motion, and the 9th Circuit affirmed. The court held that ineffective assistance of counsel in a prior state proceeding was not a mitigating circumstance. “For a factor to be considered, it must be tied to some penological purpose or legitimate sentencing concern expressed in the Sentencing Reform Act.” U.S. v. Crippen, 961 F.2d 882 (9th Cir. 1992).
9th Circuit rejects downward departure, but suggests “youthful lack of guidance departure” on remand. (715) The 9th Circuit reaffirmed its ruling in U.S. v. Martin, 938 F.2d 162 (9th Cir. 1991) that “a defendant’s post-arrest drug rehabilitation efforts afford no basis for downward departure.” Moreover, although U.S. v. Cook, 938 F.2d 149, 153 (9th Cir. 1991) held that a “unique combination of factors “may constitute a mitigating circumstance justifying a downward departure, the other factors relied on here could not justify a departure, i.e. (1) defendant’s age of 46 years, (2) his reduced mental capacity due to drug abuse, (3) his drug dependence, (4) his ability to maintain full-time employment until crack abuse took over his life, and (5) his lack of family ties at an early age. However, the 9th Circuit suggested that on remand, the district court “may wish to consider” a departure under U.S. v. Floyd, 945 F.2d 1096 (9th Cir. 1991), amended, 956 F.2d 203 (9th Cir. 1992).” U.S. v. Anders, 956 F.2d 907 (9th Cir. 1992).
9th Circuit permits downward departure based on “youthful lack of guidance.” (715) The district court departed downward from 30 years to 17 years based on what the appellate court characterized as “youthful lack of guidance.” The district court believed that the defendant’s youthful lack of guidance had a significant effect both on his past criminality and on his commission of the present rock cocaine offense. Thus the court thought that his criminal history category significantly overrepresented the actual seriousness of his past criminality, and his base offense level overrepresented the actual seriousness of his criminality in the present offense. The government appealed, and the 9th Circuit affirmed the sentence, rejecting the government’s argument that lack of youthful guidance as a mitigating circumstance was precluded by the guidelines. The court also found that the extent of the departure was not unreasonable. U.S. v. Floyd, 945 F.2d 1096 (9th Cir. 1991), amended, 956 F.2d 203 (9th Cir. 1992).
9th Circuit reverses downward departure for lack of prior record, restitution, acceptance of responsibility, and family ties. (715) In sentencing this “repentant white-collar embezzler who made restitution and pled guilty,” the district judge departed downward and gave the defendant straight probation, based on his (1) lack of a prior record; (2) prompt total payment of restitution; (3) acceptance of responsibility; (4) his effort to keep his family together and the manner in which the family overcame its challenges; (5) the fact that incarceration would be “unjust and counterproductive;” and (6) the “totality of the situation.” The 9th Circuit held that none of these reasons was sufficient to justify a departure, either separately or together. U.S. v. Berlier, 948 F.2d 1093 (9th Cir. 1991).
9th Circuit suggests departure rather than four-level reduction for “exceptional” acceptance of responsibility. (715) The defendant sought a downward departure from two to four levels for “exceptional” acceptance of responsibility. The district judge agreed and the government did not challenge the additional two-level reduction on appeal. Nevertheless, in vacating the case on other grounds, the 9th Circuit stated that “the guidelines do not provide for the offense level to be reduced for acceptance of responsibility other than two levels.” A review of the record suggested that the district court intended to depart downward under section 5K2.0 “because the defendant’s admission of guilt in other crimes was an acceptance of responsibility greater than that contemplated by the guidelines.” The court said that if the district court intended this result, “it should make the appropriate finding upon remand.” U.S. v. Farrier, 948 F.2d 1125 (9th Cir. 1991).
9th Circuit upholds departure based on degree of abuse of trust. (715) After upholding a two level adjustment for abuse of trust under 3B1.3, the 9th Circuit also agreed that “the degree of trust which [defendant] held coupled with the degree of his involvement in this sordid affair warranted a departure in this case.” The evidence showed that the defendant, a Deputy U.S. Marshal required a subordinate to perform various sex acts on approximately ten men while watching, participating, or recording the activity. “The Sentencing Commission simply did not contemplate a senior official from the U.S. Marshal Service using his position to promote such activity.” The 18-month departure was not unreasonable. U.S. v. Pascucci, 943 F.2d 1032 (9th Cir. 1991).
9th Circuit rejects “confusion” and parties’ expectations as a rationale for departure downward. (715) The fact that all parties involved initially believed the sentence would be lower does not justify a departure on the basis of “confusion.” As the court stated in U.S. v. Selfa, 918 F.2d 749 (9th Cir. 1990), “the district court regrettably is not usually in a position at the time of the plea to advise the defendant with any precision as to the range within which the sentence might fall.” In any event, the 9th Circuit found that the analogy to Selfa was misplaced, because the defendant did not claim that he was misled or relied on the initial characterizations of what his sentence would be. U.S. v. Sanchez, 933 F.2d 742 (9th Cir. 1991).
9th Circuit rejects departure based on robber’s membership in a “ring” where role adjustment was available. (715) The 9th Circuit held that the guidelines implicitly take into account a bank robber’s participation as a member of a ring. “This implication arises because there is an increase in the offense level if the defendant was a leader, U.S.S.G. § 3B1.1, and there is a decrease in the offense level if the defendant was a minor participant (id., § 3B1.2).” Thus it was improper to increase the defendant’s sentence because he was a member of an organized group. U.S. v. Castro-Cervantes, 927 F.2d 1079 (9th Cir. 1990).
9th Circuit holds that guidelines do not take into account the “sophistication” of the robber. (715) In a bank robbery case, the 9th Circuit held that the guidelines “do not take into account the sophistication of the robber, and therefore, this factor is a proper ground for the sentencing court to take into consideration” in deciding whether to depart from the guidelines. U.S. v. Castro-Cervantes, 927 F.2d 1079 (9th Cir. 1990).
9th Circuit rejects “imperfect entrapment” as basis for downward departure. (715) Defendant argued that the government informant “talked him into” printing the counterfeit money, and that this government misconduct constituted “imperfect entrapment” justifying a downward departure. Agreeing with U.S. v. Streeter, 907 F.2d 781 (8th Cir. 1990), the 9th Circuit held that governmental misconduct should not mitigate the sentence of an admittedly guilty defendant. Judge Reinhardt dissented. U.S. v. Dickey, 924 F.2d 836 (9th Cir. 1991).
9th Circuit holds that repetition of the same false testimony over did not justify upward departure in perjury case. (715) Defendant was convicted of making false declarations in violation of 18 U.S.C. § 1623 during the trial of his wife. The district court departed upward from 16-24 months based on its conclusion that the 70 pages of defendant’s testimony contained “more than 100 of these one-statement lies.” The 9th Circuit reversed, holding that the essential conduct “is ordinarily the same regardless of the number of questions and answers it takes to illicit the tale.” Thus is was improper for the court to “consider that fact that a number of false statements have been charged in a single count” as a ground for an upward departure. The district court’s finding that these false declarations were “somehow extraordinary” was clearly erroneous. U.S. v. Goodrich, 919 F.2d 1365 (9th Cir. 1990).
9th Circuit holds similarity of prior offenses supports departure, but likelihood of deportation does not. (715) Convicted of being an alien in the United States after deportation, defendant was sentenced in excess of the guidelines because he had twice previously been convicted of the same offense and would be deported immediately upon completion of his sentence, thereby avoiding payment of any fine and supervision upon release. In a per curiam opinion, Judges Browning, Alarcon, and Rymer agreed that the similarity of past offenses to the present offense could justify an upward departure. But the court held it was improper to depart based on the likelihood of deportation. In addition, the sentencing judge failed to indicate which criminal history category it considered analogous to defendant’s history in determining the extent of the upward departure. U.S. v. Chavez-Botello, 905 F.2d 279 (9th Cir. 1990).
9th Circuit rejects defendant’s possible deportation as a basis for downward departure. (715) Defendant argued that the case should be remanded because the district court did not understand that departure for deportation reasons was permissible. The 9th Circuit disagreed, ruling that defendant’s possible deportation as a result of his conviction was not an appropriate basis for departure. “[D]eportation is quite similar to the factors set forth in U.S.S.G. 5H1, which are considered inappropriate grounds for departure in most instances.” U.S. v. Alvarez-Cardenas, 902 F.2d 734 (9th Cir. 1990).
9th Circuit reverses upward departure based on fact that defendant was to be deported. (715) Defendant’s sentencing range maximum was eighteen months, but the district court sentenced to twenty-four months because defendant was to be immediately deported after serving his sentence. The court reasoned that deportation made imposition of a fine or a program of supervised release impossible, justifying the extra time in custody. The 9th Circuit, in a per curiam opinion, found the stated grounds for upward departure “indicates dissatisfaction with the guidelines rather than a reasoned judgment” that characteristics of the offense were not accounted for. Therefore the departure was improper. U.S. v. Ceja-Hernandez, 895 F.2d 544 (9th Cir. 1990).
9th Circuit holds that departure may not be based on alien’s purpose for entering country. (715) Defendant was convicted of being an illegal alien in the United States after deportation. The district court departed upward from the guidelines on the ground that he was in the class of illegal aliens “who contribute nothing to society but to violate its laws,” rather than in the class of those “who are here to seek work.” The 9th Circuit held that nothing in the guidelines suggests that some illegal aliens may be punished more harshly than others, depending on whether they re-entered for work or for some other reason. Basing the departure on this ground was improper. U.S. v. Cervantes-Lucatero, 889 F.2d 916 (9th Cir. 1989).
9th Circuit upholds upward departure for high speed chase in alien smuggling case. (715) Defendant pleaded guilty to illegal transportation of aliens, 8 U.S.C. § 1324. The guideline range under § 2L1.1 was zero to four months. The trial judge departed upward to 30 months because the defendant had led the Border Patrol agents on a 30-mile high speed chase at speeds up to 95 miles an hour on the freeway, and then ran from the van when he was finally stopped. The 9th Circuit upheld the departure as “reasonable” under the guidelines. The court also rejected defendant’s argument that the sentence violated due process and constituted cruel and unusual punishment. U.S. v. Ramirez-De Rosas, 873 F.2d 1177 (9th Cir. 1989).
9th Circuit endorses upward departure in “sophisticated” alien smuggling case. (715) The maximum sentence under the guidelines was seven months. The trial court departed upward to two years because the alien smuggling scheme was “extremely well-organized and sophisticated and moved large numbers of people with clockwork precision.” In this pre-Mistretta case, the Ninth Circuit commended the district court for the completeness of the record and stated “We would have affirmed but for our holding in Gubiensio.” U.S. v. Nuno-Huizar, 863 F.2d 36 (9th Cir. 1988).
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10th Circuit allows courts to vary based on fast-track sentencing disparities. (715) Defendant, convicted of illegal reentry after deportation, moved for a below-guidelines sentence based on the sentencing disparity created by the absence of a fast-track program in the district. Such variances were barred by the Tenth Circuit in U.S. v. Martinez-Trujillo, 468 F.3d 1266 (10th Cir. 2006). Here, the Tenth Circuit overruled Martinez-Trujillo, holding that (1) where the circumstances warrant, a district court in a non-fast-track district has discretion to vary from a defendant’s guideline range based on fast-track disparities, but (2) a defendant bears the initial burden of showing entitlement to a variance based on fast-track sentencing disparities. Here, the defendant provided no evidence to warrant a variance. At a minimum, a defendant must show that if he were charged with the same crime in a fast-track district, he would qualify for fast-track treatment. The panel found it unnecessary to determine the exact showing a defendant must make. A “generalized argument” in which a defendant simply points to the disparity created by fast-track programs is not sufficient by itself to justify a variance. U.S. v. Lopez-Macias, __ F.3d __ (10th Cir. Nov. 7, 2011) No. 10-1494, overruling U.S. v. Martinez-Trujillo, 468 F.3d 1266 (10th Cir. 2006).
10th Circuit says court adequately explained upward departure based on gun defendant’s drug trafficking. (715) Defendant shot and killed another man, and pled guilty to being a felon in possession of a firearm. The Tenth Circuit rejected defendant’s argument that the district court failed to adequately explain the reasons for its sentence and upward departure. The district court explained in detail its view that an upward departure under § 5K2.21 was warranted based upon “significant credible evidence” that defendant was involved in drug trafficking from 2006 through 2009. The court explained that defendant dealt a total of 150 to 500 grams of cocaine during that period, and that a sentence of as high as 120 months could be imposed under current law for this drug trafficking conduct alone. Although the court did not cite the § 3553(a) factors expressly, the court discussed at length the history and characteristics of the defendant, the seriousness of the offense, the advisory Guidelines range, the Sentencing Commissions policy statements, and how defendant’s sentence compared to others found guilty of similar conduct. U.S. v. Fraser, __ F.3d __ (10th Cir. Aug. 2, 2011) No. 10-8049.
10th Circuit rejects categorical rule that all high-speed car chases warrant departure. (715) Defendant received a two-level enhancement under §3C1.2 because he “recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer.” The district court also departed upward an additional two levels. Noting that defendant was involved in a high-speed car chase through a Wal-Mart parking lot, the court found that (1) a high-speed car chase “always endangers more than one person,” and thus should “automatically qualify for consideration for an upward departure”; and (2) defendant’s particular high-speed chase “put a huge number of people at risk.” The Tenth Circuit rejected a categorical rule that all high-speed car chases “automatically” warrant upward departures. However, the panel upheld the upward departure, agreeing that the facts of defendant’s high-speed car chase were exceptional. Defendant made repeated high speed passes through and past the Wal-Mart store parking lot, a gas station and a McDonald’s, which “put a huge number of people at risk.” U.S. v. Osborne, 593 F.3d 1149 (10th Cir. 2010).
10th Circuit rejects large departure/variance based on uncharged conduct that was not related to current offense. (715) The FBI began to investigate defendant after an adult dancer reported defendant had discussed with her in detail his desire to kidnap, rape and kill young girls. The FBI investigated defendant for several months. Although there was some evidence that he had approached a young girl in Wal-Mart, and had been interrupted by the girl’s mother, the FBI was unable to find any additional evidence in this regard. Therefore, it shifted the focus of its investigation to defendant’s illegal drug activity. He pled guilty to a single count of possession of methamphetamine with intent to distribute. Although his guideline range was 120-135 months, the district court sentenced defendant to 360 months, finding that the advisory guideline range was “vastly inadequate.” The Tenth Circuit reversed. The horrific sexual abuse and murder that defendant either contemplated or took steps toward committing were not relevant conduct because they were completely unrelated to his sale of meth. The court could not have departed under the guidelines on the basis of these facts. When a § 5K2.0 departure is based on acts of misconduct not resulting in conviction, those acts must still relate meaningfully to the offense of conviction. Section 4A1.3(a)(2) also was unavailing, because the uncharged conduct was not similar adult criminal conduct. Finally, in an exercise of Booker discretion, a sentencing court may not discard the advisory guideline range and impose a sentence based on evidence of the defendant’s uncharged, unrelated misconduct, whether actually committed or contemplated for the future. U.S. v. Allen, 488 F.3d 1244 (10th Cir. 2007).
10th Circuit approves two-level upward departure for excessive recklessness in drunk driving case. (715) While driving drunk, defendant collided with a van, killing one woman and injuring her husband and two children. Defendant was convicted of involuntary manslaughter and several assault counts. The district court departed upward two offense levels based on defendant’s excessive recklessness, and the Tenth Circuit affirmed. The typical assault case covered by § 2A2.2 involves a single victim. It does not take into consideration the risks posed to third parties by a defendant’s assault. Here, defendant’s blood alcohol level was three times the legal limit, and he crossed a highway against traffic. The court found that this showed “severe” disregard for human life, especially in light of defendant’s history of alcohol abuse resulting in the death of at least one other person. Defendant was on notice of his propensity to drink and the dangerousness of such conduct. U.S. v. Pettigrew, 468 F.3d 626 (10th Cir. 2006).
10th Circuit upholds 15-level departure where young child was permanently disabled by drunk driving accident. (715) Defendant was convicted of assault resulting in serious bodily injury arising out of a drunk driving incident in Indian country. The Tenth Circuit upheld a 15-level upward departure. The court made extensive findings in support of its decision to depart, noting that a four-year old victim sustained “extreme physical injuries,” “would never regain consciousness,” and would never be the same boy because of the accident defendant caused. U.S.S.G. § 5K2.2. In addition, the public’s safety was significantly endangered by defendant’s reckless driving, causing five other vehicles to swerve off the road before defendant collided with the victim’s vehicle. § 5K2.14. A two-level departure under § 5K2.5 was warranted because the guidelines did not adequately account for the amount of damage and loss. The child’s family would now have to provide the boy with 24 hour around the clock care, and the victim’s vehicle was totaled. Pursuant to § 5K2.21, the court departed four levels because the guidelines did not account for the serious physical injuries sustained by two other passengers in the victim’s car, and defendant was not charged with two additional counts of assault. U.S. v. Zunie, 444 F.3d 1230 (10th Cir. 2006).
10th Circuit reverses upward departure for double counting. (715) While driving drunk, defendant crashed her car, killing two of the car’s occupants. She pled guilty to two counts of involuntary manslaughter. The district court departed upward based on three factors: (1) defendant’s conduct – driving over 100 miles per hour while removing her hands from the steering wheel – was excessively reckless; (2) her drunk driving presented a serious danger to the public welfare; and (3) her drunk driving resulted in two deaths. The Tenth Circuit held that the court erred by relying on a factor supported only by contradictory statements in the PSR and double-counting the same factor several times. Recklessness exceeding the guidelines standard was a permissible factor for the court to consider for departure. However, the PSR contained two contradictory statements addressing defendant’s speed, and the district court did not explain how it made the factual finding in light of these contradictory statements. The second factor, “serious threat to public welfare,” is covered by § 5K2.14. Although it is a proper ground for departure, the court’s first ground for departure for excessive recklessness would have taken into account any threat to public welfare. If, on remand, the court again determines that defendant’s conduct was excessively reckless, then the court cannot depart upward a second time based on the threat to public welfare. Finally, as to the third factor, the base offense level for involuntary manslaughter already reflected the fact that death occurred. The district court accounted for the fact that defendant’s conduct resulted in two deaths when it applied § 3D1.4 to add two levels to defendant’s offense level because defendant’s conduct involved multiple counts. By its very definition, two counts of involuntary manslaughter will involve two deaths. U.S. v. Wolfe, 435 F.3d 1289 (10th Cir. 2006).
