§210 Homicide, Assault
(U.S.S.G. §§2A1-2)
Supreme Court reverses where facts on which court relied at sentencing failed to establish the more serious charge of attempted killing. (210) Defendant pleaded guilty to assault and firearms counts but not guilty to the more serious charge of attempting to kill a United States marshall. At the plea hearing, the government presented the facts of the crime to provide a factual basis for the pleas, and the defendant agreed with the facts as the government characterized them. Relying on § 1B1.2(a), over the defendant’s objections, the court sentenced defendant as though he had been convicted of attempted killing, the only charge to which he had not confessed guilt. The Supreme Court reversed, ruling that the facts as stated by the prosecutor were not sufficient to establish an attempt to kill under 18 U.S.C. § 1114. Accordingly, defendant’s sentence based upon the guideline for that offense could not stand. Braxton v. U.S., 500 U.S. 344, 111 S.Ct. 1854 (1991).
8th Circuit affirms upward variance for VA doctor convicted of manslaughter and mail fraud. (210)(218) (741) Defendant, a pathologist at a VA hospital, pleaded guilty to mail fraud and involuntary manslaughter after a review of his cases found 589 major discrepancies with potential for negative impact on patient treatment, including 13 cases where he may have contributed to the untimely deaths of veterans and 26 cases with harm warranting an acknowledgement of malpractice. His guidelines range was 87 to 108 months, but the district court varied upward to 240 months. The Eighth Circuit affirmed, finding that the district court properly considered the 18 U.S.C. § 3553(a) factors. U.S. v. Levy, __ F.4th __ (8th Cir. Dec. 1, 2021) No. 21-1296.
4th Circuit upholds cross-reference to first-degree murder guideline in firearms case. (210)(330) Defendant pleaded guilty to possession of a firearm by a felon. Defendant possessed the firearm while killing a police officer. At sentencing, the district court applied the cross-reference in § 2K2.1(c)(1)(B) and held that the guideline for murder, § 2A1.1, should apply. Defendant argued that the cross-reference should have been to the manslaughter guideline because he acted in the “heat of passion.” The Fourth Circuit found that the killing was premeditated because defendant pleaded guilty in state court to premeditated killing, and he shot the officer in the forehead. U.S. v. Ball, __ F.4th __ (4th Cir. Nov. 18, 2021) No. 20-4340.
6th Circuit says defendant need not be charged with murder for cross-reference to apply. (210)(330) The firearms guideline, § 2K2.1(c)(1)(A), provides a cross-reference if defendant’s offense falls within another guideline. Here, the district court applied the attempted first-degree murder guideline, § 2A2.1(a)(1), because defendant fired his gun at a teller when he robbed the bank. The Sixth Circuit affirmed, ruling that a defendant need not be charged with the other offense for the cross-reference to apply and the evidence supported the district court’s cross-reference. U.S. v. Howell, __ F.4th __ (6th Cir. Nov. 8, 2021) No. 20-5858.
D.C. Circuit affirms cross-reference to attempted murder in kidnapping case. (210) During a kidnapping, defendant attempted to kill the victim by slashing him with a box cutter, and also tried to shoot his accomplice. At sentencing, the court applied the cross-reference to the guideline for attempted murder, § 2A2.1(b)(1)(A), with its enhancement for causing “life-threatening bodily injury.” On appeal, the D.C. Circuit affirmed, finding that the district court did not rely on defendant’s attempted shooting of his accomplice but rather on defendant’s attempted murder of the kidnap victim. U.S. v. Lassiter, __ F.3d __ (D.C. Cir. June 15, 2021) No. 20-3021.
8th Circuit upholds cross-reference to attempted murder in firearm case. (210)(330) Defendant pleaded guilty to possession of a firearm by a drug user, in violation of 18 U.S.C. § 922(g)(3). At sentencing, a detective testified that shell casings from a murder scene matched the shell casings of defendant’s gun, defendant was seen in the vehicle involved in the shooting, defendant was a member of a gang that was a rival of the attempted murder victim’s gang, and defendant had made threats to the rival gang. Based on this testimony, the district court found that defendant had used the firearm in an attempted murder, and applied the cross-reference in § 2K2.1(c)(1)(A) to the attempted murder guideline, § 2A2.1(a)(1). The Eighth Circuit affirmed, ruling that the district court’s finding was supported by a preponderance of the evidence. U.S. v. Clark, __ F.3d __ (8th Cir. June 7, 2021) No. 20-1334.
8th Circuit applies murder guideline to drug and gun defendant. (210)(330) Defendant pleaded guilty to drug and firearms offenses, but the district court applied the cross-reference to § 2A2.1, the murder guideline, because defendant emptied his gun at police officers when they came to arrest him. The Eighth Circuit affirmed the district court’s finding that defendant had malice aforethought because he laid in wait for a police officer before jumping out of a closet and emptying his firearm at the officer. U.S. v. Comly, __ F.3d __ (8th Cir. May 20, 2021) No. 20-2782.
10th Circuit upholds cross-reference to murder guideline in firearm case. (210)(330) Defendant pleaded guilty to possession of a firearm by a person who was convicted of a crime of domestic violence. Defendant used the firearm to kill his mentally unstable father, who also had a firearm. Guideline § 2K2.1(c)(1)(B), instructs the court to use the most applicable guideline for murder if death resulted from the use of the gun. The district court applied the first-degree murder guideline, § 2A1.1, to sentence defendant to the statutory maximum, 120 months. The Tenth Circuit upheld the cross-reference, ruling that the district court properly found that defendant had malice aforethought and did not believe that deadly force was necessary to stop his father’s use of the gun. U.S. v. Craine, __ F.3d __ (10th Cir. Apr. 30, 2021) No. 19-6189.
8th Circuit affirms upward variance in murder case for firing a gun into a van. (210)(741) Defendant participated in a murder on an Indian reservation. His guidelines range was 210 to 262 months, but the court varied upward to 300 months. Defendant argued that the district court gave too much weight to the fact that he fired a handgun into a van. The Eighth Circuit affirmed, holding that the district court properly concluded that firing a firearm into a van risked injury to people other than the victim. U.S. v. Shoulders, __ F.3d __ (8th Cir. Feb. 25, 2021) No. 19-2832.
9th Circuit says increase for strangling spouse did not double count assault offense level. (125)(210) Defendant assaulted his spouse in Indian Country and pleaded guilty to violating 18 U.S.C. § 113(a)(8). At sentencing, the district court used § 2A2.2(a) for the base offense level, and added three levels under § 2A2.2(b)(4) because defendant had strangled his spouse. Defendant argued that because his offense involved strangling his spouse, it was improper double counting to apply both § 2A2.2(a) and § 2A2.2(b)(4). The Ninth Circuit rejected the argument, holding that that § 2A2.1(a) does not necessarily capture the conduct detailed in § 2A2.2(b)(4) and therefore using § 2A2.2(a) and § 2A2.2(b)(4) was not improper double counting. U.S. v. Harrington, __ F.3d __ (9th Cir. Dec. 24, 2019) No. 18-30141.
4th Circuit reverses probation sentence for assault where court failed to justify sentence. (210) Defendant pleaded guilty to assaulting his newborn child on a military base. His guidelines range was 33 to 41 months but the district court sentenced him to five years’ probation. At sentencing, the district court asked repeatedly about the victim’s mother and the length of her maternity leave. The government appealed, and the Fourth Circuit reversed, finding that the district court failed to provide adequate reasons to allow meaningful appellate review. The panel added that it would be inappropriate to base the sentence on the mother’s availability to prevent the abuse. U.S. v. Provance, __ F.3d __ (4th Cir. Dec. 3, 2019) No. 18-4786.
7th Circuit upholds within-guidelines life sentence despite mitigation claims. (210)(215)(742) Defendant kidnapped a woman, raped her, set her on fire, and left her to die. He pleaded guilty to kidnapping, attempted murder, and using fire to commit a felony. While in pretrial detention, he threatened to kill a caseworker and pressed a homemade knife against her throat. At sentencing the district court imposed a guidelines sentence of life in prison. Defendant argued that his sentence was substantively unreasonable because the district court failed to address his acceptance of responsibility as a mitigating factor and instead based its sentence on aggravating factors. The Seventh Circuit found no error, noting that the district court “at least implicitly” considered defendant’s acceptance of responsibility by noting that defendant often minimized his role in his crimes. U.S. v. Clay, __ F.3d __ (7th Cir. Nov. 25, 2019) No. 19-1223.
7th Circuit upholds use of murder guideline for RICO conspirator. (210)(290) Defendant pleaded guilty to RICO conspiracy pursuant to a plea agreement in which defendant admitted participating in a gang that expected him to kill rival gang members, he shot at rival gang members on five occasions, and he led a local chapter of the gang. At sentencing, the district court relied on the guideline for conspiracy to commit murder, § 2A1.5, in part because of defendant’s admissions in his plea agreement. Defendant argued that murder was not reasonably foreseeable to him and he did not kill anyone. The Seventh Circuit held that murder was foreseeable to an active gang leader such as defendant and the district court properly used the murder guideline. U.S. v. Porraz, __ F.3d __ (7th Cir. Nov. 27, 2019) No. 18-3545.
1st Circuit upholds use of cross-reference to murder for driver of car. (210)(240) At defendant’s sentencing for drug and RICO offenses. The district court applied the cross-reference in § 2D1.1(d)(1) to increase defendant’s offense level because defendant participated in a killing that would constitute murder under federal law. Defendant argued that the cross-reference did not apply because he had only driven the car from which the killing occurred. The First Circuit held that the district court had not erred in applying the cross-reference because the evidence showed that defendant knew that the murder would be committed when he agreed to drive the car. U.S. v. Rodriguez-Torres, __ F.3d __ (1st Cir. Sept. 18, 2019) No. 16-1507.
8th Circuit affirms upward variance for accessory to murder who tried to destroy evidence. (210)(741) Defendant was present when another man murdered a woman; he tried to destroy DNA evidence on the body and participated in moving the body four times after the murder. He pleaded guilty to accessory to second-degree murder. The district court found that defendant’s guidelines range was 130 to 162 months but sentenced him to 180 months. On appeal, the Eighth Circuit rejected defendant’s argument that the district court did not adequately explain its sentence, finding that the court carefully considered the factors in 18 U.S.C. § 3553(a) by noting defendant’s extensive criminal history, the seriousness of the offense, and defendant’s participation in the offense. U.S. v. Quiver, __ F.3d __ (8th Cir. May 29, 2019) No. 18-2228.
8th Circuit approves first-degree murder cross-reference for trading gun used to kill woman. (210)(330) Defendant gave a 9mm firearm to an acquaintance in return for a .22 caliber firearm. The acquaintance used the 9mm gun to kill a woman. Defendant pled guilty to being a felon in possession of the .22 caliber firearm, and conspiracy to possess one or more firearms in furtherance of a drug conspiracy. The firearms guideline provides a cross-reference in 2K2.1(c)(1)(B) if the defendant transferred the firearm with knowledge that it would be used in connection with another offense and “death resulted.” Even though defendant was not charged with possessing the 9mm firearm, the district court applied the cross-reference and sentenced defendant under the first-degree murder guideline, §2A1.1. On appeal, the Eighth Circuit affirmed. Although the guideline limits the cross-reference to the firearm “cited in the offense of conviction,” that term encompasses all of the offense conduct. Because defendant was convicted of conspiracy, the district court correctly applied the cross reference. U.S. v. Edger, __ F.3d __ (8th Cir. May 23, 2019) No. 18-1594.
8th Circuit finds no double counting in attempted murder guideline. (125)(210) The guideline for attempted murder, § 2A2.1(a)(1) & (b)(1), sets a base offense level and also requires an enhancement if the defendant caused a life threatening injury to his victim. The Eighth Circuit found that the guideline did not engage in double counting by setting a base offense level and imposing the enhancement. It found that not every attempted murder results in a life-threatening injury. U.S. v. Bryant, __ F.3d __ (8th Cir. Jan. 22, 2019) No. 17-3523.
8th Circuit says strangling creates a substantial risk of death. (210) The guideline for attempted murder, § 2A2.1(b)(1)(A), requires a four-level enhancement in offense level if the victim suffered a life-threatening bodily injury. Defendant strangled his victim until she became unconscious. The victim suffered hemorrhages as a result of defendant’s choking her, as well as bruises and swelling. A forensic pathologist testified that that victim was unconscious for between 10 and 15 seconds. The Eighth Circuit found that the district court was not clearly erroneous in finding that the victim was rendered unconscious and that strangling a victim can result in life-threatening injuries. The court held that injuries resulting in a substantial risk of death need not be permanent. U.S. v. Bryant, __ F.3d __ (8th Cir. Jan. 22, 2019) No. 17-3523.
Commission defines “court protection order” and how to treat tribal court convictions. (210)(508) Responding to issues raised by the Tribal Issues Advisory Group, the Sentencing Commission added a definition of “court protection order” to section 1B1.1, incorporating by reference the definition of “protection order” in 18 U.S.C. § 2266(5). Three guidelines provide an increase for violation of a court protection order: §2A2.2 (Aggravated Assault), §2A6.1 (Threatening Communications), and §2A6.2 (Stalking or Domestic Violence). The Commission also provided guidance on how to apply the departure provision in §4A1.3 for defendants with prior tribal convictions. Proposed Amendment 1, effective Nov. 1, 2018.
3rd Circuit rejects Eighth Amendment challenge to life sentence for cyberstalking that resulted in death. (140)(210) Defendant was convicted of multiple counts related to the interstate stalking and cyberstalking that resulted in the death of Belford, her brother’s ex-wife. The Third Circuit rejected defendant’s claim that her life sentence violated the Eighth Amendment. The life sentence was authorized by statute and recommended by the sentencing guidelines. See 18 U.S.C. § 2261(b)(1); U.S.S.G. § 2A1.1. In sentencing defendant, the district court noted that she played an instrumental role in the conspiracy against Belford, whose death was a reasonably foreseeable consequence of the conspiracy. Thus, her life sentence did not violate the Eighth Amendment. U.S. v. Gonzalez, __ F.3d __ (3d Cir. Sept. 7, 2018) No. 16-1540.
9th Circuit finds that tennis shoes can be a dangerous weapon. (210) Guideline § 2A2.2(b)(2)(B) requires a four-level enhancement for a defendant convicted of assault resulting in serious bodily injury if defendant used “a dangerous weapon” during the assault. The guidelines define “a dangerous weapon” as “an instrument capable of inflicting death or serious bodily injury.” The Ninth Circuit held that tennis shoes could be “a dangerous weapon” when used to kick and stomp the victim in the head causing cognitive impairment. U.S. v. Swallow, __ F.3d __ (9th Cir. June 11, 2018) No. 16-30224.
9th Circuit reverses district court’s finding that assault was motivated by payment. (210) Defendant assaulted the victim, in violation of 18 U.S.C. § 113(a)(6), when the victim refused to buy drugs with money that defendant’s wife had given to the victim. At sentencing, the district court enhanced defendant’s sentence by two levels under § 2A2.2(b)(5) because it found that “the assault was motivated by a payment or offer of money or other thing of value.” The Ninth Circuit held that there was “no evidence” that defendant committed the assault in return for money. U.S. v. Swallow, __ F.3d __ (9th Cir. June 11, 2018) No. 16-30224.
8th Circuit affirms consecutive life sentences for second-degree murder of parents. (210)(742) A jury convicted defendant of the second-degree murder of his parents in Indian country. His advisory guideline range was 360 months to life, but the district court imposed two consecutive life sentences. The Eighth Circuit rejected defendant’s argument that the sentences were substantively unreasonable. The district court articulated many reasons for the life sentences. First, a life sentence was within the guidelines range had defendant murdered only one parent. Second, defendant “brutally murdered” his fleeing parents in view of his young daughter. Third, defendant’s criminal history (26 convictions by age 26) was evidence of his disrespect for authority. Fourth, defendant posed “a substantial risk to public safety,” given his anger and past violence. The court explicitly considered mitigating factors, such as defendant’s mental health, substance abuse, employment, and family life, as well as the need to avoid unwarranted sentencing disparity. The court’s finding of premeditation was not erroneous, despite the jury’s acquittal of first-degree murder charges. U.S. v. Lasley, __ F.3d __ (8th Cir. Aug. 12, 2016) No. 15-1738.
6th Circuit affirms that assault was assault to commit murder for racketeering. (210)(290) Defendant was convicted of racketeering and drug distribution conspiracy charges, and the district court found that defendant’s assault on Olivares was an assault with intent to murder under §2A2.1(a)(1). On appeal, the Sixth Circuit affirmed. Testimony suggested that defendant was upset because Olivares had previously taken cocaine from him. Defendant walked toward the truck where Olivares was sitting, and by the time Howell, one of defendant’s partners, got there, Olivares was unconscious, and defendant continued to “hit him a couple times through the window.” The assault continued, and Howell heard Olivares “gargling on his own blood” and then defendant said “[y]eah die motherfucker.” U.S. v. Rios, __ F.3d __ (6th Cir. July 21, 2016) No. 14-2495.
8th Circuit upholds 162-month sentence for voluntary manslaughter as reasonable. (210)(741) Defendant was involved in an drunken altercation with friends, and ultimately pushed one of them backwards down a flight of stairs. The group left the victim at the bottom of the stairs without calling for medical help, and the victim was found dead by police. Defendant pled guilty to voluntary manslaughter and assault with a dangerous weapon. The Eighth Circuit found her 162-month sentence substantively unreasonable, noting that the district court discussed defendant’s age, difficult upbringing, and lack of parental supervision. The court detailed the nature and circumstances of the offense and the need to provide just punishment. The court also addressed defendant’s history of substance abuse, and recommended that the Bureau of Prisons allow her to participate in a substance-abuse treatment program. After an upward departure for extreme conduct and dismissed conduct, the guidelines range was 130-162 months, and the 162-month sentence was appropriate. U.S. v. Brave Bull, __ F.3d __ (8th Cir. July 11, 2016) No. 15-2143.
9th Circuit says Commission had authority to promulgate offense level 43. (145)(210) At defendant’s sentencing for murder, the district court found that defendant had an offense level of 43. At every criminal history category, offense level 43 yields a life sentence. Defendant argued that the Sentencing Commission did not have authority under 28 U.S.C. §994(b)(1) to promulgate an offense level that did not proscribe a “range” of sentences. The Ninth Circuit held that level 43 corresponds to the mandatory minimum sentence of life in the federal murder statute, 18 U.S.C. §1111, and that where a single sentence is compelled by statute, a sentencing “range” is properly limited to that sentence. U.S. v. Pete, __ F.3d __ (9th Cir. April 11, 2016) No. 14-10370.
7th Circuit upholds cross-reference to criminal sexual abuse guidelines where victims were afraid of defendant. (210)(310) Defendant pled guilty to possessing and distributing illegal drugs and prostituting women. The applicable sentencing guideline for his interstate travel offense was §2G1.1. The district court applied a cross-reference to §2A3.1(a)(2), the criminal sexual abuse statute, finding that the offenses involved conduct described in 18 U.S.C. §2242: “caus[ing] another person to engage in a sexual act by threatening or placing that other person in fear….” The Seventh Circuit affirmed. Defendant exercised mental and emotional power over his victims, in addition to physical violence, in order to induce them to work as escorts. Each of the three victims testified that they were afraid of defendant and what would happen to them if they did not do what he said. Moreover, each victim was addicted to heroin and defendant controlled their supply based on their willingness to engage in sexual acts. As such, the district court correctly applied the cross-reference to §2A3.1. U.S. v. Guidry, __ F.3d __ (7th Cir. Mar. 16, 2016) No. 15-1496.
8th Circuit says 360-month mandatory minimum sentence did not permit downward variance. (210)(742) Defendant was convicted of the second-degree murder of his two-year-old daughter and assault resulting in serious bodily injury. The court sentenced him to the mandatory minimum sentence of 360 months. He argued that he should have received a downward variance because (1) he maintained his innocence; (2) his sentence would not deter future conduct; (3) he had raised six children; (4) he had a nonviolent past; (5) he had minimal contact with the criminal justice system; and (6) there was no need to provide him with additional training, education, or medical care. The Eighth Circuit rejected this argument, because 18 U.S.C. §3559(f)(1) required a mandatory minimum sentence of 30 years, and did not permit a guideline variance. U.S. v. Contreras, __ F.3d __ (8th Cir. Mar. 7, 2016) No. 14-3789.
8th Circuit says 360 months for second-degree murder of child was not cruel and unusual. (140)(210) Defendant was convicted of the second-degree murder of his two-year-old daughter and assault resulting in serious bodily injury. The court sentenced him to the mandatory minimum 360 months. He argued that the mandatory minimum in 18 U.S.C. §3559(f)(1) was unconstitutional as applied to him. He claimed that the government alleged at trial that he struck the girl in reaction to the stress of being late for work, i.e., the government was describing a “heat of passion” assault. The Eighth Circuit upheld the sentence. A sentence within statutory limits is generally not subject to review under the Eighth Amendment. U.S. v. Contreras, __ F.3d __ (8th Cir. Mar. 7, 2016) No. 14-3789.
5th Circuit finds sufficient evidence that defendant committed second degree murder during fraud. (210)(218) Defendant was convicted of deprivation of rights under color of law, bank fraud, and aggravated identity theft. The district court found that defendant had committed second degree murder in connection with the bank fraud counts, and applied the cross-reference in § 2B1.1(c)(3) to sentence defendant under § 2A1.2, the second degree murder guideline. The Fifth Circuit held that the government provided sufficient evidence to support the court’s finding of second degree murder. The court noted that the last credible sighting of the victim was on October 2, 2007, that defendant, a police officer, was on shift around that time, that defendant later came into possession of the victim’s debit card and car keys, and that the victim’s vehicle was later found abandoned under suspicious circumstances. Moreover, the court reached its ultimate conclusion—that defendant murdered the victim—after a thorough and fact-specific four-day hearing. Although no body was ever found, the court “identified substantial circumstantial evidence” which convinced it that defendant killed the victim and disposed of the body “for his personal financial gain.” U.S. v. Hebert, __ F.3d __ (5th Cir. Dec. 23, 2015) No. 14-31405.
