§718 Departures: Acquitted, Dismissed, Uncharged Conduct
(as “Relevant Conduct,” see §175, §270)
2nd Circuit affirms reliance on acquitted conduct at sentencing. (718)(742) Defendant, a CPA and tax attorney, was convicted of conspiracy to defraud the IRS, client tax evasion, IRS obstruction, and mail fraud. He argued on appeal that his 180-month sentence was substantively unreasonable because it was based on conduct for which he was acquitted, ie., his participation in a massive tax fraud. The Second Circuit rejected the argument. It is well established that a district judge can take into account acquitted conduct in determining a sentence U.S. v. Daugerdas, __ F.3d __ (2d Cir. Sept. 21, 2016) No. 14-2437-cr.
1st Circuit holds that passing statement in sentencing memo did not preserve issue for appeal. (718)(855) Defendant argued that the district court erred by considering several dismissed or acquitted charges because the facts underlying those charges were not proven by a preponderance of the evidence. He claimed he preserved this argument in the “Background of the Defendant” section of his sentencing memorandum, which indicated that many of the charges against him were dismissed for lack of proof. However, no mention of the dismissed or acquitted charges was made in the “Application of Law and Arguments” section of the defendant’s memo. The First Circuit held that the passing reference in the sentencing memo did not preserve the issue for appeal. That reference did not object to the court’s consideration of his dismissed or acquitted charges. U.S. v. Cortes-Medina, __ F.3d __ (1st Cir. May 12, 2016) No. 14-1101, superseding 810 F.3d 62 (1st Cir. Jan. 6, 2016).
1st Circuit allows consideration of arrest record in sentencing within guideline range. (718) Defendant pled guilty to drug charges, and was sentenced to 168 months. Relying on U.S. v. Watts, 519 U.S. 148 (1997), defendant argued that the district court erred by taking into account several dismissed or acquitted charges, because the facts underlying those charges were not proven by a preponderance of the evidence. The First Circuit found no plain error. Watts held that, when imposing an offense-level enhancement, a sentencing court may only consider acquitted conduct if that conduct was proven by a preponderance of the evidence. Here, however, the court did not use dismissed or acquitted conduct to support a sentencing enhancement. Instead, the court referred to defendant’s uncontested arrest record in the PSR, solely to sentence within the guideline range. Dicta has suggested that a series of arrests “might legitimately suggest a pattern of unlawful behavior even in the absence of any convictions.” Although courts should not place weight on such speculation, in the absence of an objection, there was no plain error. U.S. v. Cortes-Medina, __ F.3d __ (1st Cir. May 12, 2016) No. 14-1101, superseding 810 F.3d 62 (1st Cir. Jan. 6, 2016).
1st Circuit allows court to consider arrests in sentencing within guideline range. (718)(770) In U.S. v. Watts, 519 U.S. 148 (1997), the Supreme Court allowed a court to consider acquitted conduct in sentencing, but only if that conduct is proven by a preponderance of the evidence. Based on Watts, defendant argued that the district court erred by considering several dismissed or acquitted charges because the facts underlying those charges were not proven by a preponderance of the evidence. The First Circuit found no error. Watts was inapposite: the sentencing court did not use dismissed or acquitted conduct in its sentencing calculus. Rather, the court used the defendant’s arrest record, which was contained in his PSR and not contested by the defendant. The arrest record was, therefore, a proven fact that was properly before the court. The district court did not plainly err in taking into account defendant’s “prolific arrest record” solely for the purpose of sentencing within the guideline range. Previous cases have distinguished a series of arrests “which might legitimately suggest a pattern of unlawful behavior even in the absence of any convictions” from a single arrest. U.S. v. Cortes-Medina, __ F.3d __ (1st Cir. Jan. 6, 2016) No. 14-1191.
1st Circuit says court adequately explained upward variance in firearms case. (718)(741)(775) Defendant argued that the court did not adequately explain his 120-month sentence. The First Circuit disagreed, finding that the court based defendant’s sentence “on a panoply of facts to which it alluded in open court immediately before imposing the sentence.” The court emphasized that the offense was quite serious: the defendant carried a firearm equipped with an extended magazine, pointed it at a police officer, held for sale sizeable quantities of various types of drugs, fled when confronted, and tried to hide his identity. The sentencing court adequately stated its reasons for the upward variance. The sentence was substantively reasonable. The court properly consider the four drug-trafficking counts that were dismissed as part of his plea negotiation, since the conduct underlying the dismissed counts was relevant to the offense of conviction. A sentencing court may take into account relevant conduct underlying counts dismissed as part of a plea negotiation as long as that conduct was not used in calculating the defendant’s guideline range. U.S. v. Fernandez-Garay, __ F.3d __ (1st Cir. May 20, 2015) No. 14-1367.
Supreme Court says acquitted conduct may be relied on in sentencing. (718) Reversing the Ninth Circuit’s decisions in U.S. v. Watts, 67 F.3d 790 (9th Cir. 1995), and U.S. v. Putra, 78 F.3d 1386 (9th Cir. 1996), and overruling the Ninth Circuit’s decision in U.S. v. Brady, 928 F.2d 844, 851 (9th Cir. 1991), the Supreme Court held that sentencing courts may consider conduct underlying charges for which the defendant has been acquitted. In a per curiam opinion, the court noted that 18 U.S.C. § 3661 codifies the long-standing principle that sentencing courts have broad discretion to consider various kinds of information. The court noted that contrary to the Ninth Circuit’s assertion in Brady, the jury cannot be said to have “necessarily rejected” any facts when it returns a general verdict of not guilty. Justice Stevens dissented on the merits, and Justice Kennedy dissented from the court’s decision to summarily reverse the Ninth Circuit without full briefing and argument. U.S. v. Watts, 519 U.S. 148, 117 S.Ct. 633 (1997).
1st Circuit outlines additional matters court may consider on remand. (718) Defendant was convicted of distributing crack. After determining that the evidence did not support the district court’s drug quantity calculation, the First Circuit remanded. The panel ruled that on remand, the district court could consider defendant’s admission to a murder for which he was previously acquitted. But even without considering the decade-old murder, the panel indicated that defendant’s long career of crime and his putative gang affiliations, together with his present drug dealing, could justify more than the 84-105 month range calculated without the rejected drug calculation. The district judge did not directly discuss these issues at the original sentencing, but might find it necessary to do so now. The panel rejected defendant’s argument that his gang membership and other indicia of future danger were irrelevant because they were not directly linked to the five charged drug transactions. U.S. v. Marquez, 699 F.3d 556 (1st Cir. 2012).
1st Circuit permits departure where acquitted conduct resulted in mandatory life sentence. (718) Defendants were acquitted in state court of murdering two men. They were then indicted in federal court on firearms charges arising out of the murders. The district court found that defendants used the firearms in connection with the murders, and applied the cross references in § 2K2.1(c)(2) and § 2X1.1 to first degree murder. As a result, one defendant received a mandatory term of life imprisonment. The First Circuit found that this was a case where the sentencing enhancement was “the tail which wags the dog” of the offense of conviction. The murders were not used just to fix the defendant’s sentence at some higher point within the statutory range for the firearms offense. Instead, the absence of a statutory maximum required the court to sentence as if the offense of conviction was first degree murder. This came too close to punishing defendant for the murders rather than the firearms offense. Given these constitutional concerns, the district court had authority under § 5K2.0 to depart downward from the life sentence. This was an “unusual and perhaps singular case” and should not be construed as an invitation to litigate the usual sentence enhancement based on uncharged or acquitted conduct. U.S. v. Lombard, 72 F.3d 170 (1st Cir. 1995).