10th Circuit holds that failure to depart downward for alien in jurisdiction with no fast-track program was not unreasonable. (715) Defendant was convicted of illegally reentering the country after deportation following conviction of an aggravated felony. He moved for a downward departure on a variety of grounds, including that he received a longer sentence than he would have if he had been prosecuted in a jurisdiction that had a “fast-track” program for aliens accused of illegal re-entry. The Tenth Circuit found it unnecessary to resolve whether sentencing disparities caused by the existence of fast-track programs in some jurisdictions may be considered “unwarranted” under § 3553(a)(6). Section 3553 (a)(6)’s directive to avoid “unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct” is but one of several factors for a court to consider in determining a reasonable sentence. The court here reviewed all the factors listed in § 3553(a), including § 3553(a)(6), and concluded that they fully supported the sentence imposed. The panel ruled that the 77-month sentence imposed was reasonable. U.S. v. Morales-Chaires, 430 F.3d 1124 (10th Cir. 2005).
10th Circuit rejects downward departures and remands under Booker. (715) Defendants, all former correctional officers, were convicted of offenses related to an assault on an inmate. The district court granted each of them a five-level downward departure under § 5K2.0 based on a totality of the circumstances, including family ties and responsibilities, employment history, civic and public service, educational history and lack of criminal history. The Tenth Circuit held that the district court abused its discretion when it granted the departures. Nothing about the defendants’ family situations, employment or educational records or community and public service activities was particularly extraordinary. Even when considered in the aggregate, these factors were not enough to support the granting of downward departures. In addition, defendants were entitled to resentencing under U.S. v. Booker, 543 U.S. 220 (2005). The district court made several findings based on a preponderance of evidence that defendants did not admit and the jury verdict along did not support under the then-mandatory guidelines. The error affected defendants’ substantial rights, since the record showed that the court would have imposed a lower sentence had it had the discretion to do so. When the court granted the five-level downward departure, it considered several near-identical factors recommended by § 3553(a)(1). The court expressed dissatisfaction with the guidelines, and stated that it would impose a sentence of probation if permitted by the guidelines. U.S. v. Serrata, 425 F.3d 886 (10th Cir. 2005).
10th Circuit finds voluntarily ceasing possession and distribution of pornography was atypical. (715) For a few weeks, defendant collected and distributed child pornography on his website. Defendant did not know he was being investigated by the FBI, and after a few weeks, he removed the software and destroyed all of the pornography files on his computer. Five months later, he learned of the investigation, admitted his guilt, and cooperated with the FBI. After the FBI’s initial contact with him he sought professional help and began sex offender treatment. The district court made an eight-level downward departure based on the limited duration of the offense, voluntary termination of illegal activities, diminished capacity, and post-offense rehabilitation. The Tenth Circuit rejected several of these grounds for departure, and found the departure excessive. Defendant’s “atypical behavior” – voluntarily ceasing the illegal activity before he had any knowledge of the FBI investigation, and the limited duration of the activity – were proper grounds for departure. However, post-offense rehabilitation may not serve as a basis for departure unless exceptional. Given the therapist’s report that defendant “lack[ed a] motivation for treatment” and had only a “guarded” prognosis, defendant’s efforts at rehabilitation were not extraordinary. There was no support for the finding that defendant had a diminished capacity. U.S. v. Nunemacher, 362 F.3d 682 (10th Cir. 2004).
10th Circuit vacates where court failed to state reasons and methodology behind departure. (715) The district court articulated no specific reason for the departure. The court did not find a circumstance that was of a kind or a degree not contemplated by the commission, nor did it mention the sentencing guideline range or provide any reasonable methodology hitched to the guidelines to explain its degree of departure. A review of the sentencing transcript suggested that the court chose to depart based on defendant’s age at the time of the underlying convictions. The court engaged in a brief and informal discussion with counsel and the probation officer regarding whether the guidelines take into account the circumstance in which an offense is committed prior to age 18. The prosecuting attorney cited the relevant guideline, U.S.S.G. § 4A1.2(d), which clarifies the manner in which this factor should be considered. The court then abruptly and without any other mention of the guidelines, applicable ranges, or the plea agreement, stated, “I’m going to give him a seven-month break.” The court then formally sentenced defendant without allowing any further remarks by either attorney. The Tenth Circuit vacated the sentence and remanded for resentencing. The court failed to make appropriate findings and state the reasons and methodology behind the departure was well as the particular degree of departure. U.S. v. Fuentes, 341 F.3d 1216 (10th Cir. 2003).
10th Circuit approves departure for drunk driver who killed entire family. (715) While driving drunk, defendant crashed his car into another car, killing a father, mother, and their infant. The district court departed upward by seven levels, citing the significant danger to public safety, the multiple deaths within a single family unit, and the extreme recklessness of defendant’s conduct. The Tenth Circuit, reviewing the departure de novo under the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003, affirmed. First, the district court stated its reasons for the departure “with specificity.” Second, the factors advanced the objectives in § 3553(a)(2) and did not violate any restriction in the Guidelines. Section 5K2.14 specifically provides for an upward departure for a significant danger to public safety “to reflect the nature and circumstances of the offense.” In addition, a court may properly consider the “varying degrees of recklessness” in making its heartland determination. See U.S. v. Whiteskunk, 162 F.3d 1244 (10th Cir. 1998) (sanctioning reliance on defendant’s blood-alcohol level and prior drunk driving convictions in determining the degree of recklessness). Finally, since defendant was convicted of three acts of manslaughter, the fact that multiple deaths occurred could not, by itself, support a departure. However, in killing a mother, father, and infant child, the “normal tragedy of multiple deaths was worsened by the complete elimination of one branch of two different families.” Based on these three factors, defendant’s conduct fell outside the heartland of involuntary manslaughter cases. The seven-level departure was reasonable despite the court’s improper analogy of defendant’s conduct to the brandishing of a firearm. U.S. v. Jones, 332 F.3d 1294 (10th Cir. 2003).
10th Circuit rejects departure based on ignorance of statute and aberrant behavior. (715) Defendant pled guilty to possessing a firearm while subject to a domestic violence protection order, in violation of 18 U.S.C. § 922(g)(8). The district court departed because it found that defendant’s conduct was outside the heartland of § 922(g)(8) offenses. Also, it found that defendant’s conduct constituted aberrant behavior. The Tenth Circuit reversed. Defendant’s ignorance of § 922(g)(8)’s prohibition of firearm possession following the issuance of the state court protective order did not remove his conduct from the heartland. Moreover, the district court made no specific factual findings on the relevant factors necessary to establish aberrant behavior. The record provided little support for the contention that the offense was committed without significant planning, was of limited duration, or represented “a marked deviation by the defendant from an otherwise law-abiding life.” Defendant’s statement to the undercover agent that he possessed 100 rifles and 75 to 85 handguns, and that he had moved most of these weapons as a result of the state court protective orders suggested the kind of calculated response inconsistent with a finding of aberrant behavior. U.S. v. Bayles, 310 F.3d 1302 (10th Cir. 2002).
10th Circuit holds that confusing INS form did not give court authority to depart downward. (715) At the time defendant was deported, he was given INS form I-294, which stated that “any deported person who within five years returns without permission is guilty of a felony. If convicted he may be punished by imprisonment of not more than two years and/or a fine of not more than $1000.” Defendant claimed that he surmised that this language permitted him to reenter the U.S. at any time after five years without fear of criminal prosecution, and that, in any event, the maximum potential punishment for his illegal reentry was two years in prison. The Tenth Circuit held that the Sentencing Commission did not take into consider the situation surrounding the issuance of Form I-294 to deported aliens when formulating the guidelines. Nonetheless, a departure based on Form I-294 is inconsistent with the guidelines’ important goal of affording adequate deterrence to criminal conduct and promoting respect for the law. Accordingly, the district court’s finding that it lacked the authority to downward depart based upon circumstances surrounding defendant’s reliance upon Form I-294 was proper. Defendant’s receipt of a sentence exceeding the maximum cited in Form I-294 did not violate due process. Regardless of inaccuracies in the form, it was unreasonable for defendant to assume that the relevant statutes would not be amended, as they were between 1992 and 2000. U.S. v. Miranda-Ramirez, 309 F.3d 1255 (10th Cir. 2002).
10th Circuit departs for targeting large number of elderly victims, loss, and defiance of injunction. (715) Defendant devised a fraudulent estate planning scheme that targeted elderly victims. He argued that each of the district court’s grounds for an upward departure was already covered by the guidelines. The Tenth Circuit disagreed. The court’s first two bases for departure were defendant’s targeting of elderly victims and the large number of victims. These factors were not considered in the 1997 guidelines. The court also departed based on the victims’ emotional strain caused by their monetary losses. Although dollar loss is specifically accounted for in § 2F1.1, Note 10 provides that where “the loss determined under subsection (b)(1) does not fully capture the harmfulness and seriousness of the conduct, an upward departure may be warranted.” Finally, the district court departed due to defendant’s continued criminal activity in defiance of the injunction obtained by the Texas State Bar. Although the guidelines provide a two-level increase for disregarding an injunction, defendant did more than simply ignore a court order. He intentionally frustrated the injunction’s purpose by changing the name of his business, and through this contrivance, was able to continue his scheme for more than two years. The extent of the departure, adding about 13 years to defendant’s seven-year guideline sentence, was not unreasonable. U.S. v. Davenport, 286 F.3d 217 (5th Cir. 2002).
10th Circuit rejects claim of outrageous government conduct. (715) Defendant sold three pipe bombs to an undercover agent. He claimed that the government engaged in such outrageous conduct that the court should have disregarded the guidelines and not calculated his sentence based on the involvement of three pipe bombs or knowledge that the bombs would be used for a separate felony. He suggested the agent asked him to produce three pipe bombs and informed him that he was using them on a car simply to increase defendant’s potential penalty. The Tenth Circuit found no outrageous government conduct. A defendant must overcome a very high threshold to establish outrageous government conduct. The challenged conduct must be so shocking, outrageous, and intolerable that it offends the universal sense of justice. The undercover agent’s conduct did not rise to that level. Defendant was not coerced nor reluctant to produce three pipe bombs for the agent. U.S. v. Eaton, 260 F.3d 1232 (10th Cir. 2001).
10th Circuit approves departure based on “analogous” factor listed in another guideline. (715) Defendant pled guilty to possessing child pornography based on material police found in a search of his home. Three minor boys told the FBI that defendant made repeated attempts to initiate intimate relationships with them. The district court departed upward from § 2G2.4, the guideline applicable to possession of child pornography, based on defendant’s molestation of the three minors. Section 2G2.4 does not identify child molestation as grounds for an increase. However, § 2G2.2, the guideline for trafficking in child pornography, includes a five-level enhancement for engaging “in a pattern of activity involving the sexual abuse or exploitation of a minor.” USSG § 2G2.2(b)(4). The Tenth Circuit ruled that the district court properly departed based on this “analogous” departure factor. The Sentencing Commission has unequivocally approved the use of specific offense characteristics from other guidelines as bases for departure for the applicable guideline at sentencing. See § 5K2.0. The alleged child molestation was not “totally irrelevant” to the charge of possessing child pornography. The district court found that defendant showed images of sexually explicit conduct to a ten-year old prior to molesting him. Finally, there was a sufficient factual basis for the court’s finding of child molestation. U.S. v. Neal, 249 F.3d 1251 (10th Cir. 2001).
10th Circuit affirms departure where defendant could foresee proceeds being used for bombing conspiracy. (715) Defendant was aware that McVeigh and Nichols planned to bomb the Murrah Federal Building in Oklahoma City. Although he refused to participate and was not charged as a co-conspirator, defendant did sell some firearms Nichols had stolen from a gun collector and gave McVeigh $2000 of the proceeds. Section 2K2.1(c)(1) states that if a defendant used or possessed a firearm in connection with another crime that resulted in death, the court must apply the most analogous homicide guideline. The district court applied § 2A1.1, the first-degree murder guideline. On appeal, the Tenth Circuit held that the involuntary manslaughter guideline was most analogous. See U.S. v. Fortier, 180 F.3d 1217 (10th Cir. 1999). On remand, the district court imposed the same sentence by departing upward under § 5K2.1 (multiple deaths), § 5K2.2 (significant physical injury), § 5K2.3 (extreme psychological injury), § 5K2.5 (property damage), § 5K2.7 (disruption of a government function), and § 5K2.14 (endangerment of public health and safety). After rejecting defendant’s claim of vindictiveness, the Tenth Circuit affirmed the departure. Although defendant did not possess the requisite mens rea for first or second degree murder, he had sufficient legal responsibility for the bombing to support an upward departure. Defendant knew, in great detail, of the plan to bomb the federal building, and knew that the gun he sold had been stolen by the conspirators as a “fundraiser” to offset expenses relating to the bombing. A reasonably foreseeable consequence of giving McVeigh the money was to further the bombing conspiracy. U.S. v. Fortier, 242 F.3d 1224 (10th Cir. 2001), superseded on other grounds by statute as stated in U.S. v. Bolden, 368 F.3d 1032 (8th Cir. 2004).
10th Circuit departs downward from sabotage guideline for anti-nuclear protesters. (715) Defendants, anti-nuclear protesters, broke into an unmanned nuclear missile facility and caused $21,000 worth of damage. They were convicted of sabotage under 18 U.S.C. § 2155. Relying on the only case where civilian anti-nuclear protesters were sentenced under § 2155, U.S. v. Kabat, 797 F.2d 580 (8th Cir. 1986), and a 1997 proposed but unadopted amendment to USSG § 2M2.3, the court departed downward. Unlike § 2M2.3, Kabat and the proposed amendment provided for gradations in sentence based on the seriousness of the offense. The Tenth Circuit affirmed. Although there is no body of law that defines of heartland of § 2M2.3, the district court properly examined the guideline itself, the decision in Kabat, and the Sentencing Commission’s proposed amendment to implicitly determine that § 2M2.3’s stated offense level covers cases involving significant harm or risk of harm to national defense. Defendant’s conduct fell outside this heartland. Section 2M2.3’s lack of gradations for offense severity was a proper ground for departure. The statutes covered by § 2M2.3 cover a wide range of conduct, and a departure may be warranted based on the seriousness of the offense. The court properly considered that defendants’ conduct was not in aid of a foreign power, but improperly considered the fact that the offense occurred in peacetime, since the existing guidelines already take the peacetime factor into account. However, no remand was necessary, since the court would have imposed the same sentence even without the improper factor. U.S. v. Sicken, 223 F.3d 1169 (10th Cir. 2000).
10th Circuit bars departure for seriousness of aggravated felony unless defendant satisfies listed criteria. (715) Section 2L1.2(b)(1)(A) contains a 16-level enhancement for a defendant previously deported after a criminal conviction for an aggravated felony. Note 5 to § 2L1.2 authorizes a downward departure based on the seriousness of the aggravated felony, if the defendant meets certain listed criteria, one of which is that the term of imprisonment imposed did not exceed one year. Defendant was ineligible for a departure under Note 5 because he was sentenced to three years’ imprisonment for his underlying aggravated felony. The Tenth Circuit held that the district court lacked the discretion to depart under § 5K2.0 based on the seriousness of the aggravated felony. Where a factor has already been taken into account by the applicable guideline, departure from that guideline is permissible only if that factor is present in a manner unusual enough to distinguish the case from the “heartland” of cases covered by the guideline. In promulgating Note 5, the Sentencing Commission implicitly defined the “heartland” of such cases as all those not falling within Note 5. Therefore, defendant’s case fell within the heartland of § 2L1.2(b)(1) (A). U.S. v. Marquez-Gallegos, 217 F.3d 1267 (10th Cir. 2000).
10th Circuit says first offense, post-arrest rehab, intoxication and confession was not aberrant behavior. (715) Defendant pled guilty to aggravated sexual abuse of a child in Indian country. The district court departed downward for aberrant behavior because defendant: (1) had no prior documented sexual deviancy; (2) had made significant post-arrest rehabilitation efforts, including mental health testing; (3) acknowledged his alcohol intoxication may have contributed to the offense and had abstained from alcohol consumption since the offense; (4) had admitted his culpability and timely confessed. The Tenth Circuit reversed. Aberrant behavior must involve something other than an act that is a first offense; there must be some other element of abnormal or exceptional behavior. Post-arrest rehabilitation is a proper ground for departure only if present to an exceptional degree. Although the psychological testing defendant voluntarily underwent indicated that he was not a pedophile and was amenable to treatment, there was no real showing that his attitude or future treatment regimen differed substantially from that of other sex offenders. The fact that defendant was intoxicated when he committed his offense was not unusual. He had a long history of alcohol abuse, and had made various attempts at treatment, with intervening periods of sobriety. Thus, his post-arrest sobriety was not convincing evidence of a voluntary or unusual effort. Finally, defendant did not voluntarily disclose his crime. He confessed only after FBI agents contacted him. U.S. v. Benally, 215 F.3d 1068 (10th Cir. 2000).
10th Circuit holds that Koon does not authorize substantial assistance departures under § 5K2.0. (715) Defendant filed a motion requesting a downward departure for substantial assistance, even though the government did not file a § 5K1.1 motion. He claimed that under Koon v. United States, 518 U.S. 81 (1996), a sentencing court may grant a substantial assistance departure under § 5K2.0. The Tenth Circuit held that even after Koon, a court may not grant a substantial assistance departure under § 5K2.0 because departures for substantial assistance are already “adequately taken into consideration by the Sentencing Commission in formulating the guidelines,” specifically in § 5K1.1. There are no grounds under Koon for treating substantial assistance as a factor appropriate for consideration under § 5K2.0. Numerous other circuits are in agreement. See, e.g. U.S. v. Cruz-Guerrero, 194 F.3d 1029 (9th Cir. 1999); U.S. v. Algeria, 192 F.3d 179 (1st Cir. 1999); In re Sealed Case, 181 F.3d 128 (D.C. Cir. 1999). U.S. v. Maldonado-Acosta, 210 F.3d 1182 (10th Cir. 2000).
10th Circuit holds that “term of imprisonment” refers to sentence imposed rather than time served. (715) If a deported alien illegally reenters the country, § 2L2.1(b)(1)(A) provides for a 16-level enhancement if the deportation followed a conviction for an aggravated felony. Note 5 to § 2L1.2 says that a downward departure might be warranted if (A) defendant has only one felony conviction; (B) the offense was not a crime of violence or firearms offense; and (C) “the term of imprisonment imposed” for such offense did not exceed one year. For possession of a controlled substance, a Utah state court sentenced defendant to a term “not to exceed five years,” but stayed the sentence and placed him on 36 months’ probation on terms that included 45 days in jail. The Tenth Circuit held that defendant’s “term of imprisonment” under note 5 was the sentence imposed by the state court, not the 45 days he actually served. Thus he was not eligible for a downward departure under note 5. A term of imprisonment for an indeterminate sentence is measured by the possible maximum term of imprisonment. 8 U.S.C. § 1101(48). U.S. v. Chavez-Valenzuela, 170 F.3d 1038 (10th Cir. 1999).