5th Circuit says variance made it unnecessary to rule on cross-reference to murder guideline. (210)(218) (741) Defendant was convicted of deprivation of rights under color of law, bank fraud, and aggravated identity theft. The district court found defendant committed second degree murder in connection with the bank fraud, and applied the cross-reference in § 2B1.1(c)(3) to sentence defendant under § 2A1.2. The Fifth Circuit found it unnecessary to determine whether a federal bank fraud offense permits a cross-reference to the second degree murder guideline, because defendant’s 92-year sentence could be affirmed on the district court’s alternative ground, as an upward variance based on the murder. The district court conducted a fact-specific, four-day hearing where it heard evidence on the murder and defendant’s background. At sentencing, the court stated that it was considering a number of the 18 U.S.C. § 3553(a) factors in imposing the upward variance. While the 92-year sentence was a significant upward variance, the court specifically noted that the § 3553(a) factors merited an upward variance because defendant had abused his position of trust and authority as a police officer to take the victim’s life. Other courts have approved similarly significant upward variances where appropriate. U.S. v. Hebert, __ F.3d __ (5th Cir. Dec. 23, 2015) No. 14-31405.
10th Circuit upholds cross-reference to murder where co-conspirator died during attempted robbery. (210) (240) Defendant pled guilty to charges stemming from his involvement in a drug conspiracy. During the conspiracy, he organized the attempted robbery of a rival drug-dealer, recruiting DaRyan and his cousin to commit the robbery. During the attempted robbery, the dealer shot and killed DaRyan. Guideline § 2D1.1(d)(1) states that if a victim was killed under circumstances that would constitute murder, the court should apply § 2A1.1, the first-degree murder guideline. The Tenth Circuit upheld the district court’s use of the § 2D1.1(b)(1) cross-reference, concluding that a preponderance of the evidence connected DaRyan’s death with the drug-trafficking conspiracy. The evidence suggested that DaRyan, who lived with defendant, was selling marijuana and possibly cocaine on defendant’s behalf. The purpose of the robbery was to steal a kilo of cocaine. Even if DaRyan was not a member of the conspiracy, defendant more likely than not procured the commission of this robbery of another drug-dealer so he could (a) eliminate any competition to the drug-trafficking conspiracy, and (b) sell the stolen cocaine to benefit the conspiracy. U.S. v. Craig, __ F.3d __ (10th Cir. Dec. 22, 2015) No. 14-3185.
2nd Circuit upholds cross-reference to § 2A1.5 in murder-for-hire case. (210)(290) Defendant was convicted of conspiracy to commit murder-for-hire and the substantive offense of murder-for-hire, in violation of 18 U.S.C. §§ 1958, 2. Note 1 to U.S.S.G. § 2E1.4 states that “[i]f the underlying conduct violates state law, the offense level corresponding to the most analogous federal offense is to be used.” The Second Circuit held that the district court properly used § 2E1.4, Note 1, to calculate defendant’s offense level based on § 2A1.5, rather than § 2E1.4 itself. Although § 2E1.4 is the provision specifically indexed to 18 U.S.C. § 1958 in Appendix A, the Application Notes that accompany § 2E1.4 specifically instruct the district court to use “the offense level corresponding to the most analogous federal offense” in the event that “the underlying conduct violates state law” and the offense level is greater than 32. The First and Eighth Circuits have affirmed the use of this cross-reference prior to the last update of the April 30, 2015 amendments to the Guidelines. See U.S. v. Smith, 755 F.3d 645 (8th Cir. 2014); U.S. v. Vasco, 564 F.3d 12 (1st Cir. 2009). The Ninth Circuit also recently directed the use of the same cross-reference in U.S. v. Temkin, 797 F.3d 682 (9th Cir. 2015), in an analogous situation. See U.S. v. Lisyansky, 806 F.3d 706 (2d Cir. Nov. 30, 2015).
10th Circuit upholds “dangerous weapon” increase for using Taser during struggle with officer. (160) (210) While struggling with a police officer who was trying to subdue him, defendant took control of the officer’s Taser and drive-stunned the officer’s leg. Defendant pled guilty to forcibly assaulting the officer, and received a four-level enhancement under §2A2.2(b)(2)(B) for using a dangerous weapon during the assault. The Tenth Circuit affirmed. A Taser, even in drive-stun mode, qualified as a dangerous weapon. In either drive-stun or probe mode, a Taser is “capable of inflicting … serious bodily injury” as defined in §1B1.1. The burn marks on the police officer’s thigh showed that a Taser in drive-stun mode was capable of causing serious bodily injury if applied to a sensitive spot. Moreover, by taking control of the Taser and applying it against the officer, defendant “used” the Taser. His use exceeded mere “brandishing, displaying, or possessing a … dangerous weapon.” See §§1B1.1, Note 1(I), 2A2.2(b)(2)(C). U.S. v. Quiver, __ F.3d __ (10th Cir. Nov. 17, 2015) No. 14-8077.
8th Circuit finds sufficient evidence for cross-reference to murder guideline. (210)(240) Defendant was convicted of multiple drug charges. The guidelines provide a base offense level of 43 “[i]f a victim was killed under circumstances that would constitute [first degree] murder under 18 U.S.C. § 1111 had such killing taken place within” federal jurisdiction. U.S.S.G. §§ 2A1.1, 2D1.1(d)(1). At sentencing, the district court found that defendant had murdered Perkins, a co-conspirator, to keep him from testifying, and applied the base offense level for first degree murder. The Eighth Circuit held that the court’s finding was supported by a preponderance of the evidence. Defendant discussed killing Perkins with several co-conspirators, including his son. Cell phone records and testimony from defendant’s companion at the dog track the night of the killing showed that defendant was gone from the dog track for about 4 1/2 hours. Defendant’s son testified that defendant had confessed to driving from the dog track, shooting Perkins in the face with a nine millimeter Glock, and returning to the track. The information the son knew about Perkins’ wounds and the type of weapon used was not publicly available. U.S. v. Castleman, __ F.3d __ (8th Cir. Aug. 5, 2015) No. 14-3184.
6th Circuit holds that defendant’s intent permitted applying murder cross-reference. (210)(240) Defendant was the girlfriend of Shakir, the violent leader of a large drug conspiracy. Defendant was active in the conspiracy, and pled guilty to drug and money laundering conspiracy counts. The district court applied the murder cross-reference in § 2D1.1(d)(1), based on Shakir’s murder of Sharon Duran. The Sixth Circuit upheld the application of the cross-reference, finding defendant had the requisite intent. The district court found that defendant had “actual knowledge” that Shakir intended to kill Duran. This finding was not clear error, as defendant’s knowledge could be inferred from her substantial participation in the course of events before and after Duran’s murder. Defendant arranged for Shakir to meet with Duran, and followed them in her car, and drove Shakir away after he killed Duran. Actual knowledge necessarily satisfied the lesser reasonable-foreseeability standard. U.S. v. Anderson, __ F.3d __ (6th Cir. Aug. 4, 2015) No. 14-5741.
8th Circuit applies cross-reference for killing victim even though firearm not part of felon-in-possession offense. (210)(330) Defendant pled guilty to being a felon in possession of a firearm and possession of sawed-off shotguns. At sentencing, the district court found that defendant had committed first degree murder and applied the cross-reference in § 2K2.1(c) to the first-degree murder guideline. Defendant argued that the court erred in applying the cross-reference to his felon in possession charge because he did not use any of the guns listed “in connection with” the murder. The Eighth Circuit rejected defendant’s argument that the cross-reference only applied where a defendant committed another crime with or while possessing a firearm for which he was charged. The circuit rejected a similar argument in U.S. v. Mann, 315 F.3d 1054 (8th Cir. 2003), which involved an application of the former § 2K2.1(b)(5). Because the language in § 2K2.1(b)(5) mirrored the relevant language in the cross reference, cases interpreting the former § 2K2.1(b)(5) could be relied upon here. The district curt did not err in applying the cross-reference to defendant’s felon in possession charge where defendant murdered the victim with a firearm not included in that charge. U.S. v. Patrie, __ F.3d __ (8th Cir. July 27, 2015) No. 14-2576.
7th Circuit agrees that IRS employee’s tax fraud scheme involved sophisticated means. (218) Between 2007 and 2012, defendant, an IRS employee, orchestrated several schemes to fraudulently obtain cash refunds from the IRS. The schemes involved filing false tax returns that claimed refunds pursuant to specific provisions of the tax code. Defendant and her partner enlisted various people, including Johnson, to recruit claimants who would provide their personal information in exchange for a portion of a cash refund. The Third Circuit upheld a §2B1.1 sophisticated means enhancement. Defendant identified IRS programs that would pay substantial sums and then designed a scheme to maximize her payout while avoiding detection. She used inside knowledge of the IRS’s enforcement thresholds, including that certain types of claims under $1,500 would not be flagged for review. Defendant took steps to conceal her identity even from others involved in the scheme, using third parties to recruit claimants and collect their fees so she could avoid any contact with them. Additionally, defendant developed an enforcement mechanism to ensure her fees were paid: submitting amended returns that tipped off the IRS when claimants were reluctant to pay her. U.S. v. Fountain, __ F.3d __ (7th Cir. July 9, 2015) No. 14-3103.
7th Circuit finds co-defendant’s sophisticated means were foreseeable to defendant. (218) Defendant participated in a tax fraud scheme organized by Fountain, who was an IRS agent. He argued for the first time on appeal that the district court erred in applying a sophisticated means enhancement to him because the court stated during sentencing that the fraud scheme “was only possible because of the sophisticated means that, to be sure, were made possible by Ms. Fountain, not [defendant]. “Defendant contended that the court erred in attributing Fountain’s sophisticated means to him without finding that Fountain’s use of those means was reasonably foreseeable to him. The Seventh Circuit conducted its own review of the record, and found it “clear “that that the sophisticated means Fountain used were reasonably foreseeable to defendant. The two lived together and had children together. Defendant knew about the IRS’s $1,500 threshold for flagging particular claims for review, and that he knew that Fountain would reverse claimants’ refunds if they did not pay her fee. Moreover, the court found that defendant was “the engine that drove [the] conspiracy from one that might have involved a handful of phony tax refunds to one that involved hundreds at a cost of over $2 million to the United States treasury, “and that defendant’s leadership “succeeded in spreading [the] scheme like wild fire. “U.S. v. Fountain, __ F.3d __ (7th Cir. July 9, 2015) No. 14-3103.
7th Circuit says reimbursed individuals and banks still counted as victims of defendant’s fraud. (218) Defendant pled guilty to multiple counts of bank fraud and one count of identity theft. The district court enhanced his offense level under §2B1.1(b)(2)(B) based on its finding that there were at least 50 victims of defendant’s scheme. Defendant conceded that over 50 individuals and banks lost money due to his misconduct. However, of that group, all but nine were eventually reimbursed. Defendant argued that only those nine should be counted as “victims “because the eventual reimbursement negated the victim status of the rest. The Seventh Circuit noted that defendant’s argument was foreclosed by U.S. v. Panice, 598 F.3d 426 (7th Cir. 2010), which held that “victim “includes a person whose losses were reimbursed. Moreover, Note 4(E) to §2B1.1(b)(2) specifies that “victim “includes “any individual whose means of identification was used unlawfully or without authority, “regardless of whether actual loss occurred. U.S. v. Jones, __ F.3d __ (7th Cir. July 9, 2015) No. 14-3103.
9th Circuit reverses error in calculating offense level for soliciting murder for hire. (210(290) Defendant was convicted of soliciting a crime of violence, in violation of 18 U.S.C. §373, and using interstate commerce facilities in the commission of a murder for hire, in violation of 18 U.S.C. §1958. The district court calculated defendant’s offense level at 32 under §2E1.4(a)(1), which governs murder for hire. On the government’s appeal, the Ninth Circuit held that the district court erred by not setting defendant’s offense level at 37. The court of appeals held that although the district court properly used §2E1.4, it should have applied the offense level for defendant’s “underlying unlawful conduct, “not defendant’s solicitation to commit murder for hire. Because under §2A1.5 the base offense level for solicitation to commit murder is 33, plus a four-level enhancement for exchange of money, the district court should have set defendant’s base offense level at 37. U.S. v. Temkin, __ F.3d __ (9th Cir. Aug. 13, 2015) No. 12-50103.
8th Circuit upholds cross-reference from drug guideline to first-degree murder. (210)(240) Defendant was involved in a drug conspiracy that resulted in Benson, a man who had traveled to Missouri to sell cocaine to defendant, being shot and killed. Defendant pled guilty to drug conspiracy charges. The district court applied the cross-reference in §2D1.1 to the first-degree murder guideline, §2A1.1, finding the murder was a “knowing, willful, premeditated matter.” The Eighth Circuit rejected defendant’s claim that applying the cross-reference violated defendant’s Fifth or Sixth Amendment rights. There was sufficient evidence to support application of the cross-reference. The district court did not clearly err in finding that the conspiracy included the killing of Benson. The district court found the witnesses who testified about defendant’s role in the killing were credible, and were corroborated by other testimony. The panel had no basis upon which to question the district court’s credibility determination. U.S. v. Jackson, __ F.3d __ (8th Cir. Apr. 10, 2015) No. 14-1084.
1st Circuit upholds cross-reference to first-degree murder guideline despite error in identifying victims. (210) Defendant was one of four defendants convicted of drug and firearms charges. The court applied the murder cross-reference in § 2D1.1(d)(1) to reach an advisory guideline range of life imprisonment for the drug conspiracy count. The First Circuit upheld the life sentence, although the court erred in its identification of the murders with which defendant was involved. The court found that defendant had participated in the planning and execution of the murders of Indio and Agustín, but the government conceded that defendant was not involved in Indio’s murder. However, the court correctly found that defendant had helped to plan and execute the Agustín murder. The trial evidence showed that defendant was part of the group that decided to murder Agustín, and that defendant was the one who ultimately shot Agustín in the head. That finding alone supported the application of the first-degree murder cross-reference, rendering a drug quantity finding superfluous. U.S. v. Rodriguez-Reyes, 714 F.3d 1 (1st Cir. 2013).
1st Circuit affirms application of murder cross-reference. (210) Defendant was convicted of drug and firearms conspiracy charges. The court applied the murder cross-reference in guideline § 2D1.1(d)(1) to reach an advisory guideline range of life imprisonment for the drug count. This cross-reference applies in a drug trafficking case, “[i]f a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 …” The First Circuit affirmed application of the cross-reference to defendant. The court explained the trial evidence showing that defendant had formed plans to kill Rivera and Ortiz, and that he had participated in killing both victims because of the perceived threat they posed to the drug operation. These statements reflected a finding that the murders were premeditated, and the trial evidence supported such a finding. The court then connected these planned murders to the § 2D1.1(d)(1) cross-reference by specifying that the killings were in furtherance of the drug conspiracy. U.S. v. Rodriguez-Reyes, 714 F.3d 1 (1st Cir. 2013).
1st Circuit upholds application of murder cross-reference in carjacking case. (210) Defendant was convicted of conspiracy to commit a carjacking and aiding and abetting an attempting carjacking, resulting in a death. Because the victim was killed in the course of the attempted robbery, the court applied the murder cross-reference in § 2B3.1(c), resulting in an offense level of 43. The First Circuit upheld the application of the murder cross-reference. The circumstances of the victim’s killing would constitute murder under 18 U.S.C. § 1111. Here, the victim, the car’s driver, was shot and killed by defendant’s co-conspirator in the course of the carjacking. That was enough to apply the murder cross-reference to defendant. U.S. v. Rodriguez-Adorno, 695 F.3d 32 (1st Cir. 2012).
1st Circuit reverses mandatory life term for uncharged murder. (210) Defendants were found guilty of conspiracy to commit carjacking, and aiding and abetting a carjacking resulting in death. They were sentenced to 60 months for the conspiracy count, to be served concurrently with a term of life imprisonment for the carjacking. Defendants argued on appeal that the district court erred in sentencing them to a mandatory term of life imprisonment for a murder that they were neither charged with nor convicted of committing. The government conceded that the district court committed plain error during the sentencing hearing, and agreed that the error warranted vacating defendants’ sentence, and remanded for resentencing. The district court referred to the defendants’ crime of conviction as “first degree murder in the context of carjacking.” The district court compounded its mistake by also stating on more than one occasion that the statutory penalty for the crime was life imprisonment. This was incorrect since the statutory penalty for carjacking resulting in death was “any number of years up to life.” 18 U.S.C. § 2119(3). The First Circuit agreed, and remanded for resentencing. U.S. v. Castro-Davis, 612 F.3d 53 (1st Cir. 2010).
1st Circuit upholds use of first-degree murder guideline when arson resulted in death. (210) Defendant was convicted of arson of a building used in interstate commerce, in violation of 18 U.S.C. § 844(i). The arson resulted in the death of a woman and her infant daughter. The guideline for arson, § 2K1.4, states that if death resulted from the arson, the court should apply the most analogous guideline. Relying on that provision, the court applied the guideline for first-degree murder, § 2A1.1. On appeal, defendant argued that the district court erred in using the premeditated murder guideline because he did not intend to kill the victims. The First Circuit upheld the district court’s decision to use the first-degree murder guideline, noting that § 2A1.1 states that it applies to deaths caused by arson. U.S. v. Guzman, 603 F.3d 99 (1st Cir. 2010).
1st Circuit upholds cross-reference to solicitation to commit murder guideline. (210) Defendant was convicted of five counts relating to a murder-for-hire of his wife and daughter. Guideline § 2E1.4, the guideline applicable to use of interstate commerce facilities in commission of murder-for hire, provides that the offense shall be the greater of 32 or “the offense level applicable to the underlying conduct.” The court determined that the underlying unlawful conduct was solicitation to commit murder, meriting a base offense level of 33 under § 2A1.5. The First Circuit upheld the cross-reference to § 2A1.5, even though in virtually every case where a defendant is charged with the use of interstate commerce facilities in the commission of murder-for-hire, the underlying offense is solicitation to commit murder. U.S. v. Vasco, 564 F.3d 12 (1st Cir. 2009).
1st Circuit holds that Massachusetts manslaughter was predicate “violent felony” under ACCA. (210) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based in part on the court’s finding that his prior Massachusetts manslaughter conviction was a “violent felony.” Defendant argued that the Massachusetts statute did not distinguish between voluntary and involuntary manslaughter, and included offenses that should not be considered “violent felonies.” The First Circuit held that manslaughter, under Massachusetts law, is a violent felony within the meaning of the ACCA as a matter of law. Under the ACCA, a prior conviction is for a “violent felony” if the prior offense was “punishable by imprisonment for a term exceeding one year … [and] … involves conduct that presents a serious potential risk of physical injury to another.” Under Massachusetts common law, both involuntary and voluntary manslaughter appear to “involve conduct that presents a serious, potential risk of physical injury to another.” “Involuntary manslaughter is an unintentional killing, resulting from wanton and reckless conduct or a battery not amounting to a felony which the defendant knew or should have known endangered human life.” U.S. v. Walter, 434 F.3d 30 (1st Cir. 2006).
1st Circuit approves use of murder as underlying offense where defendant knew grand jury was investigating possible murder. (210) Defendant, a retired police officer, was the brother of a gangster that ran a criminal enterprise in Boston. Defendant was convicted of obstruction of justice, perjury and related charges based on charges that he helped hide a cache of weapons and lied to a grand jury in order to impede an investigation of his brother. At sentencing, the district court identified murder, rather than gun possession, as the most serious offense underlying his obstructive conduct, and the First Circuit affirmed. When defendant testified before the grand jury about the group’s reserve arsenal, the grand jury was investigating, and defendant had reason to know it was investigating, whether members of the organization were involved in violent racketeering activities such as murder. Defendant was not required to know “the full nature and scope” of his brother’s criminal activities, or whether any of the guns in question had been used in a murder or other violent offense. When defendant told the grant jury that he did not know whether a particular woman was alive, he knew, or at least had reason to know, that it was investigating whether the woman had been murdered by members of the criminal group. U.S. v. Flemmi, 402 F.3d 79 (1st Cir. 2005).
1st Circuit says use of murder cross-reference did not violate Blakely where jury already decided murder occurred. (210) Defendant was convicted of drug charges and three murder charges (aiding and abetting firearms murder in furtherance of a drug crime, aiding and abetting murder of a witness, and aiding and abetting murder while engaging in a drug crime). The drug conspiracy guideline, § 2D1.1(d)(1) provides a cross-reference to the first degree murder guideline “[i]f a victim was killed under circumstances that would constitute murder….” The First Circuit held that the district court’s use of the murder cross-reference did not violate Blakely v. Washington, 124 S.Ct. 2531 (2004) because the jury had already decided that, in the course of the conspiracy, a victim was killed under circumstances that would constitute murder had the killing occurred within the federal criminal jurisdiction. Although not necessary to the analysis, the jury convicted defendant of personally aiding and abetting in that murder. U.S. v. Rodriguez-Marrero, 390 F.3d 1 (1st Cir. 2004).
1st Circuit applies murder cross-reference where police officer was killed by carjacker during pursuit. (210) Defendant participated in a carjacking, recklessly drove the stolen vehicle against traffic on a crowded street, and eventually struck and killed a police officer. Section 2B3.1(c) directs a court to apply § 2A1.1, the first-degree murder guideline, if a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111. The First Circuit upheld the application of the cross-reference, ruling that the death occurred “in the perpetration of” the carjacking. The district court properly found that the carjacking was still in progress when the death occurred. Defendant struck the officer less than an hour after initiating the carjacking and while he still retained control over the stolen vehicle. Defendant was still engaged in the continuing process of stealing and disposing of the car when he spotted the police following him, tried to evade pursuit, and eventually killed a police officer. U.S. v. Martinez-Bermudez, 387 F.3d 98 (1st Cir. 2004).
1st Circuit rules that court implicitly recognized authority to depart. (210) Note 1 to § 2A1.1, the first degree murder guideline, authorizes a downward departure if “the defendant did not cause the death intentionally or knowingly.” The district court found that defendant had urged a co-conspirator to shoot the victims and had offered to kill them himself if the co-conspirator faltered. Implicit in these findings was the court’s conclusion that defendant had an intent to kill, and thus, he was ineligible for the desired departure. Therefore, the First Circuit ruled that it had no jurisdiction to review the court’s refusal to depart under Note 1. U.S. v. Sanchez, 354 F.3d 70 (1st Cir. 2004).