1st Circuit affirms multiple acts of sexual abuse as grounds for departure but remands on extent. (718) Defendant was convicted of six counts of abusive sexual contact involving three minors who were students at the elementary school where he taught. He had a guideline range of 41 to 51 months, but the district court departed to a sentence of 120 months because defendant’s conduct involved multiple uncharged acts of misconduct over an extended period of time. The 1st Circuit agreed that the persistent and repetitive nature of defendant’s conduct was an appropriate ground for departure. The record supplied ample evidence that defendant had engaged in multiple acts of abuse over a prolonged period of time. However, the case had to be remanded because the district court failed to explain the extent of its departure. Although sentencing courts have substantial leeway with respect to the degree of a departure, this freedom does not relieve a court from explaining its decision of how far to depart. U.S. v. Rosales, 19 F.3d 763 (1st Cir. 1994).
1st Circuit affirms upward departure where gun used to shoot victim was “relevant conduct.” (718) Defendant’s girlfriend was shot in the head. A search of defendant’s apartment uncovered three firearms. He was convicted of being a felon in possession of a firearm. There was no evidence that any of those firearms were used in the shooting. Nonetheless, there was significant evidence that defendant committed the shooting and the district court departed upward under section 5K2.2 based upon the significant physical injury to the victim. The 1st Circuit affirmed the upward departure based on the uncharged relevant conduct. Even if the weapon which wounded defendant’s girlfriend was not one of those listed in the indictment, defendant’s possession of it was relevant conduct. The illegal possession of four separate firearms could easily be viewed as part of the same course of conduct under section 1B1.3. The 38-month departure, in view of the victim’s permanent vegetative state, was not unreasonable. U.S. v. Sanders, 982 F.2d 4 (1st Cir. 1992).
2nd Circuit says court may rely on charged conduct on which jury was unable to reach verdict. (718) Defendant was a leader of a robbery gang that targeted bank patrons as they waited in line to deposit business proceeds. Although defendant was classified as a career offender, the district court departed upward from that range based on conduct that had been charged in the indictment but as to which the jury was unable to reach a verdict. The court found, by clear and convincing evidence, that defendant had participated in three robberies for which he was not convicted. Each of those robberies involved the shooting of a victim. The Second Circuit held that the district court properly relied on conduct as to which the jury was unable to reach a verdict. In U.S. v. Watts, 519 U.S. 148 (1997), the Supreme Court held that a sentencing court may rely on acquitted conduct so long as that conduct has been proved by adequate evidence. Thus, it was well within the district court’s discretion to consider conduct as to which the jury was simply unable to reach a verdict. U.S. v. Mapp, 170 F.3d 328 (2d Cir. 1999).
2nd Circuit upholds downward departure based on substantial sentence increase caused by acquitted conduct. (718) In U.S. v. Concepcion, 983 F.2d 369 (2nd Cir. 1993), the 2nd Circuit upheld the district court’s consideration of defendant’s acquitted conduct in calculating his sentence under the guidelines. However, it suggested that the extent of the sentence increase caused by the acquitted conduct was not adequately considered by the Sentencing Commission, and remanded for consideration of a downward departure. On remand, the district court departed downward from a range of 210-262 months, sentencing defendant to 144 months. In this second appeal, the 2nd Circuit affirmed, holding that the district court followed its directions. Concepcion was not overruled by U.S. v. McCormick, 992 F.2d 437 (2nd Cir. 1993). McCormick involved a case where the conduct in question had already been used to calculate a defendant’s sentence in a prior prosecution. U.S. v. Frias, 39 F.3d 391 (2nd Cir. 1994).
2nd Circuit says court may consider weight of evidence in departing upward. (718) Defendants were convicted of extortion charges. Their base offense levels would have resulted in sentences of 27-33 months. However, after upward adjustments and upward departures, many based on uncharged or acquitted conduct, one defendant received a 188-month sentence, the other a 200-month sentence. The 2nd Circuit reaffirmed that unconvicted conduct proven by a preponderance of the evidence may be relied upon to adjust a defendant’s sentence. However, there should be some “rough proportionality” between the weight of the evidence of the uncharged conduct and the degree of adjustment or departure. Thus, an appellate court should take the weight of the evidence into account in reviewing the reasonableness of a departure. Here, the judge found that the evidence establishing defendants’ involvement in an uncharged murder conspiracy was compelling. Given this, the substantial upward departure was reasonable. In addition, the adjustments were based on overwhelming evidence. U.S. v. Gigante, 94 F.3d 53 (2nd Cir. 1994).
2nd Circuit does not decide whether uncharged crimes were relevant conduct since they also provided basis for departure. (718) Defendant was convicted of RICO and Hobbs Act offenses. The district court increased his offense level based on his participation in certain crimes that were not alleged in the indictment as predicate RICO or Hobbs Act crimes. Defendant argued that the uncharged predicate acts could not be considered as relevant conduct because they would not be appropriate for grouping under § 3D1.2(d). The 2nd Circuit found it unnecessary to examine this claim since the court stated that if the crimes could not be considered relevant conduct, it would depart upward to reach the same sentence. The uncharged conduct related to defendant’s RICO and Hobbs Act offenses. Therefore, even if the uncharged crimes were not technically relevant conduct under § 1B1.3, they formed an appropriate basis for an upward departure. U.S. v. Thai, 29 F.3d 785 (2nd Cir. 1994).
2nd Circuit permits downward departure if sentence is greatly increased for acquitted conduct. (718) The jury convicted defendant of simple possession of crack, but acquitted him of possession with intent to distribute. The district judge reluctantly imposed a 135-month sentence, stating that the sentence was grossly disproportionate to the offense, and that he would have departed if he thought he had the power under the facts of the case. The 2nd Circuit held that the judge may have not fully understood his power to depart under section 3553(b). The court cited U.S. v. Concepcion, 983 F.2d 369 (2nd Cir. 1992), which stated that a court has the power to depart where the relevant conduct guideline would require an extraordinary increase in sentence by reason of conduct for which a defendant was acquitted by the jury. U.S. v. Monk, 15 F.3d 25 (2nd Cir. 1994), overruled on other grounds by U.S. v. Thomas, 274 F.3d 655 (2d Cir. 2001).
2nd Circuit reverses upward departure where factors were already considered by the guidelines. (718) The district court departed upward on the ground that (1) defendant played a leadership role in the crimes, (2) his criminal history was not adequately reflected in his criminal history category, and (3) uncharged heroin sales were not considered by the guidelines. The 2nd Circuit reversed and remanded, noting that defendant’s sentence had already been adjusted upward four points for being an “organizer or leader” under 3B1.1. The court agreed, however, that the defendant’s failure ever to serve more than one year in prison, despite thirteen years of sporadic criminal conduct, made criminal history category VI — the highest level — inadequate. With regard to uncharged quantities of drugs, the court noted that these should have been considered in the guidelines calculation. The court noted that the judge’s calculations in support of the departure resulted in the same sentence that should have been imposed had the uncharged drugs been included in the base offense level. The case was remanded for resentencing. U.S. v. Colon, 905 F.2d 580 (2nd Cir. 1990).
2nd Circuit holds that dismissed counts may justify upward departure, but only after detailed procedures are followed. (718) Defendant pled guilty to making a false statement concerning immigration matters in exchange for the dismissal of five other counts. The sentencing court considered the facts in the dismissed counts to depart upward from the guidelines by four months and to increase the fine by $9000. After finding that the defendant did not receive proper notice of the court’s intent to depart, the 2nd Circuit held that the [already served] sentence was improper. The court found that the commission did not intend that all misconduct not resulting in conviction could be taken into account in determining punishment. There must be both a temporal relationship as well as some similarity between the offenses in order to justify a departure. Under the facts of this case, the dismissed alien smuggling counts would have been grouped with the false statements offense. There were no aggravating circumstances to justify a departure. As for the counterfeit money counts, there was no showing that the defendant possessed the money knowingly. The case was remanded for a new sentencing hearing. U.S. v. Kim, 896 F.2d 678 (2nd Cir. 1990).