10th Circuit rejects departure for “backpackers” based on drug quantity, socioeconomic status, and lack of sophistication. (715) Defendants were Mexican citizens who carried backpacks full of marijuana into the United States. The government argued that, in departing downward, the district court erroneously (1) attributed to each defendant only the drugs he carried in his individual backpack; (2) considered defendants’ socioeconomic status; and (3) relied on defendants’ lack of sophistication. The Tenth Circuit held that all three grounds for departure were improper. As note 2(c)(8) to § 1B1.3 illustrates, the Sentencing Commission considered and rejected the district court’s position that persons caught backpacking marijuana across the border in groups should only be accountable for the marijuana that individual carried. Section 5H.1.10 says that socioeconomic status is not relevant in the determination of a sentence. Finally, although a defendant’s lack of sophistication may be a proper basis for departure, the lack of sophistication must be sufficient to remove the case from the “heartland” already considered by § 3B1.2’s minimal participant reduction. The nature of the crimes and the evidence suggested that defendants’ lack of sophistication was not sufficiently unusual to remove their case from the “heartland.” U.S. v. Dominguez-Carmona, 166 F.3d 1052 (10th Cir. 1999), overruled on other grounds, U.S. v. Meyers, 200 F.3d 715 (10th Cir. 2000).
10th Circuit rules exceptional remorse may be grounds for downward departure. (715) At sentencing, defendant requested a downward departure based on a combination of factors, including his exceptional remorse. The district court denied the motion, specifically ruling that it did not have the discretion to consider remorse as a factor to support a downward departure. The Tenth Circuit held that remorse is a permissible factor for departure if it is present to an exceptional degree. Unless specifically prohibited by the guidelines, any factor may be considered as a potential basis for departure. Remorse is a factor taken into account under § 3E1.1, the acceptance of responsibility guideline. If a factor is already taken into account by the guidelines, then it is a permissible factor for departure if it is present to an exceptional degree. The district court erred as a matter of law when it concluded that it did not have discretion to consider remorse as a basis for a downward departure. U.S. v. Fagan, 162 F.3d 1280 (10th Cir. 1998).
10th Circuit says excessive recklessness can justify upward departure. (715) While driving drunk, defendant crossed the center divide and hit a motorcycle, killing the driver. The Tenth Circuit held that recklessness exceeding the guideline standard is a permissible departure factor. Even though the involuntary manslaughter guideline contemplates reckless conduct in the usual drunk driving case, a court may examine the degree of recklessness in a given case to determine whether it exists to an exceptional level that is outside the heartland of involuntary manslaughter cases. Defendant’s conduct was excessively reckless. Her blood alcohol level was more than twice the legal limit, she had a prior drunk driving conviction, and she had at least three opportunities to correct her behavior—first, when her car keys were confiscated; second, when she was refused service at a bar; and third, when she narrowly avoided an accident with another vehicle minutes before the hitting the motorcycle. However, the district court failed to adequately explain the degree of departure. U.S. v. Whiteskunk, 162 F.3d 1244 (10th Cir. 1998).
10th Circuit rejects lack of notice as grounds for departure. (715) Defendant pled guilty to possession of a firearm by a prohibited person. The district court based a three-level departure on a combination of 11 factors, including defendant’s lack of notice that he could not possess a firearm because he was subject to a domestic restraining order. Defendant was the first person in the district prosecuted as a prohibited person under the domestic relations order provision. The Tenth Circuit held that defendant’s lack of notice was not a permissible basis for departure under the facts of this case. In an earlier incident, defendant was accused of violating a domestic restraining order by approaching his estranged wife’s home while carrying a handgun, was arrested while in a vehicle with a gun, and was convicted in state court of negligent use of a deadly weapon. Defendant’s claim that he was “less culpable” because he lacked notice of the specifics of 18 U.S.C. § 922(g)(8) “rings hollow.” U.S. v. Jones, 158 F.3d 492 (10th Cir. 1998).
10th Circuit affirms three-level downward departure where only nine of 11 factors were properly considered. (715) The district court based a three-level departure on a combination of 11 factors, only nine of which the appellate court ruled were permissible grounds for departure. The Tenth Circuit nonetheless affirmed the departure, because it concluded that the court would have imposed the same sentence absent reliance on the invalid factors. The sentencing court made a global assessment that “all of the factors,” not in combination but individually, were “present to an exceptional degree.” The court’s discussion of the various individual grounds for departure indicated that the permissible factors were present to an exceptional degree. In addition, the court considered its decision to depart in light of the statutory purposes of sentencing. The extent of the departure was reasonable, allowing a sentence of probation, which addressed the court’s concern with maintaining the ongoing rehabilitative relationship defendant had through his employment at a public health facility. U.S. v. Jones, 158 F.3d 492 (10th Cir. 1998).
10th Circuit says court may consider probation officer’s opinion in deciding to depart. (715) The district court based a three-level departure on a combination of 11 factors, including the fact that the probation office concluded that it was appropriate to depart in this case. The Tenth Circuit found no error. Although the unsupported opinion of a probation officer cannot serve as the basis for a departure, in this case, the probation officer considered the facts identified by defendant, and explained how those facts supported a departure. The district court simply indicated that it had favorably considered the probation officer’s opinion. While it would be inappropriate for the sentencing court to rely solely on the unsubstantiated opinion of a probation officer, it was not impermissible for the court to consider the probation officer’s opinion on the appropriateness of a departure. U.S. v. Jones, 158 F.3d 492 (10th Cir. 1998).
10th Circuit upholds refusal to depart for pre-indictment delay. (715) In June 1993, defendant was arrested in possession of a gun and several rounds of ammunition. However, he was not charged with being a felon in possession of a firearm until February 1996. Defendant moved for a downward departure based on the excessive pre-indictment delay, but the district court refused to depart. Defendant argued the district court applied the wrong test in deciding whether to depart. The Tenth Circuit affirmed the court’s refusal to depart for pre-indictment delay. The district court said it could only grant defendant’s departure motion if defendant proved the government intentionally delayed to gain a tactical advantage and that defendant suffered prejudice as a result of the delay. Defendant did not prove this. Even if this was not the proper test, defendant would not be entitled to a downward departure. The delay defendant suffered was “neither extreme nor implicitly sinister,” but rather the type of delay that is ordinary in “the fabric of criminal proceedings.” Defendant did not demonstrate that the court misunderstood its authority to depart. The decision not to depart was therefore not reviewable. U.S. v. Brye, 146 F.3d 1207 (10th Cir. 1998).
10th Circuit finds departure based on SCAMS Act was double counting, but harmless. (715) Defendant worked as a telephone solicitor for a bogus charitable organization. The district court departed upward based on the Senior Citizens Against Marketing Scams Act of 1994 (SCAMS Act), which enhances the penalties for telemarketing offenses if the victims are over 55 years old. The Tenth Circuit held that defendant’s conduct clearly fell within the SCAMS Act because he was convicted of offenses listed in the Act, he used interstate phone calls to induce more than 50 victims over the age of 55 to contribute to the scheme, and the scheme had the elements of a contest or sweepstakes. However, the multiple victim enhancement in § 2F1.1(b)(2)(B) overlapped with the mass victimization on which the SCAMS Act departure was based in part. Nevertheless, the district court’s error in double counting this aspect of defendant’s behavior was harmless, because the sentencing court also found the case fell outside the heartland of fraud offenses. Defendant’s conduct was “particularly predatory,” and defendant’s victims were psychologically, emotionally and financially devastated as result of his conduct. U.S. v. Smith, 133 F.3d 737 (10th Cir. 1997).
10th Circuit rejects forfeiture of property as basis for downward departure. (715) Defendant argued that because her personal property was forfeited in administrative proceedings, the district court should have departed downward under § 5K2.0. The Tenth Circuit, relying on § 5E1.4, held that the forfeiture of a defendant’s property is not a basis for a downward departure. Section 5E1.4 provides that forfeiture is to be imposed on a convicted defendant as provided by statute. Thus, the guidelines expressly consider forfeiture of property. The fact that a defendant’s property has been forfeited does not demonstrate the reduced culpability that might warrant a reduction in sentence. U.S. v. Coddington, 118 F.3d 1439 (10th Cir. 1997).
10th Circuit rejects downward departure in child molestation case. (715) Defendant was convicted of transporting a minor relative across state lines and molesting her. The minor, who was 12 at the time of trial, testified to two incidents, one occurring when she was 7 or 8, and the other when she was 10. The district court departed downward because there was no significant physical or psychological harm to the victim, the victim forgave defendant, and there was a delay in prosecution. The Tenth Circuit reversed. Contrary to the court’s finding of no harm, the victim required 17 counseling sessions for her and/or her family, and she might require additional therapy. The psychological harm was typical of offenses involving molestation of children under 12 by their relatives. The lack of physical harm was clearly within the heartland of cases under § 2A3.4. Penetration would have been a sexual act that would constitute criminal sexual abuse under § 2A3.1. Forgiveness by a 12-year old victim has no legal consequence. There was no delay in prosecution. The offense occurred in November 1993, the victim came forward in March 1994. Defendant was indicted in February 1995 and convicted September 1995. Discovery of child molestation by relatives often involves some delay and difficulties in bringing a successful prosecution. U.S. v. Meacham, 115 F.3d 1488 (10th Cir. 1997).
10th Circuit departs up one level where multiple count guideline did not cover other robberies. (715) Defendant pled guilty to 10 counts of armed bank robbery. The district court departed upward by one level because § 3D1.4 only accounted for five of the 10 robberies to which defendant pled guilty. The Tenth Circuit agreed that the five additional bank robbery charges that did not amount to additional units under § 3D1.4 were adequate grounds for a one point departure. However, the court should not have increased defendant’s offense level based on 13 uncharged bank robberies. Although uncharged criminal conduct is a valid basis for departure under § 4A1.3, the district court erred by increasing defendant’s offense level as opposed to his criminal history category. U.S. v. Okane, 52 F.3d 828 (10th Cir. 1995).
10th Circuit rules that note 10 factors may be cumulated to make multiple departures. (715) Three defendants were convicted of conspiracy to manufacture explosives. Note 10 to § 2K1.3 states that an upward departure may be warranted under four different circumstances. The district court deemed two of these factors were present for one defendant and departed upward by two. The court found that three of these factors were present for the other two defendants and departed upward by three. The Tenth Circuit held that application note 10 provides for the awarding of cumulative departure increases when more than one of the listed factors are present. The four factors are independent variables and may be considered independently in departing upward. A defendant need not have knowledge of the materials’ extreme volatility to warrant a departure under factor 2. There is no mens rea requirement for this dangerousness/volatility factor. There was adequate evidence that two of the defendants knowingly distributed explosives to juveniles (factor 3), and that the offense posed a substantial risk of death or serious bodily injury to multiple individuals (factor 4). U.S. v. Gacnik, 50 F.3d 848 (10th Cir. 1995).
10th Circuit rejects downward departure based on need for care for son, psychiatric condition and nature of offense. (715) Defendant was convicted of possessing marijuana and possessing homemade silencers. The Tenth Circuit rejected a downward departure based on defendant’s psychiatric history, his son’s need for defendant’s care, and the unsophisticated nature of the silencers. Although incarceration’s adverse effect on family members may be a ground for departure under § 5H1.6, the district court must identify extraordinary circumstances. Here, defendant’s son would be forced to live with defendant’s stepson, a high school drop-out, but this did not warrant a departure. Although defendant had some psychiatric problems, they did not amount to diminished capacity to supports a § 5K2.13 departure. Finally, the unsophisticated nature of the silencers (old toilet paper tubes filled with stuffing from old stuffed animals) did not take this case outside the “heartland” of the guidelines. U.S. v. Webb, 49 F.3d 636 (10th Cir. 1995).
10th Circuit says on remand court may not consider matters that arose after first sentencing. (715) Defendant was convicted of unlawful possession of a machine gun. The district court departed downward and the Tenth Circuit reversed and remanded for de novo resentencing. On remand the district court again departed downward, citing in part defendant’s successful completion of his rehabilitation program. The Tenth Circuit held that in a de novo resentencing, the district court may only consider factors that it could have considered at the first sentencing hearing. Therefore, defendant’s post-sentencing conduct could not be considered at resentencing since it did not arise in the proper time frame. U.S. v. Warner, 43 F.3d 1335 (10th Cir. 1994).
10th Circuit approves upward departure where loss in sting operation was zero. (715) Defendant was convicted of securities fraud, mail fraud and wire fraud after being caught in a government sting operation. The district court determined that the loss under § 2F1.1 was zero, since there was neither actual loss to real victims or true intended loss. The court ruled that because defendant had anticipated receiving $147,000, this amount would be used to justify a 6 level upward departure. The 10th Circuit approved the upward departure. Sting operations that expose fraud are not adequately addressed in the guidelines because the result is an intended loss of zero. A zero loss did not adequately address the seriousness of defendant’s conduct. The extent of the departure was reasonable, since his anticipated share of the intended profits reflected his greater culpability. U.S. v. Sneed, 34 F.3d 1570 (10th Cir. 1994).
10th Circuit rejects downward departure based on post-arrest religious activities and drug rehabilitation. (715) The district court departed downward because defendant’s post-arrest religious guidance had “profoundly changed” his attitude towards others and enabled him to control his drug problem. The 10th Circuit held that neither defendant’s post-arrest religious activities nor his drug rehabilitation was a proper basis for a downward departure. Both factors are adequately considered under § 3E1.1’s reduction for acceptance of responsibility. U.S. v. Chubbuck, 32 F.3d 1458 (10th Cir. 1994).
10th Circuit rejects downward departure for escape from non-secure prison camp. (715) Defendant escaped from the honor camp at a federal penitentiary. The 10th Circuit held that defendant was not entitled to a reduction under section 2P1.1(b)(3) for an escape from the non-secure custody of a facility like a community corrections center or a halfway house. Under U.S. v. Brownlee, 970 F.2d 764 (10th Cir. 1992), a prison camp is not like these institutions. The district court properly found it lacked discretion to depart downward under section 5K2.0 even though defendant met half the requirements of section 2P1.1(b)(3), i.e., non-secure custody. The Sentencing Commission expressly considered escape from non-secure custody, but chose to grant a reduction only upon prompt return, or upon a showing that the escape was from a community-based facility. U.S. v. Cisneros-Garcia, 14 F.3d 41 (10th Cir. 1994).
10th Circuit rejects downward departure from 45-year consecutive sentence under 924(c). (715) Defendant was convicted of armed robbery and three counts of possessing a firearm during a crime of violence. Under 18 U.S.C. § 924(c), he received a mandatory five-year sentence for the first firearm count, and consecutive 20-year sentences for each of the other two counts, for a total of 45 years in addition to the sentence on the robbery counts. The district court departed downward to a sentence of three months on the robbery counts, finding the Sentencing Commission did not adequately consider the effect of the cumulative mandatory sentences under section 924(c). The 10th Circuit rejected this as a ground for departure. First, the guidelines generally reject age as a ground for departure. Second, the commentary to section 2K2.4, applicable to sentences under section 924(c)(1), shows that the Commission considered the additional punishment under section 924(c). Judge Bright dissented. U.S. v. Thornbrugh, 7 F.3d 1471 (10th Cir. 1993).
10th Circuit rejects downward departure for machinist who converted weapon into machine gun as a hobby. (715) Defendant was convicted of illegally possessing a machine gun. The district court departed downward because defendant was a machinist who converted a gun to a machine gun as a hobby because he was intrigued by firearms, and not for any criminal purpose. The 10th Circuit reversed the departure. Section 2K2.1(b)(2) provides for a reduced offense level for one who possesses a firearm solely for lawful sporting purposes or collection. However, machine guns are excluded from the category of weapons eligible for the reduction. Private possession of machine guns is proscribed without exception. Moreover, there was evidence that defendant did possess the gun for a criminal purpose. U.S. v. Warner, 5 F.3d 1378 (10th Cir. 1993).
10th Circuit remands to consider whether similar state prosecution justifies departure for felon in possession. (715) The district court suggested it lacked discretion to depart downward in sentencing defendant for being a felon in possession of a firearm. Previously, defendant had been convicted in state court for recklessly handling a firearm arising out of the same situation that led to the federal charge. The 10th Circuit remanded for further proceedings. The dual prosecution involved circumstances of a kind not considered by the guidelines. However, the district court should determine in the first instance whether that circumstance is aggravating or mitigating and whether the circumstance should result in a sentence outside the guideline range. The court noted, however, that despite defendant’s claim, he was not really being punished twice for the precise same conduct. U.S. v. Haggerty, 4 F.3d 901 (10th Cir 1993).
10th Circuit rejects departure for premeditation, restraint of victim, and dangerous instrumentality; approves extreme conduct. (715) Despite evidence of premeditation, the jury acquitted defendant of first degree murder and convicted him of second degree murder. The district court departed upward based on (a) premeditation, (b) restraint of the victim, (c) the use of a dangerous instrumentality, and (d) extreme conduct. The 10th Circuit remanded. Premeditation was already considered in the guidelines for first and second degree murder. The brief grabbing of the victim’s throat during the murder was not the kind of restraint the Commission envisioned in adopting §5K2.4, and use of a dangerous instrumentality is usually inherent in the crime of murder. However, section 5K2.8 authorized a departure based on defendant’s extreme conduct. Section 5K2.8 is not unconstitutionally vague. However, remand was necessary since the court did not explain why an eight-level departure was appropriate and three of the four reasons were improper. U.S. v. Kelly, 1 F.3d 1137 (10th Cir. 1993).
10th Circuit rejects further departure from mandatory minimum after 5K1.1 departure. (715) The 10th Circuit rejected the possibility that once a downward departure from a statutory minimum has been granted under section 5K1.1 or 18 U.S.C. section 3553(e), a district court has discretion to depart further based on other grounds specified in the guidelines. The mandatory language of the sentencing statute, and the expressly limited exception granted in 18 U.S.C. section 3553(e) persuaded the court that a downward departure from the statutory minimum for any purpose other than substantial assistance would violate the sentencing statute. A district court may depart below a minimum sentence set by Congress only to reflect substantial assistance by the defendant. U.S. v. Campbell, 995 F.2d 173 (10th Cir. 1993).