1st Circuit upholds application of murder cross-reference. (210) Defendant was convicted of multiple drug charges. Applying the murder cross reference provision in U.S.S.G. § 2D1.1(d)(1), the district court determined by a preponderance of the evidence that defendant’s role in the massacre of others warranted a base offense level of 43. The First Circuit upheld the cross-reference, rejecting defendant’s claim that the use of it violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Although defendant was previously acquitted in state court of the murders, the use of the cross reference did not violate due process. U.S. v. Lombard, 72 F.3d 170 (1st Cir. 1995). The use of the cross-reference also did not violate Apprendi, which does not apply to findings made under the sentencing guidelines, where the sentence imposed does not exceed the original statutory maximum. Finally, there was sufficient evidence to suppose the use of the cross-reference. A resident of a housing project observed three individuals with bloodstained clothing being pulled out of a car and taken behind a neighboring building. The witness then saw defendant raise and lower a red gasoline can as if he were spraying gas inside the vehicle. Another witness testified that he was told by a conspirator that the victims were thrown into the back seat of a car, forced to drink gasoline, and then executed and set on fire. Finally, a long-time acquaintance of defendant’s testified that defendant admitted to committing the murders. U.S. v. Newton, 326 F.3d 253 (1st Cir. 2003).
1st Circuit upholds use of murder cross-reference where killing took place prior to completion of carjacking. (210) A jury convicted defendants of committing and aiding and abetting each other in the commission of a carjacking resulting in a death, and of using a firearm during and in relation to the carjacking. Guideline § 2B3.1(c) directs the sentencing judge to apply the guideline for first-degree murder, § 2A1.1, if “a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States….” Defendant challenged the use of the murder cross-reference, but conceded that the success of this challenge depended on the court finding that the killing did not occur during the carjacking. However, under First Circuit law, “the commission of carjacking continues at least while the carjacker maintains control over the victim and [his or] her car.” Here, the killing of the driver of the car took place prior to the completion of the carjacking. Therefore, the First Circuit affirmed the application of the cross-reference. U.S. v. Lebron-Cepeda, 324 F.3d 52 (1st Cir. 2003).
1st Circuit upholds reliance on plea agreement stipulation to support cross-reference. (210) Guideline § 2A6.2 (Stalking or Domestic Violence) provides that if the offense involved conduct covered by another guideline, the court should apply that guideline if it would result in a higher offense level. The court relied on this cross-reference to apply the first-degree murder guideline, § 2A1.1, which carries a base offense level of 43. In her plea agreement, defendant stipulated both to this cross-reference and to the resulting offense level. The First Circuit upheld the district court’s reliance on the stipulation to apply the cross-reference to defendant. Although stipulations about legal issues are problematic, parties are usually bound by factual stipulations accepted by the court. Although this case involved stipulations to both legal and factual matters, defendant’s factual admissions alone were sufficient to justify the court’s use of the cross-reference. Defendant admitted crossing state lines to commit illegal acts against her boyfriend’s estranged wife, admitted seeing and hearing her boyfriend’s vicious murder of the wife’s brother, yet nonetheless lured another victim, the wife’s current boyfriend, into a place of imminent danger. The second murder was “a reasonably foreseeable act” in furtherance of the offenses of conviction. The district court had a plausible factual basis for cross-referencing the first-degree murder guideline. U.S. v. Teeter, 257 F.3d 14 (1st Cir. 2001).
1st Circuit applies aggravated assault guideline for driving car at officers while attempting to escape. (210) While attempting to escape from a military base, defendant drove his car directly at a military policeman who attempted to stop the car. The MP attempted to get out of the way, but received a glancing blow on his knee as defendant drove past. Defendant challenged the use of § 2A2.2, the aggravated assault guideline, contending that he did not intend to cause the MP serious bodily injury. He contended that he intended only to escape, and that his Attention Deficit Hyperactivity Disorder (ADHD) prevented him from forming the requisite intent to injure the MP. The First Circuit affirmed the use of the aggravated assault guideline. First, in similar circumstances in which the defendant drove his car at an official victim in order to escape, the court upheld the use of the aggravated assault guideline, even if the defendant did not actually want to strike and injure the officers, but simply was prepared to do so if necessary. See U.S. v. Garcia, 34 F.3d 6 (1st Cir. 1994). Second, nothing in the record suggested that defendant’s ADHD prevented him from forming the mens rea necessary to commit an aggravated assault. The district court also did not err in applying a § 3A1.2 official victim enhancement. Defendant assaulted the MP with reasonable cause to believe that he was a law enforcement officer and in a manner creating a substantial risk of serious bodily injury. U.S. v. Zaragoza-Fernandez, 217 F.3d 31 (1st Cir. 2000).
1st Circuit finds sufficient evidence to support use of murder cross-reference. (210) Defendant attempted to extort money from his employer by murdering the company president in Mexico, reporting it as a kidnapping and issuing a phony ransom demand. The extortion guideline, § 2B3.2(c)(1), directs a court to apply § 2A1.1 (first-degree murder) if “a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States.” The First Circuit held that there was sufficient evidence to support the use of the murder-cross reference. The government presented strong circumstantial evidence that defendant planned to murder the president when they met in Mexico. Defendant purchased a gun, devised a plan to transport it to Mexico, surveyed the area of the crime to choose a suitable location to kill the president, and planned for the president to arrive late at night. A sentencing enhancement need only be proven by a preponderance of the evidence. The court also rejected defendant’s argument that only the target of the extortionate demand, was “a victim” of the extortion within the meaning of § 2B3.2(c)(1). Because defendant’s plan to extort money from his employer included killing the company president, the president was a victim of the extortion scheme even though defendant never demanded that the president pay him any money. U.S. v. Hughes, 211 F.3d 676 (1st Cir. 2000).
1st Circuit holds Mexican murder conviction did not bar cross-reference to murder guideline. (210) Defendant attempted to extort money from his employer by murdering the company president in Mexico, reporting it as a kidnapping, and issuing a phony ransom demand. The extortion guideline, § 2B3.2(c)(1), directs a court to apply § 2A1.1 (first-degree murder) if “a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States.” Defendant argued that § 2B3.2(c)(1) was superseded by 18 U.S.C. § 1119, which governs a U.S. national who kills a U.S. national while within the jurisdiction of another country. Section 1119 says that “[n]o prosecution shall be approved if prosecution has been previously undertaken by a foreign country for the same conduct.” Defendant was previously prosecuted for (and convicted of) murder in Mexico. The First Circuit held that § 1119 did not bar the use of the guideline cross-reference. Defendant was not being prosecuted or punished for murder in violation of § 1111, but for extortion in violation of § 1951. If he had been prosecuted and punished for murder, he would have received the death penalty or life imprisonment, not 20 years’ imprisonment, the statutory maximum for extortion. U.S. v. Hughes, 211 F.3d 676 (1st Cir. 2000).
1st Circuit holds that felony murder during robbery supported use of first-degree murder guideline. (210) Defendants committed a string of bank and armored car robberies, including one in which two armored car drivers were kidnapped and executed. Section 2B3.1, the robbery guideline, directs a court to apply § 2A1.1, the first-degree murder guideline, if “a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111.” The federal murder statute classifies murder as an “unlawful killing … with malice aforethought” and then describes “murder in the first degree” as including a murder “committed in the perpetration of robbery.” § 1111(a). The First Circuit held that defendants’ felony murder of the guards justified the cross-reference to the first degree murder guideline. Under the felony murder rule adopted by § 1111’s second sentence, the killing of the guards was first-degree murder by those who perpetrated the robbery, regardless of who pulled the trigger or any individual intent. U.S. v. Shea, 211 F.3d 658 (1st Cir. 2000).
1st Circuit upholds life sentence for killing during carjacking. (210) Defendant committed a carjacking in which he shot and killed the driver of the car. At sentencing, he moved for a downward departure under note 1 to § 2A1.1. The district court held that the driver had been killed under circumstances that constituted murder under 18 U.S.C. § 1111, and therefore, §§ 2B3.1 & 2A1.1 set a base offense level of 43, requiring life imprisonment. The First Circuit held that the district court did not err in ruling that defendant had committed felony murder. The district court’s refusal to depart downward under note 1 to USSG § 2A1.1 was not reviewable. U.S. v. Serrano-Osorio, 191 F.3d 12 (1st Cir. 1999).
1st Circuit applies assault with intent to murder guideline to felon in possession. (210) Defendant was convicted of being a felon in possession of a firearm after he shot a man who had been arguing with defendant’s friend. Defendant argued that the incident was an aggravated assault, or, at most, an assault with attempt to commit manslaughter, either of which would come under § 2A2.2. The district court, however, found that defendant’s conduct was more similar to assault with intent to murder, and sentenced him under § 2A2.1. The First Circuit affirmed, noting that defendant fired one round into the ground, then walked up to the victim and shot the victim at least twice. He then pursued the victim up the street, put the gun 2 or 3 feet from the victim’s head and fired again, but missed. This evidence supported the district court’s finding that defendant acted with intent to kill. U.S. v. Smith, 101 F.3d 202 (1st Cir. 1996).
1st Circuit finds aggravated assault inconsistent with finding that bodily injury was not serious. (210) Defendant was convicted of being a felon in possession of a firearm after he and a companion confronted another man while armed. The man escaped by grabbing the barrels of both rifles, pushing them down, and fleeing. However, he ripped the palm of his hand on one of gun’s sights, requiring eight stitches. The district court applied a § 2K2.1 cross reference, finding that the underlying offense was an aggravated assault under § 2A2.2, because the victim had suffered serious bodily injury. However, the court also determined that the victim had suffered something less than serious bodily injury for purposes of applying the guideline. The First Circuit remanded to clarify this inconsistency. The court only increased defendant’s offense level under § 2A2.2(b)(3) by three, which applies when the magnitude of the victim’s injury is between bodily injury and serious bodily injury. This was in direct conflict with the court’s basis for applying the aggravated assault guideline in the first place—i.e. that the victim had suffered a serious bodily injury. U.S. v. Tavares, 93 F.3d 10 (1st Cir. 1996).
1st Circuit holds gunshot wound to upper arm was serious bodily injury. (210) Defendant made a racially motivated assault on several men. The First Circuit agreed that a gunshot wound to the upper arm of one of the victims was a serious bodily injury under § 2A2.2(b) (3)(B) and note 1(j) to § 1B1.1. The injury took the victim to the hospital for 90 minutes, and left him work‑disabled for three weeks. This constituted the impairment of a function of a bodily member. To impair generally means to diminish or decrease. There is no requirement of duration. U.S. v. Page, 84 F.3d 38 (1st Cir. 1996).
1st Circuit uses aggravated assault guideline where one victim shot in the arm. (210) defendants yelled racial insults at several men. When the men fled in a truck, defendants gave chase and fired shots in the air, in the back of the vehicle, and in the ground. A bullet struck one man in the arm, and another lodged in the headrest behind a second man’s head. Applying § 2H1.3(a)(3), the district court found that the underlying offense was aggravated assault, and the First Circuit affirmed. Serious bodily injury was not required to make an assault aggravated. Simple intent to do bodily harm of any kind may support a finding of aggravated assault under note 1 to § 2A2.2. However, the assault must be “felonious” to qualify as aggravated. “Felonious,” means punishable by death or a term of imprisonment exceeding one year. The maximum penalty for assault is one year, but if bodily injury results the maximum penalty is increased to ten years. The assault resulting in the gunshot wound clearly caused bodily injury and was therefore felonious. The other assault also qualified based on the same gunshot wound—nothing in the assault statute requires the bodily injury to be suffered by the intended victim of the offense. U.S. v. Page, 84 F.3d 38 (1st Cir. 1996).
1st Circuit upholds counting dangerous weapon both in offense level in enhancement. (210) While attempting to avoid arrest, defendant drove his car at several police officers who attempted to block his way. He argued that an enhancement under § 2A2.2(b)(2)(B) for use of a dangerous weapon (the car) was double counting, since the same use of dangerous weapon caused the underlying offense to be an “aggravated assault” under § 2A2.2, rather than a “minor assault” under § 2A2.3. The 1st Circuit held that the enhancement was not impermissible double counting. The use of a weapon transformed the offense from a minor assault to an aggravated assault in which a dangerous weapon was otherwise used. The use of a single sentencing factor to effect this transformation was merely an accidental by-product of the mechanics of applying the guidelines. It was not impermissible double counting. U.S. v. Garcia, 34 F.3d 6 (1st Cir. 1994).
1st Circuit agrees that defendant who drove car at police intended to cause bodily harm. (210) While attempting to avoid arrest, defendant drove his car at several police officers who attempted to block his way. Defendant argued that he should not have been sentenced under section 2A2.2 (Aggravated Assault) because he did not have the intent to cause bodily harm. The 1st Circuit disagreed. Defendant aimed his car straight at each officer in turn. One officer was forced to jump onto a parked car to avoid being hit. The court’s granting of a reduction for acceptance of responsibility did not require it to accept defendant’s statement that he lacked the intent to cause bodily harm. U.S. v. Garcia, 34 F.3d 6 (1st Cir. 1994).
1st Circuit affirms that assault involved serious bodily injury. (210) The 1st Circuit affirmed that defendant’s assault caused the victim serious bodily injury. Section 1B1.1(j) defines “serious bodily injury” as “injury involving extreme physical pain or the impairment of a function of a bodily member, organ or mental faculty; or requiring medical intervention such as surgery, hospitalization or physical rehabilitation.” The sentencing court supportably found that the victim sustained injury to his inner ear. Upon entering the hospital, the victim complained of dizziness and tinnitus. While tests were not revealing, the examining neurosurgeon testified that it was not unusual for inner ear damage to be evidenced solely by the patient’s subjective complaints. Moreover, the victim was hospitalized for six days as a result of the beating administered to his head, which caused severe headaches, facial bruising and hemorrhaging around the eyes and under the scalp. U.S. v. Newman, 982 F.2d 665 (1st Cir. 1992).
1st Circuit examines serious bodily injury determination for clear error. (210) The parties agreed that whether the assault involved “serious bodily injury” presented a mixed question of law and fact. In light of this concession, the 1st Circuit reviewed the district court’s determination for clear error. Where more than one reasonable inference may be drawn from undisputed facts, the sentencing court’s choice among supportable alternatives cannot be clearly erroneous. U.S. v. Newman, 982 F.2d 665 (1st Cir. 1992).
2nd Circuit says upward departure for seriousness of injuries was not improper double counting. (210) Defendant pled guilty to one count of assault resulting in serious bodily injury. He received a six-level enhancement under § 2A2.2(b)(3)(C) for permanent or life-threatening bodily injury. Because of the devastating extent of the victim’s injuries, including testimony from the victim’s wife that he was missing the left side of his brain and would never wake up, the district court also departed upward under § 5K2.2. The court imposed a sentence of 180 months, up from a guideline range of 92-115 months. Defendant argued that the sentence was unreasonable because the court impermissibly “double counted” the severity of the victim’s injuries. The Second Circuit disagreed, and held that the sentence was reasonable. Following Booker, a district court has broad latitude to impose either a Guidelines sentence or a non-Guidelines sentence. An appellate court is limited to examining a sentence for reasonableness. Defendant did not point to any guideline or statute that reflected a legislative intent to preclude the double counting the district court used. U.S. v. Reyes, 557 F.3d 84 (2d Cir. 2008).
2nd Circuit approves offense level for murder conspiracy that resulted in death. (210) Defendant was convicted of various offenses arising from his involvement in al Qaeda’s conspiracy to bomb American embassies in Kenya and Tanzania. The district court assigned a base offense level of 43 under §2A1.5(c)(1), which applies where a murder conspiracy results in the death of a victim. He argued that this was inapplicable because he was not “in any way responsible for, or even aware of, any fatalities from the embassy bombings.” He maintained there was no evidence that he was “involved in any discussions where the bombings were discussed.” The Second Circuit found no merit to defendant’s challenge. Because the jury convicted defendant of multiple counts of conspiracy to commit murder and also found that over 200 deaths resulted from these murder conspiracies, the jury’s findings show that defendant was a member of a conspiracy that resulted in at least one death. The Guidelines require no additional measure of responsibility or awareness. In re Terrorist Bombings of U.S. Embassies in East Africa, 549 F.3d 146 (6th Cir. 2008).
2nd Circuit says bodily injury increase is based on results of crime, not circumstances of its commission. (210) Defendant was involved in a scheme to murder the sister of a government informant. She was shot twice at point blank range through the window of her car. However, the gun malfunctioned, and she received only minor injuries, as one bullet ricocheted off her back and the other lodged in her neck behind her ear. The district court applied a four-level increase under § 2A2.1(b)(1) for “permanent or life-threatening bodily injury” based on the permanent nature of the victim’s emotional injury (Post-Traumatic Stress Disorder) and the life-threatening circumstances to which she was subjected, emphasizing the sheer good fortune that prevented her death. The Second Circuit remanded for resentencing, agreeing with defendant that the enhancement applies to the results of a crime, rather than the circumstances of its commission. The resulting injuries to the victim are the sole determinant of whether a bodily injury enhancement is justified. The panel further held that emotional injury can constitute “permanent or life-threatening bodily injury” when such emotional injury causes the “loss or substantial impairment of the function of a … mental faculty.” However, the court’s findings were insufficient on this point, and the court remanded for further inquiry into the victim’s psychological and emotional injuries. U.S. v. Spinelli, 352 F.3d 48 (2d Cir. 2003).
2nd Circuit will not examine life expectancy calculation where no legal right to sentence less than life. (210) Defendants were convicted of numerous charges arising out of their involvement in the 1993 bombing of the World Trade Center. At the time of defendants’ crimes, the applicable penalty statute provided that a life sentence could be imposed only if so directed by the jury, see 18 U.S.C. § 34 (1993), and the jury here was not asked to consider whether such a sentence was proper. In 1994, after the crimes but before sentencing, Congress amended the statute to delete the jury directive requirement, but the judge determined that he was bound by the earlier version of the statute. Accordingly, he followed the procedure, approved in U.S. v. Tocco, 135 F.3d 116 (2d Cir. 1998), of imposing a term of years that, if defendants lived to exactly their life expectancy as of the time of sentencing, would expire one month before their deaths. Defendants made several challenges to the court’s calculation of their life expectancy. The Second Circuit found no error since defendants had no legal right to a sentence that was shorter than their correct life expectancy. While these appeals were pending, the court held in U.S. v. Joyner, 201 F.3d 61 (2d Cir. 2000), that defendants sentenced after the effective date of the 1994 amendments to § 34 could be sentenced to life in prison for pre-amendment crimes even absent a jury directive. U.S. v. Salameh, 261 F.3d 271 (2d Cir. 2001).
2nd Circuit finds insufficient evidence that prison guards beat prisoner in “heat of passion.” (210) Defendants, prison guards, were convicted of civil rights violations after two of the guards severely beat a prisoner, causing his death, and a third guard participated in a cover-up of the beating. Section 2H1.1 bases the offense level on the guideline applicable to the underlying offense. The Second Circuit ruled that there was insufficient evidence to support the district court’s finding that defendants acted in the “heat of passion,” and thus the voluntary manslaughter guideline was inapplicable. The judge’s heat of passion finding was based on the fact that the guards “acted in response to [the prisoner’s] refusal to obey their commands and the abusive epithets directed to them.” These circumstances were insufficient to support a “heat of passion” finding. The panel left open the possibility that on remand the district court might find the heat of passion standard met on other grounds. However, if on remand, voluntary manslaughter is rejected, the choice between second-degree murder and involuntary manslaughter will turn on how great a risk of serious bodily injury defendants could reasonably apprehend would result from their conduct and what that risk revealed about the degree of their indifference to the prisoner’s life. Because the remand might result in a greater sentence than originally imposed, and because the government did not bring a cross-appeal, the panel gave defendants the opportunity to withdraw their appeals. U.S. v. Velazquez, 246 F.3d 204 (2d Cir. 2001).
2nd Circuit rules that court understood sentencing authority under racketeering statute. (210) Defendants were convicted of murder and conspiracy to commit murder, in violation of a federal statute prohibiting violent crime in aid of racketeering, 18 U.S.C. 1959 . The statute provides that the punishment for murder shall be “by death, or life imprisonment, or a fine under this title, or both …” § 1959(a)(1). At sentencing, the judge stated that “[t]he law says what the law says, and the law says that I must impose a sentence of life imprisonment upon you.” One defendant argued that the district court mistakenly overlooked the option of a fine and thought that the statute required a term of life imprisonment. The Second Circuit ruled that the district court did not misunderstand its sentencing authority. “At the sentencing of each defendant, the district court explicitly rejected the possibility of a fine on the ground that no defendant had assets from which a fine of a magnitude appropriate to the offense could be paid. There was, therefore, no realistic possibility of a fine as a satisfactory possibility for the brutal, execution-style murder of a 16-year old boy.” It was reasonable for the district court to conclude that it had no realistic choice but to sentence defendants to life imprisonment. U.S. v. Feliciano, 223 F.3d 102 (2d Cir. 2000).
2nd Circuit applies aggravated assault guideline for use of knife despite acquittal on related charges. (210) Defendant was charged with assaulting three U.S. postal police officers, in violation of 18 U.S.C. § 111. The government also alleged that, in the course of his resistance, defendant used a “deadly and dangerous weapon,” a box-cutter, within the meaning of § 111(b). A jury acquitted him of assault with a deadly weapon, and deadlocked on the lesser-included offense of assault, but a second jury convicted him of the lesser assault charge. Despite the acquittal, the district court found that § 2A2.2 (aggravated assault) was the correct guideline, rather than § 2A2.3 (obstructing or impeding officers) because defendant had used a dangerous weapon in committing the assault. The Second Circuit affirmed, even though the jury had acquitted defendant. Under the guidelines, a district court must take into account both the offense of conviction and additional relevant conduct that occurred during the commission of the offense of conviction. The sentencing court found by clear and convincing evidence that defendant wielded a dangerous weapon and that he did so with intent to cause bodily harm. This finding was not inconsistent with the jury’s finding that this fact had not been proven beyond a reasonable doubt. U.S. v. Chestaro, 197 F.3d 600 (2d Cir. 1999).