2nd Circuit finds no justification for increased bribery sentence either as “relevant conduct” or as “departure.” (718) Defendant was convicted of one bribery scheme but acquitted of another. At sentencing, the judge found “by a preponderance of the evidence” that the acquitted bribery “occurred,” and doubled defendant’s offense level from 10 to 20. It was unclear whether the increase in offense level was based on a finding that the second bribery was “relevant conduct” under U.S.S.G. 1B1.3 or an upward departure. The 2nd Circuit found both rationales faulty. Bribery and extortion are not required to be “grouped” under the multiple count section, 3D1.2(d), and therefore evidence of these offenses is excluded from “relevant conduct” under 1B1.3. If the judge intended to depart upward from the guidelines, he failed to articulate sufficient reasons for doing so. U.S. v. Stephenson, 895 F.2d 867 (2nd Cir. 1990).
3rd Circuit finds defendant’s statement too ambiguous to rely upon for upward departure. (718) Defendant reported to a DEA agent that he needed money offered to him to transport drugs because “he was several hundred thousand dollars in debt as the result of bank frauds and dealings with Israelis involved in vehicle thefts.” The district court departed upward in part because it found, based on this statement, that defendant had “a history of criminal conduct.” The Third Circuit held that defendant’s statement was “too ambiguous and attenuated” to serve as a basis for an upward departure. It was unclear from the statement whether defendant was the perpetrator or the victim of the frauds recited. Further, the PSR did not contain sufficient detail or other indicia of reliability that would provide an adequate basis for the district court to rely upon it in departing upward. U.S. v. Warren, 186 F.3d 358 (3d Cir. 1999).
3rd Circuit permits departure based on conduct dismissed in plea agreement. (718) The Third Circuit held that a district court may depart upward based on conduct underlying counts that are dismissed as part of a plea agreement, if it is related to the conduct in the remaining counts and is proven by a preponderance of the evidence. The court noted that its holding was contrary to the decisions in U.S. v. Castro-Cervantes, 927 F.2d 1079 (9th Cir. 1990) and U.S. v. Harris, 70 F.3d 1001 (8th Cir. 1995), but said its conclusion was supported by the weight of the case law, and by the language of the guidelines themselves. Moreover, in U.S. v. Watts, 117 S.Ct. 633 (1997), the Supreme Court held that a sentencing court is permitted to consider acquitted conduct. The conduct need not fit the definition of relevant conduct to be related, but it must “exhibit commonalities of factors sufficient to allow for a reasonable grouping of the separate, individual acts into a larger, descriptive whole.” U.S. v. Baird, 109 F.3d 856 (3d Cir. 1997).
3rd Circuit holds factors warranting departure may include the circumstances of an offense for which the defendant was acquitted. (718) The Third Circuit affirmed a 10-month upward departure from the suggested guidelines range for simple possession of “crack” cocaine. The departure was based upon the quantity (10 grams), purity (90%) and packaging (small plastic bags) of the drug. The Third Circuit held the district court was free to consider the packaging of the drug when determining sentence even though the jury had acquitted the defendant of the distribution count. There was no indication that the Sentencing Commission had intended to preclude consideration of this factor, nor was there any indication that they had considered it in formulating the guidelines. Furthermore, prior case law permitted a sentencing court to consider evidence relating to counts on which a defendant was acquitted. There is nothing to show that the Commission disapproved of this practice. U.S. v. Ryan, 866 F.2d 604 (3rd Cir. 1989).
4th Circuit says upward departure for uncharged conduct does not violate 5th or 6th Amendments. (718) Defendant pled guilty to multiple counts relating to his transportation and molestation of a minor. Based on information in the PSR about nine additional victims, the district court departed upward from a range of 151-188 months to a sentence of 240 months. The Fourth Circuit rejected defendant’s argument that the use of uncharged conduct violated the Sixth Amendment. Defendant’s argument was nullified by clear Supreme Court and Fourth Circuit precedent holding that a sentencing court may consider uncharged and acquitted conduct in determining a sentence, as long as that conduct is proven by a preponderance of the evidence. See U.S. v. Watts, 519 U.S. 148 (1997); U.S. v. Jones, 31 F.3d 1304 (4th Cir. 1994). Booker did not change the sentencing court’s ability to consider uncharged or even acquitted conduct during sentencing. The panel also held that the district court was not required to apply a heightened standard of proof as to the uncharged conduct used as the basis for enhancing defendant’s sentence. Preponderance of the evidence is the appropriate standard of proof for sentencing purposes. U.S. v. Grubbs, 585 F.3d 793 (4th Cir. 2009).
4th Circuit, en banc, approves use of dismissed conduct to depart upward. (718) Pursuant to a plea agreement, defendant pled guilty to second-degree murder charges in return for the dismissal of robbery and felony murder charges. The district court departed upward based in part on the robbery that underlay the dismissed robbery and felony-murder counts. The Fourth Circuit, en banc, held that the dismissal of counts pursuant to a plea agreement does not bar a court from considering the conduct underlying the dismissed counts as grounds for an upward departure. Section 1B1.4 says a court may consider, without limitation, any information concerning the background, character, and conduct of the defendant. This language is broad enough to include dismissed, uncharged or acquitted conduct. Using dismissed conduct as grounds for a departure would not undermine the plea bargaining process any more than using it as relevant conduct. 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 affirms upward departure for murder related to defendant’s drug crime. (718) Defendant was convicted of drug crimes. The district court departed upward based on evidence that defendant had killed a government informant to protect his drug business. On appeal, the 4th Circuit affirmed. First, there was ample testimony at sentencing to support the finding that defendant killed the informant. Second, it was not improper to base a departure on a crime for which defendant had not been convicted. The death was related to defendant’s drug business and was therefore relevant conduct for sentencing purposes. Proof beyond a reasonable doubt was not required. Third, the informant’s murder was an aggravating factor not identified in the guidelines. Section 5K2.1 provides that if an offense resulted in death, an upward departure may be warranted. Finally, the extent of the departure, from a range of 70-87 to a sentence of 240 months, was not unreasonable. The court analogized to section 2D1.1(a)(2) (applicable where death results from drug use), section 2A1.1 (applicable to 1st degree murder) and the federal death penalty statute. U.S. v. Melton, 970 F.2d 1328 (4th Cir. 1992).
4th Circuit upholds upward departure despite district courts’ comment regarding co-defendant’s sentence. (718) The 4th Circuit affirmed an upward departure despite the sentencing judge’s comment that he thought it would be unfair for the defendant to receive a lesser sentence than a co-defendant. Because the district court judge outlined his reasons for departure and explicitly did not depart upwards for the purpose of imposing the same sentence on both defendants, the departure was correct. U.S. v. McKenley, 895 F.2d 184 (4th Cir. 1990).
5th Circuit approves criminal history departure based on dismissed conduct. (718) Defendant was convicted of cocaine conspiracy charges. The government moved for an upward departure based on the inadequacy of his criminal history. It presented evidence underlying heroin and money laundering charges that were dismissed following his conviction, as well as uncharged instances of heroin trafficking and tax evasion. The district court departed upward from category I to III. The Fifth Circuit found it did not violate due process to base the upward departure on evidence of crimes charged in dismissed counts. In U.S. v. Ashburn, 38 F.3d 803 (5th Cir. 1994) (en banc), the court held that a district court can depart upward under § 4A1.3 to account for conduct alleged in counts of an indictment that were dismissed pursuant to a plea agreement. Section 4A1.3 expressly authorizes a court to consider prior adult criminal conduct not resulting in a conviction. The departure was not excessive. The court considered defendant’s tax, heroin, and money-laundering activities to be worth one criminal history point each, for a criminal history score of four points. The court did not rely on six arrests that appeared in the PSR. U.S. v. Millsaps, 157 F.3d 989 (5th Cir. 1998).