10th Circuit affirms upward departure based upon more than minimal planning and obstruction of justice. (715) Defendant pled guilty to making a false statement in a passport application. The court increased the offense level by two for “more than minimal planning,” and by two additional points because the offense had been committed to escape detection for other crimes, and thus was an attempt to obstruct justice. The 10th Circuit affirmed, although it found that the sentence in fact was a departure from the guidelines. Although several guidelines contain a two-point enhancement for more than minimal planning, guideline § 2L2.4 does not. Similarly, the court did not adjust defendant’s sentence based upon obstruction of justice under guideline § 3C1.1, since this concerns attempts to obstruct the investigation of the instant offense. However, both were proper grounds for an upward departure. Guideline § 2L2.4 was intended to be used for illegal aliens convicted of fraudulently acquiring passports to enter or remain in the country. The sentencing commission did not contemplate its use in sentencing citizens who engage in a more serious offense by fraudulently acquiring a passport to avoid prosecution. U.S. v. Strickland, 941 F.2d 1047 (10th Cir. 1991).
10th Circuit affirms involvement of juvenile as grounds for upward departure. (715) Defendants and a juvenile attempted to rob two banks. While defendants waited in the car, the juvenile entered each bank and presented a note threatening to shoot the teller unless she filled the juvenile’s bag with money. The 10th Circuit affirmed the district court’s upward departure based on involvement of the juvenile in the offense. Even if defendants did not send the juvenile in to the bank, they allowed her to go in where she was the only robber in serious danger of being killed by a bank guard. The district court’s characterization of the 16-year-old girl as a juvenile was not erroneous, even though under certain circumstances a 16-year-old can be prosecuted as an adult. However, the district court failed to explain why a 60-month departure was appropriate. The case was remanded for the district court to properly explain its reasons for the degree of the departure. U.S. v. Pool, 937 F.2d 1528 (10th Cir. 1991).
10th Circuit rejects upward departure based on more than minimal planning and victim vulnerability. (715) The district court departed upward because it found that defendant’s offense involved more than minimal planning and a vulnerable victim. The 10th Circuit reversed, finding that the district court failed to explain why the guidelines did not adequately take these factors into consideration. The district court “departed” by increasing defendant’s offense level by four, which suggested that the court assessed two levels for each cited factor–the same offense level increase prescribed by the guidelines. Moreover, the circumstances did not justify a vulnerable victim adjustment under guideline § 3A1.1. An elderly woman is not per se a vulnerable victim. The victim’s mental condition was normal, and the record was silent as to defendant’s motivation in selecting this particular victim. The label “elderly” is too vague, by itself, to provide a basis for an unusual vulnerability finding. U.S. v. Smith, 930 F.2d 1450 (10th Cir. 1991).
10th Circuit reverses upward departure in offense level based on crimes committed after instant offense. (715) The district court departed from offense level 7 to offense level 11 on the basis of defendant’s illegal possession of firearms on three occasions after the instant firearms offense. The 10th Circuit found that this was a proper ground for making an upward departure in criminal history category, since it reflected defendant’s recidivist tendencies. However, since it was not a proper ground for an upward departure in offense level, the case was remanded for resentencing. Although the district court had already made one criminal history departure in this case, it was possible that defendant’s continuing offenses presented grounds for an even greater criminal history departure. U.S. v. Fortenbury, 917 F.2d 477 (10th Cir. 1990).
10th Circuit upholds upward departure on the basis of dynamite used for intimidation during robbery. (725) Defendant abducted a supply store owner at gunpoint in order to compel him to supply defendant with dynamite. Defendant then robbed a credit union at gunpoint, threatening to blow up the credit union with the dynamite if the money was not provided. Defendant pled guilty to robbery and receipt of explosives. The district court departed upward on the basis of defendant’s possession of the dynamite during the robbery because the dynamite was “potentially more dangerous than the brandishing of the firearms.” The 10th Circuit upheld the departure on the ground that the Sentencing Commission did not contemplate the use of explosive devices when it devised the “dangerous weapon” aggravation provisions. Moreover, the “uncontrollable nature of many explosives, which can result in indiscriminate destruction and slaughter, is sufficient in itself to justify departure.” The 10th Circuit also upheld as grounds for departure defendant’s abduction of the supply store owner at gunpoint in order to obtain the dynamite. U.S. v. Baker, 914 F.2d 208 (10th Cir. 1990).
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11th Circuit upholds refusal to depart or vary based on cultural assimilation. (715) Defendant pled guilty to unlawful reentry into the U.S. by an aggravated felon. He contended that the district judge erred in failing to depart downward based on his cultural assimilation under Note 8 to § 2L1.2. The Eleventh Circuit found no error. Defendant’s criminal history in the U.S. was “extremely lengthy.” Although he was brought to the country when he was seven, after he turned 17, he was arrested and/or convicted of crimes every year after that, including 10 convictions for driving without a license or driving on a suspended license, battery, and false reporting of a crime. Following his return after deportation, defendant continued to engage in his former vehicular offenses, some of which involved in the safety of others. The judge noted that defendant had a hard time “complying with some of the simplest rules.” The judge did not abuse its discretion in declining to accord defendant a departure or variance based on cultural assimilation. U.S. v. Garza-Mendez, __ F.3d __ (11th Cir. Nov. 15, 2013) No. 12-13643.
11th Circuit approves departure based on loss of public confidence in government. (715) Defendant, the former governor of Alabama, was convicted of bribery, honest services fraud, and obstruction of justice. He argued that that the district court’s decision to grant an upward departure under U.S.S.G. §§2C1.1 n.5 and 5K2.0 violated the First Amendment because it was based on defendant’s statements criticizing the prosecutors in the case. The Eleventh Circuit found that this did not accurately describe the district court’s reasons for the upward departure. The government’s written motion for departure and its arguments at sentencing stated that defendant’s conduct reflected such a systematic and pervasive corruption of the office of Governor and Lieutenant Governor, as well as various state agencies, as to cause a loss of public confidence in the government of the State of Alabama. This is a proper ground for departure. Although the government did refer at sentencing to defendant’s very public criticisms of the federal criminal justice system, there was no indication that the court based its upward departure on these attacks. U.S. v. Siegelman, __ F.3d __ (11th Cir. May 10, 2011) No. 07-13163.
11th Circuit upholds crime of violence increase even though offense was not an aggravated felony. (715) Defendant pled guilty to illegally re-entering the U.S. after deportation. His sentence was increased by 16 levels under §2L1.2(b)(1)(A)(ii) when the district court found that his prior 1985 bank robbery was a “crime of violence.” Effective November 2008, the Sentencing Commission amended the commentary to authorize a downward departure where a defendant receives an enhancement for a crime of violence that does not meet the definition of an aggravated felony. Defendant’s conviction was not an “aggravated felony” because her term of imprisonment was less than one year. See 8 U.S.C. §1101(a)(43). The Eleventh Circuit rejected defendant’s claim that the 16-level enhancement only applies to crimes of violence that also qualify as aggravated felonies. The amended commentary uses permissive, rather than mandatory language—a downward departure may be warranted if the prior conviction does not meet the definition of “aggravated felony.” U.S. v. Gonzalez, __ F.3d __ (11th Cir. Dec. 12, 2008) No. 08-10008.
11th Circuit holds that lack of fast-track program did not make sentence unreasonable. (715) Defendant pled guilty to illegally reentering the U.S. after deportation. He argued that an unwarranted sentencing disparity was created by the absence of a “fast-track” or early-disposition program in the Middle District of Florida. The fast-track departure provision in § 5K3.1 is available to defendants who agree to the factual basis of the criminal charges against them and agree to waive certain rights, but only in judicial districts that participate in an early disposition program authorized by the U.S. Attorney General. The Eleventh Circuit held that the lack of a fast-track program did not make defendant’s sentence unreasonable. Although § 3553(a)(6) requires a court to consider the need to avoid “unwarranted sentence disparities,” § 3553(a)(6) does not require the court to depart based on the availability of the fast-track in only some districts. See U.S. v. Castro, 455 F.3d 1249 (11th Cir. 2006). When Congress directed the Sentencing Commission to allow fast-track departures only in participating districts, it implicitly determined that the disparity was warranted. U.S. v. Llanos-Agostadero, 486 F.3d 1194 (11th Cir. 2007).
11th Circuit holds that failure to adjust for disparity with fast-track sentences did not make sentence unreasonable. (715) Defendant pled guilty to illegal reentry into the U.S. after deportation. He argued that the district court erroneously denied him a four-level downward departure under the early disposition program, see U.S.S.G. § 5K3.1, because the use of the program in some districts and not others created sentencing disparities in violation of § 32553(a)(6) and the constitutional guarantee of equal protection. The Eleventh Circuit disagreed. Any disparity created by § 5K3.1 does not fall within the scope of § 3553(a)(6). When Congress directed the Sentencing Commission to allow the departure for only participating districts, Congress implicitly determined that the disparity was warranted. The court’s refusal to grant defendant the benefit of a § 5K3.1 departure, as a matter of equal protection, did not constitute plain error (although the court did not go so far as to say the disparity did not violate equal protection). Defendant was unable to identify any precedent that has held that the limited availability of the fast-track departure violates equal protection. U.S. v. Castro, 455 F.3d 1249 (11th Cir. 2006).
11th Circuit rejects downward departures based on aberrant behavior, physical condition and family circumstances. (715) In a commercial bribery case, the district court departed downward for one defendant based on a combination of aberrant behavior, physical condition, and family circumstances. It departed downward for the other defendant for aberrant behavior, physical condition, no loss to the victim and full satisfaction of the previous sentence. The Eleventh Circuit held that the court erred as a matter of law. Given the significant planning and repeated acts involved in the bribery scheme, neither defendant’s criminal behavior was aberrant. Neither of the defendants’ conditions were so “extraordinary” or exceptional as to justify a downward departure. One suffered from Restless Leg Syndrome, but the BOP could provide him with needed drugs, diet and exercise. The start of the other defendant’s incarceration was delayed in order to permit him to undergo surgery that would correct his medical condition. The first defendant’s need to tutor his dyslexic son, and his mother-in-law’s failing health also did not warrant a downward departure. U.S. v. DeVegter, 439 F.3d 1299 (11th Cir. 2006).
11th Circuit says court imposing post-Booker sentence need not specifically address and analyze each § 3553 factor. (715) Defendant was convicted of a variety of charges relating to his correspondence with, and eventual travel to, an undercover agent posing as a parent willing to have other adults have sex with his children. His guidelines range was 135-168 months’ imprisonment. The district court rejected defendant’s request for a sentence below the advisory guidelines range, and imposed a 135-month sentence. The Eleventh Circuit affirmed. The district court considered the § 3553(a) factors, although the court did not specifically address and analyze each of the factors defendant raised. Nothing in Booker or elsewhere requires the district court state on the record that it has explicitly considered each of the 3553(a) factors or to discuss each of these factors. The 135-month sentence, which was at the bottom of the guideline range, was reasonable. U.S. v. Scott, 426 F.3d 1324 (11th Cir. 2005).
11th Circuit says it will not review refusal to depart for reasonableness; only final sentence. (715) Defendant argued that it was unreasonable for the district court to deny him credit under § 5K2.23 for the six months he served in state prison for resisting officers and threatening to murder them. However, the Eleventh Circuit held that the refusal to depart was not reviewed for reasonableness. Under U.S. v. Booker, 543 U.S. 220 (2005), the final sentence is reviewed for reasonableness. After Booker, appellate review of decisions regarding downward departures remains the same – an appellate court lacks jurisdiction to review the decision of the district court not to apply a downward departure. Defendant’s two-year sentence was reasonable. The sentence was one-tenth the length of the 20-year maximum sentence for mail fraud that does not affect a financial institution. Defendant defrauded 21 people out of $19,600, had multiple previous convictions, committing this crime while still under sentence for a previous crime, violated his bond, and threatened to murder arresting officers as he fled. The court took care that its sentence provided defendant with needed medical care. The sentence was reasonable. U.S. v. Winingear, 422 F.3d 1241 (11th Cir. 2005).
11th Circuit rejects departure based on combination of improper factors. (715) The district departed downward based on a combination of factors. Because several of the grounds relied upon by the district court were impermissible grounds for a departure, the Eleventh Circuit remanded for resentencing. Under U.S. v. Kim, 364 F.3d 1235 (11th Cir. 2004), extraordinary remorse and restitution is a discouraged but not prohibited ground for departure. The district court did not have the benefit of Kim when it made its ruling, and the appellate court would not speculate how the district court would have weighed the Kim factors. Under § 2F1.1, the use of sophisticated means is penalized with an enhancement. Therefore, lack of criminal sophistication is not a ground for departure; a defendant who does not use sophisticated means simply avoids the enhancement. The government did not move for a § 5K1.1 departure; therefore, any assistance defendant provided was not a permissible ground for departure. Finally, while departure may be proper where the loss overstates the defendant’s criminality, the other improper factors considered by the court required remand. U.S. v. Crawford, 407 F.3d 1174 (11th Cir. 2005).
11th Circuit rejects downward departure for pre-indictment delay where no prejudice to defendant. (715) In sentencing defendant for possession of child pornography, the district court departed downward based in part of the preindictment delay – two and one half years had elapsed from the date defendant was first interviewed about the crime until he was indicted. Defendant did not present any evidence of an improper motive for the delay, and the district court did not find that the delay prejudiced defendant in any way. The Eleventh Circuit rejected the departure since it was unsupported by any evidence of prejudice to defendant. This circuit has never decided whether preindictment delay is a valid basis for departure, but those courts which have departed have never relied on preindictment delay alone, absent prejudice to the defendant, and no circuit has allowed a downward departure without unreasonably delay or bad faith. Without ruling that departures for preindictment delay are proper, the panel held that any such departure would have to be predicated on some prejudice to the defendant. U.S. v. Stuart, 384 F.3d 1243 (11th Cir. 2004).
11th Circuit upholds downward departure for extraordinary restitution. (715) Defendant and her husband were retailers who defrauded the federal government by purchasing federal WIC vouchers at a discount and depositing the full amount of the voucher into their bank accounts. They agreed to pay $268,237 as restitution, even though their share of the fraud was about 2/3 of this. On the same day defendant and her husband pled guilty, they tendered $50,000 in personal funds as restitution. They paid the balance at sentencing, borrowing large amounts from friends and family. The district court granted their motion for a downward departure based on extraordinary restitution. The Eleventh Circuit affirmed the departure, holding that extraordinary restitution is merely a discouraged, and not a prohibited, factor for departure. Further, the court properly found defendants’ payment of restitution extraordinary enough to justify a downward departure. First, defendants benefited from only about 2/3 of the $268,037 loss, yet provided restitution for the entire loss. Second, they came up with this money by liquidating most of their life savings and obtaining almost $200,000 in loans from friends and family. Third, defendant passed a lie detector test and would not have pled guilty and borrowed so much money except to show her extreme remorse. Fourth, defendants began making restitution on the same day they pled guilty and paid the rest before sentencing. Fifth, defendants’ reason for making restitution was sincere remorse. U.S. v. Kim, 364 F.3d 1235 (11th Cir. 2004).
11th Circuit says recent amendments barred 8-level departure based on nature of prior crime of violence. (715) Defendant pled guilty to illegal reentry after deportation subsequent to an aggravated felony conviction. Section 2L1.2(b)(1) used to require a 16-level increase if the defendant had a prior conviction for any aggravated felony. Because the seriousness of the prior aggravated felony could vary greatly, the commentary suggested that a downward departure might be warranted in some less serious cases. See Note 5 to § 2L1.2 (2000). However, effective 2002, § 2L1.2(b)(1) distinguishes among aggravated felonies. Those aggravated felonies that qualify as “crimes of violence” still warrant a 16-level increase, § 2L1.2(b)(1)(A)(ii). However, a prior conviction for a “simple” aggravated felony, i.e. one that is not a crime of violence, warrants only an eight-level enhancement under § 2L1.2(b)(1) (C). The Sentencing Commission also removed the note authorizing downward departures based on the serious of the prior aggravated felony. The Eleventh Circuit held that these changes barred the district court’s eight-level downward departure based on its finding that defendant’s burglary conviction was not as serious as other crimes warranting the 16-level enhancement. A sentencing court is categorically prohibited from departing downward eight or more levels where its only basis for doing so is the nature of the underlying offense. U.S. v. Saucedo-Patino, 358 F.3d 790 (11th Cir. 2004).
11th Circuit says harshness of defendant’s presentence confinement might justify downward departure. (715) The district court held that conditions of presentence confinement could, in an appropriate case, support a downward departure, but that the facts of defendant’s case were not, as a matter of law, sufficient to support a departure. The Eleventh Circuit held that the court erred in ruling that the circumstances were insufficient as a matter of law. Defendant spent six years in presentence confinement, of which five years were spent in 23-hour-a day lockdown. He testified that he had not been outside in five years. These facts were extraordinary, both in the length of presentence confinement and in the conditions. These fact were not insufficient, as a matter of law, to support the two and one half year downward departure the district court said it would consider proper if it had the power to depart. U.S. v. Pressley, 345 F.3d 1205 (11th Cir. 2003).
11th Circuit says consecutive sentences did not violate Apprendi or provide basis for departure. (715)) Defendant was convicted of nine drug related counts. The guideline range was 360 months to life. Because no count on which defendant was convicted carried a 360-month sentence, in order to achieve the guideline sentence, the Eleventh Circuit noted that U.S.S.G. § 5G1.2 required the court to run two of the sentences consecutively. As long as the sentence imposed on each count was within the statutory maximum for that conviction, consecutive sentences did not violate Apprendi v. New Jersey, 530 U.S. 466 (2000). Imposition of consecutive sentences under § 5G1.2(d) is mandatory. U.S. v. Davis, 329 F.3d 1250 (11th Cir. 2003). Although a court may depart downward and impose concurrent sentences if there are grounds for departing, defendant did not identify any reason for departing except for the Apprendi argument. The mere operation of § 5G1.2 to increase the available aggregate sentence up to the guidelines’ range, without more, does not render the case atypical. The district court correctly ruled that it had no authority to depart from imposing the consecutive sentences required by § 5G1.2. U.S. v. Pressley, 345 F.3d 1205 (11th Cir. 2003).
11th Circuit rejects downward departure to take crime out of definition of aggravated felony. (715) Federal law requires the removal of any alien who has been convicted of an “aggravated felony.” If defendant received a sentence of a year or more, his conviction for receiving and possessing cars with altered VINs qualified as an aggravated felony. At sentencing, defendant sought a downward departure, presenting testimony that if he was deported to his home country, he would face serious repercussions, including torture and political persecution. The district court departed downward based on the “extraordinary collateral consequences” detailed in U.S. v. Restrepo, 999 F.2d 640 (2d Cir. 1993). The Eleventh Circuit reversed. First, in Restrepo, the sole authority cited by the district court, the Second Circuit actually reversed a downward departure that the court had attempted to justify based upon the collateral consequences the defendant would suffer because he was an alien. In another decision, U.S. v. Aleskerova, 300 F.3d 286 (2d Cir. 2002), the Second Circuit rejected a downward departure that had been made for essentially the same reason as the one here. The panel agreed that a downward departure for the purpose of taking a case out of the aggravated felony category “disrupt[s] the balance struck by the legislative branch between criminality, deportation, and the possibility of persecution.” Moreover, such a departure would favor aliens with more lenient sentences than citizens of this country who commit the same crime and have the same criminal history. U.S. v. Maung, 320 F.3d 1305 (11th Cir. 2003).