2nd Circuit finds first-degree murder guideline most analogous for Connecticut murder. (210) Defendant was convicted RICO charges, including conspiring to commit and committing murder in aid of racketeering. Section 2E1.1 directed the district court to determine “the most analogous federal offense.” The district court found that federal first-degree murder was the most analogous federal offense to murder under Connecticut law. Defendant argued that because § 2A1.1 requires malice aforethought or premeditation, elements the government would not be required to prove under state law, the district court should have applied the second-degree murder guideline, § 2A1.2. The Second Circuit found no error. The absence of reference to premeditation or malice in the Connecticut murder statute did not mean that the federal first-degree murder statute was not the most analogous federal offense. The applicable Connecticut statute says that a “person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person.” First-degree murder is defined in 18 U.S.C. § 1111 as “willful, deliberate, malicious, and premeditated killing.” The two definitions were sufficiently similar that there was no reason to disturb the court’s use of § 2A1.1. U.S. v. Diaz, 176 F.3d 52 (2d Cir. 1999).
2nd Circuit uses first-degree murder guideline where arson caused firefighter’s death. (210) Defendant was convicted of arson based on an intentional fire at his retail clothing store. A firefighter lost his life during the fire. Defendant challenged the district court’s use of § 2A1.1, the first-degree murder guideline, because the fireman’s death was not intentionally caused. The Second Circuit upheld the use of § 2A1.1 because it applies to any death that results from the commission of certain felonies. The application notes reference the federal felony-murder statute, 18 U.S.C. § 1111, as suggestive of which felonies are included. Section 1111 defines first-degree murder as a killing committed in the perpetration of, or attempt to perpetrate, any arson. The sentencing court did not err in refusing to depart downward under note 1 to § 2A1.1 on the ground that he did not knowingly or intentionally cause the firefighter’s death. The court was aware of its authority to depart but cited several aggravating factors, including defendant’s scheme to defraud an insurance company, his knowledge that tenants lived above the store, the use of an accelerant, and his decision to set a partly residential building on fire at night. U.S. v. Tocco, 135 F.3d 116 (2d Cir. 1998).
2nd Circuit upholds considering good-time credits to decide whether sentence exceeds life expectancy. (210) Defendant was convicted of arson and sentenced under § 2A1.1 because the fire resulted in the death of a fireman. The district court departed downward to avoid the requirement in 18 U.S.C. § 34 that the jury must approve a life sentence The court imposed a 435-month sentence, five years more than defendant’s life expectancy. With 64.3 months of good-time credit, the judge determined that defendant’s actual term of imprisonment would be 371 months, one month short of his life expectancy. The Second Circuit approved considering good-time credits in determining whether the sentence complied with § 34. Defendants should not be permitted to claim that they plan to disregard prison rules and thus fail to earn good-time credit. The fact that the 371-month sentence came close to defendant’s 372-month life expectancy did not make it the functional equivalent of a life sentence. U.S. v. Tocco, 135 F.3d 116 (2d Cir. 1998).
2nd Circuit refuses to review use of allegedly wrong guideline where sentence was within agreed range. (210) Defendant, a tugboat captain, pled guilty to involuntary manslaughter by criminal negligence in the drowning deaths of two crew members. In his plea agreement, defendant acknowledged that his conduct subjected him to a guideline range of 6-12 months. Defendant argued that the district court sentenced him under the “reckless” guideline rather than for being criminally negligent. The Second Circuit refused to review the matter because the 12-month sentence was within the range defendant agreed upon in his plea agreement. A sentencing judge should specify that the same sentence would have been imposed if the proper guideline had been applied. But here it was clear that the district court would have imposed the same 12-month sentence under the criminal negligence guideline. U.S. v. McHugh, 122 F.3d 153 (2d Cir. 1997).
2nd Circuit uses guideline for aiding murder where predicate RICO offense was facilitating murder. (210) Defendant was convicted of charges involving drugs, RICO, and money laundering, and conducting a continuing criminal enterprise. One of the predicate acts for his RICO conviction was the facilitation of murder in violation of New York law. In determining defendant’s sentence for his RICO conviction, the district court used the guideline offense level for aiding and abetting first-degree murder. Defendant argued that aiding and abetting a murder has a higher scienter requirement than facilitation of murder and thus was an inappropriate frame of reference. The Second Circuit disagreed. Under § 2E1.1, if the underlying conduct violates state law, the offense level for the most analogous federal offense is to be used. The district court here noted the substantive differences between criminal facilitation and the federal offense of aiding and abetting, but it found that aiding and abetting was especially close to the offense described in the New York statute. U.S. v. Miller, 116 F.3d 641 (2d Cir. 1997).
2nd Circuit says failure to challenge use of first degree guideline was not ineffective assistance. (210) Defendant was convicted of RICO charges. One of the racketeering acts was the crime of murder in the second degree under the law of New York. Defendant argued that his counsel was ineffective for failing to challenge the application of § 2A1.1, which applies to federal first degree murder, rather than § 2A1.2, which applies to federal second degree murder. The Second Circuit found no ineffective assistance, since there may have been potential disadvantages that led counsel to make a strategic decision not to raise this claim. For example, in responding to the issue of premeditation, the government might have been able to produce evidence damaging defendant’s sentencing prospects. Although the record was undeveloped as to counsel’s decision‑making process, remand was not the best course. Defendant could raise this argument in a § 2255 proceeding. Counsel’s failure to raise an ineffective assistance claim on direct appeal only bars a § 2255 proceeding where the record is fully developed on the ineffective assistance issue. U.S. v. Workman, 80 F.3d 688 (2d Cir. 1996).
2nd Circuit says dangerous weapon enhancement is double counting where defendant used table leg to assault victim. (210) Defendant assaulted another prison inmate in the face with a table leg. The Second Circuit held that the dangerous weapon enhancement in § 2A2.2(b)(2)(B) was double counting since the use of the non-inherently dangerous weapon (the table leg) also formed the basis for characterizing the assault as aggravated. Although defendant did not raise this issue below, the double counting amounted to plain error warranting relief. U.S. v. Hernandez-Fundora, 58 F.3d 802 (2d Cir. 1995).
2nd Circuit rejects enhancement where weapon was not inherently dangerous. (210) Defendant assaulted a U.S. Marshal by trying to run him down with his car. The court sentenced him under section 2A2.2 (Aggravated Assault) rather than section 2A2.4 (Obstructing or Impeding Officers While Possessing a Dangerous Weapon) because he had used a dangerous weapon. This raised his offense level from 6 to 15. He also received a four level enhancement under section 2A2.2(b)(2) for “otherwise using” a dangerous weapon in committing his offense. Disagreeing with U.S. v. Williams, 954 F.2d 204 (4th Cir. 1992), the 2nd Circuit held that the enhancement was impermissible double counting, because the use of an ordinary object as a dangerous weapon already transformed the minor assault into an aggravated one. Therefore, the adjustment for use of a dangerous weapon is appropriate only for situations involving inherently dangerous weapons, such as firearms. U.S. v. Hudson, 972 F.2d 504 (2nd Cir. 1992).
2nd Circuit affirms official victim enhancement for defendant convicted of assaulting a federal officer. (210) Defendant was convicted of assaulting federal officers in violation of 18 U.S.C. section 111 and was sentenced under U.S.S.G. 2A2.2. The 2nd Circuit rejected defendant’s argument that an official victim enhancement under section 3A1.2 was impermissible double counting, even though the offense of conviction required the government to prove that defendant assaulted a government official. First, the guideline, unlike the statute, required the defendant to know he was assaulting an official victim. Thus, the guideline enhances for an additional factor that will not be present in every conviction under section 111. Second, the guidelines clearly contemplate an official victim adjustment under section 2A2.2. Application note 1 to section 2A2.4 instructs the court not to apply the enhancement unless subsection (c) requires the offense level to be determined under section 2A2.2. Here, defendant’s offense level was determined under section 2A2.2. U.S. v. Padilla, 961 F.2d 322 (2nd Cir. 1992).
2nd Circuit applies assault guideline rather than obstructing officers guideline. (210) For attempting to hit three DEA agents with a van, defendant was convicted of assaulting federal officers in violation of 18 U.S.C. section 111. The 2nd Circuit rejected defendant’s contention that the district court should have sentenced him under 2A2.4, for obstructing or impeding officers, rather than section 2A2.2, for aggravated assault. Even though the indictment did not allege that defendant intended to injure the agents, there was no question that the underlying conduct fit the definition of aggravated assault. The court distinguished U.S. v. McCall, 915 F.2d 811 (2nd Cir. 1990), which held that the guideline must be selected only on the conduct charged in the indictment rather than a defendant’s relevant conduct. A cross-reference in section 2A2.4(c) states that if a defendant is convicted under 18 U.S.C. section 111 and the conduct constitutes aggravated assault, section 2A2.2 applies. The word “conduct” refers to a defendant’s actual conduct, not the conduct charged in the indictment. U.S. v. Padilla, 961 F.2d 322 (2nd Cir. 1992).
2nd Circuit upholds first degree murder as most analogous offense even though crime was second degree murder under state law. (210) Defendant was convicted of conspiring to participate in a racketeering enterprise based in part upon his involvement in a murder. The 2nd Circuit upheld the district court’s use of the first degree murder guideline to establish defendant’s base offense level, even though New York law would have categorized the murder as only second degree murder. The district court’s task under guideline section 2E1.1 was to find the offense level corresponding to the most analogous federal offense. A person is guilty of second degree murder under New York law when, with intent to cause the death of another, he causes the death of such person or third person. First degree murder is defined under federal law, 18 U.S.C. section 1111, as a “willful, deliberate, malicious and premeditated killing.” U.S. v. Minicone, 960 F.2d 1099 (2nd Cir. 1992).
2nd Circuit holds court must impose life imprisonment for first-degree murder. (210) Defendant was convicted of first-degree murder, and pursuant to 18 U.S.C. § 1111 sentenced to life imprisonment without parole. The 2nd Circuit rejected defendant’s argument that the Sentencing Reform Act and the sentencing guidelines conferred on a sentencing court the discretion to impose a lesser sentence. The abolition of parole under the sentencing guidelines did not change this analysis. A life sentence without the possibility of parole did not violate the 8th Amendment’s prohibition against cruel and unusual punishment. U.S. v. Gonzalez, 922 F.2d 1044 (2nd Cir. 1991).
2nd Circuit holds that violent assaults committed in furtherance of racketeering activities constituted continuing crimes. (210) Defendant committed four assaults, three of which occurred prior to the effective date of the guidelines. The assaults were committed on the instructions of the leader of a violent narcotics ring of which defendant was a member. The 2nd Circuit found that the guidelines were applicable. Defendant’s string of assaults was a continuing offense committed to maintain and increase his position in an enterprise engaged in racketeering activity. Since one of the assaults occurred after the effective date of the guidelines, defendant’s criminal conduct was a “straddle” crime to which the guidelines applied. U.S. v. McCall, 915 F.2d 811 (2nd Cir. 1990).
2nd Circuit holds that applicable guidelines section must be based upon offense of conviction. (210) Defendant pled guilty to aggravated assault, but the district court determined that defendant had acted with a “depraved indifference to human life,” and applied the guideline section for assault with intent to commit murder. The 2nd Circuit reversed, holding that the applicable guideline section must be determined with reference to the offense of conviction, not to defendant’s other conduct. To sentence defendant on the basis of another guideline section, the parties should have sought a stipulation to the more serious offense pursuant to guideline § 1B1.2(a). Defendant’s agreement to describe his assaults at the time of his plea did not constitute the necessary stipulation, but rather an agreement to make available to the court information concerning the assaults for the purpose of evaluating the specific offense characteristics and evidence of relevant conduct. U.S. v. McCall, 915 F.2d 811 (2nd Cir. 1990).
3rd Circuit upholds finding that defendant committed aggravated assault. (210) During defendant’s fight with Navarro, a shot was fired. The two men separated, with defendant holding the gun. Neither had been struck by the bullet or sustained serious injury. Defendant pointed the gun at Navarro, but then pointed the gun upward and fired a single shot. Both men then left the scene. Defendant was convicted of being a felon in possession of a firearm. The district court found that the confrontation with Navarro constituted an aggravated assault, and increased his offense level under § 2K2.1(b)(5). The Third Circuit held that the finding that defendant committed aggravated assault was supported by a preponderance of the evidence. Navarro testified that he did not enter the fight with any weapons. The firearm was produced in some manner during the altercation, and soon thereafter, the firearm discharged. The precise circumstances of the fight were matters of reasonable speculation, but the testimony from Navarro could reasonably be interpreted as showing that defendant purposely pulled the firearm out during the fight and fired at Navarro with the intent to cause serious bodily harm. This supported the aggravated assault finding. U.S. v. Grier, 475 F.3d 556 (3d Cir. 2007) (en banc).
3rd Circuit says Apprendi bars sentence for “non-simple assault” and resulting career offender finding. (210) The jury found defendant guilty of assaulting a federal officer under 18 U.S.C. § 111(a), but failed to convict on two counts of assault with a dangerous weapon under 18 U.S.C. § 111(b). At sentencing, defendant argued that his actions amounted to nothing more than “simple assault” which carries a maximum term of one year. Nevertheless, the district court noted that § 111(a) also provides for three years’ imprisonment in “all other cases” of assault, and concluded that defendant’s crime was “non-simple assault.” On appeal, the Third Circuit reversed, holding that § 111(a) describes two separate offenses, and the district court’s finding that defendant was guilty of “non-simple assault” exceeded the “simple assault” found by the jury. This finding violated Apprendi v. New Jersey, 530 U.S. 466 (2000) because it increased the statutory maximum to three years. In addition, by increasing the maximum term of imprisonment beyond one year, the assault qualified as a “crime of violence” for purposes of the career offender guideline § 4B1.1, which increased defendant’s Criminal History Category from V to VI. The sentence was reversed. U.S. v. McCulligan, 256 F.3d 97 (3d Cir. 2001).
3rd Circuit uses first-degree murder guideline where statute provided for life in prison or death. (210) Defendant was convicted of murdering a witness in violation of 18 U.S.C. § 1512(a)(1)(A) and (C). The district court applied § 2A1.1(a), the guideline for first-degree murder. Defendant contended this was error because the jury did not find that the killing was first degree murder. The Third Circuit found it unnecessary to resolve this issue because § 1512(a)(2)(A) provides the punishment shall be death or life imprisonment where the killing constitutes murder, regardless of whether it is first-degree or second-degree murder. Defendant did not argue that the killing here was manslaughter. U.S. v. Bell, 113 F.3d 1345 (3rd Cir. 1997).
3rd Circuit holds weapon increase for aggravated assault was not double counting. (210) Defendant, a police officer, was convicted of several counts of using excessive force for striking suspects with a flashlight. He argued that an enhancement under § 2A2.2(b)(2)(B) for using a dangerous weapon was improper double counting because the weapon had already been considered by the district court in classifying his conduct as an aggravated assault. The Third Circuit, agreeing with a majority of the circuits, held that the dangerous weapon enhancement for the aggravated assault was not improper double counting. The aggravated assault guideline is triggered if the conduct involved a dangerous weapon with intent to do bodily harm. By contrast, the specific offense enhancements deal with the relative level of involvement of that dangerous weapon in the offense. The conclusion is not different when the weapon is an ordinary object, such as the large flashlight used by defendant Moreover, even if there was double counting, it was permissible because it explicitly was mandated by the clear language of § 2A2.2. U.S. v. Johnstone, 107 F.3d 200 (3d Cir. 1997).
3rd Circuit affirms upward departure based upon multiple assault victims. (210) Defendant and a codefendant assaulted three Assistant U.S. Attorneys but pled guilty to assaulting only one of them. The district court departed upward by three levels based on defendant’s assault of multiple victims. The 3rd Circuit affirmed, finding no evidence that the sentencing commission considered multi-victim aggravated assaults in formulating guideline § 2A2.2(b)(1). The three-level departure was also reasonable, even though only two additional victims were involved. The district court structured the departure using the concept of grouping the counts, treating defendant as if he had been convicted of three counts of aggravated assault. U.S. v. Johnson, 931 F.2d 238 (3rd Cir. 1991).
3rd Circuit affirms that defendant who pointed gun at victim’s head “otherwise used” the weapon. (210) Defendant approached his victim with a gun, pointed it at her head from a distance of one to two feet, ordered her not to start her car or he would “blow [her] head off,” and demanded her money. The 3rd Circuit affirmed the district court’s determination that defendant “otherwise used” the weapon, rather than merely “brandishing” it. The court construed brandishing a weapon as “denoting a generalized rather than a specific threat.” In this case, defendant did not simply point or wave the firearm, but leveled it at his victim’s head and made a specific threat. U.S. v. Johnson, 931 F.2d 238 (3rd Cir. 1991).
3rd Circuit rules that victim adjustment applies to solicitation for murder even if target is a federal officer. (210) Defendant was convicted of soliciting a person to commit a crime of violence; namely the murder of his U.S. parole officer. He argued that he was subjected to cumulative punishment in violation of the double jeopardy clause when the sentencing court enhanced his offense level by three points because the intended victim was a federal officer (§ 3A1.2). The 3rd Circuit disagreed, holding that 3A1.2, which provides that the enhancement is not applicable if the offense guidelines specifically incorporate this factor, did not preclude its application in this case. Nothing in 18 U.S.C. § 373(a) suggests that the offense is in any way dependant upon the status of the victim, unlike 18 U.S.C. § 1114, wherein the enhancement would not be warranted. U.S. v. McNeill, 887 F.2d 448 (3rd Cir. 1989).
3rd Circuit holds that victim related enhancements apply to solicitation offenses. (210) The Commentary to § 2A1.2 provides that no enhancements should be applied in the case of solicitation. The 3rd Circuit held that this language only prohibited the application of specific offense characteristics, but not victim, role and obstruction of justice enhancements. The court relied on § 1B1.1, which governs the manner of sentence determination, to affirm the use of a victim related enhancement in a solicitation to murder case. U.S. v. McNeill, 887 F.2d 448 (3rd Cir. 1989).
3rd Circuit rules that conviction for 1st degree murder carries a mandatory life term of imprisonment. (210) Defendant was convicted of the first degree murder of his wife, an army sergeant, after the jury rejected his voluntary manslaughter defense. The district court sentenced him to the mandatory term of life without parole. He appealed, claiming that the enactment of 18 U.S.C. § 3581(b), § 3559, and the guidelines confer upon the district court the discretion to depart from the mandatory life term carried by 18 U.S.C. § 1111 (murder). The 3rd Circuit rejected his argument, finding no support for that conclusion in either the language or legislative history of those statutes or the guidelines. (Sections 5G1.1 or 2A1.1) The court held that first degree murder convictions are punishable by life imprisonment, unless some ground for departure is warranted. U.S. v. Donley, 878 F.2d 735 (3rd Cir. 1989).
4th Circuit upholds cross-reference to second-degree murder guideline. (210) Defendant was convicted of illegal possession of a firearm. Because he had used the firearm on the day of his arrest to shoot another person, the district court used the cross-reference in § 2K2.1(c) to apply the attempted second-degree murder guideline. Defendant argued that the facts in the PSR failed to establish the elements of attempted second-degree murder, and at most supported a finding of attempted voluntary manslaughter. The Fourth Circuit upheld the district court’s use of the cross-reference. Defendant reignited a previous dispute with the victim, Chaplin, by driving across town to retrieve his gun hours after an initial altercation, warning neighbors that he intended to use the firearm on Chaplin. Defendant then made good on his threat, telling Chaplin “I should kill you” before firing three shots, two of which hit Chaplin. Even if Chaplin shared some blame by virtue of his decision to confront defendant, defendant was “not angry” or in danger when he drew his firearm and pursued the fleeing Chaplin. These facts exhibited the wanton behavior that warranted an inference of malice. U.S. v. Ashford, 718 F.3d 377 (4th Cir. 2013).
4th Circuit rejects use of murder cross-reference where neither conviction nor cross-referenced offense was groupable. (210) Defendant was convicted of being a felon in possession of a firearm based on an incident with his girlfriend. However, the bulk of his sentencing hearing was devoted to testimony about a home invasion robbery and murder that occurred one week after the offense of conviction. The district court found that the murder was relevant conduct to the firearm offense, and applied the cross-reference in § 2K2.1(c)(1) to the murder guideline, § 2A1.1. The Fourth Circuit found sufficient evidence that defendant committed the murder. However, the murder was not relevant conduct under § 1B1.3(a)(2), and thus did not support application of the § 2K2.1(c)(1) cross-reference. The relevant conduct guideline applies where the offenses would require grouping of multiple counts under § 3D1.2. Although there is a circuit split on this issue, the panel held that subsection (a)(2) is applicable only when both the offense of conviction and the relevant conduct offense are capable of grouping. U.S. v. Horton, 693 F.3d 463 (4th Cir. 2012).
4th Circuit uses first-degree murder guideline for firing firearm into crowded parking lot. (210) Defendant sprayed 22 rounds of an AK-47 assault rifle into a crowded night club parking lot, killing a man sleeping in a car. He was convicted of being a felon in possession of a firearm. The district court applied the cross-reference in § 2K2.1(c)(1) to sentence defendant under the first-degree murder guideline, § 2A1.1. The Fourth Circuit held that the district court did not err in finding that first-degree murder was the appropriate cross-reference for defendant’s firearm offense. It was not necessary that the defendant intend to kill the specific individual who died. Here, many facts supported the view that defendant behaved willfully, deliberately, maliciously, and with premeditation, including the fact that he had previously threatened mayhem at the club, and the fact that he kept firing until he emptied his magazine. The court properly applied the first-degree murder reference. U.S. v. Wright, 594 F.3d 259 (4th Cir. 2010).
4th Circuit remands for court to explain basis for dangerous weapon enhancement. (210) Defendant, a civilian contractor, was convicted of felony assault resulting in serious bodily injury, and three counts of simple assault, arising out of beatings he inflicted on an Afghan national at a U.S. Army outpost in Afghanistan. The district court applied a three-level enhancement for the threatened use of a dangerous weapon, presumably based on defendant’s use of a heavy flashlight or his shod foot to beat the victim. Defendant argued that the court erred because the jury found that defendant had actually kicked the victim, rather than threatening to kick him. The government agreed that the court erred and it should have applied the four-level enhancement for actual use of a dangerous weapon. The Fourth Circuit remanded for further findings. Although at sentencing, the parties and court discussed the boot and flashlight, the court ultimately applied the dangerous weapon enhancement with no explanation. U.S. v. Passaro, 577 F.3d 207 (4th Cir. 2009).