5th Circuit upholds departure based on serious bodily injury to third party. (718) Defendant fired shots at a city police officer and a DEA agent. The city police officer was injured, the DEA agent was not. Defendant was convicted of assaulting a federal officer. In U.S. v. Moore, 958 F.2d 646 (5th Cir. 1992), the 5th Circuit held that a four-level enhancement under §2A2.2(b)(3) for serious bodily injury was inappropriate since the city police officer was not a victim of the offense. At resentencing, the district court departed upward by four levels based on the injury to the city police officer. The 5th Circuit affirmed, holding that the Sentencing Commission did not consider multi-victim injuries in formulating §2A2.2(b)(3). The extent of the departure, based on analogy to §2A2.2(b)(2), was reasonable. The city police officer’s gunshot wound was a serious bodily injury. Although defendant received the same sentence upon resentencing by the same judge, there was no evidence of judicial vindictiveness. U.S. v. Moore, 997 F.2d 30 (5th Cir. 1993).
5th Circuit affirms upward departure based in part upon dismissed charge. (718) Defendant was arrested on burglary charges which were eventually dismissed by the state because of insufficient evidence. However, based on a weapon he possessed at the time of his arrest, he was convicted of being a felon in possession of a firearm. The 5th Circuit affirmed an upward departure based in part upon the alleged burglary for which he had been arrested. The fact that the burglary charge was dismissed by the state was irrelevant. The standard of proof necessary to support an enhancement, preponderance of the evidence, was not nearly as demanding as the beyond a reasonable doubt standard necessary to support a conviction. U.S. v. Carpenter, 963 F.2d 736 (5th Cir. 1992).
5th Circuit reverses downward departure for defendant who failed to report “clean money.” (718) Defendant was convicted of importing more than $10,000 without reporting it. Defendant contended that the money was derived from legitimate business sources in Mexico. The district court departed downward based on (a) the lack of showing that the funds were criminally derived, and (b) its determination that defendant’s conduct was not what the currency reporting requirements were designed to address. The 5th Circuit reversed. Guideline section 2S1.3(b)(1) provides for a five-level increase in offense level if defendant knew or believed that the funds were criminally derived. “Therefore, the guidelines fix the base offense level on an assumption that the defendant did not know or believe that the funds were criminally derived. Accordingly, a downward departure from the base offense level for ‘clean money’ is erroneous.” Moreover, the purposes of the currency reporting requirements go beyond detecting monies derived from criminal activity. Unreported but legitimately derived money could be the subject of future income tax or regulatory evasion. U.S. v. O’Banion, 943 F.2d 1422 (5th Cir. 1991).
5th Circuit rules that dismissed counts were properly considered in departing upward from the guidelines. (718) When defendant pled guilty to selling marijuana the government dismissed three cocaine counts. The sentencing court considered the entire range of conduct in sentencing him to twelve months. The 5th Circuit affirmed the sentence. The January 15, 1988 Commentary to § 1B1.3(a)(2) permits “quantities and types of drugs not specified in the count of conviction” to be included in determining the offense level if there is a common course of conduct or scheme. However, this section was not applicable to the defendant’s case because prior law allowed no such consideration. Nevertheless, the sentence was proper as an upward departure from the guideline range. The sentencing court properly considered the conduct underlying the dismissed counts in determining the seriousness of the conviction offense. Because the departure was not unreasonable, the sentence was affirmed. U.S. v. Taplette, 872 F.2d 101 (5th Cir. 1989).
5th Circuit rules departure from guidelines based on possession of handgun was proper despite acquittal on that offense. (718) Expressing disagreement with the jury’s verdict, the trial judge departed upward based on the defendant’s carrying a firearm during a drug offense (18 U.S.C. § 924(c)(1)), even though the jury acquitted on that count. The Fifth Circuit upheld the departure, stating that “[a]lthough the jury may have determined that the government had not proved all of the elements of the weapons offense beyond a reasonable doubt, such a determination does not necessarily preclude consideration of underlying facts of the offense at sentencing so long as those facts meet the reliability standard.” U.S. v. Juarez-Ortega, 866 F.2d 747 (5th Cir. 1989).
6th Circuit says court may depart based on dismissed conduct. (718) Defendant and his co-conspirators in a drug operation tortured a man they believed had stolen from them. Defendant pled guilty to a drug distribution charge, but the court departed upward based on the torture. Defendant argued that conduct underlying a count dismissed pursuant to a plea agreement cannot be used to depart upward. The Sixth Circuit rejected the argument, holding that under § 1B1.4 and its commentary, a district court may depart upward based on conduct that is covered by a dismissed count. The guidelines allow and in many cases require the sentencing court to take into account a broad array of information. The court distinguished the Ninth Circuit’s decision in U.S. v. Castro-Cervantes, 927 F.2d 1079 (9th Circuit 1990) on the ground that the upward departure there was based purely on the charged, but later dismissed counts. Here, defendant was never charged with torture; he was charged with a broad cocaine conspiracy, of which the torture was but one small part. Moreover, the 9th Circuit’s reasoning in Castro-Cervantes is unpersuasive. U.S. v. Cross, 121 F.3d 234 (6th Cir. 1997).
6th Circuit upholds consideration of acquitted conduct. (718) Defendant argued that the district court erroneously based his sentence on conduct for which he had been acquitted. The 6th Circuit found no error, since circuit precedent clearly allows district courts to consider acquitted conduct at sentencing. The court declined to adopt the 9th Circuit’s reasoning in U.S. v. Brady, 928 F.2d 844 (9th Cir. 1991). U.S. v. Milton, 27 F.3d 203 (6th Cir. 1994).
6th Circuit states that amounts of drugs not considered under relevant conduct may be a basis for departure. (718) The district court departed upward, in part because of its belief that the guidelines did not adequately consider “continuing operations.” The 6th Circuit held that continuing operations “falls under the category of relevant conduct.” The court noted that this is a proper rationale for departure, assuming that there is a preponderance of the evidence suggesting that this was an ongoing operation, and that the amounts of drugs transacted are not adequately included in the prisoner’s offense level. The court remanded the case to the district court for a better determination. U.S. v. Robison, 904 F.2d 365 (6th Cir. 1990).
7th Circuit allows consideration of dismissed firearm conduct in setting sentence. (718) The district court sentenced defendant to 18 months for his firearm conviction, in the middle of his 15-21 month guideline range. Defendant argued that the court penalized him because he sold the gun to Eller in front of an elementary school. Defendant was originally charged with possessing a firearm near a school zone, 18 U.S.C. § 922, a charge that was later dismissed. The fact that the charge was dismissed did not erase the facts surrounding the sale. Defendant admitted the facts in the PSR, which detailed the sale. As such, defendant’s proximity to the school was a part of the “nature and circumstances of the offense” that the district court was obligated to consider under 18 U.S.C. § 3553(a)(1). It did not render the resulting sentence unreasonable. The panel also rejected defendant’s claim that the court improperly weighed the § 3553(a) factors. The court noted defendant’s family situation and explicitly stated that it was taking into account the difficulty of raising a child alone. U.S. v. Haskins, 511 F.3d 688 (7th Cir. 2007).