11th Circuit rejects downward departure where only support was defense counsel’s allegations. (715) Defendants stole over $800,000 in rare coins from a dealer. The parties sought to reach plea agreements whereby defendants would receive reduced sentences in exchange for a return of the remaining coins. Defendants missed the deadline for returning the coins, and eventually pled guilty to all charges. Before sentencing, some of the stolen coins were returned to a police station by a person or persons unknown. Defendants then filed motions for downward departures, claiming that they were responsible for arranging the return of the coins via a third party. The district court agreed that defendants’ voluntary restitution and return of stolen property post-adjudication was extraordinary, and granted them a two-level downward departure. The Eleventh Circuit reversed, since there was no evidence in the record to support a finding that defendants were responsible for the returns of the coins. The only evidence to support this theory was the allegations of defense counsel at sentencing, but such allegations were an insufficient basis upon which to grant a downward departure. U.S. v. Kapelushnik, 306 F.3d 1090 (11th Cir. 2002).
11th Circuit reverses downward departure from money laundering guideline. (715) On several occasions, defendants sold computer equipment for over $10,000 cash and agreed not to file Form 8300 with the IRS, as required by law. They were convicted of money laundering. The district court determined that defendants’ money laundering was incidental to their failure to file Form 8300 and, thus, fell outside of the heartland of § 2S1.1. The court relied on the fact that defendants: (1) did not find out that the cash was derived from drug trafficking until after they made the first transaction; (2) did not know much of the money was derived from drug trafficking; (3) were lured into the operation before they knew that the cash was derived from drug trafficking; (4) did not use the proceeds to further criminal acts; and (5) kept internal records regarding the cash transactions. The Eleventh Circuit reversed. The first three circumstances cited by the district court conflicted with the jury’s verdict. The fourth factor, lack of “criminal purpose,” is already accounted for in the guidelines. The presence of such an intent is mentioned as a basis for upward departure under § 5K2.9. The fact that defendants kept internal records of their transactions did not justify a downward departure. While the paper trial might be inconsistent with planned concealment, the lack of sophisticated means does not merit a reward, but rather, avoids an enhancement. U.S. v. Schlaen, 300 F.3d 1313 (11th Cir. 2002).
11th Circuit approves upward departure for sexual predator who preyed on poverty-stricken boys from Third World countries. (715) Defendant was convicted of various counts related to his multiple sexual encounters with young, poverty-stricken boys from Third World countries. As an alternative ground to support the 105-year sentence it imposed, the district court noted that it would have departed upward based on the following reasons. First, it discussed the serious nature of defendant’s 20-year history of sexual abuse and exploitation, and found that the five-level enhancement under § 2G2.2 was insufficient to reflect the seriousness of his conduct. Second, the court discussed the extraordinary vulnerability of defendant’s victims due to their poverty and lack of sophistication. Finally, the court considered the fact that under the grouping rules, defendant’s combined sentence completely disregarded count 10. The commentary to § 3D1.4 recognizes that such a disregard of certain counts may occur undesirably, and instructs a court to depart upward if the combined offense is “inadequate.” The Eleventh Circuit held that the departure was proper. Moreover, the departure of ten levels (from offense level 32 to 42) was well below the 15-level departure approved in U.S. v. Melvin, 187 F.3d 1316 (11th Cir. 1999). U.S. v. Hersh, 297 F.3d 1233 (11th Cir. 2002).
11th Circuit affirms upward departure where fraud caused a loss not adequately considered by guidelines. (715) Defendant was convicted of distributing in interstate commerce a prescription drug without a prescription with intent to defraud or mislead. In departing upward, the district court identified several factors that took defendant’s acts outside of the “heartland” of typical fraud cases, including the harm posed to the public by defendant’s scheme to defraud the government. Such a risk of non-monetary harm is specifically identified by the guidelines as an appropriate grounds for departure. See Note 11(a) to § 2F1.1. The Eleventh Circuit agreed that the loss caused by defendant’s fraud was not adequately taken into account by the guidelines. During sentencing, the district court concluded that an enhancement based on the monetary loss caused by the defendant’s conduct was improper. This conclusion, however, did not mean that defendant’s fraud did not cause harm or create loss. Fraud against government regulatory agencies does pose a threat of harm to the public. U.S. v. Kimball, 291 F.3d 726 (11th Cir. 2002).
11th Circuit upholds fine departure where loss and twice the gain to defendant exceeded guideline range. (715) Defendant was convicted of failing to pay income taxes for the years 1981 through 1988. The guideline range for a fine was $7500 to $75,000 under guideline § 5E1.2(c)(3). The district court found that defendant was able to pay a fine and departed upward, imposing a fine of $250,000, the statutory maximum for his offense. The Eleventh Circuit affirmed the fine, rejecting defendant’s claim that he lacked the ability to pay it. The PSR outlined defendant’s financial situation based upon interviews with defendant’s wife and other witnesses. It also provided information with respect to the other factors enumerated in § 5E1.2 and concluded that defendant was able to both pay a fine and satisfy outstanding tax liabilities. At the time of trial, defendant admitted that he had $400,000 to $450,000 in a bank in the Bahamas, and that he had spent over a decade moving his assets offshore and into the names of nominee owners. Although defendant argued at sentencing that he had sold the assets listed in the PSR, he presented no documentation of these transfers nor testimony as to what had happened to the proceeds. Moreover, the amount of departure in this case was specifically contemplated by the guidelines. Note 4 to § 5E1.2 authorizes an upward departure from the fine guideline where two times either the amount of gain to the defendant or the amount of loss caused by the offense exceeds the maximum of the fine guideline. The tax loss in this case was $544,555 and the total actual loss to the government exceeded $3 million. U.S. v. Hunerlach, 258 F.3d 1282 (11th Cir. 2001).
11th Circuit rejects departure below mandatory minimums. (715) The district court gave defendant a 240-month downward departure on his 592-month sentence on the grounds that the sentence overrepresented the seriousness of the offenses and his criminal history overstated his past conduct. The Eleventh Circuit held that the district court improperly departed below mandatory minimum sentences established by Congress. Defendant was responsible for more than 50 grams of cocaine base, and thus, under 21 U.S.C. § 841, the court was required to sentence defendant to a mandatory minimum term of 240 months. As for defendant’s two firearm convictions, 18 U.S.C. § 924(c)(1) provided for a sentence of five years for first conviction, and a sentence of 20 years for a second or subsequent conviction. Section 924(c)(1) also provides that the term of imprisonment shall not “run concurrently with any other term of imprisonment ….” The only two circumstances in which a court can depart below a statutory minimum were not applicable here. The government did not file a motion under 18 U.S.C. § 3553(e) and USSG § 5K1.1 for a substantial assistance departure. Defendant did not qualify for safety valve relief because he had four criminal history points, possessed a gun during two offenses, and held an aggravating role under § 3B1.1. U.S. v. Simpson, 228 F.3d 1294 (11th Cir. 2000).
11th Circuit says court may not make criminal history departure based on seriousness of aggravated felony. (715) Defendant pled guilty to illegal re-entry by a deported alien. The district court applied a 16-level aggravated felony enhancement under § 2L1.2(b)(1)(A) based on a 1992 drug conviction. Defendant requested a downward departure under § 4A1.3, arguing that the 1992 drug conviction overstated the seriousness of his criminal conduct, since it was based on a $21 sale of cocaine base. The Eleventh Circuit held that a sentencing court does not have the authority to depart under § 4A1.3 when the sentence has been increased under § 2L1.2(b)(1) (A) for a previous aggravated felony. Although §§ 4A1.3 and § 2L1.2(b)(1)(A) both deal with a defendant’s past criminal acts, they do so for different reasons. However, the district court did have the authority under note 5 to § 2L1.2 to evaluate the seriousness of the aggravated felony and to depart downward if: (A) defendant only had one prior felony conviction; (B) the offense was not a crime of violence or firearms offense; and (C) the term of imprisonment imposed did not exceed one year. Defendant did not qualify under note 5 because he had been convicted of more than one prior felony. The district court’s “gut feeling” that this was a “terribly harsh sentence” did not provide a basis for departure. U.S. v. Alfaro-Zayas, 196 F.3d 1338 (11th Cir. 1999).
11th Circuit rejects downward departure where defendant only used pornography for personal use. (715) Defendant pled guilty to possession of three or more images of child pornography, in violation of 18 U.S.C. § 2252(a)(5)(B). The district court granted a downward departure because of “extraordinary circumstances,” including “the absence of the victim” and “the fact that the defendant made no use of the pornographic material other than for personal use.” The Eleventh Circuit held that these circumstances were not atypical and the departure was an abuse of discretion. The harm resulting from possession of child pornography occurs when one sustains a market for such pictures. Therefore, it is not necessary for one to derive any benefit from the child pornography or actively solicit the pornography, provided one’s actions play a role in the distribution network. Accordingly, the applicable guideline adequately takes into account defendant’s mere possession of pornography. U.S. v. Davis, 193 F.3d 523 (11th Cir. 1999).
11th Circuit approves departure based on number and vulnerability of fraud victims. (715) Defendant, a housekeeping employee at a children’s hospital, used personal information about hospitalized children to obtain false credit cards, bank accounts and identification cards in the names of the children. The Eleventh Circuit upheld a 15-level departure based on the large number of victims and the vulnerability of the victims. The § 2F1.1(b)(2) multiple victim enhancement defendant received accounted solely for the two financial institutions and the telephone provider that defendant defrauded. See note 4(d) (“victim” under subsection (b)(2)(B) “refers to the person or entity from which the funds come directly”). Thus, the adjustment did not consider the indirect victims, the children and their families, who suffered because of defendant’s scheme. Although defendant received a § 3A1.1 vulnerable victim enhancement, a sentencing court may depart based on a considered factor if the factor is “present to an exceptional degree.” The judge found defendant’s offense was “exceptional” in that it was “reprehensible and gravitates at or near the very bottom of the rung of human behavior that I have had the occasion to see.” The 15-level departure was not unreasonable. Defendant received a 120-month sentence, while the statutory maximum was 300 months. U.S. v. Melvin, 187 F.3d 1316 (11th Cir. 1999).
11th Circuit requires non-frivolous defense before consent to deportation can be grounds for departure. (715) Defendant argued that the district court should have departed downward based on his consent to deportation. Agreeing with the First, Second, Third and Ninth Circuits, the Eleventh Circuit held that a defendant must proffer a non-frivolous defense to deportation before it would recognize consent to deportation as a ground for departure. Otherwise, a defendant’s consent would be a meaningless concession that did not distinguish him from other criminal defendants facing deportation. Although most of the cases approving consent to deportation as a ground for departure have involved defendants convicted of immigration offenses, rather than drug defendants, such distinction makes no difference. In the present case, defendant made no suggestion that he had any defense to deportation, arguing only that it would save the government the expense of a hearing. The value of this stipulation was de minimis from the standpoint of relieving the government’s administrative burden because defendant had no discernible defense to deportation. U.S. v. Mignott, 184 F.3d 1288 (11th Cir. 1999).
11th Circuit suggests departure for firing gun while fleeing from non-officer citizens. (715) After robbing a bank, defendant fled on foot, chased by several customers. He turned, fired his gun at them, and missed. The district court imposed a § 3C1.2 enhancement for “recklessly creat[ing] a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer.” On defendant’s first appeal, U.S. v. Sawyer, 115 F.3d 857 (11th Cir. 1997), an Eleventh Circuit panel reversed, finding that § 3C1.2 did not apply unless the defendant was actually fleeing from a law enforcement officer. At resentencing, the district court reimposed the same enhancement. The Eleventh Circuit again reversed, for the same reasons. The court noted, however, that firing the gun while fleeing from non-officer citizens appeared to be an aggravating circumstance that the Sentencing Commission did “not adequately take into consideration … in formulating” the Guidelines.” 18 U.S.C. § 3553(b). Thus, on remand the district court may consider an upward departure on this basis. U.S. v. Sawyer, 180 F.3d 1319 (11th Cir. 1999).
11th Circuit says timing of prosecutor’s most lenient plea offer not grounds for departure. (715) Before defendant’s trial, the government made several plea offers. The best offer was made on the morning of August 9 and was set to expire at 5 p.m. that day. According to defendant’s lawyer, because of a delay in being able to visit defendant at the federal detention center, defendant had only 45 minutes to consider the offer and discuss it with his lawyer before it expired. Defendant did not respond to the offer within the allotted time. On August 12, with his trial set to begin the next day, the government offered defendant another plea agreement, which he accepted. The Eleventh Circuit held that as a matter of law the district court’s dissatisfaction with the timing of the prosecutor’s most lenient plea offer was an impermissible basis for departing downward. If a prosecutor wishes to offer a defendant an “exploding” plea bargain with a short fuse, this decision is entirely within his prosecutorial discretion and does not constitute, either alone or in combination with other factors, a valid ground for departure. U.S. v. Pickering, 178 F.3d 1168 (11th Cir. 1999).
11th Circuit rejects downward departure based on combination of factors. (715) Defendant presented three possible grounds for a downward departure: (1) his four bank robberies were “aberrant behavior;” (2) the robberies were attributable, in part, to diminished capacity caused by heavy drug use; and (3) the robberies were a result of certain personal circumstances, including abuse by his stepfather, rejection by his stepmother, and his girlfriend’s recent move to another state. The Eleventh Circuit held that none of these factors, either individually or in combination, justified a downward departure. Defendant’s armed robberies of four banks in four months did not constitute a single spontaneous and thoughtless act. Defendant conceded on appeal that any diminished capacity due to his drug use could not be a basis for departure. The personal circumstances cited by defendant merely indicated a disadvantaged upbringing. In “extremely rare” cases, a court can depart under § 5K2.0 based on a combination of factors, even though none of the factors individually justifies the departure. In the present case, the district court made no findings and provided no reasoning to support the conclusion that defendant presented an “extremely rare” case. The district court abused it discretion by relying on these grounds collectively as a basis for a downward departure. U.S. v. Pickering, 178 F.3d 1168 (11th Cir. 1999).
11th Circuit reverses downward departure that was based on cultural differences. (715) Defendant was a Japanese national who operated a commercial reptile import/ export business. He was convicted of smuggling numerous imported reptiles into the U.S. without reporting them to Customers and in violation of the Lacey Act. The district court granted defendant a downward departure because: (a) due to cultural differences between the U.S. and Japan, defendant did not understand the seriousness of his offense under United States law, (b) the turtles in question were not endangered species and were relatively common in Japan, (c) the “unique” place that reptiles occupy in Japanese culture, and (d) the fact that defendant was respected in his community for his work with reptiles. The Eleventh Circuit reversed, ruling the cultural differences cited by the court were not significant enough to take this case out of the heartland. The fact that turtles were not endangered was already considered by the guidelines, which mandates an enhancement if the wildlife is listed in the Endangered Species Act. Defendant’s community ties, vocational skills and his prior good works were not relevant. There was no evidence in the record as to the “unique” place that reptiles occupy in Japanese culture. Defendant’s claimed ignorance, presumably arising from cultural differences, was an insufficient basis for departure. Defendant’s business was the import and export of wildlife. Although he may not have been an expert in U.S. customs laws, he knew that U.S. law forbids the importation of turtles below a certain size. Judge Roney would have upheld the departure. U.S. v. Tomono, 143 F.3d 1401 (11th Cir. 1998).
11th Circuit upholds departure because two times gain to defendant exceeded fine guideline. (715) Defendant was the owner and chief executive officer of a home health care provider that submitted falsified Medicare claims to a fiscal intermediary. The district court departed upward from a fine range of $7500-$75,000 to a fine of $2.5 million because defendant profited substantially from her involvement in the offense and the sale of her company. Defendant contended that the fine was unreasonable. The Eleventh Circuit upheld the large fine. Note 4 to § 5E1.2 provides that where two times either the amount of gain to the defendant or the amount of loss caused by the offense exceeds the maximum of the fine guideline, an upward departure may be warranted. Defendant’s net worth was $14 million. She was to net an estimated $14 million from the sale of the company after all her obligations to the government and the company’s creditors were paid. Over 90 percent of the company business was reimbursed by Medicare, which defendant had bilked for years to cover personal expenses, employees’ salaries for non-Medicare work, and even political contributions. The departure was not based on socioeconomic status or the publicity surrounding the case. Given defendant’s substantial profits over time from her Medicare fraud, the district court properly believed that the highest applicable fine was not sufficient to punish defendant’s crime. U.S. v. Garrison, 133 F.3d 831 (11th Cir. 1998).
11th Circuit rejects departure based on sentence defendant might have received in state court. (715) Defendant requested a downward departure on the ground that he might have received a lower sentence in state court for the same crime. The Eleventh Circuit held that a court may not depart downward simply because a defendant would have received a lower sentence in state court. Such a departure would undermine the nationwide uniformity that Congress sought to ensure when it promulgated the sentencing guidelines. U.S. v. Searcy, 132 F.3d 1421 (11th Cir. 1998).
11th Circuit reverses downward departure for loss of medical license and civil forfeiture. (715) Defendant, a licensed physician, prescribed controlled substances to an accomplice who sold them in return for half the profits. As part of his plea agreement, defendant agreed to relinquish his medical license, and not to contest the civil forfeiture of $50,000 from selling drugs. The Eleventh Circuit reversed the district court’s downward departure for defendant’s loss of his medical license and his “voluntary disgorgement” of proceeds. The voluntary disgorgement was, in fact, a civil forfeiture, and civil forfeiture can never be the basis for a downward departure. Under § 5E1.4, the Sentencing Commission viewed forfeiture as a wholly separate sanction in addition to, not in lieu of, imprisonment. The loss of defendant’s medical license was also an improper basis for departure. Defendant received a § 3B1.3 enhancement for abusing his special skills as a physician to facilitate his crime. The abuse of such trust usually warrants loss of that position of trust. Allowing a downward departure for such a loss would nullify the mandate of § 3B1.3. U.S. v. Hoffer, 129 F.3d 1196 (11th Cir. 1997).