4th Circuit vacates where court may have incorrectly equated reckless indifference to knowing behavior. (210) 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 upholds cross-reference for death during drug offense. (210) Evidence at sentencing showed that defendant shot and killed Johnson during a drug-related altercation. Finding the evidence of the killing persuasive, even though defendant was not indicted and convicted of murder, the sentencing court set the base offense level of 43, relying on § 2D1.1(d)(1) (death during drug offense) in combination with § 2A1.1 (murder). Defendant argued that this was inappropriate, given that (a) he was never tried by a jury and convicted of murder, and (b) even if the standard for proving murder was more relaxed in the sentencing context, there still was not enough evidence to prove he actually committed the murder. The Fourth Circuit upheld the cross-reference, finding that a preponderance of the evidence supported the court’s finding that defendant killed Johnson. At sentencing, a deputy testified to statements made by three witnesses, all of whom implicated defendant in the killing. Defendant’s “real complaint is that he was, in effect, tried and sentenced for first degree murder without the benefit of a jury finding the same beyond a reasonable doubt.” However, this method of “real offense” sentencing does not offend the Constitution. U.S. v. Carter, 300 F.3d 415 (4th Cir. 2002).
4th Circuit upholds use of murder guideline for drug conspirators. (210) The guidelines direct that in sentencing drug offenders, the court must enhance the sentence when a killing occurs in the course of a drug trafficking conspiracy “under circumstances that could constitute murder under 18 U.S.C. § 1111.” USSG § 2A1.1. The jury’s acquittal of defendant on the murder count in the indictment did not prevent the sentencing court from considering conduct underlying the charged drug crimes so long as such conduct has been proved. The Fourth Circuit affirmed the district court’s use of § 2A1.1 here. Even if the clear and convincing evidence standard applied, as contended by defendant, the government produced sufficient evidence that defendant fired the fatal shot, and did so in furtherance of his drug conspiracy. The panel also ruled that co-conspirator Jones was properly sentenced under § 2A1.1. Jones’s role as an “enforcer,” who inflicted beatings on those who interfered with the workings of the drug conspiracy, made the murder foreseeable to him. U.S. v. Montgomery, 262 F.3d 233 (4th Cir. 2001).
4th Circuit says presence of deadly weapon or bodily injury are elements of separate offenses, not sentencing factors. (210) Defendant was convicted of assaulting a federal officer, in violation of 18 U.S.C. § 111(b). Section 111 provides maximum penalties of (i) one year for simple assault, or an assault not involving physical contact, (ii) ten years for assault involving use of a dangerous or deadly weapon or infliction of bodily injury, and (iii) three years for all other assaults. The Fourth Circuit held that the presence of bodily injury or use of a deadly or dangerous weapon are essential elements of an offense under § 111(b), rather than mere sentencing enhancements. Thus, they must be charged in the indictment and proved to a jury beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466 (2000). The indictment here failed to allege infliction of bodily injury, and the element of bodily injury was not submitted to the jury. However, the district court made a finding at sentencing that defendant inflicted bodily injury, and sentenced him to ten years. This ten-year sentence for an offense element – infliction of bodily injury – that was neither charged in the indictment nor proved to the jury constituted plain error. The error affected defendant’s substantial rights because it exposed him to a term of imprisonment greater than the statutory maximum for the crime of which he was convicted. U.S. v. Campbell, 259 F.3d 293 (4th Cir. 2001).
4th Circuit rejects challenge to life sentence. (210) Defendant was convicted of murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(1) and use of a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c). Under guideline section 2A1.1, his offense level for the first-degree murder was 43, requiring a sentence of life imprisonment. Defendant argued that the Sentencing Commission’s decision to impose a presumptive life sentence for violations of § 1959(a)(1) was beyond its statutory authority. He also contended that his life sentence was invalid because it infringed on his right to a jury trial. If he had pled guilty, he would have been eligible for an acceptance of responsibility reduction and thus could have reduced his guideline range to 360 months to life. The Fourth Circuit upheld the life sentence. Defendant’s arguments rested on two inaccurate assumptions. First, defendant assumed that judges have no discretion to sentence a § 1959(a)(1) defendant to less than life imprisonment. However, judges may adjust a sentence downward for a number of reasons, including substantial assistance to the government and acceptance of responsibility. Defendant also incorrectly assumed that a defendant who insists on going to trial cannot receive an acceptance of responsibility reduction. However, note 2 to § 3E1.1 makes clear that conviction by trial does not automatically preclude a defendant from receiving a § 3E1.1 reduction. U.S. v. Gray, 137 F.3d 765 (4th Cir. 1998).
4th Circuit approves use of murder guideline for drug defendant who killed rival drug dealer. (210) Defendant was convicted of drug and firearms charges, but the district court sentenced him under § 2A1.1, the murder guideline. Section 2D1.1(d)(1) provides that a drug defendant must be sentenced under § 2A1.1 if a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 111. The Fourth Circuit affirmed. Defendant had accosted a rival drug dealer for the purpose of robbing him of cocaine base that defendant believed the victim had on his person. Defendant pulled the trigger that killed the dealer. One witness testified that he watched defendant shoot the victim. Two co-conspirators testified that defendant had gone to a certain restaurant to rob the dealer. U.S. v. Crump, 120 F.3d 462 (4th Cir. 1997).
4th Circuit, by equally divided en banc court, affirms departure from 2nd-degree murder guideline. (210) 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 U.S. v. Barber, 119 F.3d 276 (4th Cir. 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, en banc, rejects departure from murder guideline for use of gun. (210) Defendant pled guilty to second-degree murder after shooting a drug dealer. The district court departed upward under § 5K2.6 based in part on the use of a dangerous weapon–a firearm. The Fourth Circuit, en banc, held that the use of a gun to commit a second-degree murder is not grounds for departure absent extraordinary circumstances. Using a weapon or dangerous instrumentality to commit second-degree murder is within the heartland of conduct encompassed by § 2A1.2. The overwhelming majority of murders are committed with a weapon. Departure based on an encouraged factor that is taken into account is permitted if the factor is present to an extraordinary degree. There was nothing in the record to suggest that the use of the gun here was extraordinary. 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 rules assimilated crime was more like aggravated assault than property damage. (210) Defendants shot at an occupied vehicle in a national forest, and were convicted under the Assimilative Crimes Act. The Fourth Circuit upheld the use of the aggravated assault guideline, § 2A2.2(a), rather than the property damage or destruction guidelines, § 2B1.3(a). The indictment described conduct much more serious than simple property damage. It charged that defendants acted with malice and that they actually imperiled the life of another person. Although aggravated assault did not perfectly describe defendants’ conduct, a perfect match was not required. U.S. v. Terry, 86 F.3d 353 (4th Cir. 1996).
4th Circuit applies § 2A1.1 where death resulted from explosive. (210) Defendant sent an explosive to his business partner, intending to kill him. The explosive injured the partner and killed his son. Defendant was convicted of violating 18 U.S.C. § 844(i), maliciously destroying a building with an explosive. Section 2K1.4(c)(1) directs that when death results from the use of an explosive, the court is to apply the “most analogous” guideline. The Fourth Circuit agreed that § 2A1.1, the guideline for first degree murder, was the most analogous guideline since death resulted from the use of the explosive. This resulted in an offense level of 43. The district court was free to depart downward if defendant did not cause the death intentionally. However, defendant did not move for such a departure and one was not warranted because the district court found that the victim’s death was a premeditated killing in which defendant acted with malice. U.S. v. Gullett, 75 F.3d 941 (4th Cir. 1996).
4th Circuit considers good time credit in deciding whether sentence exceeds life expectancy. (210) Defendant used an explosive to commit murder. The arson statute, 18 U.S.C. § 844(i), provides that where death results, the sentence shall be for any term of years, or death, or life imprisonment, as provided in 18 U.S.C. § 34. The Fourth Circuit agreed that the pre‑1994 version of § 34 in effect when defendant was sentenced barred the district court from imposing a sentence that exceeded defendant’s life expectancy, in the absence of a jury recommendation. However, the 38‑year sentence imposed did not exceed defendant’s 33.8 year life expectancy, if good‑time credits were considered. With good‑time, defendant would serve 33.1 years. To bar consideration of such credits would reward a defendant who says he is going to be a troublemaker in prison. U.S. v. Gullett, 75 F.3d 941 (4th Cir. 1996).
4th Circuit holds that Sentencing Reform Act abolished parole for murderer’s life sentence. (210) Defendant received a sentence of life imprisonment without parole for first-degree murder, in violation of 18 U.S.C. section 1111. The 4th Circuit rejected defendant’s argument that the Sentencing Reform Act of 1984 did not abolish parole for a sentence of life imprisonment under section 1111. Prior to the Sentencing Reform Act, two sections, 18 U.S.C. section 4206(d) and 4205(a), provided the possibility of parole for those sentenced to life under section 1111. Those two sections were repealed by the Sentencing Reform Act. The fact that neither the Act nor its legislative history specifically expresses the intent to abolish parole for life sentences was irrelevant. U.S. v. Analla, 975 F.2d 119 (4th Cir. 1992).
4th Circuit rules attempted murder guideline should apply to attempt to blow up husband. (210) Defendant pled guilty to four firearms offenses as a result of two instances where she attempted to blow up her ex-husband. Following cross-references in the firearms guidelines, the court applied guideline section 2X1.1. Relying on section 2S1.1(a), the district court found that because defendant intended to kill her ex-husband, the “object offense” was first degree murder. Defendant was sentenced accordingly, although the court departed downward from the offense level for first degree murder to the level for second degree murder. The 4th Circuit reversed, ruling that the district court should have applied the attempted murder guideline, section 2A2.1. Once the district court applied the attempt guideline (section 2X1.1), it then should have determined whether a specific guideline covered defendant’s attempted offense, i.e., the guideline for attempted murder. U.S. v. Dickerson, 956 F.2d 46 (4th Cir. 1992).
4th Circuit applies aggravated assault guideline to inmate who threw chair at corrections officers. (210) The jury convicted defendant of using a deadly weapon during a prison riot and assaulting a correctional officer, based upon defendant’s act of throwing a chair at the officer. He contended that the court erred in sentencing him under guideline § 2A2.2 because his conduct did not amount to aggravated assault. In the alternative, he argued that it was error to increase his offense level under § 2A2.2(b)(3)(A) because his assault did not cause bodily injury. The 4th Circuit rejected the arguments. Even if the chair defendant threw did not cause a specific injury, defendant participated in and aided a riot in which assaults that caused bodily injuries occurred. The defendant was accountable for these injuries as relevant conduct under § 1B1.3. U.S. v. Bassil, 932 F.2d 342 (4th Cir. 1991).
4th Circuit groups all counts arising out of same assault. (210) Defendant was convicted of three different offenses arising out of his assault on a corrections officer. The district court found that defendant’s counsel had withdrawn his claim that Counts I and II should be grouped, and accordingly did not group any of the offenses. The government acknowledged that it was error not to group Counts I and II, and did not argue that the issue was not properly reserved for appeal. The 4th Circuit found that all counts against defendant should have been grouped for sentencing under guideline § 3D1.2(a). They all involved the same act or transaction, represented essentially the same injury, were part of the same criminal episode, and involved the same victim. U.S. v. Young, 916 F.2d 147 (4th Cir. 1990).
4th Circuit upholds increase in offense level for defective bomb. (210) The sentencing court determined that the bomb which defendant placed in a rival’s car was dangerous and was placed there to harm, not to warn. The base offense level was increased by three levels under U.S.S.G. 2A2.2(b)(2)(C) for the “brandished or threatened use of a dangerous weapon.” The 4th Circuit affirmed, finding that although the bomb failed to go off because it was not properly grounded, it was still a dangerous weapon. The sentencing court’s determination that the bomb was not an attempt to warn was not clearly erroneous. U.S. v. Foster, 898 F.2d 25 (4th Cir. 1990).
4th Circuit rules increase for more than minimal planning was not double punishment. (210) Defendant argued that he was subjected to double punishment when the court found his assault was aggravated and then raised the offense level by two for more than minimal planning. The 4th Circuit rejected this argument. Aggravation of an assault and amount of planning are merely factors for a district court to consider before arriving at a proper sentence. The court commented that “allocation of additional guilt for the more deliberate commission of a crime is entirely consistent with human experience,” citing the difference between murder and manslaughter as an example. U.S. v. Foster, 898 F.2d 25 (4th Cir. 1990).
5th Circuit finds Apprendi error in basing sentence on uncharged physical contact not submitted to jury. (210) Defendant was convicted of two counts of forcible assault on a police officer. She argued that the district court plainly erred by sentencing her to 21 months of imprisonment and two years of supervised release, because she was convicted of misdemeanors that were punishable by no more than 12 months of imprisonment. The parties agreed that there was plain error under Apprendi since the fact of physical contact with the officer (which would have transformed the misdemeanor to a felony) was neither charged in the indictment nor submitted to the jury. The Fifth Circuit found that the error affected defendant’s substantial rights and reversed. Although the district court could have imposed consecutive sentences, under the terms of § 5G1.2(d), it can do so “only to the extent necessary to produce a combined sentence equal to the total punishment” – i.e., the top of the guideline range. Any sentence above 18 months, the top of that range, would be an upward departure. The court made no findings in its written order of judgment supporting an upward departure, and there was no indication the court would have upwardly departed had it sentenced defendant under the correct guideline range. U.S. v. Williams, 602 F.3d 313 (5th Cir. 2010).
5th Circuit uses second-degree murder guideline where transporting aliens resulted in five deaths. (210) Defendant transported nine undocumented aliens in his SUV. While traveling at a high speed in an attempt to escape Border Patrol agents, defendant crashed the SUV, killing five of the aliens. The district court applied a cross-reference in the alien-transporting guideline to sentence defendant under the second-degree murder guideline, and the Fifth Circuit affirmed. Defendant was extremely reckless and demonstrated a wanton disregard for human life: he drank a substantial amount of beer en route to picking up the aliens and stopped to purchase more alcohol while transporting them; the aliens were not wearing any safety restraints; an infant was traveling in the arms of its mother in the front passenger seat; the number of passengers exceeded the maximum capacity of the vehicle; defendant evaded authorities by commencing a high speed flight; he continued to speed away even after agents terminated their pursuit; he was driving at a high rate of speed over railroad tracks in an area highly trafficked by both vehicles and pedestrians; and he transported the aliens for personal gain. U.S. v. Lemus-Gonzalez, 563 F.3d 88 (5th Cir. 2009).
5th Circuit holds that defendant who pointed shank and swung it at assault victim “otherwise used” the shank. (210) Defendant, a federal inmate, was convicted of forcibly assaulting a federal corrections officer, in violation of 18 U.S.C. § 111. Section 2A2.2 provides for a four-level enhancement if a dangerous weapon was “otherwise used,” and by three levels if a dangerous weapon was brandished or its use was threatened. “Otherwise used” means that the conduct did not amount to the discharge of a firearm, but was more than brandishing, displaying, or possessing the dangerous weapon. “Brandished” means that all of part of the weapon was displayed, or the presence of the weapon was otherwise made known to another person, in order to intimidate that person. Here, after hitting the officer and knocking him to the ground, defendant pulled out a shank (a homemade knife), and swung it at the officer. The Fifth Circuit upheld a § 2A2.2(b)(2)(B) increase for “otherwise using” the shank during the assault. Defendant did more than just display the shank, or make its presence known in order to intimidate. Defendant both pointed and swung the shank towards the officer. U.S. v. Williams, 520 F.3d 414 (5th Cir. 2008).
5th Circuit holds that factual impossibility barred application of cross-reference for “another offense.” (210) Defendant sold a bomb to an undercover agent who told defendant she wanted to use the bomb to kill her ex-husband. Explosives experts confirmed that the bomb would have worked. Section 2K1.3(c)(1) provides that if the defendant possessed or transferred any explosive material with knowledge or intent that it would be used in connection with another offense, the court should apply § 2X1.1 (Attempt, Solicitation, Conspiracy) in respect to that other offense if it would result in a greater offense level. The government argued that § 2A1.2, the guideline for attempted murder, should be applied because defendant knew that the bomb was going to be used to commit murder. The district court refused to apply the cross-reference, ruling that because this was a sting operation, there was no commission or attempted commission of another offense. The Fifth Circuit reversed, holding that the court legally erred in determining that factual impossibility rendered the application of the guideline inappropriate. Factual impossibility is not a defense to a charge of attempt. U.S. v. Rankin, 487 F.3d 229 (5th Cir. 2007).
5th Circuit holds that court erred in refusing to find whether degree of victim’s injury merited greater enhancement. (210) Defendant, a federal prisoner, was convicted of assaulting his cellmate with a dangerous weapon, in violation of 18 U.S.C. § 113(a)(3). The government requested a four-level enhancement based on the degree of victim’s injuries, § 2A2.2(b)(3)(D). The sentencing court refused, observing that defendant had not admitted that the victim had suffered any particular degree of injury, and finding that the Sixth Amendment required that the facts supporting the four-level enhancement either be admitted by defendant or found beyond a reasonable doubt. After sentencing, the Fifth Circuit issued U.S. v. Mares, 402 F.3d 511 (5th Cir. 2005), which, with the mandatory use of the guidelines excised, upheld a sentencing judge’s ability post-Booker to find by a preponderance of the evidence all the facts relevant to the determination of a guideline sentencing range. The Fifth Circuit held that the district court erred in refused to find the facts relevant to defendant’s guideline range by a preponderance of the evidence. The facts relevant to the application of § 2A2.2(b)(3)(D) did not subject defendant to a higher potential sentence. Defendant’s guilty plea by itself authorized a sentence of zero to 10 years’ imprisonment. Because application of § 2A2.2(b) (3)(D) had no mandatory effect on defendant’s sentence, the district court erred in declining to find the relevant facts by a preponderance of the evidence. U.S. v. Harper, 448 F.3d 732 (5th Cir. 2006).
5th Circuit holds that age enhancement for sexual contact with a minor constituted double counting. (210) Defendant was convicted of sexual contact with a minor under the age of 12, in violation of 18 U.S.C. §§ 1153, 2244(a)(1). After assigning defendant a base offense level of 10 under § 2A3.4(a)(3), the court imposed a six-level enhancement under § 2A3.4(b)(1) because the victim had not attained the age of 12. Defendant argued that age was factored twice in the calculation of his offense level of 16 – once in the calculation of base offense level 10, and subsequently in the six-level enhancement. The Fifth Circuit agreed that this constituted improper double counting. Defendant’s violation of § 2244 (a) required that the age of the victim be under 12. There are only two offenses covered by § 2A3.4 that are assigned a base offense level of 10: § 2244(a)(1) and § 2244(a)(3). Section 2244(a)(3) punishes sexual contact with child-victims between the ages of 12 and 16. The guidelines commentary specifically exempts only § 2244(a) (3) from an age enhancement. See Background Commentary. However, it cannot be that age was factored into the computation of base offense level as applied to § 2244(a)(3) offenses but not to § 2244(a)(1) offenses. Although the commentary does not explicitly state that § 2241(a)(1) is exempt from an age enhancement, the commentary does not control where it is plainly erroneous or inconsistent with the guidelines. U.S. v. John, 309 F.3d 298 (5th Cir. 2002).
5th Circuit finds child abuser engaged in more than minimal planning. (210) Examination of defendant’s three-month-old twin daughters revealed, in each child, between ten and twenty fractures that occurred on at least two separate occasions. Defendant acknowledged injuring the children and then not taking them to a doctor. He told his wife he did not know what was wrong with the arm of one of the girls, but later admitted to investigators that he had injured her when removing her from a car seat. On these facts, the Fifth Circuit found no clear error in the district court’s finding that defendant had engaged in “significant affirmative steps” to conceal the offense, and therefore it was proper to increase the offense level by two levels under § 2A2.2(b)(1) for “more than minimal planning.” U.S. v. Perrien, 274 F.3d 936 (5th Cir. 2001).
5th Circuit holds that enhancement based on severity of injury in aggravated assault was not double counting. (210) Defendant pled guilty to intoxication assault in violation of Texas law and the Assimilative Crimes Act, and was sentenced under the aggravated assault guideline. He argued that an enhancement based on the severity of his victim’s injuries constituted impermissible double counting because “the injury was already the reason for using the aggravated assault guideline instead of the driving while intoxicated guideline.” However, the Fifth Circuit has previously recognized that the guidelines do not contain a general prohibition against double counting. U.S. v. Box, 50 F.3d 345 (5th Cir. 1995). Rather, double counting is prohibited only if it is specifically forbidden by the particular guideline at issue. The prohibition must be in express language. Since there was no such prohibition against the enhancement of which defendant was complaining, the Fifth Circuit found no error here. U.S. v. Calbat, 266 F.3d 358 (5th Cir. 2001).
5th Circuit holds that aggravated assault is most analogous to drunk driving offense. (210) Defendant pled guilty to intoxication assault in violation of Texas law, and the Assimilative Crimes Act. The district court found that USSG § 2A2.2(a), the aggravated assault guideline, was the most analogous guideline. Defendant, however, argued that the involuntary manslaughter guideline, § 2A1.4 was more analogous because it, like the Texas law, encompassed recklessly driving a vehicle while intoxicated. The Fifth Circuit found no error. Although the federal assault statute, 18 U.S.C. § 113, does not specifically address driving while intoxicated, it does contain a provision which closely matches intoxication assault. Section 113(a)(6) punishes “assault resulting in serious bodily injury.” A specific intent to do harm is not an element of a § 113(a)(6) offense. Thus, the voluntarily consumption of alcohol followed by the operation of a motor vehicle while in a state of voluntary intoxication can satisfy the mens rea element of a § 113(a)(6) violation. Although the involuntary manslaughter guideline does address the specific behavior of driving while intoxicated, it also contains an element not present in this case, the death of the victim. Although it was odd that the use of the aggravated assault guideline resulted in a higher sentence than the use of the involuntary manslaughter guideline, courts cannot second guess the sentences established in the guidelines. U.S. v. Calbat, 266 F.3d 358 (5th Cir. 2001).
5th Circuit finds more than minimal planning where drunk driving defendant fled scene of accident. (210) Defendant pled guilty to intoxication assault in violation of Texas law, and the Assimilative Crimes Act. The district court applied a § 2A2.2(b)(1) more than minimal planning increase “not because the planning prior to the offense, but the planning to cover up the offense that occurred after the striking of the vehicle and [the victim].” The district court’s finding that defendant attempted to flee the scene of the crime was supported by adequate evidence and based on a credibility determination between the witnesses and was thus entitled to deference. Accordingly, the Fifth Circuit affirmed the enhancement. U.S. v. Calbat, 266 F.3d 358 (5th Cir. 2001).