7th Circuit says unconvicted, unstipulated crimes may not be used for § 3D1.4 departure. (718) To determine a combined offense level under § 3D1.4, a defendant’s offense level is “topped off” at five levels if he committed more than five crimes. The district court departed upward based on defendant’s 22 crimes. Since all 22 crimes were committed in furtherance of the RICO conspiracy, they were conduct related to the offense of conviction rather than being a part of the defendant’s criminal history. However, the Seventh Circuit remanded, because only 13 of defendant’s 22 crimes were ones of which he had been convicted. Unconvicted, unstipulated crimes may not be used for a departure under § 3D1.4. U.S. v. DiDomenico, 78 F.3d 294 (7th Cir. 1996).
7th Circuit criticizes government for “blind-siding” defendant by seeking departure based on uncharged conduct. (718) Defendant was convicted of selling drugs to an undercover agent. The district court found that all three sales occurred within 1000 feet of a school and departed upward under § 5K2.14 to reflect the endangerment to public safety. The 7th Circuit upheld the departure, but criticized the government for “blind-sid[ing]” defendant by seeking a departure based on conduct with which it easily could have charged defendant. Where the government intends to use conduct at sentencing that can readily be proven at trial and for which there is no risk to the government’s case, the government should charge the defendant with that conduct and try him for it so that the defendant can comprehend the consequences of a conviction. U.S. v. Porter, 23 F.3d 1274 (7th Cir. 1994).
7th Circuit permits departure based on a killing for which defendant had been acquitted. (718) Defendant killed a state police officer and was acquitted. More than 15 years later defendant mailed a death threat to a police commander who had previously worked with the slain officer. The district court departed upward based in part on the prior killing. Defendant contended that this was improper since he had been acquitted of murder. The 7th Circuit rejected this argument. Nothing prevents a judge from taking into account a defendant’s prior conduct, regardless of an acquittal. A not guilty verdict means only that the prosecution failed to establish guilt beyond a reasonable doubt. The prior killing was relevant to the seriousness of defendant’s threat to the slain officer’s co-worker. U.S. v. Fonner, 920 F.2d 1330 (7th Cir. 1990).
7th Circuit suggests that reliance on “relevant conduct” may make departure unnecessary. (718) The district court departed upward on the ground that defendant’s criminal history category was inadequate because he kept dealing in drugs after his arrest, and he committed more crimes than those of which he had been convicted. The court also stated that defendant sold more cocaine than the 5-1/2 ounces charged and that he bought stolen property, a crime with which he had not been charged. The 7th Circuit reversed the departure because the district court failed to explain why it selected 120 months. The court stated that departures should be “disciplined” and that it is possible to formulate approaches that “link the extent of departure to the structure of the guidelines.” The court also noted that the judge failed to consider the effect of the “relevant conduct” section of the guidelines, § 1B1.3, noting that “the best way to justify a higher sentence is to compute the full quantity of the drugs involved.” U.S. v. Ferra, 900 F.2d 1057 (7th Cir. 1990).
8th Circuit says government had burden to prove prior murder was not self-defense. (718) Defendant was convicted of two counts of assault with a deadly weapon. In departing upward, the district court relied heavily on a dismissed murder charge, as permitted by §5K2.21. Defendant presented evidence that she acted in self-defense, but the district judge rejected the argument without making any findings. The Eighth Circuit reversed, ruling that once the issue is called into question the government bears the burden of proving an absence of self-defense by a preponderance of the evidence. This trial rule also applies at sentencing. From the record, it was unclear whether the court found that the government proved a lack of self-defense, or that defendant failed to show she acted in self-defense. U.S. v. Azure, 536 F.3d 922 (8th Cir. 2008).
8th Circuit approves large upward departure for defendant with ongoing pattern of predatory activity toward young girls. (718) Defendant attempted to entice a minor he chatted with over the Internet (in reality an undercover officer posing as a 13 year old girl) to engage in sexual activity. Based on information found on defendant’s computer, the government sought an upward departure under § 5K2.21 based on similar, uncharged conduct. The Eighth Circuit affirmed a departure from the advisory range of 78-97 months to a sentence of 180 months. The additional chat room discussion and activities revealed an ongoing pattern of predatory activity by defendant directed toward young girls. The activity was almost identical to the current offense: similar victims, similar attempted contact and enticement, attempted persuasion of parents that their children would be visiting safe friends, graphic discussions of sex, and the use of web cameras to perform sexual acts for the children to view. In addition, defendant graphically described an actual encounter with a 12-year old girl. The 83-month departure, while extraordinary (almost 100% above the top of the advisory guideline range), was not unreasonable. The amount of material involved was substantial and included numerous pornographic images involving minors as well as sexual chat room discussion with, and exhibitionist performances for, minors. Defendant used sophisticated means beyond the use of computers, sending presents, creating an alter ego, and posing as a parent of his online persona to assuage parents’ concerns. U.S. v. D’Andrea, 473 F.3d 859 (8th Cir. 2007).
8th Circuit approves departure based on understated criminal history and disruption of government function. (718) Defendant burned two vans belonging to the Rock Creek District Community Center. Defendant’s criminal history category was I, and his guideline range was four to ten months. The district court departed upward to a sentence of 23 months based on two factors: (1) defendant’s criminal history category significantly understated his past criminal conduct, § 4A1.3; and (2) defendant’s crimes significantly disrupted a governmental function, § 5K2.7. The Eighth Circuit affirmed. Defendant’s criminal history category underrepresented the seriousness of his past criminal conduct because during a presentence interview, defendant admitted to selling marijuana, abusing inhalants, alcohol, amphetamines and marijuana, and stealing about $1000 per week. Defendant’s arson significantly interrupted a governmental function. The Rock Creek District used the vans that defendant destroyed to deliver meals on wheels, to transport youths to special events, and take other district members to community events. The District Chairman testified the loss caused many of the members of the community to lose their source of transportation for three months. The Rock Creek District is a “very impoverished area where the vast majority of people are people of low income, without their own source of transportation.” The Rock Creek District, a Native American Tribal District, qualified as a “governmental entity” for purposes of § 5K2.7. U.S. v. Archambault, 344 F.3d 732 (8th Cir. 2003).
8th Circuit bars using dismissed count to depart upward. (718) Defendant originally pled guilty to two counts relating to the transfer of stolen property. During the presentence investigation, the parties discovered that his guilty plea to both counts exposed him to a significantly longer sentence than intended under the agreement. His plea to count I included a stipulation that defendant participated in an armed robbery and would have triggered use of the offense level for armed robbery (26) rather than interstate transportation of stolen merchandise (13). Defendant withdrew his plea to count I, the government dismissed it, and the court sentenced defendant on count II. However, the court departed under § 5K2.0 based on defendant’s participation in the armed robbery. The Eighth Circuit reversed, holding that conduct from the dismissed count could not be used to depart upward in clear opposition to the intentions of the parties in the plea agreement. A contrary rule would allow the sentencing court to eviscerate the plea bargaining process. The court could have rejected the plea bargain. It also could have made its own guideline calculations rather than accepting the calculations in the plea agreement, or it could have rejected the government’s motion for a substantial assistance departure. U.S. v. Harris, 70 F.3d 1001 (8th Cir. 1995).
8th Circuit upholds consecutive sentence as departure based on conduct underlying state convictions. (718) The district court ordered defendant’s 37-month sentence for bank larceny and possession of a machine gun to run consecutively to an undischarged 60-year state sentence. Defendant argued that the sentence should have been concurrent, since the state sentence by itself exceeded the hypothetical sentence he would have received if all relevant offenses, both state and federal, were federal offenses. The 8th Circuit upheld the consecutive sentence as a departure based on the devastating physical and psychological injury suffered by his victim. Defendant’s larceny was only a minor part of a “campaign of terror” against his former wife, which culminated in a bomb exploding in her face. The conduct underlying the state convictions could be relied upon to justify a departure, just as uncharged con-duct may be relied upon to construct a guideline range. U.S. v. Muzingo, 999 F.2d 361 (8th Cir. 1993).