11th Circuit holds that defendant waived challenge to erroneous upward departure. (715) While in prison, defendant pled guilty to second degree murder. The district court departed upward because of the severity of the offense, a murder and a death.” Defense counsel objected on the ground that the murder was already taken into account in the second-degree murder guideline. The prosecutor attempted to provide the court with an alternate ground for departure—defendant’s poor institutional behavior. The court ignored the prosecutor’s attempt to justify the departure. When defense counsel informed the court that it would appeal, defendant intervened and instructed counsel to withdraw his objection. The Eleventh Circuit found that the departure was error, but that defendant had knowingly waived his objection to it. The plain error doctrine is inapplicable in a situation such as this where the defendant fully comprehends the error the court is going to commit and nonetheless agrees to be bound by it. In a footnote, the court termed the prosecutor’s conduct “reprehensible.” The prosecutor had a duty to inform the court that it could not depart upward on account of the victim’s death. U.S. v. Masters, 118 F.3d 1524 (11th Cir. 1997).
11th Circuit rejects departure based on statute left out of telemarketing Act. (715) Defendant operated a telemarketing scam that defrauded numerous elderly victims. He pled guilty to 10 counts of transporting stolen money in violation of 18 U.S.C. § 2314. The Senior Citizens Against Marketing Scams Act of 1994, contained in 18 U.S.C. § 2326 (the SCAMs Act), provides for a sentencing enhancement for six listed telemarketing offenses if the victims were over 55. Section 2314 is not one of the listed statutes. The district court departed upward on the ground that Congress had by oversight failed to include § 2314 under the SCAMs Act, and that the Sentencing Commission had not adequately considered the concerns expressed in the SCAMS act. The Eleventh Circuit held that an upward departure could not be based on the ground that the Sentencing Commission failed to consider the factors contained in the SCAMs Act. Defendant’s argument would require courts to rewrite § 2326 to permit enhancement for conviction of any offense in connection with a telemarketing scheme that victimized or targeted people over 55. If Congress had wanted to so provide it would have been easy to do so. U.S. v. White, 118 F.3d 739 (11th Cir. 1997).
11th Circuit remands for findings on departure where attorney learned of funds through attorney-client relationship. (715) Defendant, an attorney, pled guilty to receiving and depositing criminally derived property. The district court departed downward, finding the Sentencing Commission did not consider the impact of § 2S1.2 upon an attorney who derives knowledge of the source of the property through a legitimate attorney‑client relationship. The Eleventh Circuit remanded for explicit findings of fact with respect to the circumstances warranting a departure, its reasoning as to whether the guidelines adequately considered such circumstances, why a departure was consistent with the goals of the sentencing guidelines, and, if departure was appropriate, to justify the extent of the departure. Defendant had the burden of proving that a legitimate attorney-client relationship did exist at the relevant time. U.S. v. Miller, 78 F.3d 507 (11th Cir. 1996).
11th Circuit rejects upward departure for multiple weapons. (715) Defendant pled guilty to drug and firearms charges. The commentary to § 2K2.4 barred a firearm enhancement under § 2D1.1(b)(1) since defendant was separately charged and convicted of possessing of a firearm under 18 U.S.C. § 924(c). The district court, however, departed upward based on defendant’s possession of multiple firearms during the trafficking offense. The Eleventh Circuit reversed, holding that the guidelines adequately contemplate the possession of multiple firearms. The guidelines prohibit an enhancement for possession of a firearm when a separate firearm possession charge is levied under § 924(c). The sentence for firearm possession under § 924(c) is not dependent on the number of firearms possessed. Based on the Sentencing Commission’s adoption of the sentencing provisions of § 924(c) in § 2K2.4, the court believed that the Commission adequately considered that a defendant sentenced under that provision may have possessed multiple weapons. U.S. v. Henderson, 75 F.3d 614 (11th Cir. 1996).
11th Circuit says explosives guideline adequately covered risk of injury to bystanders. (715) Defendants hired an informant to kill or maim several people. The district court departed upward by two levels based on (1) extreme conduct, including the fact that the harassment of one victim was motivated by racial and ethnic prejudice, (2) the risk of harm to innocent bystanders because of the plan to blow up one victim’s law office, and (3) extreme psychological injury to some of the victims. The Eleventh Circuit reversed, since the risk of harm to innocent bystanders was adequately considered in § 2K1.4(a)(1), the guideline applicable to property damage caused by explosives. This guideline provides for a greater offense level where the crime created a substantial risk of death or serious bodily injury to anyone other than a participant in the offense. The other grounds for departure were proper. Racial and ethnic prejudice played a part in the harassment of one victim. The proposed mutilation of another victim also warranted a § 5K2.8 departure. Finally, the evidence supported the finding of severe psychological injuries under § 5K2.3. One victim attended counseling sessions and contemplated suicide. Another victim’s family changed their entire lifestyle to be “extra cautious.” U.S. v. Price, 65 F.3d 903 (11th Cir. 1995), abrogated on other grounds by Koon v. U.S., 518 U.S. 81 (1996).
11th Circuit approves downward departure where statutory maximum nullified acceptance of responsibility reduction. (715) After receiving a three-level reduction for acceptance of responsibility, defendant had a guideline range of 135-168 months. However, the statutory maximum for his offense was 48 months. Section 5G1.1(a) provides that where the statutory maximum is less than the minimum of the applicable guideline range, the statutory maximum shall be the guideline sentence. Defendant argued that the operation of § 5G1.1(a) deprived him of his acceptance of responsibility adjustment because his sentence would be the same regardless of whether he accepted responsibility. The Eleventh Circuit held that a court may reward a defendant’s acceptance of responsibility by departing downward when § 5G1.1(a) renders § 3E1.1 ineffectual in reducing defendant’s actual sentence. A court has the same discretion to depart downward when § 5G1.1(a) makes the statutory maximum the guideline sentence as it has when the guideline sentence is calculated without reference to § 5G1.1(a). There was no evidence that the Sentencing Commission considered the implications of the interaction of § 5G1.1(a) and § 3E1.1. U.S. v. Rodriguez, 64 F.3d 638 (11th Cir. 1995).
11th Circuit says erroneous INS form was not grounds for downward departure. (715) When defendant was deported, he received an INS Form I-294 that erroneously advised him that he would be subject to a maximum two-year sentence if he illegally reentered the U.S. The statute had actually been amended to provide for a maximum penalty of 15 years. The Eleventh Circuit held that the erroneous INS form was not a grounds for a downward departure. The Sentencing Commission did not take the Form I-294 situation into account when formulating the guidelines. However, a departure based on the erroneous form would be inconsistent with the goals of the guidelines. Defendant intentionally violated the law by illegally reentering the country. Allowing a departure would undermine the guidelines’ goal of deterring criminal conduct and promoting respect for the law. U.S. v. Gomez-Villa, 59 F.3d 1199 (11th Cir. 1995).
11th Circuit says lack of notice of severity of sentence is not grounds to depart below mandatory minimum. (715) The district court found that defendant was responsible for 14.56 grams of LSD, which mandated a minimum sentence of 120 months. The district court departed downward under § 5K2.0 to a 78-month sentence, stating that defendant did not have adequate notice that his punishment could be doubled by proof at sentencing that he had sold five additional hits of LSD. The Eleventh Circuit reversed, finding no authority for a departure from a statutory minimum due to lack of notice of the potential severity of the sentence. U.S. v. Smith, 39 F.3d 1143 (11th Cir. 1994).
11th Circuit, en banc, holds duration and extent of fraud was considered by guidelines. (715) The district court departed upward based on defendant’s numerous acts of fraud, the length of the fraud, and the large number of victims. The 11th Circuit, en banc, held that the duration and extent of defendant’s fraudulent activity were adequately considered by the guidelines. Defendant defrauded eight financial institutions of almost $500,000. His fraudulent activities were not atypical; his conduct was not outside the heartland of cases considered by the Sentencing Commission. Although a future atypical case might warrant a departure, this was not such a case. U.S. v. Alpert, 28 F.3d 1104 (11th Cir. 1994) (en banc), superseding 989 F.2d 454 (11th Cir. 1993).
11th Circuit rejects downward departure for Travel Act offense that did not involve organized crime. (715) Defendant was convicted of interstate travel with intent to carry on the unlawful activity of extortion. During a recorded phone call, defendant told the victim that he would “make sure you never walk again” if the victim did not repay money he owed defendant. The district court departed downward, finding that the case fell outside the heartland of Travel Act offenses because defendant was not involved with organized crime. The 11th Circuit disagreed. The widespread use of the Travel Act in federal prosecutions and judicial approval of its application to offenses not associated with organized crime made it unlikely that the Sentencing Commission did not consider the fact that organized crime would not be a part of some Travel Act offenses. The Commission did not intend any sentencing distinction under 2E1.2 based on association with organized crime. U.S. v. Dailey, 24 F.3d 1323 (11th Cir. 1994).
11th Circuit rejects downward departure for possessing sawed-off shotgun for collection purposes. (715) Defendant was convicted of possessing an unregistered sawed-off shotgun. The district court departed downward because (a) defendant was charged with only one firearms violation, (2) the shotgun was already modified when defendant acquired it, (3) defendant inherited the firearm from his father, (4) defendant did not use the gun in an unlawful manner, (5) the nature of the firearm suggested that defendant did not possess it for any illegal purposes. The 11th Circuit held that all of the factors listed by the district court were adequately considered by the Sentencing Commission. Section 2K2.1(b)(1) was amended November 1, 1990 so that a sawed-off shotgun possessed solely for lawful sporting purposes or collection was no longer eligible for a reduction. The five mitigating circumstances listed by the district court did not differ from the circumstances that would have warranted a reduction under former § 2K2.1(b)(1). U.S. v. Godfrey, 22 F.3d 1048 (11th Cir. 1994).
11th Circuit reverses downward departure for perjury in a civil case. (715) Defendant lied to the court about his financial status, and was convicted of perjury. The district court refused to apply the guideline applicable to perjury cases, departing downward because the perjury occurred in a civil case rather than in a criminal case. The 11th Circuit held that the fact that defendant’s perjury occurred in a civil case was an improper ground for a departure. Neither defendant’s conduct nor the circumstances surrounding his offense were atypical or significantly different from the conduct to which the perjury statute normally applies. U.S. v. Holland, 22 F.3d 1040 (11th Cir. 1994).
11th Circuit remands where court failed to articulate specific mitigating circumstances. (715) Defendant was convicted of money laundering offenses. The district court departed downward, explaining that §2S1.2 substantially overrepresented defendant’s conduct. The 11th Circuit remanded with instructions to articulate the mitigating circumstances justifying the downward departure. In reviewing downward departures, an appellate court should only consider the reasons actually articulated by the sentencing court. Therefore, a district court granting a downward departure should articulate the specific mitigating circumstances upon which it relies and the reasons these circumstances are of a kind, or to a degree, not adequately taken into consideration by the sentencing commission. U.S. v. Baker, 19 F.3d 605 (11th Cir. 1994).
11th Circuit approves multiple guns and robbers as basis for departure, disapproves threat of death. (715) Defendant and three accomplices robbed a bank at gunpoint. The district court departed upward based on (a) the use of multiple firearms (three guns, one an Uzi), (b) the express threat of death to the bank’s assistant manager, and (c) the danger to the public created by committing the robbery during business hours. The 11th Circuit found that all of these factors were considered by the Sentencing Commission in drafting the robbery guideline. Only the multiple guns and multiple robbers took the case outside the heartland of bank robberies. Since it was unclear how many levels the district court would have departed if it had only considered these two valid factors, remand was necessary. Senior Judge Hill dissented in part. U.S. v. Omar, 16 F.3d 1168 (11th Cir. 1994).
11th Circuit rejects downward departure where all others involved were government agents. (715) Defendant was convicted of receiving child pornography through the mail. He was ineligible for a role adjustment under § 3B1.2 because he was the only criminally culpable person involved — the persons from whom he ordered the child porn were government agents. Following the 3rd Circuit’s decision in U.S. v. Bierley, 922 F.2d 1061 (3rd Cir. 1990), the district court departed downward based on defendant’s role in the offense. The 11th Circuit reversed, finding the Commission expressly considered and rejected the possibility of a role reduction where all the other actors were government agents. Moreover, a downward departure on these grounds would suggest the government itself was culpable; a result that would “fl[y] in the face” of the jury’s determination that defendant was not entrapped. U.S. v. Costales, 5 F.3d 480 (11th Cir. 1993).
11th Circuit rejects community standards as basis for downward departure. (715) Defendant pled guilty to possession of an unregistered sawed-off shotgun. He argued that the district court had the authority to depart downward because members of the rural Georgia community in which he lived found the sentence prescribed by the guidelines for his offense to be excessive. The 11th Circuit rejected this as a ground for departure, since it would “conflict fundamentally with the requirement that departures be based on the characteristics of the offense and the offender.” Downward departures based upon local views about the gravity of the offense would undermine the goal of uniformity for similar crimes and criminals. U.S. v. Hadaway, 998 F.2d 917 (11th Cir. 1993).
11th Circuit affirms increase as either abuse of trust or departure for involving daughter in drug trade. (715) The district court added two points to defendant’s offense level because she involved her daughter, who had recently reached the age of majority, in the drug trade. It was unclear whether the increase was an abuse of private trust enhancement under section 3B1.3 or a departure under section 5K2.0. Nevertheless, the 11th Circuit found the increase permissible regardless of how it was characterized. There was ample precedent for departing upward based on a parent’s influencing his or her children to join in criminal activity. Moreover, defendant’s use of her parental influence over the daughter could be equated with an abuse of the daughter’s trust in her. The daughter’s services in bagging cocaine and relaying drug-related telephone messages could be said to have significantly facilitated defendant’s criminal activity, as required by section 3B1.3. U.S. v. Ledesma, 979 F.2d 816 (11th Cir. 1992).
11th Circuit affirms upward departure based on number of aliens in previous smuggling activity. (715) Defendant was arrested after attempting to smuggle 10 Chinese Nationals into the United States with counterfeit passports. The district court departed upward two points based on the number of aliens involved (10) and defendant’s involvement in 10 prior smuggling activities. The 11th Circuit affirmed. Note 8 to section 2L1.1 expressly authorizes an upward departure for offenses involving large numbers of aliens. Nothing in the commentary requires that the large number of aliens be transported in one trip. Since defendant admitted smuggling aliens into the United States on ten previous occasions, based on the instant offense, that could put the number of aliens that defendant has smuggled into the United States as high as 100. The extent of the departure was also reasonable. U.S. v. Huang, 977 F.2d 540 (11th Cir. 1992).
11th Circuit rejects upward departure based upon victimization of accomplices. (715) Defendant defrauded hundreds of people by selling them franchises in a nonexistent legal expense insurance company. The court departed upward four levels based upon (1) defendant’s use of a baseball bat and a pistol to threaten others, and (2) his “victimization” of his accomplices. The 11th Circuit found that defendant’s use of a dangerous weapon in a fraud case was proper grounds for departure under section 5K2.6, but found insufficient evidence of defendant’s “victimization” of his accomplices. The district court found that some of the accomplices would not have become felons had defendant not recruited them. However, section 3B1.1(a) provides for an enhancement for a leader or organizer. The recruitment of accomplices is one factor tending to show a leadership role. In addition, the exploitation of vulnerable victims is taken into account in guideline section 3A1.1. Because it was unclear to what extent the four level departure was based on the improper ground, the case was remanded. U.S. v. Paslay, 971 F.2d 667 (11th Cir. 1992).
11th Circuit forbids substantial assistance departure under section 5K2.0. (715) The district court originally made a substantial assistance departure, over the government’s objection. On the first appeal, the 11th Circuit reversed, finding such an departure improper absent a government motion under section 5K1.1. At resentencing, the district court departed downward under section 5K2.0, finding (1) defendant was substantially less responsible than his co-defendant, (2) defendant posed a lesser danger to society, (3) defendant provided testimony that was of substantial assistance to the government in its prosecution of the co-defendant, (4) absent a downward departure, there would be an insufficient disparity between the co-defendant’s 78 month sentence and defendant’s 41 month sentence, (5) defendant’s testimony demonstrated his attempt to rehabilitate himself, (6) his testimony exposed him to danger, and (7) his testimony provided a benefit to government. The 11th Circuit vacated and remanded for resentencing, finding the departure an effort the circumvent the government motion requirement in section 5K1.1. U.S. v. Chotas, 968 F.2d 1193 (11th Cir. 1992).
11th Circuit affirms refusal to depart based on substantial assistance to the judiciary. (715) Defendant asked the district court to depart downward based on the assistance he provided to the judiciary. This assistance consisted of his willingness to dispense with a grand jury by announcing his desire to plead guilty at his initial appearance and the waiver of any pretrial motions. He argued that this saved substantial resources and freed the district court for other matters. The 11th Circuit affirmed the district court’s refusal to depart downward on this basis, since defendant’s conduct was taken into account by the acceptance of responsibility reduction under section 3E1.1. This case was distinguishable from U.S. v. Garcia, 926 F.2d 125 (2nd Cir. 1992), in which 2nd Circuit upheld a downward departure for assistance to the judiciary. In Garcia, defendant’s willingness to testify against other defendants broke a “log jam” in a multi-defendant case. Thus, even if assistance to the judiciary were a proper ground for a departure, this was not such a case. U.S. v. Lockyer, 966 F.2d 1390 (11th Cir. 1992).
11th Circuit says voluntary return to custody may be grounds for downward departure but defendant returned too late. (715) Defendant escaped from a minimum security prison camp. The district court departed downward in part because defendant voluntarily returned to custody three and one-half months after the escape. Guideline § 2P1.1(b)(2) provides for a reduction in offense level based upon a voluntary return to custody less than 96 hours after the escape. The 11th Circuit found that the guidelines do not adequately consider a prisoner’s voluntary return to custody more than 96 hours after the escape, and thus this could be, in appropriate circumstances, grounds for a downward departure. However, the court concluded that an escapee’s return after three and one-half months was too late to support a reasonable departure. U.S. v. Weaver, 920 F.2d 1570 (11th Cir. 1991).
11th Circuit rules role in offense is proper ground for departure. (715) 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).
11th Circuit holds small upward departure following large downward departure based upon separate considerations is permissible. (715) The district court departed downward by 10 levels from the defendant’s offense level of 32 due to his obvious inability to deliver the amount of cocaine he promised. But then the court increased the level to 24 due to his willingness to attempt to complete the transaction and his ongoing involvement. The Eleventh Circuit affirmed the sentence, holding that the defendant had no grounds for appeal solely because a favorable departure was not as favorable as he desired. U.S. v. Erves, 880 F.2d 376 (11th Cir. 1989).