5th Circuit rules RICO defendant properly sentenced under murder guideline. (210) Defendant was convicted of RICO charges. He argued that the jury did not make specific findings regarding underlying racketeering activities in convicting him, and the district court usurped the jury’s role in making those findings. The Fifth Circuit found that defendant was properly sentenced. Defendant was found guilty of two RICO conspiracy counts in violation of 18 U.S.C. § 1962. Both RICO counts including Racketeering Acts A (conspiracy to commit murder and murder) and B (murder) in violation of the laws of Mississippi. The applicable sentencing guideline, § 2E1.1, provides that the base level is the greater of 19 or the “offense level applicable to the underlying racketeering activity.” Here, the underlying activity involved violations of Mississippi murder statutes, and the district court properly analogized this offense to the federal first-degree murder guideline. U.S. v. Sharpe, 193 F.3d 852 (5th Cir. 1999).
5th Circuit finds “permanent or life-threatening bodily injury” to non-dominant hand. (210) Defendant tossed an FBI agent through a plate-glass door. Three tendons and some nerves in the agent’s left hand were severed and he experienced difficulty firing a gun with his left hand, which was his non-dominant hand. The surgeon estimated that the agent suffered a 10% to 20% loss of function in his left thumb from the tendon injuries and an additional 5% from the nerve damage. The surgeon also said the injuries were permanent. The Fifth Circuit held that the permanent injury to the victim’s non-dominant hand qualified as a “permanent or life-threatening bodily injury” under note 1(h) to § 1B1.1, and thus justified a seven level enhancement under § 2A2.2(b)(3). The plain language of note 1(h) encompasses injuries that may not be terribly severe but are permanent ¾ hence the disjunctive “permanent or life-threatening.” Absurdity is avoided by the requirement that the injury be “substantial.” U.S. v. Price, 149 F.3d 352 (5th Cir. 1998).
5th Circuit holds dangerous weapon enhancement was not improper double counting. (210) Defendant was convicted of assaulting a federal officer with a deadly weapon after he swerved his car into a federal agent’s car during a pursuit. He argued that because his vehicle, a non-dangerous object, only became a dangerous weapon when he used it to ram the agent’s car, the § 2A2.2(b)(2)(B) dangerous weapon enhancement was improperly based on the same conduct as his sentence for aggravated assault. The Fifth Circuit affirmed the dangerous weapon enhancement without deciding whether the guidelines distinguish between objects that are inherently dangerous weapons and ordinary objects that become dangerous through their use. Even assuming that a particular use is necessary to transform an ordinary object into a dangerous weapon, defendant used his car in two separate ways. First, he rammed the agent’s vehicle. Second, he engaged federal agents in a reckless, high-speed chase. This second dangerous use justified the enhancement for otherwise using a dangerous weapon. U.S. v. Morris, 131 F.3d 1136 (5th Cir. 1997).
5th Circuit agrees that defendant intended bodily harm when he swerved his car into pursuing vehicle. (210) Defendant led police on a high-speed car chase. At one point, he swerved his vehicle into a pursuing agent’s vehicle, causing the agent to veer off the road into a parking lot and towards a concrete embankment. A jury convicted defendant of assaulting a federal agent with a deadly weapon. The Fifth Circuit upheld the use of § 2A2.2, the aggravated assault guideline, finding sufficient evidence to support the court’s finding that defendant intended to cause bodily harm when he swerved his vehicle into the pursuing agent’s car. A number of law enforcement officers testified at trial that defendant intentionally rammed his car into the officer’s car hard enough to make it leave the road. Although the agent was not injured, the intent to do bodily harm could be inferred from defendant’s conduct. U.S. v. Morris, 131 F.3d 1136 (5th Cir. 1997).
5th Circuit rejects use of murder guideline in RICO case where murder conviction was reversed. (210) Defendants were members of a street gang that conspired to distribute drugs and committed violent crimes in aid of racketeering. The district court sentenced them under § 2A1.2, the second-degree murder guideline, rather than the alternative minimum base offense level provided in § 2E1.3, because a co-conspirator shot two men, and defendants told police that one of the men had reached for a gun immediately before the co-conspirator shot them. The PSR, which was adopted by the district court, found defendants statements were inconsistent with the jury’s verdict rejecting the co-conspirator’s claim of self-defense. Nevertheless, the Fifth Circuit reversed the use of the murder guideline because it previously vacated the co-conspirator’s murder conviction. The now-vacated conviction was the sole basis for the court’s determination that defendants lied to police. The district court plainly erred in resting its factual findings on a verdict that was later found to be infirm. U.S. v. Wilson, 116 F.3d 1066 (5th Cir. 1997), vacated in part on other grounds sub nom. U.S. v. Brown, 161 F.3d 256 (5th Cir. 1998) (en banc).
5th Circuit rejects use of murder guideline even though object of mail fraud was murder. (210) Defendant pled guilty to conspiracy to commit mail fraud and aiding and abetting mail fraud. The district court grouped the counts, and under § 3D1.2 and 3D1.3 purported to choose the offense level for the most serious offense. The court chose the offense level for murder because, relying on note 8 to § 3D1.2, and § 1B1.2(d) and note 5 to § 1B1.2, it concluded that murder was an object of the conspiracy. The Fifth Circuit held that conspiracy to commit murder could not be used to calculate the offense level because defendant was not charged with and did not plead guilty to conspiracy to commit murder. Both note 8 to § 3D1.2 and § 1B1.2(d) apply when a defendant is convicted of conspiring to commit more than one offense. Defendant was convicted of conspiring to commit only one offense, mail fraud. Note 5 to § 1B1.2 applies to cases in which the plea does not establish which offense was the object of the conspiracy. U.S. v. Aderholt, 87 F.3d 740 (5th Cir. 1996).
5th Circuit rejects use of murder guideline even though object of mail fraud was murder. (210) Defendant pled guilty to conspiracy to commit mail fraud and aiding and abetting mail fraud. The district court grouped the counts, and under § 3D1.2 and 3D1.3 purported to choose the offense level for the most serious offense. The court chose the offense level for murder because, relying on note 8 to § 3D1.2, and § 1B1.2(d) and note 5 to § 1B1.2, it concluded that murder was an object of the conspiracy. The Fifth Circuit held that conspiracy to commit murder could not be used to calculate the offense level because defendant was not charged with and did not plead guilty to conspiracy to commit murder. Both note 8 to § 3D1.2 and § 1B1.2(d) apply when a defendant is convicted of conspiring to commit more than one offense. Defendant was convicted of conspiring to commit only one offense, mail fraud. Note 5 to § 1B1.2 applies to cases in which the plea does not establish which offense was the object of the conspiracy. U.S. v. Aderholt, 87 F.3d 740 (5th Cir. 1996).
5th Circuit holds that pointing gun at victim’s head, while kicking him and deciding where to kill him, is aggravated assault. (210) The 5th Circuit affirmed that defendants were properly sentenced under §2A2.2 (aggravated assault), rather than §2A2.4 (obstructing or impeding officers). Section 2A2.4 is meant to apply to possession of weapons and verbal threats, while section 2A2.2 is meant to apply to something more. Defendant’s actions in pointing a cocked and loaded firearm at the victim’s head, while kicking him and deciding where to kill him, fit within the definition of an aggravated assault under section 2A2.2. U.S. v. Hooker, 997 F.2d 67 (5th Cir. 1993).
5th Circuit upholds departure based on serious bodily injury to third party. (210) 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 holds arson resulting in death analogous to first-degree murder. (210) Defendant hired his nephew to burn down his store, and the nephew was killed in the fire. Section 2K1.4(c) provides that if death results from the arson, the most analogous guideline applies if it has a higher offense level. The 5th Circuit held that the most analogous guideline was first-degree murder (2A1.1), rather than involuntary manslaughter (2A1.4). The definition of murder under 18 U.S.C. 1111(a) is broad enough to include cases in which an arsonist’s accomplice dies during the commission of the felony. Moreover, section 2A1.1 is specially designed to guide courts in sentencing for felonies in which death results. The district court improperly applied the manslaughter guideline, but since the government did not cross-appeal, it waived any challenge to the district court’s misapplication of the guidelines. U.S. v. El-Zoubi, 993 F.2d 442 (5th Cir. 1993).
5th Circuit upholds sentencing under section 2A2.2 for sexual assault of infant. (210) Defendant was convicted of aggravated sexual abuse of a child and causing bodily injury to a child. The 5th Circuit upheld sentencing defendant under section 2A2.2 on the bodily injury count. The district court relied on a finding that defendant injured his victim with intent to commit another felony — the sexual assault. The conviction for sexual assault was supported by the evidence. U.S. v. Bell, 993 F.2d 427 (5th Cir. 1993).
5th Circuit finds defendant’s Mexico conviction analogous to second-degree murder. (210) Defendant was convicted of “simple intentional homicide” in Mexico and transferred to the United States by treaty. The treaty authorized the Parole Commission to determine the sentence under the Sentencing Guidelines. The Parole Commission concluded that defendant’s crime was most analogous to the crime of second-degree murder, and the Fifth Circuit affirmed. While one of defendant’s confessions might support the conclusion that he killed in the heat of passion, and therefore was only guilty of manslaughter, the other supported the Parole Commission’s view. Lara v. U.S. Parole Commission, 990 F.2d 839 (5th Cir. 1993).
5th Circuit affirms official victim enhancement for defendant who assaulted federal officer. (210) Defendant was convicted of assaulting a federal officer in violation of 18 U.S.C. section 111. Following its decision in U.S. v. Kleinebreil, 966 F.2d 945 (5th Cir. 1992), the 5th Circuit rejected defendant’s argument that an official victim enhancement under section 3A1.3 constituted double counting. Pursuant to the cross-reference in section 2A2.4 (Obstructing or Impeding Officers), defendant was sentenced under section 2A2.2 (Aggravated Assault). Unlike the base offense level for section 2A2.4, the base offense level for section 2A2.2 does not reflect the fact that the victim was a government official. U.S. v. Kings, 981 F.2d 790 (5th Cir. 1993).
5th Circuit upholds official victim enhancement for defendant convicted of assaulting federal officer. (210) Defendant was convicted of assaulting a federal officer in violation of 18 U.S.C. section 111. He contended that an enhancement under section 3A1.1 based upon the official status of the victim was impermissible because the victim’s official status was an essential element of the offense. The 5th Circuit upheld the enhancement, since guideline section 2A2.2, the guideline under which defendant was sentenced, did not reflect the official status of the victim. The Statutory Index lists either section 2A2.2 (Aggravated Assault) or section 2A2.4 (Obstructing or Impeding Officer) for section 111 violations. Section 2A2.4 does specifically incorporate the official status of the victim. However, it also specifically states that if the conduct constituted aggravated assault, apply section 2A2.2. Unlike the offense level for section 2A2.4, section 2A2.2 does not reflect the fact that the victim was a government official. U.S. v. Kleinebreil, 966 F.2d 945 (5th Cir. 1992).
5th Circuit reverses enhancement because only city police officer was injured during assault. (210) During a confrontation with DEA agents and Houston police officers, defendant wounded a Houston police officer. He also fired upon a DEA agent, who escaped injury. Defendant was convicted of assaulting a federal officer with a deadly weapon. The 5th Circuit reversed an enhancement under guideline section 2A2.2(b)(3) for causing serious bodily injury to the victim, since the victim in this case, the DEA agent, was uninjured. A plain reading of the term “victim” in section 2A2.2(b)(3) leads to the conclusion that the “victim” must be the object of the aggravated assault. There was no justification for enhancing defendant’s sentence based upon the injuries to the city police officer. U.S. v. Moore, 958 F.2d 646 (5th Cir. 1992).
5th Circuit affirms enhancing sentence for firearms offense where weapon was used to commit murder. (210) The court properly enhanced defendant’s firearms sentence under § 2K2.1, finding that defendant committed murder during the course of a drug conspiracy. Section 2K2.1(c)(2) directs a court to apply § 2X1.1 if the firearm was used or possessed in connection with another offense, and to use the guideline for the other offense if it is more specific. Murder is covered by § 2A1.1. The 5th Circuit found that defendant’s offense was not a justifiable homicide. He sought his victim, laid in wait, and with the help of his brother, provoked the argument that resulted in the victim’s death. Defendant received adequate notice of the government’s intent to seek enhancement of his sentence under § 2K2.1. Evidence relating to the homicide was presented at the sentencing hearing, and defendant had an opportunity to cross-examine the government’s witness or introduce his own evidence, but failed to do so. U.S. v. Harris, 932 F.2d 1529 (5th Cir. 1991).
5th Circuit upholds upward adjustment for use of a firearm in aggravated assault. (210) In calculating defendant’s sentence for possession of an unregistered firearm, the district court relied on U.S.S.G. 2K2.2, which provides that “[i]f the defendant used the firearm in committing .ÿ.ÿ. another offense,” the guideline for that offense should be used if it is higher than the firearms guideline. Pursuant to this section, the court applied the aggravated assault guideline, § 2A2.2. The 5th Circuit affirmed, noting that the firearms guidelines properly take into account the true nature of the underlying conduct. The district court’s factual finding that defendant used the shotgun to commit aggravated assault was not clearly erroneous. U.S. v. Perez, 897 F.2d 751 (5th Cir. 1990).
6th Circuit approves downward variances in terrorism case. (210) Defendant was part of a group of men convicted of conspiracy to kill and maim persons outside the United States, and related charges. The advisory guideline sentence for each was life in prison. The district court varied downward, sentencing one defendant to 240 months, the second to 144 months, and the third to 100 months. The government argued that the sentences were both procedurally and substantively unreasonable. The Sixth Circuit disagreed. There was more than enough evidence that would reflect positively on the nature and characteristics of the defendants’ history to counsel a downward variance. As for the need to avoid sentencing disparities, the terrorism cases cited by the government had significant factual dissimilarities from the instant case. While defendants conspired to obtain explosives, they never managed to obtain them. There was no evidence that defendants were affiliated with Al-Qaeda or any other terrorist group, or that they actually killed anyone. U.S. v. Amawi, 695 F.3d 451 (6th Cir. 2012).
6th Circuit upholds dangerous weapon increase for striking officer with plastic pitcher. (210) Defendant struck a Deputy United States Marshal in the head with a plastic water pitcher at the conclusion of a trial, and pled guilty to assaulting a federal officer. The district court found that the pitcher constituted a “dangerous weapon,” and applied a four-level enhancement under § 2A2.2(b)(2)(B). The Sixth Circuit affirmed. A “dangerous weapon” is defined as having “the meaning given that term in § 1B1.1, Application Note 1, and includ[es] any instrument that is not ordinarily used as a weapon (e.g., a car, a chair, or an ice pick) if such an instrument is involved in the offense with the intent to commit bodily injury.” The pitcher was made of a very hard plastic material, had a six-inch handle, weighed about half of a pound to a pound when empty, and may have contained some water. These characteristics increased the energy that an attacker would be able to impart when striking a victim. It was reasonable to infer that such a water pitcher, swung with sufficient force and proper aim, was capable of inflicting serious bodily harm as defined by the guidelines. U.S. v. Tolbert, 668 F.3d 798 (6th Cir. 2012).
6th Circuit finds court did not improperly double count victim’s injuries. (210) 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, 628 F.3d 246 (6th Cir. 2010).
6th Circuit affirms second-degree murder guideline for officer involved in death of prisoner. (210) Defendant, a corrections officer, was convicted of conspiracy to violate the rights of detainees and prisoners of the county jail. He faced a life sentence because the jury found that his denial of medical care resulted in the death of a prisoner who had been beaten by another corrections officer. The civil rights guideline, §2H1.1(a), required the court to apply the offense level for the underlying offense, i.e., homicide. The Sixth Circuit held that the district court did not clearly err in using the second degree murder guideline, 2A1.2, rather than the manslaughter guideline, 2A1.4, as the underlying offense. The judge explained that, in his view, the record reflected malice aforethought and culpability for second degree murder. Although defendant insisted that he did not know that another officer had struck the victim in the head, the evidence showed that not only had defendant himself beat the victim twice – striking him in the head both times – but that defendant had asked the other officer to “take care of” the victim when he starting banging on his door again. The officer understood this to mean that he should use whatever force it took to make the victim stop banging on the door, and proceeded to deliver several full-powered punches to the side of the victim’s head that caused his head to bounce against the concrete wall each time. The victim was quiet after that, and defendant should have known that the other officer had silenced him by beating him. U.S. v. Conatser, 514 F.3d 508 (6th Cir. 2008).
6th Circuit upholds life sentence for supervisor who failed to provide medical care to prisoner. (210) Defendant and several other corrections officers were convicted of conspiracy to violate the rights of detainees and prisoners of the county jail. Defendant, the supervisor of one of the shifts, was also convicted of six substantive charges, and received a life sentence for his role in assaulting one prisoner, and then failing to provide necessary medical care, resulting in the prisoner’s death. Hale, the co-conspirator who actually inflicted the beating that resulted in the prisoner’s death, was sentenced to only 108 months. The Sixth Circuit rejected defendant’s claim that the life sentence, which fell within his guideline range, was substantively unreasonable. The district court gave significant consideration to the difference between Hale’s 108-month sentence and defendant’s life sentence. Although Hale inflicted the injuries that ultimately killed the prisoner, the jury found that defendant’s actions in denying medical care resulted in his death. The disparity was the product of a plea bargain and downward departure that Hale received, which is a legitimate basis for sentencing disparity. The judge also fully considered mitigating facts, such as defendant’s young age, the overcrowded conditions of the jail, his lack of proper training, his support from family and friends, the counseling he received, and his sincere expressions of remorse. The court found the case “difficult,” but nonetheless believed that the “heart-wrenching” circumstances did not warrant a below-guideline sentence. The sentence was harsh, but not unreasonable. U.S. v. Conatser, 514 F.3d 508 (6th Cir. 2008).
6th Circuit upholds below-guideline sentence for involuntary manslaughter. (210) One evening, defendant lost control of his car and hit a tree, killing his two passengers. The crash occurred in a national park as defendant and his friends were heading towards the campsite where they were going to spend the weekend with other friends. Caught in a traffic jam on the way, they started drinking beer they had packed for the trip. At the time of the crash, defendant was traveling about 45 miles per hour on a road with a posted speed limit of 35. Defendant’s blood alcohol content at the hospital was .071, and was estimated to have been between .097 and .133 at the time of the crash. Defendant pled guilty to two counts of involuntary manslaughter, resulting in a guideline range of 41-50 months, but the court sentenced defendant to concurrent terms of 20 months. The Sixth Circuit held that the below-guideline sentence was reasonable. The district court considered the proper § 3553(a) factors, including the properly calculated guideline range. Addressing the seriousness and circumstances of the offense, the court noted that involuntary manslaughter resulting from drunk driving often involves a higher degree of recklessness than was evident here. With respect to the history and characteristics of the defendant, the court noted the more than 20 letters submitted on defendant’s behalf by friends, families and co-workers, and found that defendant was “a law abiding fine young man who made a bad mistake on this evening and [used] poor judgment.” The court also considered deterrence and protection of the public, explaining that while any sentence would adequately deter this defendant, the sentence also had to be sufficient to deter others. U.S. v. Kathman, 490 F.3d 520 (6th Cir. 2007).
6th Circuit holds that combination of injuries amounted to life-threatening bodily injury. (210) Defendant, a truck driver, was convicted of interstate domestic abuse after he inflicted several beatings on his wife during an interstate trip. The district court applied a six-level enhancement under § 2A2.2(b)(3) for the infliction of permanent of life-threatening bodily injury. The court reviewed the extensive injuries sustained by defendant’s wife and emphasized the fractured finger, the cracked tooth and substantial contusions and bruises as depicted in various photographs. The court also recounted the testimony from witnesses that the victim literally crawled into the distribution center at the end of the trip with very visible injuries together with spatial disorientation. While the court was not persuaded that the victim’s kidney problems were caused by the assault, the court concluded that the combination of the various conditions together with severe bleeding, bruising and broken bones could reasonably be viewed as amounting to a life-threatening bodily injury. The Sixth Circuit ruled that this finding was not clearly erroneous. U.S. v. Baggett, 342 F.3d 536 (6th Cir. 2003).
6th Circuit upholds cross-reference to first-degree murder guideline. (210) During an armed robbery, one defendant’s gun discharged, killing a victim. Although defendants pled guilty to robbery and second-degree murder, the district court applied the cross-reference in USSG § 2B3.1(c)(1), which directs a court to sentence a defendant under the first-degree murder guideline, § 2A1.1, if “a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States.” The Sixth Circuit affirmed the use of the first-degree murder guideline. The court’s use of the cross-reference was mandated by U.S. v. Poindexter, 44 F.3d 406 (6th Cir. 1995), which affirmed the use of the higher offense level in a case where “death results from the commission of certain felonies.” There was no question that death resulted from the defendants’ commission of robbery, which is one of the felonies delineated in the federal murder statute, 18 U.S.C. § 1111. The district court was required by Poindexter to apply the cross-reference. The sentence imposed did not exceed the maximum for the crime alleged in the indictment, and thus Apprendi v. New Jersey, 120 S.Ct. 2348 (2000) was not applicable. U.S. v. Harris, 238 F.3d 777 (6th Cir. 2001).
6th Circuit rejects use of aggravated assault guideline where no threats or intent to harm. (210) Defendant was convicted of assaulting a federal postal officer because, while carrying a steak knife, she “advanced toward” two postal inspectors on her front porch. The inspectors were investigating an earlier incident in which defendant allegedly shoved a mail carrier. The district court sentenced her under § 2A2.2, the aggravated assault guideline, rather than § 2A2.3, the “minor assault” guideline. Given “the absolute paucity of evidence that [defendant] had an intent to do bodily harm, or commit another felony,” the Sixth Circuit concluded that the district court erred in applying the aggravated assault guideline. See note 1 to § 2A2.2 (defining an aggravated assault as involving (a) a dangerous weapon with intent to do bodily harm, or (b) serious bodily injury, or (C) an intent to commit another felony). Defendant made no verbal threats or statements that she intended to do the postal workers any harm, and they conceded that she did not lunge at them with the knife. Thus, the record did not support the use of § 2A2.2. U.S. v. Shumpert Hood, 210 F.3d 660 (6th Cir. 2000).