8th Circuit upholds departure based on dismissed counts and non-criminal conduct in bankruptcy fraud case. (718) Defendants pled guilty to one count of a three-count indictment for bankruptcy fraud. The district court departed upwards due to defendants’ acts of concealment before and after bankruptcy, as well as activities of a non-criminal nature that intimated a “deep attachment to obtaining money or property at the expense of others.” The defendants contended the departures were improper because the factors were merged in the count to which they pled guilty and that several factors were not violations of law. The 8th Circuit affirmed the departure, holding that conduct in dismissed counts could be used in calculating adjustment to base offense levels. The non-criminal conduct was also properly considered because it reflected the attitude that led defendants to engage in criminal activity and was not given “undue weight” by the district court. U.S. v. Snover, 900 F.2d 1207 (8th Cir. 1990).
9th Circuit reaffirms that acquitted conduct may be used at sentencing. (718) In U.S. v. Watts, 519 U.S. 148 (1997), the Supreme Court held that at sentencing, a district court could consider conduct by the defendant underlying charges on which he was acquitted. Defendants argued that U.S. v. Booker, 543 U.S. 220 (2005), undermined Watts and precluded the use of acquitted conduct in determining a defendant’s sentence. The Ninth Circuit rejected that argument and held that the use of acquitted conduct at sentencing does not violate the Sixth Amendment. U.S. v. Mercado, 474 F.3d 654 (9th Cir. 2007).
9th Circuit forbids departure based on conduct uncharged or dismissed in plea agreement. (718) Because the prosecution doubted that it could prove at trial which of the two parents was responsible for abusing their infant daughter, the defendants were allowed to plead guilty to making a false statement to the FBI. The district court accepted the plea agreement but then departed upward to sentence them under the aggravated assault guideline. On appeal, the Ninth Circuit held that this was plain error. Prior Ninth Circuit cases make it clear (although the Second, Third, Fourth, Fifth and Tenth Circuits disagree) that uncharged or dismissed conduct, in the context of a plea agreement, is an illegal basis for a departure. See U.S. v. Faulkner, 952 F.2d 1066 (9th Cir. 1991). Moreover, under § 6B1.2(a) a court may accept a plea agreement only if it determines “that the remaining charges adequately reflect the seriousness of the actual offense behavior.” If the district court felt the plea bargain did not reflect the seriousness of the defendants’ conduct, the correct remedy was to reject the plea agreement, not to depart upward. Furthermore, relevant conduct may be considered only in imposing guideline adjustments. It may not be used to select a guideline under § 1B1.2. U.S. v. Lawton, 193 F.3d 1087 (9th Cir. 1999).
9th Circuit reaffirms that acquitted conduct may be used in sentencing. (718) In U.S. v. Watts, 117 S.Ct. 633 (1997), the Supreme Court held that a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, as long as that conduct has been proved by a preponderance of the evidence. The present case was a companion case to Watts, and on remand from the Supreme Court, the panel held that the district court did not clearly err in finding by a preponderance that the defendant was involved in the conduct underlying the count on which she was acquitted. Accordingly the district court properly considered that conduct in determining her offense level. Chief Judge Hug concurred specially to urge the Sentencing Commission to consider this issue of acquitted conduct. U.S. v. Putra, 110 F.3d 705 (9th Cir. 1997).
9th Circuit holds Koon allows judge to reject acquittal or guilty verdict at sentencing. (718) In U.S. v. Brady, 928 F.2d 844, 850-52 (9th Cir. 1991), the Ninth Circuit held that, at sentencing, a judge may not reconsider facts that were necessarily rejected by a jury’s acquittal on some counts. However, in Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035, 2050 (1996), the Supreme Court held that “for the courts to conclude a factor must not be considered under any circumstances would be to transgress the policymaking authority vested in the Commission.” Accordingly, the Ninth Circuit held that “the approach we took in Brady is overruled by the Supreme Court’s decision in Koon.” The panel adopted Judge Wallace’s dissent in U.S. v. Putra, 78 F.3d 1386, 1390-94 (9th Cir. 1996), bringing the Ninth Circuit into line with every other circuit in upholding the use of acquitted conduct at sentencing. In an interesting twist however, the court applied its new holding to permit a judge to reject a jury’s guilty verdict at sentencing. Thus, the court upheld a defendant’s eligibility for the “safety valve” under § 5C1.2, despite his claim of ignorance of the drugs he was carrying. U.S. v. Sherpa, 97 F.3d 1239 (9th Cir. 1996).
9th Circuit reverses where sentence was analogized to count prosecutor agreed not to charge. (718) In exchange for defendant’s guilty plea to sexually abusing a minor, the government dismissed four other counts and agreed not to seek a superseding indictment charging aggravated sexual abuse. Although the Ninth Circuit generally forbids considering dismissed counts in sentencing, U.S. v. Castro-Cervantes, 927 F.2d 1079 (9th Cir. 1990), defendant agreed to waive that protection as to the conduct in the dismissed counts of sexual abuse. At sentencing, the district court analogized this conduct to aggravated sexual abuse, and the Ninth Circuit reversed, holding that this deprived defendant of the benefit of his bargain. On remand, the district court again based its sentence in part on an analogy to aggravated sexual abuse, and the Ninth Circuit reversed again. However, the court upheld several other grounds for departure, on which the district court could rely on remand. U.S. v. Chatlin, 51 F.3d 869 (9th Cir. 1995).
9th Circuit sentences for all drugs in conspiracy despite acquittal on substantive counts. (718) Defendant was convicted of conspiracy but acquitted on substantive counts of possession with intent to distribute. He argued that the district court erred in finding that the 830 grams of cocaine found in the hotel room was within the scope of the conspiracy. The Ninth Circuit rejected the argument, relying on U.S. v. Diaz-Rosas, 13 F.3d 1305 (9th Cir.), cert. denied, 114 S.Ct 1848 (1994), which held that a sentence on a conspiracy charge may be based upon a quantity of narcotics for which the defendant was acquitted of possessing if the drugs were foreseeably within the scope of the conspiracy. In a footnote, the court distinguished U.S. v. Brady, 928 F.2d 844 (9th Cir. 1991), which held that a sentence may not be based on facts rejected by a jury’s acquittal. Unlike Brady, defendant’s sentence on the conspiracy count “was based on his participation in the conspiracy, not facts rejected by the jury.” U.S. v. Vgeri, 51 F.3d 876 (9th Cir. 1995).
9th Circuit rejects departure not specifically limited to psychological injury to victims in counts of conviction. (718) The district court departed upward based on the psychological injury defendant inflicted on his victims during an 11-month campaign of harassment and intimidation against several interracially married couples. Defendant changed the victim’s addresses causing their mail to be sent elsewhere, had magazines and books sent and charged to them, sent threatening mail to them and even mailed two threatening letters to President Bush signing two of the victims names. Because the district court did not specify the victims it relied on in departing based on psychological injury, the 9th Circuit could not uphold this basis for departure. As the court earlier explained in U.S. v. Fine, 975 F.2d 596 (9th Cir. 1992) (en banc), the grounds for departure in such cases must be limited to the counts of conviction. The departure was upheld on other grounds. U.S. v. McAninch, 994 F.2d 1380 (9th Cir. 1993)
9th Circuit reiterates that non-groupable dismissed counts cannot be basis for upward departure. (718) Defendant was convicted of introducing steroids in interstate commerce without a prescription. He argued the district court erred by relying on conduct contained in dismissed counts when deciding to depart upward from the sentencing range established under section 2N2.1. Because the offense level under section 2N2.1 is not determined largely on the aggregate amount of harm (i.e., it is “non-groupable”), it was improper to consider the conduct in the dismissed counts to depart upward. However, the district court alternatively premised its decision on section 2F1.1 and did not err by taking into account as relevant conduct quantities of steroids involved in the dismissed counts. U.S. v. Von Mitchell, 984 F.2d 338 (9th Cir. 1993).