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D.C. Circuit rejects downward departure where judge believed guideline sentence was unjust. (715) In refusing to impose a guideline sentence, the district judge cited five possible grounds for a downward departure: (1) the fact that defendant had not committed a criminal offense in the prior nine years; (2) the court’s belief that the sentence required by the Sentencing Guidelines was “unjust”; (3) defendant’s post-conviction rehabilitation; (4) defendant’s employment record; and (5) defendant’s family ties and responsibilities. The D.C. Circuit reversed. To the extent the court based the departure on its belief that the sentence was unjust, it relied on a clearly improper factor. The same was true for the remoteness of defendant’s criminal history. Because defendant was assigned to Criminal History Category I, the guidelines already accounted for that mitigating fact. The remaining factors were legally permissible in rare circumstances. However, the district court neglected to give reasons for its departure “with specificity in the written order of judgment and commitment” as required by 18 U.S.C. § 3553(c). The court’s statement that its departure was granted pursuant to “U.S.S.G. § 5K2.0 and reasons set forth on the record at sentencing” was insufficient. U.S. v. Tucker, 386 F.3d 273 (D.C. Cir. 2004).
D.C. Circuit rejects departure even though prior conviction was likely in violation of 4th Amendment. (715) Defendant received an enhanced offense level under § 2K2.1(a) and an increased criminal history score based on a 1991 drug conviction. That conviction was very likely obtained in violation of the Fourth Amendment as interpreted by the Supreme Court after the conviction became final. However, because the 1991 conviction was not reversed, vacated or ruled constitutionally invalid, it did not qualify as a conviction whose sentence is “not to be counted” in a defendant’s criminal history See Note 6 to § 4A1.2. Defendant sought a downward departure under § 5K2.0, arguing that the Sentencing Commission did not take into consideration a defendant facing the guidelines repercussions of a conviction that would be unconstitutional if it occurred at the time of sentencing but that is not subject to collateral attack outside the recidivist sentencing. The D.C. Circuit rejected this reasoning, finding that Note 6 represented the Sentencing Commission’s express “consideration” of the types of convictions that are to be disregarded in calculations of criminal history – ones that have been “reversed,” “vacated” or “ruled constitutionally invalid in a prior proceeding.” The fact that defendant could not satisfy this test did not make his circumstance one that the Commission failed to consider. “A clearly drawn line is not a failure to consider cases that fall on the wrong side of the line.” U.S. v. Clipper, 313 F.3d 605 (D.C. Cir. 2002).
D.C. Circuit rejects departure based on crack/powder disparity, criminal history and attempted assistance. (715) In sentencing defendant for one count of distributing crack cocaine, the district court departed downward based on “the totality of circumstances reflecting the atypicality of this defendant.” These factors included the disparity between guideline sentences for crack and powder cocaine. The D.C. Circuit reversed, since a number of the factors relied upon by the court were invalid. First, in U.S. v. Anderson, 82 F.3d 436 (D.C. Cir. 1996), this court rejected the proposition that the crack/powder disparity can ever serve as a valid basis for downward departure. Anderson is still good law after Koon v. U.S., 518 U.S. 81 (1996). Because the crack/powder disparity is implicated in all cocaine cases, it cannot, under Koon, make a case “atypical.” The court mentioned defendant’s criminal history; however, a departure below Criminal History Category I is inappropriate. See § 4A1.3. Defendant’s attempted assistance to the government was not a proper ground for departure, in the absence of a government motion under § 5K1.1. The remaining factors cited by the court, defendant’s acceptance of responsibility, her desire to seek rehabilitation, and her family and community ties, are not categorically prohibited, and may be considered by a court under the totality of the circumstances analysis. On remand, the district court must consider that such departures are available only in extraordinary circumstances. In re Sealed Case, 292 F.3d 913 (D.C. Cir. 2002).
D.C. Circuit holds that laundering of fraud proceeds did not fall outside money laundering heartland. (715) Defendant was convicted of a money laundering conspiracy, in violation of 18 U.S.C. § 1956(h), which provides that a conspiracy to commit the offense defined in § 1957 is subject to the same penalties as the completed offense. The Statutory Index (Appendix A) provides that USSG § 2S1.2 applies to a defendant convicted of violating § 1957. Defendant argued that § 2S1.2 applies only when a defendant knowingly launders large sums of money from drug trafficking or serious organized crime, and that because her case involved neither, it was “atypical” within the meaning of Appendix A (at the time she was sentenced). The D.C. Circuit found that this case fell within the heartland of § 2S1.2. Defendant engaged in monetary transactions involving property derived from defrauding federally insured financial institutions. On five separate occasions, she deposited fraudulently obtained funds in her bank account. She then used a certified check to withdraw the deposited funds and purchase a vehicle registered in her name. The plain language of § 2S1.2 includes her activity within its scope. U.S. v. Kayode, 254 F.3d 204 (D.C. Cir. 2001).
D.C. Circuit, en banc, says substantial assistance departure requires government motion. (715) In In re Sealed Case, 149 F.3d 1198 (D.C. Cir. 1998), vacated in part on grant of rehearing en banc, In re Sealed Case, 159 F.3d 1362 (D.C. Cir. 1999), the D.C. Circuit held that even if the government does not file a motion, Koon v. United States, 518 U.S. 81 (1996) authorizes district courts to depart based on a defendant’s substantial assistance where circumstances take the case out of the heartland. It found that the departure factor “substantial assistance without a government motion” was an unmentioned factor and therefore, under Koon, could be the basis of a departure. On rehearing en banc, the D.C. Circuit rejected this reasoning and held that a district court does not have authority to depart based on a defendant’s substantial assistance if the government declines to file a motion. The relevant departure factor is not “substantial assistance to authorities without a government motion, but “substantial assistance to authorities.” The government motion proviso is a procedural limitation on the applicability of the factor, not a part of the factor itself. Section 5K1.1 is modeled after 18 U.S.C. § 3553(e), which the Supreme Court has interpreted to require a government motion. Melendez v. United States, 518 U.S. 125 (1996). The en banc court also rejected defendant’s argument that a court has independent authority to depart for substantial assistance under § 5K2.0. In re Sealed Case, 181 F.3d 128 (D.C. Cir. 1999) (en banc).
D.C. Circuit approves upward departure from fraud guideline for high-level official. (715) Defendant, onetime Chief of Staff to the Secretary of Agriculture, was convicted of three counts of making false statements about over $22,000 that he received from individuals regulated by the Department of Agriculture. The district court made an eight-level upward departure based on a combination of factors, including that defendant (1) was a high-level official when he received the monies; (2) was informed that he was not allowed to receive such payments; and (3) twice lied under oath about their receipt. The D.C. Circuit affirmed. The fraud guidelines under which defendant was sentenced make no explicit provision for an adjustment for offenses committed by public officials. The fact that §§ 2C1.2 and 2C1.7 contain such an adjustment does not imply a rejection of any comparable adjustment for fraud. The fraud guideline explicitly contemplates upward departures in circumstances outside the main core. Since high-level official status is not especially salient in fraud generally, the Sentencing Commission’s failure to treat it explicitly implies little. U.S. v. Blackley, 167 F.3d 543 (D.C. Cir. 1999).
D.C. Circuit says combining four frivolous grounds for departure does not create valid ground for departure. (715) Defendant was arrested on a train from Miami to New York with a bag containing 9,871 grams of 100% pure cocaine. She absconded before her scheduled trial date and was rearrested seven years later in Puerto Rico. She requested a departure because (1) she accepted $25,000 to transport the cocaine out of economic duress, (2) she had shown extraordinary rehabilitation by not committing any crimes since she jumped bail, (3) her extreme depression constituted diminished capacity, and (4) the crime was a single act of aberrant behavior. The district court found each claim wholly without merit. Defendant argued that the district court erred by failing to consider her claims in combination. The D.C. Circuit found it unnecessary to review whether the trial court should have considered her claims since it was clear that defendant would have gained nothing from the combined consideration of four completely frivolous claims. U.S. v. Calderon, 163 F.3d 644 (D.C. Cir. 1999).
D.C. Circuit rejects departure where no evidence that arrest caused defendant’s injuries. (715) Defendant sought a downward departure because the U.S. Park Police used “excessive and reckless” force by deploying two SWAT teams to effectuate his arrest, in the course of which defendant sustained serious injuries. The district court concluded that it lacked authority to depart on these grounds. The government conceded that to the extent the court concluded it had no authority to depart based on reckless police conduct, the court erred as a matter of law. However, the D.C. Circuit found no reason to remand because a departure would be an abuse of discretion—there was no evidence that SWAT personnel in any way caused defendant’s injuries. U.S. v. Parker, 158 F.3d 1312 (D.C. Cir. 1998).
D.C. Circuit rejects upward departure for illegal gratuities to cabinet member. (715) A large agricultural cooperative was convicted of making illegal gifts to former Secretary of Agriculture Mike Espy, committing wire fraud, and making illegal campaign contributions. Section 2C1.2 provides for an 8-level enhancement if the gratuity was given to an elected official or any official holding a high-level decision-making or sensitive position. The district court applied this enhancement, but then, finding that the guidelines did not adequately take into account Espy’s position as a cabinet-level official, departed upward an additional two levels. The D.C. Circuit reversed, holding that § 2C1.2 adequately accounts for the fact that the gratuity was made to a member of the President’s cabinet. The Secretary of Agriculture does not hold a position that differs in any material respect from the persons in Application Note 1. A straightforward reading the application note strongly suggests that Espy falls within the “agency administrator” category. U.S. v. Sun-Diamond Growers, 138 F.3d 961 (D.C. Cir. 1998).
D.C. Circuit reverses downward departure based on addiction, harshness of guidelines, and police conduct. (715) Defendant sold cocaine base for about three years before finally being arrested. An addict himself, the suppliers paid defendant in drugs for his personal use. The D.C. Circuit reversed a downward departure based on defendant’s addiction to drugs, the judge’s personal opinion that the guidelines sentencing range was too harsh, and police conduct in making 3 purchases before arresting defendant. Section 5H1.4 states that drug or alcohol dependence or abuse is not a reason for a downward departure. Because defendant’s addiction did not remove his case from the heartland of crack distribution cases, the district court was required to impose a sentence within the guideline range notwithstanding its personal opinion that the guideline range was disproportionate and unduly harsh. Finally, the fact that police did not arrest defendant after the first or second purchase could not, without more, provide grounds for a downward departure. Police are permitted to wait until a defendant has made multiple sales before arresting him. Moreover, the third sale alone crossed the 50-gram sentencing threshold. U.S. v. Webb, 134 F.3d 403 (D.C. Cir. 1998).
D.C. Circuit will not review refusal to depart for sentencing manipulation. (715) Defendant was one of several car salesmen caught in a sting operation in which an undercover officer posed as a drug dealer seeking to buys cars with the cash proceeds of cocaine sales. Defendant argued that the sentencing court erroneously failed to recognize its authority to depart under § 5K2.0 based on the “offense level inflation” caused by the massive vehicle purchases toward the end of the sting. The D.C. Circuit held that the refusal to depart was not appealable. The sentencing court specifically found that there was no improper government conduct and no sentencing manipulation. Thus, to the extent, if any, that the court was authorized to depart, it recognized its authority and declined to do so. U.S. v. Spriggs, 102 F.3d 1245 (D.C. Cir. 1996).
D.C. Circuit says amendment allowing “totality of circumstances” departure is not retroactive. (715) Effective November 1, 1994, the commentary to § 5K2.0 explicitly authorizes downward departures in “extremely rare” cases in which a combination of factors not ordinarily relevant to a departure causes a case to differ significantly from the heartland of cases. Defendant was sentenced before this commentary became effective and the Sentencing Commission did not designate it for retroactive application. Therefore, the D.C. Circuit held it was not relevant here. When defendant is resentenced, however, the amended commentary will be effective, but the court expressed no view on its meaning or relevance to defendant’s case. U.S. v. Dyce, 91 F.3d 1462 (D.C. Cir. 1996).
D.C. Circuit reverses “totality of circumstances” downward departure. (715) The district court departed downward based on the totality of the circumstances: defendant had no prior record, posed no threat to society, was remorseful, provided a full explanation of the offense, the conduct was “aberrational,” and defendant was capable of contributing to society in a meaningful manner. The D.C. Circuit reversed, holding that factors already considered by the Sentencing Commission cannot be combined to form a “unique combination” justifying departure. Defendant’s lack of criminal record and not posing a threat to society were considered in setting up criminal history category I for first time offenders. Acceptance of responsibility under § 3E1.1 implicitly involves an admission of moral wrongdoing. Therefore, remorse does not provide an independent ground for departure. Defendant did not fully explain her role in the crime until after two suppression hearings. Although aberrational behavior can justify a departure, defendant did not act on impulse nor without some degree of planning. She made her train reservation to carry drugs two days before she boarded the train. There was no factual basis for the court’s finding that defendant was capable of contributing to society in a meaningful manner. U.S. v. Dyce, 91 F.3d 1462 (D.C. Cir. 1996).
D.C. Circuit holds that extreme vulnerability to abuse in prison may justify downward departure. (715) Defendant requested a downward departure based on his unusual vulnerability to prison abuse. The district court refused, suggesting that it lacked authority to depart downward based on vulnerability. The District of Columbia Circuit held that extreme vulnerability to assault in prison may be grounds for a downward departure. However, to qualify for a departure, the vulnerability must be so extreme as to substantially affect the severity of confinement, such as where only solitary confinement can protect the defendant from abuse. On remand, the court must determine whether defendant’s vulnerability and potential for abuse were so extreme as to warrant a downward departure. U.S. v. Graham, 83 F.3d 1466 (D.C. Cir. 1996).
D.C. Circuit says defendant’s assistance can never justify § 5K2.0 departure. (715) Defendant asked the district court to depart under § 5K2.0 to recognize his extraordinary assistance. He claimed he confronted danger to a degree not adequately considered by the Sentencing Commission, and that his assistance to the administration of justice by the judicial branch was of a kind not taken into account by the guidelines. The D.C. Circuit held that the circumstances surrounding a defendant’s cooperation with the government can never be of a kind or degree not adequately contemplated by the Commission, and thus, can never be a ground for a § 5K2.0 departure. First, the Commission considered the fact that a defendant’s cooperation may result in danger or risk of injury to the defendant or his family. This is a factor to be considered by the court in determining the extent of a § 5K1.1 departure. Section 5K1.1 also adequately considers that a defendant’s assistance might benefit the judicial branch as well as the executive branch. The court could not envision a circumstance in which “assistance to the judicial system” would not also be of assistance to the government covered by § 5K1.1. U.S. v. White, 71 F.3d 920 (D.C. Cir. 1995).
D.C. Circuit approves upward departure for drug conspiracy’s enforcer and executioner. (715) Defendant participated in a massive drug conspiracy. The D.C. Circuit approved an upward departure based on defendant’s role as an enforcer and executioner for the conspiracy. The two-level increase was well within the bounds of reasonableness. U.S. v. Childress, 58 F.3d 693 (D.C. Cir. 1995).
D.C. Circuit rejects § 5K2.0 departure for exposure to danger by cooperation with government. (715) Despite defendant’s good faith efforts to assist police, the government declined to move for a § 5K1.1 departure. Defendant then moved for a § 5K2.0 departure because he exposed himself to danger and risked injury by cooperating with the government. The D.C. Circuit held that defendant was not entitled to a § 5K2.0 departure on this ground. The Sentencing Commission explicitly considered danger or risk of injury to a defendant or his family as a factor to be considered under § 5K1.1. Defendant’s argument would undermine the limits of § 5K1.1. Defendant did not argue that the degree of harm he risked was so extraordinary that it was not adequately considered by the Sentencing Commission. Judge Wald, dissenting, believed that defendant did argue that he suffered an extraordinary degree of risk, and therefore would have decided the legal issue of whether this can justify a § 5K2.0 departure. U.S. v. Watson, 57 F.3d 1093 (D.C. Cir. 1995).
D.C. Circuit departs for continuing criminal activity and extent of fraudulent activity. (715) Defendants were convicted of three counts of bank and credit card fraud. The D.C. Circuit approved a three-level departure under § 5K2.0 for continuing criminal activity while on release, a two-level departure under § 5K2.0 for immersion in fraudulent activity, and a one-level departure based on the intangible effect that defendants’ fraud had on one victim. Defendants’ post-arrest criminal conduct (phony card charges that occurred through their store, bogus cards and fraudulent applications in their possession) was not adequately considered by the guidelines. The two level departure for immersion in fraudulent activity was proper by analogy to § 4A1.3 Non-conviction misconduct may be a proper basis for departure under § 5K2.0 if it reveals extensive immersion in criminality similar to the charged offense. Finally, the one-level departure could be justified to the extent it was based on defendants’ extraordinary conduct. U.S. v. Fadayini, 28 F.3d 1236 (D.C. Cir. 1994).
D.C. Circuit rules that crack penalty’s disparate impact on blacks is not grounds for downward departure. (715) Defendant complained because the guidelines punish offenses involving crack cocaine (which predominantly involve African-Americans) much more severely than offenses involving cocaine powder (which predominantly involve whites). The D.C. Circuit held that the disparate treatment of crack and powder cocaine survived both equal protection and 8th Amendment challenges. The disparate racial impact for crack offenses was not a basis for a downward departure. If it warranted a departure in any case, it would warrant a departure in all cases. A departure only for African-Americans would lead to different punishments based solely on a defendant’s race. U.S. v. Thompson, 27 F.3d 671 (D.C. Cir. 1994).
D.C. Circuit approves downward departures for deportable aliens who face more severe prison conditions. (715) Defendant requested a downward departure because his status as a deportable alien would subject him to more severe prison conditions in two ways. First, it made him ineligible for the benefits of 18 U.S.C. § 3624(c), which permits prisoners to spend the last 10 percent of their sentences in community confinement centers. Second, it prevented him from serving any part of his sentence in a minimum security prison. The D.C. Circuit held that a downward departure may be appropriate where a defendant’s status as a deportable alien is likely to cause a fortuitous increase in the severity of his sentence. However, the circumstances justifying a downward departure for a deportable alien’s severity of confinement will be quite rare. The Bureau of Prisons does allow deportable aliens with strong family, employment or community ties to be assigned to a minimum security prison or community corrections center. This suggests that a deportable alien’s ineligibility stems primarily from the greater likelihood of escape, so that status as a deportable alien is simply a proxy for factors the Bureau always considers. Judge Sentelle issued a lengthy dissent. U.S. v. Smith, 27 F.3d 649 (D.C. Cir. 1994).