6th Circuit holds enhancement for “otherwise using” dangerous weapon was double counting. (210) Defendant he struck an INS agent with his car. Finding defendant used his car as a dangerous weapon, the district court classified the offense as an aggravated assault. See Note 1 to § 2A2.2 (defining aggravated assault as a felonious assault that involved “a dangerous weapon” with intent to do bodily harm). The court also applied a four-level increase under § 2A2.2(b)(2)(B) for “otherwise using” a dangerous weapon. The Sixth Circuit, agreeing with U.S. v. Hudson, 972 F.3d 504 (2d Cir. 1992), and rejecting opinions in the Third, Fourth, Eighth and Ninth Circuits, held that under these circumstances, the “otherwise used” enhancement constituted impermissible double counting. The court refused to interpret note 4 to § 1B1.1 to broadly permit double counting under all circumstances unless expressly prohibited by the guideline. Under the Sixth Circuit’s well-established rule, impermissible “double counting” occurs when precisely the same aspect of a defendant’s conduct factors into his sentence in two separate ways. In the present case, the car was not a dangerous weapon at all unless it was “otherwise used.” It was defendant’s use of his car, and no other aspect of his conduct, that triggered both the base offense level determination and the application of the enhancement. U.S. v. Farrow, 198 F.3d 179 (6th Cir. 1999).
6th Circuit affirms upward departure for attack on flight crew after plane took off. (210) Defendant, a flight engineer for Federal Express, boarded a Federal Express plane on which he was not working. After the plane took off, he entered the cockpit and attacked the crew with a hammer, a spear gun and a spear. Although all three crew members were seriously injured, they were able to make an emergency landing. Defendant was convicted of attempted aircraft piracy and interference with crew members. The Sixth Circuit affirmed an upward departure based on multiple victims, serious physical injury, significant property damage and the potential for extreme danger to the public. The aircraft piracy guideline, § 2A5.1, did not contemplate multiple victims. The extent of the victimization was extreme, because all three crew members suffered serious physical injuries, a basis for departure under § 5K2.2. Federal Express incurred over $800,000 in property damage from the crime, which is a ground for departure under § 5K2.5. Finally, it was entirely proper for the district court to consider under § 5K2.14 the danger to the public created by defendant’s attack. The crime involved far more than simply rerouting the plane. U.S. v. Calloway, 116 F.3d 1129 (6th Cir. 1997).
6th Circuit upholds murder cross reference to even though court failed to find malice. (210) Defendant and a friend sold chalk, instead of cocaine, to two men. When the men discovered the fraud, they pulled their car alongside defendant’s car. Defendant and his friend both fired shots into the window of the car, killing one of the men. Defendant was convicted of being a felon in possession of a firearm. Relying on the cross reference in § 2K2.1(c)(1), the judge sentenced defendant under the second degree murder guideline. The 6th Circuit upheld the cross reference, even though the district court did not specifically find that defendant acted with malice. The appellate court’s de novo review of the record showed that defendant acted with malice aforethought. Unprovoked, he fired at least two shots into the victim’s car. Defendant’s gross deviation from a reasonable standard of care established the requisite malice to hold him accountable for second degree murder. U.S. v. Milton, 27 F.3d 203 (6th Cir. 1994).
6th Circuit rejects 11-level enhancement under section 2A2.2. (210) Defendant was sentenced under the aggravated assault guideline, section 2A2.2, after shooting a woman. He received a five-level enhancement under subsection (b)(2)(A) for discharging the weapon, and a six-level enhancement under subsection (b)(3)(C) for inflicting a permanent or life-threatening injury. The 6th Circuit held the 11-level adjustment clearly erroneous, since section 2A2.2 specifically states that the cumulative adjustments from subsections (2) and (3) shall not exceed nine levels. U.S. v. Hicks, 4 F.3d 1358 (6th Cir. 1993).
6th Circuit says pharmacy burglars should have been sentenced under burglary guideline, not assault guideline. (210) After burglarizing a pharmacy, defendants fled and their car hit a police car trying to intercept them. The officer in the car was seriously injured. The 6th Circuit held that defendants should have been sentenced under §2B2.2, burglary of other structures, rather than §2A2.2, aggravated assault. The gravamen of the offense was pharmacy burglary; the assault merely enhanced defendants’ sentences. The assault was an aggravating circumstance that might qualify for enhancement under 18 U.S.C. §2118(c)(1), but it could not be fairly described as the offense of conviction within the meaning of the guidelines. Since §2A2.2 was not the appropriate guideline, enhancements under §2A2.2(b)(1), (b)(2)(B) and (b)(3)(B) were vacated. U.S. v. Mills, 1 F.3d 414 (6th Cir. 1993).
6th Circuit holds that several phone calls to solicit a single murder constituted one offense. (210) Defendant was convicted of causing another man to use an interstate facility to solicit murder. The 6th Circuit remanded for resentencing since defendant’s 130-month sentence was in excess of the 10-year maximum for soliciting a murder over an interstate facility if no bodily injury or death results. Contrary to the government’s assertion, each phone call made was not a separate offense, since they related to one plan to murder one individual. U.S. v. Wynn, 987 F.2d 354 (6th Cir. 1993).
6th Circuit applies aggravated assault guideline to striker who fired gun at Greyhound bus. (210) Defendant, a striking Greyhound Bus employee, fired a gun at a Greyhound bus traveling on the road, and was convicted of damaging a motor vehicle with reckless disregard for human life, in violation of 18 U.S.C. section 33. Although the Statutory Index in effect in March, 1990, provided that guideline sections 2K1.4 (Arson) and section 2B1.3 (Property Damage) were “ordinarily applicable” to violations of section 33, the court used section 2A2.2, the aggravated assault guideline. The 6th Circuit affirmed. Appendix A to the guidelines states that in an “atypical case” where the guideline is inappropriate, a court may use the guideline “most applicable” to the offense. The district court’s choice was confirmed by the current version of the Statutory Index, which lists section 2A2.2 as an appropriate guideline for a violation of section 33. U.S. v. Daniels, 948 F.2d 1033 (6th Cir. 1991).
6th Circuit holds that defendant who inadvertently injured victim “otherwise used” knife in offense. (210) Defendant contended that the district court incorrectly assessed a four-level enhancement for “otherwise using” a weapon, rather than the three-point enhancement for “brandishing” a weapon. The 6th Circuit found no clear error in district court’s determination that defendant “otherwise used” the knife. The evidence established that he not only inadvertently injured his assault victim with the knife, but also intentionally held it against her throat while making threats against her life. U.S. v. Hamilton, 929 F.2d 1126 (6th Cir. 1991).
6th Circuit upholds application of guideline § 2E1.4 to defendant who attempted to hire hit man to kill wife. (210) Defendant pled guilty to using an interstate commerce facility in an attempt to have his wife killed. The 6th Circuit rejected defendant’s argument that he should have been sentenced under guideline § 2A2.1 (Conspiracy or Solicitation to Commit Murder), rather than guideline § 2E1.4 (Use of Interstate Commerce Facilities in the Commission of Murder-For-Hire). The Statutory Index indicated that either guideline was applicable to defendant’s conduct. However, guideline § 2E1.4(a) directs a court to apply the greater of a base offense level of 23, or the offense level applicable to the underlying conduct. Under the facts of this case, § 2A1.2 contains the offense level applicable to the underlying conduct and results in a base offense level of 20. Since 23 is greater than 20, the base level in guideline § 2E1.4 is applicable. U.S. v. Wilson, 920 F.2d 1290 (6th Cir. 1990).
7th Circuit holds that defendant who punched police officer created substantial risk of serious bodily injury. (210) When police ordered defendant to place his hands on a brick wall and began searching him for weapons, defendant turned and swung a right hook at the searching officer, striking him on his head behind the ear. Defendant followed with a left hook, but the officer ducked the blow and wrestled defendant to the ground. Defendant pled guilty to drug charges, and received a six-level enhancement under § 3A1.2(c) for assaulting a police officer in a manner that created a substantial risk of serious bodily injury. The Seventh Circuit upheld the enhancement. One blow to the head, even by an unarmed person, can pose a substantial risk of serious injury within the meaning of the guidelines. U.S. v. Alexander, 712 F.3d 1290 (7th Cir. 2013).
7th Circuit upholds 180-month sentence for stabbing prison guard as not unreasonable. (210) While in federal prison, defendant repeatedly stabbed a prison guard with an eight-inch shank. He pled guilty to committing aggravated assault on a federal officer, 18 U.S.C. § 111(a), (b), and the district court sentenced him to 180 months’ imprisonment, 45 months above the top of the guideline range. The Seventh Circuit rejected defendant’s claim that the 180-month sentence was substantively unreasonable. The district court focused on the need to deter defendant given the senseless nature of the attack. Defendant entered the guards’ office with a shank, looking for a fight. He used the shank to stab the victim multiple times. The court also reasonably relied on the “continuing nature” of the attack—defendant chose to trail the officer from his office and attack a second time, even after the officer had tried to escape. Finally, the district court appropriately based its decision on the “nasty” nature of the weapon – the court remarked that defendant had used a weapon that was as gruesome as any the court had ever seen. U.S. v. Vaughn, 614 F.3d 412 (7th Cir. 2010).
7th Circuit upholds use of aggravated assault guideline for police officer who violated victim’s civil rights. (210) Defendant, a police officer, shackled a man to a wheelchair in a hospital and then repeatedly bludgeoned him in the head and face with a sap. He was convicted in federal court of violating the victim’s civil rights. He argued that the district court should have used the civil rights guideline, rather than the aggravated assault guideline, to calculate the base offense level. The Seventh Circuit disagreed. Section 2H1.1 directs a court to apply the sentencing guideline applicable to the underlying offense (here, aggravated assault) if it would produce a greater base offense level than the base offense level premised solely on § 2H1.1. The Sentencing Guidelines recognize that in a situation, such as here, where the defendant’s conduct is more reprehensible than a civil rights violation that used a minor amount of force, the defendant’s sentence should be on par with other defendants in federal court who committed similar conduct under federal jurisdiction. U.S. v. Cozzi, 613 F.3d 725 (7th Cir. 2010).
7th Circuit reverses district court’s finding that threats were akin to attempted murder. (210). Defendant was convicted of several obstruction counts under 18 U.S.C. § 1512 based on threats he made to family members to prevent them from testifying against him. Appendix A does not list § 2J1.2 as a guideline applicable to § 1512 convictions, so the court sentenced defendant under § 2A2.1, the attempted murder guideline. On defendant’s first appeal, the Seventh Circuit remanded, finding that the absence of § 2J1.2 from the statutory index was likely a scrivener’s error. Defendant’s guideline range under § 2A2.1 was 210-262 months; his guideline range under § 2J1.2 would have been 92-115 months. Nevertheless, at resentencing, the court reimposed the same 210-month sentence. The court repeatedly expressed its belief that defendant was “like the attempted murderer” and should be sentenced as such. The Seventh Circuit reversed, finding insufficient evidence that defendant would have attempted murder. Defendant’s family members all testified that they did not feel threatened by defendant’s statements. The victim believed that defendant was merely “blowing off steam” in issuing threats. U.S. v. England, 555 F.3d 616 (7th Cir. 2008).
7th Circuit applies serious bodily injury increase where beating left prominent facial scars. (210) Defendant pled guilty to an assault that caused serious bodily injury. 18 U.S.C. § 1153. Section 2A2.2(b)(3) provides for a seven-level enhancement for battery that produces “permanent or life-threatening bodily injury” but only five levels for an attack that causes “serious bodily injury.” The victim broke her nose and the bone around her right eye, and had lacerations that a physician concluded would leave prominent facial scars. The definition of “permanent or life-threatening bodily injury” in Note 1 to § 1B1.1 includes “an obvious disfigurement that is likely to be permanent.” Defendant argued that an enhancement for a permanent disfigurement is only proper if the prosecution can prove that the condition cannot be corrected by plastic surgery. Here, the physicians opined that the victim’s prospects for cosmetic surgery could not be evaluated until her condition had stabilized in another year or so. The Seventh Circuit held that the victim’s prominent facial scars were a form of permanent disfigurement, thus meriting the enhancement for a permanent or life-threatening injury. Uncertainty does not preclude a finding of permanence. If an impairment has not been corrected by the time of sentencing, and will last for life unless surgically corrected in the future, then it should be treated as “permanent” under the guidelines. U.S. v. Webster, 500 F.3d 606 (7th Cir. 2007).
7th Circuit rules remand unnecessary where sentence did not exceed combined statutory maximum. (210) Defendant pled guilty to assaulting a DEA agent, in violation of 18 U.S.C. § 111, and two drug counts. The district court sentenced defendant to 87 months on each count, with the sentences to run concurrently. The indictment did not specify which of § 111’s two subsection defendant was charged with violating. Subsection (a) of § 111 provides for a maximum sentence of 36 months for assaulting a DEA officer, while subsection (b) provides a maximum penalty of 120 months for anyone who violates subsection (a) while using a deadly weapon or who inflicts bodily injury. Because the indictment did not charge defendant with use of a deadly weapon or with inflicting bodily injury, it had to be assumed that the indictment charged defendant with violating subsection (a). Nonetheless, the Seventh Circuit held that remand was not required, because the sentence imposed did not exceed the combined statutory maximum achievable by running the sentences consecutively. Moreover, even if the court were to remand, guideline § 5G1.2(d) would instruct the district court impose the sentences consecutively to the extent necessary to achieve the total punishment. Thus, defendant would receive the same sentence. U.S. v. Gray, 332 F.3d 491 (7th Cir. 2003).
7th Circuit upholds use of murder cross-reference. (210) Defendant, the former president of a motorcycle gang, pled guilty to using the gang’s clubhouse to sell drugs. The district court found that defendant had murdered Melby, a member of the gang, and applied the cross-reference in U.S.S.G. § 2D1.1(d)(1). This increased defendant’s penalty from a range of 121-151 months to a sentence of 30 years. Defendant argued that this increase was so extreme as to require the government to show clear and convincing evidence that he killed Melby. The Seventh Circuit found it unnecessary to decide what standard of proof was required, because the evidence supported a finding of guilt even under the more stringent clear and convincing standard. A friend testified that defendant told him in detail how he had killed Melby because he thought Melby had stolen money and drugs from him. To support his story, the friend took the investigating officer to his home and pulled out an undated letter describing the killing, the fear that caused the friend to keep the story to himself, and the guilt he felt. A co-conspirator who helped defendant dispose of the body unwittingly supported the story. During a taped conversation with several thinly veiled references to the murder, the friend asked “Who else knows?”, to which the co-conspirator replied “I ain’t got the slightest. Only thing I know is you do and I’ve never really liked that.” Finally, several other witnesses told stories consistent with the friend’s account. The district court found all of these witnesses credible. U.S. v. Boos, 329 F.3d 907 (7th Cir. 2003).
7th Circuit upholds application of drug offense murder cross-reference for one defendant but not two others. (210) Several defendants were convicted of crimes arising out of their participation in a large drug conspiracy. Although defendants Spradley, Jones and White were acquitted of murdering an informant, the district court applied the cross reference in § 2D1.1 to sentence them under § 2A1.1, the first-degree murder guideline. The Seventh Circuit found sufficient findings to support the application of the murder cross reference to Spradley, but not to Jones and White. The court inferred from the three defendants’ participation in the cover-up of the murder that they knew the victim had been murdered as a result of his informant activities. However, the district court did not address § 2A1.1’s premeditation requirement. The question was whether it was reasonably foreseeable to Spradley, Jones and White that the victim was killed, with malice aforethought (premeditation), in furtherance of the conspiracy. The findings as to Spradley were sufficient. Based on testimony that Spradley had confronted the victim about his rumored informant activities, the court found that Spradley knew that the victim had been killed to keep him from relaying any more information to police. There was no similar evidence about Jones and White. Their participation in the cover-up of the murder did not support the inference that it was reasonably foreseeable that the informant would be murdered with malice aforethought. U.S. v. Thompson, 286 F.3d 950 (7th Cir. 2002).
7th Circuit finds insufficient evidence to support cross-reference to murder guideline. (210) Defendant was convicted of being a felon in possession of a firearm. Section 2K2.1 states that if the defendant used or possessed any firearm in connection with the commission of another offense, and death resulted, the court must cross-reference the “most analogous offense guideline” from the homicide guidelines. At sentencing, the government tried to connect defendant to the murder of the firearms’ owner, Leal. The night before defendant pawned Leal’s gun, Leal was shot to death in the car that defendant was found driving. A bullet hole was found in the passenger door of the car, and Leal’s blood was found on the driver’s seat of the car, on the pavement of defendant’s driveway, and on defendant’s shirt. The district court used the cross-reference to sentence defendant under § 2A1.1, the first-degree murder guideline, finding that whether defendant pulled the trigger or not, “it’s pretty clear that he was involved in the killing.” The Seventh Circuit held that the use of the cross-reference constituted plain error, since the district court did not make any finding that defendant’s conduct led to Leal’s death. All the court found was that defendant was “involved” in Leal’s murder. Moreover, even if Leal’s death resulted from defendant’s possession of the firearm, the court’s application of the first-degree murder guideline as opposed to a homicide offense with a lesser culpability was also plain error. U.S. v. Thomas, 280 F.3d 1149 (7th Cir. 2002).
7th Circuit holds defendant evidenced intent to carry out threat. (210) Defendant pled guilty to mailing a threatening communication in violation of 18 U.S.C. § 876. The district court increased his offense level under § 2A6.1 by six levels, finding that the offense involved “conduct evidencing an intent to carry out such threat.” In the present case, defendant wrote a letter to a fellow gang member asking him to “take care of” a girl who had testified against defendant. The Seventh Circuit rejected defendant’s argument that this letter was merely a “solicitation” rather than a threat, noting that by pleading guilty to § 876, defendant admitted the letter contained a threat. The panel found that it did not matter that defendant did not directly communicate the threat to the girl, and found “ample evidence” in the record that defendant intended that the girl be harmed in retaliation for her testimony against him. U.S. v. Siegler, 272 F.3d 975 (7th Cir. 2001).
7th Circuit applies dangerous weapon increase for using clothes iron in assault. (210) Defendant, a federal prisoner, was convicted of charges relating to his assault on a corrections officer. He challenged a § 2A2.2(b)(2)(B) increase for the use of a dangerous weapon, pointing out that inmate Jackson testified that defendant only used his fists in the assault. However, Hilpipre, another inmate, clearly testified that defendant used a clothes iron to beat the officer, and a broken clothes iron was found at the scene. The sentencing judge resolves credibility questions that arise at sentencing, and here, she could properly choose to believe Hilpipre and the victim, and not Jackson. The Seventh Circuit found no reason to upset that credibility determination. Moreover, the government charged defendant with the use of a dangerous weapon as an element of the crime, and given the jury’s guilty verdict, the court’s finding to the same at sentencing could not be clearly erroneous. U.S. v. Bogan, 267 F.3d 614 (7th Cir. 2001).
7th Circuit upholds serious bodily injury increase for lacerations, fractured eye socket, and nerve damage. (210) Defendant, a federal prisoner, was convicted assaulting a corrections officer. The officer received numerous blows to his head and face, resulting in cuts, bruises, tooth damage, and a fractured eye-socket. The district court found that the officer suffered a “serious bodily injury” and applied a four-level adjustment under § 2A2.1(b)(1)(B). Defendant admitted that the officer suffered lacerations requiring sutures, a fractured eye-socket, nerve damage to the left side of his face, ongoing emotional distress and migraine headaches, and the potential loss of three teeth, but contended that because the officer did not “undergo a prolonged hospital stay … or surgical intervention” that he did not suffer a serious bodily injury. The Seventh Circuit affirmed the increase, noting that previous cases have upheld a six-level adjustment for “permanent or life-threatening bodily injuries” where a defendant inflicted facial scars on the victim. U.S. v. Bogan, 267 F.3d 614 (7th Cir. 2001).
7th Circuit upholds use of murder cross-reference to drug defendant. (210) Defendant was convicted of drug conspiracy charges. After determining that defendant had participated in the murder of a co-conspirator’s wife in furtherance of the drug conspiracy, the court imposed a life sentence under the murder cross-reference found in § 2D1.1(d). The Seventh Circuit upheld the use of the murder cross-reference. First, the hearsay and circumstantial evidence considered by the district court supported the court’s finding that defendant had a role in the murder. The co-conspirator made consistent statements to various persons about defendant’s involvement in the murder. Also, in taped conversations with the co-conspirator, defendant made incriminating statements. The use of the cross-reference did not violate Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi applies only to facts that increase a defendant’s sentence beyond the prescribed statutory maximum. Under the guidelines, it is not possible to apply the cross-reference in a manner that produces a sentence greater than the statutory maximum applicable to the charged crime. See §§ 5G1.1(a) & (c). The cross-reference only increases a defendant’s sentence at most to the statutory maximum associated with the charge on which he was convicted. U.S. v. Westmoreland, 240 F.3d 618 (7th Cir. 2001).
7th Circuit holds that facial scars of drive-by shooting victim constituted “permanent injury.” (210) Note 1(h) to § 1B1.1 defines “permanent or life-threatening bodily injury” as an “injury involving a substantial risk of death; loss or substantial impairment of the function of a bodily member, organ, or mental faculty that is likely to be permanent; or an obvious disfigurement that is likely to be permanent.” The Seventh Circuit agreed with the district court’s findings that permanent and disfiguring scars on the face of a drive-by shooting victim constituted a “permanent or life-threatening bodily injury.” See § 2A2.2(b)(3)(C). The “permanent injury” need not be of the same magnitude or seriousness as a life-threatening injury and the disfigurement need not rise to the same level as a substantial impairment of a bodily function. “The plain language of application note 1(h) encompasses injuries that may not be terribly severe but are permanent, hence the disjunctive ‘permanent or life-threatening injuries.’“ U.S. v. Price, 149 F.3d 352 (5th Cir. 1998). U.S. v. Phillips, 239 F.3d 829 (7th Cir. 2001).