9th Circuit, en banc, holds that fraud losses underlying dismissed counts are relevant conduct. (718) The panel opinion in this case, U.S. v. Fine, 946 F.2d 650 (9th Cir. 1991) held that mail fraud losses under-lying counts dismissed in a plea agreement could not be considered as “relevant conduct” under Section 1B1.3 of the Sentencing Guidelines. The Ninth Circuit granted rehearing en banc, and unanimously re-versed the panel. The en banc court followed the earlier decision in U.S. v. Turner, 898 F.2d 705, 711 (9th Cir. 1990), which held that quantities of drugs in dismissed were properly aggregated with the counts of conviction as relevant conduct. The court distinguished U.S. v. Castro-Cervantes, 927 F.2d 1079 (9th Cir. 1990) and U.S. v. Faulkner, 952 F.2d 1066 (9th Cir. 1991), on the ground that the dismissed (or uncharged) conduct there was used to depart. The en banc court left the remainder of the panel opinion intact. U.S. v. Fine, 975 F.2d 596 (9th Cir. 1992) (en banc).
9th Circuit says upward departure was justified by drug trafficking activity for which defendant had not been convicted. (718) The district court had reliable information, in the form of case reports and testimony by a business associate, that the defendant had engaged in a wide range of drug trafficking activity for which he had not been convicted. Relying on U.S. v. Lira-Barraza, 941 F.2d 745, 746 (9th Cir. 1991) (en banc), the 9th Circuit held that this authorized the district court to depart upward because defendant’s criminal history assessment did not adequately reflect his past criminal conduct. However the court reversed the extent of the departure. U.S. v. Schubert, 957 F.2d. 694 (9th Cir. 1992).
9th Circuit reaffirms that uncharged conduct may not form the basis for a departure in plea cases. (718) In its original opinion in this case, the 9th Circuit held that it was bound by U.S. v. Castro-Cervantes, 927 F.2d 1079 (9th Cir. 1990) to hold that, where there is a plea agreement, the district court may not rely on uncharged bank robberies to depart upward from the sentencing guidelines. On December 24, 1991, the panel amended its opinion to add a footnote distinguishing U.S. v. Loveday, 922 F.2d 1411, 1417 (9th Cir. 1991), but leaving its original opinion intact. The court noted that the full court had been advised of the government’s suggestion for rehearing en banc and no judge of the court has requested a vote on it.” The petition for rehearing was denied. U.S. v. Faulkner, 952 F.2d 1066 (9th Cir. 1991).
9th Circuit holds that departure based on “the number of robberies” was improper. (718) The district court justified its departure by the “number of the robberies.” Four of the robberies had already been taken into account by the guidelines. The 9th Circuit held that “to count them was to count twice.” On the other hand, the five dismissed robberies had not entered into the guidelines calculation, and the court was free to consider them. If the court had expressly relied on these robberies when it spoke of “the number of robberies,” its explanation “would have been faultless.” U.S. v. Castro-Cervantes, 927 F.2d 1079 (9th Cir. 1990).
9th Circuit says court should not accept plea bargain and then later consider dismissed charges in sentencing. (718) The policy statement for guideline § 6B1.2(a) says that where a plea agreement includes the dismissal of any charges, the court may accept the agreement if it determines that the “remaining charges adequately reflect the seriousness of the actual offense behavior.” The 9th Circuit stated that the “plain implication of this section is that if the sentencing court believes that the remaining charges do not adequately reflect the seriousness of the defendant’s behavior, the court should not accept the plea agreement.” Accordingly the court held that “the sentencing court should reject a plea bargain that does not reflect the seriousness of the defendant’s behavior and should not accept a plea bargain and then later count dismissed charges in calculating the defendant’s sentence.” The court acknowledged that its holding was in conflict with two other circuits, U.S. v. Kim, 896 F.2d 678, 684 (2nd Cir. 1990), and U.S. v. Zamarripa, 905 F.2d 337, 341 (10th Cir. 1990), but said that its holding was “faithful not only to the guidelines but to the fundamental concept of plea bargaining.” “To let the defendant pled to certain charges and then be penalized on charges that have, by agreement, been dismissed is not only unfair; it violates the spirit if not the letter of the bargain.” U.S. v. Castro-Cervantes, 927 F.2d 1079 (9th Cir. 1990).
9th Circuit upholds departure based on “cache of weapons.” (718) Defendant objected to the district court’s use of information about his cache of weapons as a basis for departure because it was not specified in the information to which he pled guilty. Relying on § 1B1.3, which permits consideration of “relevant conduct,” and § 1B1.4, which permits a district court to consider “any information concerning the background, character, and conduct of the defendant unless otherwise prohibited by law,” the 9th Circuit upheld the district court’s consideration of the cache of weapons as a basis for departure. U.S. v. Nakagawa, 924 F.2d 800 (9th Cir. 1991).
9th Circuit holds that departure may be based on relevant conduct in addition to count of conviction. (718) Defendant argued that the upward departure was impermissible because it was based on additional counts for which he had not been convicted. Section 5K2.0 states that “harms identified as a possible basis for departure from the guidelines should be taken into account only when they are relevant to the offense of conviction, within the limitations set forth in § 1B1.3.” The 9th Circuit held that this permitted the trial court to consider defendant’s conduct in manufacturing other bombs which related to the bomb which was the offense of conviction. Accordingly the upward departure was proper. U.S. v. Loveday, 922 F.2d 1411 (9th Cir. 1991).
10th Circuit rejects large departure/variance based on uncharged conduct that was not related to current offense. (718) 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 upholds consideration of uncharged abuse, rejects consideration of victim’s age. (718) Defendant admitted having sexual intercourse with his stepdaughter on about 75 occasions over the previous four years, beginning when she was 12 years old. He was charged with three counts of sexual abuse of a minor and pled guilty to one count. The district court departed upward based on the numerous criminal acts and the age of the victim. The Tenth Circuit held that the court properly considered the dismissed and uncharged conduct, but found that the age of the victim was already adequately considered by the guidelines. Nothing in the plea agreement prevented the district court from considering uncharged misconduct at sentencing. The court did not consider the victim’s pregnancy and abortion as grounds for departure. It used it only as a reason to sentence defendant at the high end of the range. However, consideration of the victim’s age was improper because § 2A3.2 already accounts for it. The guideline applies to violations of a statute that prohibits sexual acts with another person of a specified age. U.S. v. Big Medicine, 73 F.3d 994 (10th Cir. 1995).
10th Circuit reverses upward departure because guidelines adequately covered conduct. (718) Defendant pled guilty to one count of a three count indictment for abusive sexual conduct. The district court departed upward, based on a finding that defendant had abused his position of trust since he was a personal friend of the victim thus causing extreme psychological harm, and that defendant had engaged in similar behavior for a period of time with the same victim. The 10th Circuit reversed. The departure based on abuse of trust was improper because sentencing guideline § 3B1.3 adequately covers the situation of abusive sexual conduct achieved through a position of trust. The court also reversed the departure on grounds of extreme psychological injury because the victim did not suffer more than normal. Finally, the departure based on similar conduct to the dismissed counts was upheld pursuant to the analysis of U.S. v. Kim, 896 F.2d 678 (2nd Cir. 1990). U.S. v. Zamarripa, 905 F.2d 337 (10th Cir. 1990), disapproved of on other grounds by Williams v. U.S., 503 U.S. 193, 112 S.Ct. 1112 (1992).