D.C. Circuit rejects “unique status” of District of Columbia as basis for downward departure. (715) The district court departed downward based on the “unique status” of the District of Columbia, noting that the U.S. Attorney for the District of Columbia can control a defendant’s sentence by electing to prosecute the criminal conduct in either federal or local court. The D.C. Circuit rejected this as a ground for departure. A routine exercise of prosecutorial discretion cannot rise to the level of a “mitigating circumstance.” Even if a downward departure would minimize sentencing disparity between federal and local defendants, it would increase sentencing disparity among federal defendants. U.S. v. Clark, 8 F.3d 839 (D.C. Cir. 1993).
D.C. Circuit declares term of supervised release irrelevant to departure decision. (715) The district court departed downward from defendant’s guidelines sentence based on several factors, including the 16-year term of supervised release. The D.C. Circuit concluded that the district court’s grounds for departure were invalid. Defendant’s schoolyard distribution count required the lengthy term of supervised release, which therefore was an improper ground for departure. That defendant was also convicted of a lesser included offense also did not support departure, since the lesser included offense did not affect the guidelines sentence. Moreover, there was nothing extraordinary about defendant’s educational background. U.S. v. Edelin, 996 F.2d 1238 (D.C. Cir. 1993).
D.C. Circuit upholds refusal to depart under 5K2.0 where defendant did not cooperate due to threats. (715) Although defendant initially cooperated with the government, he refused to testify at the trial of co-defendants after his family was threatened. Defendant argued that the peculiar circumstances of his refusal to testify justified a downward departure under section 5K2.0. The D.C. Circuit upheld the district court’s determination that because section 5K1.1 addressed defendant’s circumstances, it lacked authority to depart under section 5K2.0. Defendant’s challenges to the validity of section 5K1.1, raised for the first time on appeal, were rejected. Judge Edwards concurred separately to highlight his concern that section 5K1.1 might be invalid because the Sentencing Commission was required to promulgate a guideline, rather than a policy statement, under 28 U.S.C. section 994(n). U.S. v. Dawson, 990 F.2d 1314 (D.C. Cir. 1993).
D.C. Circuit rejects downward departure based on alleged weaknesses in the government’s case. (715) The D.C. Circuit affirmed the district court’s ruling that it could not depart downward because of alleged weaknesses in the government’s case. If the case had such vulnerability that a reasonable jury could not find guilt beyond a reasonable doubt, the court must grant a motion for acquittal. If the evidence withstands that test, as if did in this case, then to permit departures based only on an individual assessment of the evidence would invite the sort of discrepancies the guidelines were intended to minimize. U.S. v. Brooks, 966 F.2d 1500 (D.C. Cir. 1992).
D.C. Circuit reverses downward departure based on government’s transfer of case to federal court. (715) Defendant was originally prosecuted in the D.C. Superior Court, but the U.S. Attorney’s office dropped these charges in favor of a federal prosecution in order to take advantage of harsher federal penalties. The district court departed downward from the mandatory minimum penalty and the guidelines to impose a sentence like the one defendant would have received in Superior Court. Based on U.S. v. Mills, 925 F.2d 455 (D.C. Cir. 1991), reheard en banc 964 F.2d 1186 (D.C. Cir. 1992), the D.C. Circuit rejected this as a proper ground for a downward departure. Mills held that the transfer of cases from Superior Court to federal court did not violate due process. Similarly, the transfer of the case to federal court was not the sort of inappropriate manipulation of the indictment that might warrant a departure. The court reserved the question of whether prosecutorial misconduct of a constitutional dimension might warrant a departure from a minimum sentence. U.S. v. Dockery, 965 F.2d 1112 (D.C. Cir. 1992).
D.C. Circuit reverses downward departure for defendant who was apprehended only because he was a crime victim. (715) While attempting to escape two masked gunmen hiding inside his apartment, defendant was shot in the leg. He was pulled to safety by a neighbor who called 911. The police went to defendant’s apartment to investigate, where they found a large supply of drugs. The D.C. Circuit reversed a downward departure based on the “extraordinary” manner in which defendant was apprehended. No matter how unusual the circumstances surrounding defendant’s apprehension, they were not mitigating circumstances under 18 U.S.C. section 3553(b). While defendant’s misfortune might make him the object of sympathy, it did not make him less culpable for the drug crime. The court rejected the district court’s determination that the shooting was a certain amount of punishment for the crime: no representative of the government acting for society shot defendant. Society cannot be responsible for the random act of criminals. Judge Wald concurred. U.S. v. Mason, 966 F.2d 1488 (D.C. Cir. 1992).
D.C. Circuit rejects plea bargain as grounds for downward departure. (715) Defendant was indicted on drug charges carrying a mandatory minimum five-year sentence. Pursuant to a plea agreement, he pled guilty to a less serious charge, but ultimately received a 63-month guideline sentence. He argued that the district court failed to “give effect” to his plea bargain. The D.C. Circuit rejected this argument. His offense level was properly based upon his actual conduct, rather than on the crime to which he pled guilty. The court also rejected his contention that his acceptance of the plea agreement constituted a mitigating circumstance justifying a downward departure. The policy statements in guidelines § 6B1.1 to 6B1.4 show that the commission took plea bargaining into consideration when it devised the guidelines. Moreover, plea bargains are commonplace. “Aside from ‘acceptance of responsibility,’ a plea bargain discloses nothing about the defendant’s character or condition and it does not add or detract from the seriousness of the offense.” U.S. v. Dukes, 936 F.2d 1281 (D.C. Cir. 1991).
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Commission allows departure in immigration cases for cultural assimilation. (715) Recognizing that several circuits have upheld departures based on cultural assimilation in immigration cases, the Commission added a new Application Note 8 to guideline §2L1.2 to provide that a downward departure may be appropriate on the basis of cultural assimilation. The Note says that a departure may be appropriate if (A) the defendant formed cultural ties primarily with the United States from having resided continuously in the United States from childhood, (B) those ties provided the primary motivation for the defendant’s illegal re-entry or continued presence in the United States, and (C) such a departure is not likely to increase the risk to the public from further crimes of the defendant. Proposed Amendment 3, effective November 1, 2010.
Commission relaxes departures for age, mental and physical condition and military service. (715) In response to the increased use of variances, the Sentencing Commission revised the Introductory Commentary to Chapter 5H to explain that the purpose of the specific offender characteristics guidelines is to provide a framework for addressing specific offender characteristics in a reasonably consistent manner. The Commission also amended sections 5H1.1 (Age), 5H1.3 (Mental and Emotional Conditions), and 5H1.4 (Physical Condition including Drug or Alcohol Dependence or Abuse; Gambling Addiction). The amendments provide that these specific offender characteristics “may be relevant in determining whether a departure is warranted” if the characteristic “is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines.” The Commission also amended §5H1.11 to provide that military service “may be relevant in determining whether a departure is warranted,” if it is present “to an unusual degree and distinguishes the case from the typical cases covered by the guidelines.” Proposed Amendment 2, effective November 1, 2010.
California District Court departs downward for Rodney King defendants. (715) Two police officers were convicted of violating the civil rights of Rodney King by assaulting him during his arrest. The district court departed downward 8 levels to level 19 and imposed sentences of 30 months on each defendant. The departure was based on a combination of factors — King’s wrongful conduct contributed significantly to provoking the offense (§5K2.10), the notoriety and defendants’ status as police officers making them subject to prison abuse and the additional multiple adversarial proceedings they face, the lack of danger presented in the future by the defendants and the specter of unfairness raised by the successive state and federal prosecutions. Five of the 8 levels were attributed to King’s wrongful conduct and 3 levels to the convergence of the additional factors. U.S. v. Koon, 833 F. Supp. 769 (C.D. Cal. 1993), affirmed in part, reversed in part by Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996).
District court departs downward for substantial assistance in congressional investigation. (715) The defendant pled guilty to violating munitions export laws. The Chief Counsel of the House Foreign Affairs Committee advised the district court that the defendant had provided the committee with substantial assistance in its investigation of whether 52 Americans taken hostage in Iran were held past the 1980 election in violation of any U.S. laws. District Judge Weinstein ruled that although a 5K1.1 departure was not available, section 5K2.0 authorized a downward departure for cooperation with Congress. The court relied on U.S. v. Garcia, 926 F.2d 125 (2d Cir. 1991) which approved a downward departure for “facilitating the proper administration of justice.” The court departed downward by three levels. U.S. v. Stoffberg, 782 F.Supp. 17 (E.D.N.Y. 1992).
Alabama District Court holds downward departure is warranted for prison escapee. (715) Defendant walked out of the federal prison camp shortly after his family had finished a visit, and went to meet them at a hotel. He was captured shortly thereafter. In sentencing him for the escape, the trial court departed from the guidelines after it found that the circumstances of his escape were not adequately considered by the Commission. The court looked to § 2P1.1(b) (2), which provides for a 1 point decrease in the offense level if the defendant “escaped from nonsecure custody and returned voluntarily within ninety-six hours.” Because the defendant’s situation was most akin to this situation, the trial court found that it not only had the opportunity but the obligation to depart. To ignore the circumstances of the defendant’s escape would frustrate the purposes of the guidelines to ensure fairness in sentencing. U.S. v. Birchfield, 709 F.Supp. 1064 (M.D. Ala. 1989).
Commission clarifies multiple count guideline § 5G1.3. (715) First, the amendment says that subsection (b) of §5G1.3, which mandates a concurrent term of imprisonment, applies only to prior offenses that resulted in an increase in the offense level for the instant offense because they are “relevant conduct.” This resolves a conflict over the meaning of “fully taken into account.” Compare, e.g., U.S. v. Garcia-Hernandez, 237 F.3d 105, 109 (2d Cir. 2000), with U.S. v. Fuentes, 107 F.3d 1515, 1524 (11th Cir. 1997). Second, the amendment agrees with the Second, Third and Tenth Circuits that when a new offense is committed while the defendant is on probation, parole, or supervised release, the sentence for the instant offense is not required to be consecutive, although the Commission recommends a consecutive sentence in this situation. Third, the amendment provides a new downward departure in § 5K2.23 regarding the effect of discharged terms of imprisonment. Finally, the Commission resolved a circuit conflict between Ruggiano v. Reish, 307 F.3d 121 (3d Cir. 2002) and U.S. v. Fermin, 252 F.3d 102 (2d Cir. 2001), making it clear that the court may not give “credit” for time served on an undischarged term of imprisonment covered under subsection (c). However a departure is permitted in an extraordinary case. Amendment 660, effective November 1, 2003.
Commission limits departures for “multiple circumstances” and restricts other downward departures. (715) The Commission amended § 5K2.0 to make permanent the PROTECT Act’s prohibition on downward departures in child crimes and sexual offenses, and to clarify the standards governing other departures. Under subsection (a)(3), a departure based on a circumstance present to a degree not adequately considered by the guidelines is permitted only if that degree is “substantially different” from that which is ordinarily involved in that kind of offense. Under subsection (c), departures for “multiple circumstances,” (often referred to as “combination of factors”), are limited to offender characteristics and other circumstances that are identified in the guidelines as permissible grounds for departure. Thus, unmentioned circumstances can no longer be used for departure under subsection (c). In addition, subsection (d) forbids departures based on: (1) acceptance of responsibility, (2) role in the offense, (3) the mere fact that defendant pleads guilty or enters into a plea agreement, and (4) payment of restitution required by law. Subsection (e) requires a statement of the specific reasons for any departure, pursuant to 18 U.S.C. §3553(c). Amendmen,651, effective October 27, 2003 .
Commission authorizes departures for “early disposition” (fast track) programs. (715) Implementing the directive in section 401(m)(2) (B) of the PROTECT Act, the Commission added a new policy statement at § 5K3.1 to provide that, upon motion of the government, the court may depart downward not more than four offense levels pursuant to an early disposition program authorized by the Attorney General and the United States Attorney for the district in which the court resides. However, in Chapter 4 of its October, 2003 Report to Congress, Downward Departures from the Federal Sentencing Guidelines, the Commission expressed concern about the potential for unwarranted sentencing disparity based on geography. The Commission estimates that the government initiated approximately 40 percent of all nonsubstantial assistance downward departures in fiscal year 2001. However, it has been unable to isolate which departures were pursuant to “fast track” programs, because courts do not report this information in a uniform manner. The Commission notes that when government initiated downward departures as a whole are excluded, the downward departure rate is 10.9 percent, significantly lower than the overall reported downward departure rate of 18.1 percent. Amendmen,651, effective October 27, 2003 .
Commission increases penalties for repeat child sex offenders. (715) In response to the Protection of Children from Sexual Predators Act of 1998, the Commission created a new guideline, § 4B1.5, that creates a tiered approach to punishing repeat child sex offenders. The first tier, in § 4B1.5(a), subjects a repeat child sex offender to the greater of the offense level determined under Chapters 2 and 3 or the offense level obtained from a table that, like the career offender table in § 4B1.1, bases the applicable offense level on the statutory maximum for the offense. In addition, the defendant’s criminal history category is increased to not less than Category V. The amendment also modifies § 5D1.2 to provide that the recommended term of supervised release for a defendant convicted of a sex crime is the maximum term authorized by statute. Finally, the amendment modifies § 2A3.2 to provide increased penalties for individuals who travel to meet or transport minors for illegal sexual activity. Amendment 615, effective November 1, 2001.
Author summarizes “combination of factors” departures. (715) On November 1, 1994, the Sentencing Commission added a paragraph to the commentary to § 5K2.0 authorizing a downward departure based on a combination of factors. Even before the amendment, several circuits had authorized such departures. See U.S. v. One Star, 9 F.3d 60, 61 (8th Cir. 1993); U.S. v. Hines, 26 F.3d 1469 (9th Cir. 1994); U.S. v. Cook, 938 F.2d 149, 153 (9th Cir. 1991); U.S. v. Bowser, 941 F.2d 1019, 1025 (10th Cir. 1991); U.S. v. Sklar, 920 F.2d 107, 117 (1st Cir. 1990). After the amendment, at least one circuit has approved a combination of factors downward departure. U.S. v. Rioux, 97 F.3d 648 (2d Cir. 1996). After summarizing these cases, defense attorney Alan Ellis concludes that if the judge is amenable to a lower sentence, “combination of factors” is a way for the judge to get there. Alan Ellis, Post-Koon Downward Departures: Part V: Combination of Factors, ABA Criminal Justice 55 (Winter 1999).
Commission amends departure guidelines to incorporate Supreme Court’s Koon decision. (715) In its 1998 amendments, the Sentencing Commission amended the commentary to § 5K2.0 to specifically incorporate the Supreme Court’s decision in U.S. v. Koon, 116 S.Ct. 2035 (1996). The amendment incorporates the principal holding and key analytical points from the Koon decision into the general departure policy statement and it deletes language inconsistent with the holding of Koon. Amendment 585, effective November 1, 1998.
Articles discuss role of criminal law defenses at sentencing. (715) Even if insufficient to preclude conviction altogether, criminal law defenses may be relevant at the sentencing stage. A series of articles address this issue. Among the defenses discussed are self-defense, duress, coercion, diminished capacity, provocation, and entrapment. Criminal Law Defenses at Sentencing, 7 Fed. Sent. Rptr. 168-213 (1995).
Article advocates downward departures based on cultural differences. (715) Olabisi L. Clinton argues that departures may be appropriate when a defendant’s culture would justify behavior contrary to U.S. law. The author discusses a case in which the district court departed downward in sentencing defendant for opium smuggling on the grounds that defendant’s culture encouraged use of opium for medicinal purposes. Such departures are not precluded by the statutory requirement that the guidelines be “neutral” as to race, religion, national origin, and socioeconomic status because “culture” is distinct from those concepts. However, considering such departures will pose some evidentiary difficulties. Olabisi L. Clinton, Cultural Differences and Sentencing Departures, 5 Fed. Sent. Rptr. 348-52 (1993).
Articles explore impact of local conditions. (715) In a group of articles, five authors examine the role of local conditions in federal sentencing. Some of the articles suggest that local conditions may justify departures from the national standards established by the sentencing guidelines. Another suggests that local conditions may affect the applicability of certain adjustments, such as the classification of drug couriers as minimal participants in jurisdictions including major ports of entry into the country. Another article discusses the role of prosecutorial discretion in coping with local conditions. 5 Fed. Sent. Rptr. 303-18 (1993).
Article supports downward departures for rehabilitated addicts. (715) A student author notes a division of authority on whether a drug addict’s presentence rehabilitation can support a downward departure. The author concludes that such departures should be permitted, concluding that neither section 5H1.4 (precluding departure based on drug dependence) nor section 3E1.1 (reduction for acceptance of responsibility) address the issue of drug rehabilitation and, alternatively, that even if the cited sections do address rehabilitation, they do not constitute adequate consideration. Note, Sentencing the Reformed Addict: Departure Under the Federal Sentencing Guidelines and the Problem of Drug Rehabilitation, 91 Colum. L. Rev. 2051-73 (1991).
Commission rejects “youthful lack of guidance” as a basis for departure. (715) In an amendment effective November 1, 1992, the Commission added a new section 5H1.12 stating that “lack of guidance as a youth and similar circumstances indicating a disadvantaged upbringing are not relevant grounds for imposing a sentence outside the applicable guideline range.” This amendment appears to disapprove the 9th Circuit’s contrary decision in U.S. v. Floyd, 945 F.2d 1096 (9th Cir. 1991), amended, 956 F.2d 203 (9th Cir. 1992).
Commission says extraordinary offender characteristics, or combination, can justify departure. (715) In an amendment effective November 1, 1994, the Sentencing Commission added language to § 5K2.0 clarifying that “[a]n offender characteristic or other circumstance that is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range may be relevant to this determination if such characteristic or circumstance is present to an unusual degree and distinguishes the case from the “heartland” cases covered by the guidelines in a way that is important to the statutory purposes of sentencing.” The Commission also added language to the introductory commentary to “Part H – Specific Offender Characteristics,” providing that while specific offender characteristics are not ordinarily relevant, they may be relevant in exceptional cases. An addition to the commentary permits departure based on “a combination of such characteristics or circumstances” that individually would not warrant departure. The Commission stated its belief that such combination departures will be extremely rare.
Commission authorizes departure for minimal participants in large drug cases. (715) In a proposed amendment effective November 1, 1993, the Sentencing Commission amended the Commentary to section 2D1.1 to provide that where the quantity of drugs has increased the offense level to greater than 36, a downward departure is permitted “to a sentence no lower than the guideline range that would have resulted if the defendant’s Chapter Two offense level had been offense level 36,” if the court finds that the offense level overrepresents the defendant’s culpability in the criminal activity, unless the defendant (1) has a prior felony conviction for a crime of violence or controlled substance offense; (2) qualifies for an adjustment under 3B1.3 (Abuse of Position of Trust or Use of Special Skill); (3) possessed or induced another participant to use or possess a firearm in the offense; (4) had decision-making authority; (5) owned or financed the drugs; or (6) sold the drugs or negotiated the sale.
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