11th Circuit approves above-guideline sentence based on acquitted conduct of using stun gun on child. (718) Defendant was convicted of five counts of production of child pornography. His guideline range was 151-188 month, but the statutory minimum on each count was 180 months. The district court sentenced him to the statutory maximum of 360 months on each count, with two sets of the sentences running consecutively, for a total sentence of 720 months. He argued that the sentence violated the spirit of U.S. v. Booker, 543 U.S. 220 (2005), because the district court considered allegations that defendant drugged and shocked his stepdaughter. This conduct was not charged in the indictment, and he was acquitted by a state jury of the conduct. The Eleventh Circuit found no error. A sentencing court may consider acquitted conduct if the government proves the conduct in question by a preponderance of the evidence. Booker merely requires that consideration of acquitted conduct does not result “in a sentence that exceeds what is authorized by the jury verdict.” The district court properly considered evidence that defendant drugged and shocked his stepdaughter, and the sentence imposed did not exceed the sentence authorized by the jury verdict. U.S. v. Culver, 598 F.3d 740 (11th Cir. 2010).
11th Circuit approves § 5K2.1 departure where passenger killed driver while resisting carjacking. (718) Defendant approached a pickup truck and pointed a gun inside the driver’s window. The passenger shot across the driver and through the window, hitting defendant. One of the passenger’s shots also hit the driver. The Eleventh Circuit affirmed a § 5K2.1 departure for the death of the driver, even though the jury acquitted him at penalty phase of trial of the allegation that the driver’s death resulted from the carjacking. The carjacking guideline only takes into account life-threatening bodily injury, not death. A § 5K2.1 departure is justified where death was intentionally or knowingly risked. By approaching the truck with a weapon, defendant knowingly risked the lives of its occupants. Finally, defendant’s acquittal at the penalty phase of his trial was not significant. Acquitted conduct may be considered by a sentencing court because an acquittal only demonstrates lack of proof beyond a reasonable doubt–a standard higher than that required for consideration of relevant conduct at sentencing. U.S. v. Williams, 51 F.3d 1004 (11th Cir. 1995), abrogated on other grounds by Jones v. U.S., 526 U.S. 227, 119 S.Ct. 1215 (1999).
11th Circuit affirms upward departure based upon drug activity not reflected in offense level. (718) The district court found that defendant was accountable for 40 kilograms of cocaine. It then departed upward by one offense level, finding that 40 kilograms underrepresented the quantity of drugs defendant actually distributed. She was “open for [drug dealing] business at least five, if not seven days a week 24 hours a day” and was not just dealing “on the few occasions that the FBI or the Atlanta police happened to make a buy.” The 11th Circuit affirmed. Although district courts may not enhance a sentence on the basis of the same incidents used to determine a base offense level, here the district court referred to criminal conduct different from that included in the base offense level calculations. A departure made on the basis of criminal conduct not taken into account by offense level or criminal history is consistent with the goals of sentencing. The extent of the departure was reasonable. U.S. v. Ledesma, 979 F.2d 816 (11th Cir. 1992).
D.C. Circuit reverses departure because there was insufficient evidence of uncharged crimes. (718) Defendant, a District of Columbia official responsible for referring mentally disabled patients to day treatment programs, was convicted of conflict of interest after engaging in dubious financial dealings with the owner of one of the facilities to which he sent patients. The district court made a three-level upward departure based on three additional crimes defendant committed “in the course of committing the offenses of conviction.” The D.C. Circuit reversed, finding insufficient evidence to support the district court’s finding that defendant had committed these additional crimes. First, defendant could not have been convicted of tax evasion under any standard of proof. Even if the false memo notations he wrote on his checks constituted a willful act constituting tax evasion, there was no evidence of any tax deficiency. The government presented no evidence that defendant ever took or tried to take a deduction based on those notations. Second, the evidence did not support a finding that defendant defrauded a woman from whom he had purchased a house at a reduced price. The facts showed a contract with some irregular, buyer-friendly terms signed by a seller not represented by counsel. While defendant may have taken advantage of the seller, it was not apparent that the transaction was fraudulent. Finally, while defendant’s loan fraud was supported by the record, the court incorrectly included a hypothetical two-level enhancement for perjury. This finding may have confused lying to the bank, which defendant admitted doing, with lying to the court. U.S. v. Smith, 267 F.3d 1154 (D.C. Cir. 2001).
D.C. Circuit holds that defendant failed to preserve departure challenge. (718) Defendant pled guilty to powder cocaine charges and the government dropped a crack charge. However, as a condition of dropping the crack charge, the government required defendant to accept responsibility for 185 grams of crack, which increased his guideline range tremendously. At sentencing, defendant requested a downward departure, claiming he had entered into the plea in order to avoid the statutory mandatory minimum for crack cocaine. The district court refused to depart. Defendant argued that the district court erred by failing to recognize that where consideration of relevant conduct drastically affects a sentence, a district court has authority to depart downward. The D.C. Circuit ruled that defendant failed to preserve this argument for appeal. At most, defendant asked the district court to exclude crack cocaine from its sentencing consideration. However, because defendant had accepted responsibility for the crack, the district court had no choice but to include crack in its sentencing calculation unless the guidelines provided a basis for departure. The district court’s failure to depart sua sponte was not plain error. U.S. v. Vizcaino, 202 F.3d 345 (D.C. Cir. 2000).
Commission clarifies that court may accept a plea agreement but depart upward based on dismissed or uncharged conduct. (718) In a new amendment, the Commission modified § 1B1.4 and § 6B1.2 and added a new departure policy statement at § 5K2.21 to make clear that the court may accept a plea agreement but nevertheless depart upward based on charges dismissed or uncharged pursuant to that agreement. Amendment 604, effective November 1, 2000.
Article discusses departures for diminished capacity, aberrant behavior and post-offense rehabilitation. (718) Defense attorney Alan Ellis argues that diminished capacity and aberrant behavior are two grounds for downward departure that humanize a defendant, make him more sympathetic and help to explain why he did what he did. Extraordinary post-offense rehabilitation is a factor that can additionally provide a persuasive indicator that the criminal conduct is unlikely to re-occur. He summarizes the guideline provisions and the case law in this developing area. Alan Ellis, Answering the “Why” Question: The Powerful Departure Grounds of Diminished Capacity, Aberrant Behavior and Post-Offense Rehabilitation, 11 FED. SENT. RPTR. 322 (May/June 1999).
Article advocates permitting “acquitted facts” to be used in sentencing. (718) A student author canvassed the authorities addressing whether facts negated by a jury’s acquittal should be considered in sentencing. Most courts permit use of such facts if they are established by a preponderance of the evidence. Some seem to permit their use only if the facts are undisputed. Others preclude their use. The majority view is preferable because of the different burdens of proof applicable at trial and at sentencing. Moreover, precluding use of “acquitted facts” would only periodically coerce judges into ignoring reliable evidence, would frustrate the policies of the Sentencing Reform Act, and would unduly limit judicial discretion. Note, United States v. Brady — Should Sentencing Courts Reconsider Disputed Acquitted Conduct for Enhancement Purposes under the Federal Sentencing Guidelines?, 46 ARK. L. REV. 457-73 (1993).
Commission says dismissed counts in plea agreement are not excluded from relevant conduct. (718) In an amendment effective November 1, 1992, the Commission amended section 6B1.2(a) to state that “a plea agreement that includes the dismissal of a charge or a plea agreement not to pursue a potential charge shall not preclude the conduct underlying such charge from being considered under the provisions of section 1B1.3 (relevant conduct) in connection with the count(s) of which the defendant is convicted.” This amendment appeared to disapprove the 9th Circuit’s contrary opinion in U.S. v. Fine, 946 F.2d 659 (9th Cir. 1991), which was thereafter reversed, 975 F.2d 596 (9th Cir. 1992) (en banc).