7th Circuit holds that passing vehicle in no-passing zone at crest of hill was reckless. (210) Under guideline § 2A1.4, a conviction for involuntary manslaughter involving reckless conduct carries a higher base offense level than a conviction involving criminally negligent conduct. The district court found that defendant’s conduct was “reckless,” because he (1) was driving without a valid license, (2) had a blood alcohol level of .053, and (3) passed a slow-moving vehicle in a no-passing zone while driving up a hill. The Seventh Circuit held that the recklessness finding could have been based solely on defendant’s act of passing in a no-passing zone while driving uphill. An offender acts recklessly when he is “aware of the risk created by his conduct,” yet disregards the risk, and such disregard constitutes a “gross deviation from the standard of care that a reasonable person would exercise” in the situation. The act of passing in the lane for oncoming traffic while at or near the crest of a hill, where it is impossible to know whether another car is approaching in the same lane, is the very height of recklessness. Other factors compounded the recklessness of defendant’s act. He had been drinking prior to the accident, was driving with a revoked license, and had “traffic issues” in the past. U.S. v. O’Brien, 238 F.3d 822 (7th Cir. 2001).
7th Circuit holds that throwing urine on victim amounted to physical contact. (210) Defendant, a prison inmate, assaulted a federal officer, in violation of 18 U.S.C. § 111(a)(1), by throwing a cup of urine in a prison guard’s face, and upon his chest and arm. The district court applied an upward adjustment under § 2A2.4(b)(1) for conduct that involved physical contact; an adjustment that is analogous to battery. Defendant argued that the provision applies only if there is actual physical contact between the defendant and the victim. The Seventh Circuit disagreed, holding that throwing an offensive liquid such as urine upon another person amounts to “physical contact” for purposes of § 2A2.4(b)(1). Black’s Law Dictionary defines battery as “intentional and wrongful physical contact with a person,” but it is clear that the contact between the aggressor and the victim need not be direct, but rather can result from the “indirect application of force … by some substance or agency placed in motion by” the aggressor. Thus, spitting on another person has long been held to constitute a battery. In addition, at least two states have held that throwing urine on someone constitutes the physical contact necessary for a battery. U.S. v. Taliaferro, 211 F.3d 412 (7th Cir. 2000).
7th Circuit approves upward departure based on second murder conspiracy. (210) 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 approves upward departure for cache of weapons in murder solicitation. (210) Defendant hijacked an armored car containing $260,000, and used the proceeds to raise a private army to wage war on abortion clinics. He attempted to hire an FBI informant to serve in the campaign, which was to include a raid on a National Guard Armory to obtain military weapons, to be used to slaughter workers and patients at the clinics. By the time he was arrested, defendant had amassed an arsenal. Defendant was convicted of bank larceny, money laundering and solicitation to commit murder. The Seventh Circuit approved a two level departure that accounted for defendant’s weapons cache. Other provisions of the guidelines provide for a two level increase for weapons possessed in connection with the crime. The fact that the solicitation to commit murder guideline (§ 2A1.5) does not contain such a provision does not mean that this is not a proper ground for departure. Section 5K2.6 provides that a departure based on weapons is permissible. A two level departure is a modest adjustment given the number and type of weapons defendant possessed. U.S. v. Cook, 102 F.3d 249 (7th Cir. 1996).
7th Circuit directs court to consider whether 636-months amounted to life sentence. (210) Defendants detonated a pipe bomb in a residential alley, killing an elderly neighbor. In U.S. v. Prevatte, 16 F.3d 767 (7th Cir. 1994), the Seventh Circuit agreed that the first degree murder guideline applied. However, the life sentence was error since the issue of a life sentence had not been submitted to the jury. In addition, the district court should have analyzed the mental state of the defendants under note 1 to § 2A1.1. On remand, the district court found that the death was caused by defendants’ “reckless state of mind and behavior.” It imposed 636-month sentences, stating that it was “departing downward from the sentence called for by the murder statute, but not downward in the classification.” The Seventh Circuit directed the district court to consider whether the 636-month sentences amounted to life sentences. If so, they would be improper under the recently decided U.S. v. Martin, 63 F.3d 1422 (7th Cir. 1995). The district court did comply with the previous mandate by considering defendants’ mental state, and departing from the first degree murder guideline accordingly. Note 1 did not require the court to make its departure to the sentence that it would have imposed for second degree murder. U.S. v. Prevatte, 66 F.3d 840 (7th Cir. 1995).
7th Circuit says victim’s official status was not considered in base offense level. (210) Defendant pled guilty to assaulting federal officers and using a deadly and dangerous weapon in that offense. The Seventh Circuit held that a § 3A1.2(b) official victim enhancement was not double counting because the enhancement requires a higher level of culpability than the statute. To warrant the enhancement, the defendant’s actions must have been “motivated” by the victim’s official status. The enhancement was otherwise proper. Although defendant denied knowing that his victims were DEA agents, the district court found that the agents loudly and repeatedly identified themselves to defendant as law enforcement officers. The court also found that defendant heard the announcements. U.S. v. Sorensen, 58 F.3d 1154 (7th Cir. 1995).
7th Circuit says dangerous weapon increase for aggravated assault was not double counting. (210) Defendant assaulted a federal officer with a concrete block. At sentencing, the district court classified his offense as aggravated assault under § 2A2.2, and then imposed a § 2A2.2(b)(2)(B) enhancement because defendant used the concrete block as a dangerous weapon. Defendant argued that this was double counting since the use of the dangerous weapon already increased his base offense level by making the crime an aggravated assault. The Seventh Circuit held that the dangerous weapon enhancement was not double counting since he could have been guilty of aggravated assault without ever using the weapon. An aggravated assault includes an assault in which the defendant merely possesses a dangerous weapon. The § 2A2.2(b)(2)(b) enhancement applies only when the dangerous weapon is used during the assault. U.S. v. Sorensen, 58 F.3d 1154 (7th Cir. 1995).
7th Circuit rejects life sentence under 18 U.S.C. § 844(i) absent jury recommendation. (210) Defendants were involved in a series of burglary-bombings, during which a woman was killed. The statute that they violated, 18 U.S.C. § 844(i), provides for penalties including life imprisonment or death, as provided in section 34. They were sentenced under sections 2K1.4 and 2A1.1 with a base offense level of 43, which resulted in life imprisonment for both. The 7th Circuit reversed, holding that under 18 U.S.C. § 34, the district court could not impose a life sentence unless the jury recommended it. The sentencing guidelines cannot trump federal criminal statutes. Moreover, the court did not follow application note 1 to § 2A1.1, which suggests that where a death was not intentional, a downward departure based on the defendant’s state of mind may be warranted. U.S. v. Prevatte, 16 F.3d 767 (7th Cir. 1994).
7th Circuit applies murder guideline where woman was accidentally killed by burglar’s test bomb. (210) Defendants were involved in a series of bombings and burglaries. During a test bombing to determine the response time of emergency services, a woman was killed. Defendants were convicted of firearms and explosives violations. Section 2K1.4 directs that if death resulted from the offense, the court should apply the most analogous guideline. The 7th Circuit affirmed that the first degree murder guideline, § 2A1.1, was the most analogous. That guideline applies to a killing in the course of an arson. The court found that the bombing was sufficiently similar to arson, even though no fire occurred. Congress intended fire and explosives to be equivalent for purposes of 18 U.S.C. § 844(i). To apply the first degree murder guideline when death results from fire, but not when death results from explosives, would thwart Congressional intent. U.S. v. Prevatte, 16 F.3d 767 (7th Cir. 1994).
7th Circuit upholds use of assault guideline for firearms offense. (210) Defendant was convicted of being a felon in possession of a firearm. The 7th Circuit found that the district court properly sentenced defendant using the offense level for aggravated assault. The guideline for the felon-in-possession charge, § 2K2.1, states that if the felon used a weapon in connection with the commission or attempted commission of another offense, guideline § 2X1.1 should be applied if the offense level would be higher. Section 2X1.1(a) provides that the base offense level shall be the base offense level for the “object offense.” The term “object offense” refers to the underlying conduct, in this case aggravated assault, rather than the charged offense. The district court had sufficient evidence to determine that the crucial element of aggravated assault — intent to do bodily harm to the victim — was present. Defendant had raised a cocked gun at a police officer and demanded that the officer leave defendant’s apartment. The officer left, and returned with other officers, who found defendant hiding in the bathroom behind the shower curtain. Defendant shouted that if the officers tried to capture him, he would “blow their heads off.” U.S. v. Madewell, 917 F.2d 301 (7th Cir. 1990), abrogation on other grounds recognized by Fryer v. U.S., 243 F.3d 1004 (7th Cir. 2001).
8th Circuit allows judicial fact-finding in support of § 2A1.1 cross-reference. (210) Defendant was convicted of being a felon in possession of a firearm. At sentencing, the district court found that defendant possessed a firearm while participating in a homicide, and applied the first-degree murder § 2A1.1 cross-reference. Defendant argued that the district court violated Alleyne v. U.S., 570 U.S. __, 133 S.Ct. 2151 (2013), by applying the § 2A1.1 cross-reference without having a jury act as the fact-finder. The Eighth Circuit found no error. Application of the § 2A1.1 cross-reference neither increased the penalty beyond the statutory maximum, nor increased the mandatory minimum. The district court did not err in conducting its own fact-finding for the purposes of the § 2A1.1 cross-reference and otherwise determining the guidelines range. U.S. v. Davis, __ F.3d __ (8th Cir. June 12, 2014) No. 13-3028.
8th Circuit uses cross-reference to attempted murder guideline in bombing case. (210) Defendant set off a bomb next to the car of a state medical board official. The guideline for crimes involving weapons of mass destruction, § 2M6.1 (c)(2), says the court should apply the attempted murder guideline if the offense is “tantamount to attempted murder.” The Eighth Circuit upheld the use of the cross-reference, finding it reasonable for the court to determine that the explosion was intended to kill the victim, and that it was tantamount to attempted first-decree murder. A government explosives expert testified that an MK3A2 grenade, which was used in the bomb, is designed to cause casualties. Additionally, a bomb technician testified that the type of grenade used in the bombing was “almost guaranteed” to kill any individual within a closed-in area where it explodes. The government also produced ample evidence of the life-threatening nature of the victim’s injuries and the numerous and extensive surgeries that were necessary to sustain his life. U.S. v. Mann, 701 F.3d 274 (8th Cir. 2012).
8th Circuit finds any error in applying dangerous weapon increase was harmless. (210) Defendant bit a federal agent, and pled guilty to assaulting a federal officer under 18 U.S.C. § 111. The district court applied a four-level increase under § 2A2.2(b)(2)(B) for use of a dangerous weapon, i.e., defendant’s teeth. The Eighth Circuit ruled that any error was harmless, because the district court made clear that it would impose the 60-month sentence whether or not it applied the dangerous weapon increase. Defendant’s advisory guideline range with the enhancement was 63-78 months, and without the enhancement, it would have been 41-51 months. The court observed that the 60-month term was “three months below the bottom end of the guideline range with the dangerous weapon enhancement,” but “nine months above the top end of the guideline range, if the Court had ruled that teeth are not a dangerous weapon.” The court emphasized that the sentence it selected was “not a matter of compromise,” saying: “It’s what the Court thinks is sufficient, but not more than necessary, to serve the purposes of § 3553(a).” The record demonstrated that any error in calculating the advisory guideline range did not substantially influence the sentence. U.S. v. LaRoche, 700 F.3d 363 (8th Cir. 2012).
8th Circuit finds 121-month sentence for murder of newborn child is reasonable. (210) On the day that defendant gave birth, she left the child alone in her house and did not return for two weeks. When she returned, she took the child’s dead body and threw it in a ditch. Defendant pleaded guilty to second-degree murder. Defendant’s sentencing range under the advisory Guidelines was 121 to 151 months, and the district court imposed a 121-month sentence. The Eighth Circuit held that this sentence was substantively reasonable. U.S. v. Deegan, 605 F.3d 625 (8th Cir. 2010).
8th Circuit upholds 96-month sentence for voluntary manslaughter. (210) A jury acquitted defendant of second-degree murder but convicted him of the lesser-included offense of voluntary manslaughter and firearm charges. The court sentenced defendant to 216 months in prison, a 10-year mandatory minimum on the gun charge, plus a middle-of-the-range sentence (96 months) on the voluntary manslaughter charge. The court rejected defendant’s request for a downward variance, noting that most of the jurors believed this was a second-degree murder case, that the victim had been shot in the back, and that defendant’s statements at the hospital following the incident indicated a second-degree murder conviction might have been more appropriate. The Eighth Circuit held that the 96-month sentence for voluntary manslaughter was not unreasonable. Sentencings within the advisory guideline range are presumptively reasonable. The sentence imposed fell within the middle of the advisory range, so it left considerable room to impose greater sentences on others whose conduct was more reprehensible. Defendant failed to point to any cases that suggested that his sentence was unreasonable. U.S. v. McCoy, 496 F.3d 853 (8th Cir. 2007).
8th Circuit holds that stabbing unarmed victim at least five times and kicking him warranted § 5K2.8 departure. (210) Defendant was convicted of voluntary manslaughter for stabbing a man to death. Section 5K2.8 authorizes an upward departure if defendant’s conduct “was unusually heinous, cruel, brutal, or degrading to the victim.” The Eighth Circuit agreed that defendant’s conduct was relatively egregious, supporting the § 5K2.8 departure. Defendant stabbed his unarmed victim at least five times, puncturing the victim’s organs. Defendant then kicked his prostrate, immobilizing victim, a gratuitous infliction of injury. Defendant then fled the scene, leaving the victim to bleed from the wounds that resulted in his death. Finally, defendant admitted that he had a history of violence with the rival group. U.S. v. Chase, 451 F.3d 474 (8th Cir. 2006).
8th Circuit holds that dangerous weapon departure was proper for voluntary manslaughter defendant. (210) Defendant was convicted of voluntary manslaughter after he stabbed another man to death. He argued that an upward departure under § 5K2.6 for the use of a weapon or dangerous instrumentality was improper because the manslaughter guideline already took this factor into account. The Eight Circuit held that a § 5K2.6 departure may be appropriate when the underlying offense is voluntary manslaughter. The voluntary manslaughter guideline, § 2A3.1, has not already accounted for the use of a weapon or dangerous instrumentality, and weapons are not inherent in the offense of voluntary manslaughter. Therefore, given’s defendant’s use of a knife in killing the victim, the district court did not err in granting an upward departure under § 5K2.6. U.S. v. Chase, 451 F.3d 474 (8th Cir. 2006).
8th Circuit upholds sentence above guideline range for defendant who severely scalded toddler in bathtub. (210) Defendant pled guilty to assault resulting in serious injury following the bathwater burning of his two-year old daughter. The district court imposed a sentence of 60 months, which was three months above the top of his advisory guideline range. The Eighth Circuit upheld the sentence as reasonable, rejecting defendant’s argument that the sentence was the product of the court’s emotion rather than the result of proper judicial reasoning. Although the court characterized the crime as “torture,” this can be a ground for an upward departure from the guideline range. See U.S.S.G. § 5K2.8. The court’s use of the word torture was not emotional hyperbole, but a deliberate finding of fact in support of the sentence. The court also properly considered the § 3553(a) factors. Given the brutality of the crime, the defenseless and prolonged suffering of the victim, the severity of the injuries, the resulting permanent disfigurement and the complete abdication of defendant’s most basic responsibility as a parent, the 60-month sentence was reasonable. U.S. v. Little Hawk, 449 F.3d 837 (8th Cir. 2006).
8th Circuit approves sentence 40 months above guideline range where mother abused child on a daily basis prior to his death. (210) Defendant pled guilty to aiding and abetting second degree murder in Indian country following the death of her four-year-old son. The boy’s father, with whom she resided, pled guilty to second degree murder. Both had guideline ranges of 151-188, but the district court, after considering the sentencing factors under 18 U.S.C. § 3553(a), imposed sentences of 228 months on both. Defendant argued that she should have been sentenced based on her actual conduct, which was child abuse. The Eighth Circuit rejected this argument. Defendant was convicted of aiding and abetting second degree murder, not child abuse. The cases she cited did not involve six months of torture or result in the child’s death. The court found that defendant and the boy’s father were equally culpable for the actions that led to the child’s death. It supported its sentence with findings that “up until the last day of [the child’s] life, [defendant] was responsible for more of this child abuse than was [the father.]” There was ample evidence of nearly daily abuse, mostly by defendant. The pathologist who performed the autopsy could not determine whether the boy’s death was caused by his father’s blow to the head or a combination of blows, some of which were older. Defendant’s sentence was reasonable. U.S. v. Sitting Bear, 436 F.3d 929 (8th Cir. 2006).
8th Circuit holds that error is finding upward departures “no longer existed” was harmless. (210) Defendant and his girlfriend were convicted of second degree murder in connection with the death of their four-year old son. Both defendants had guideline ranges of 151-188 months. The district court determined that upward departures no longer exist after U.S. v. Booker, 543 U.S. 230 (2005) and, applying the sentencing factors contained in 18 U.S.C. § 3553(a), sentenced them both to 228 months’ imprisonment. The Eighth Circuit ruled that the court erred in concluding that upward departures no longer existed, but the error was harmless. The court should have followed three steps: (1) determine the applicable guideline range without consideration of any departure factors; (2) consider the departure provisions in Chapter 5 Part K and § 4A1.3 of the guidelines; and (3) consider the rest of the § 3553(a) factors. The district court’s erroneous belief that it could not depart upward did not deprive defendant of any substantial or even beneficial rights. He was deprived merely of the opportunity to receive an upward departure and perhaps, a longer sentence. Finally, defendant failed to establish that his ultimate sentence was unreasonable. The district court noted that it was “one thing to cause the death of your child. But with this amount of torture that was going on I am, of course, going to take that into account in sentencing here.” U.S. v. Sitting Bear, 436 F.3d 929 (8th Cir. 2006).
8th Circuit holds that sentence 54 percent above top of advisory guideline range was reasonable. (210) Defendant was convicted of second-degree murder within Indian country. Although the advisory guideline range was 188-235 months, the district court sentenced defendant to 363 months. The Eighth Circuit ruled that the sentence, although 54 percent from the top of the advisory guideline range, was reasonable. The court did not explicitly list the § 3553(a) factors, but the record reflected that the court took into account the relevant § 3553(a) factors and adequately explained why it chose a sentence of 363 months. The court considered the nature and characteristics of the offense, noting victim was not looking for a fight and had no opportunity to defend himself, defendant knew the injury was serious and chose to keep drinking rather that help the victim, and assaulted another man to prevent him from getting help, and eventually fled. The court also recounted defendant’s extensive violent criminal history, noting additional criminal conduct that did not contribute to his criminal history category. The court also expressed concern about the level of violence and substance abuse on Indian reservations, and noted that defendant had not benefited from his previous federal sentence of 63 months’ custody. Finally, the Sentencing Guidelines were amended November 2004, after the date of defendant’s crime, to increase the offense level for second-degree murder. Under these new guidelines, defendant would have a sentencing range of 360-life. U.S. v. Larrabee, 436 F.3d 890 (8th Cir. 2006).
8th Circuit upholds guideline sentence for assault as reasonable. (210) Defendant received a 40-month guideline sentence for his assault convictions. He argued that the court erred both by not departing from the guidelines and by giving an unreasonable sentence. The Eighth Circuit found no error in the refusal to depart, and found the guideline sentence reasonable. The district court did not abuse its discretion by inappropriately considering rehabilitation as a sentencing factor. The panel rejected defendant’s claim that the district court failed to adequately consider defendant’s family responsibilities. Although some cases have upheld downward departures based in part on family responsibilities, there are no cases in which courts have remanded for failure to adequately consider family responsibilities. Moreover, defendant did not claim his family required the substantial level of care and monitoring that situations involving downward departures have demanded. Defendant’s mother had been raising the children with defendant and had been caring for them since defendant’s arrest. U.S. v. Tobacco, 428 F.3d 1148 (8th Cir. 2005).
8th Circuit says use of firearm and victim’s life-threatening injury was reasonably foreseeable to aider and abettor. (210) Defendant was convicted of aiding and abetting an assault resulting in serious bodily injury. The district court applied a five-level enhancement under § 2A2.2(b)(2)(A) for the discharge of a firearm. He argued that the increase was improper because he was not involved in the shooting and the use of the firearm was not foreseeable to him. The Eighth Circuit disagreed. The rifle used to shoot the victim was visible in the passenger compartment in the car in which defendant was riding. A few hours before the shooting, defendant unsuccessfully solicited another man to shoot a different man. Defendant and his close friends had a history of hostility toward the victim. The shooter, a few weeks before the shooting, had threatened to kill the victim. When defendant and his friends encountered the victim walking alone, defendant jumped out of the vehicle and confronted the victim, and after the shooting “war whoop[ed]” as the three left the scene. The panel also upheld a § 2A2.2(b)(3)(C) increase for the degree of bodily injury. Although the victim ultimately died from the gunshot wounds he sustained, it did not follow that he did not sustain permanent or life-threatening bodily injury. There was evidence the victim sustained permanent or life-threatening injury apart from his subsequent death. U.S. v. Jourdain, 433 F.3d 652 (8th Cir. 2006).
8th Circuit approves upward criminal history departure based on severity of prior conviction. (210) The district court, sua sponte, departed upward two criminal history categories. The court based a one-category departure on defendant’s prior second-degree murder conviction, despite the crime’s prior consideration in computing his criminal history. The Eighth Circuit found this reasonable. Neither the guidelines nor the commentary prohibit considering convictions also used to award criminal-history points. Some categories of crimes, such as murder, would be underrepresented by an inflexible three-point addition for any sentence over one year and one month. Defendant was previously sentenced to 50 years for murder, and paroled after serving only about seven years. The violent nature of the murder conviction, the length of the sentence, and the time actually served supported a finding that defendant’s criminal history category substantially underrepresented the seriousness of his criminal history. The second departure in criminal history category was based on defendant’s four parole violations, including three failed urinalysis tests. Defendant also admitted numerous other incidents of criminal conduct, all drug-related but not charged, for which he received no criminal history points. The district court reasonably considered defendant’s continued drug-related uncharged conduct as proof that his criminal history category substantially underrepresented the seriousness of his criminal history and potential for recidivism. U.S. v. Yahnke, 395 F.3d 823 (8th Cir. 2005).
8th Circuit approves downward departure where co-conspirator’s death was unintentional. (210) 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 approves sentencing robbery defendant under first-degree murder guideline. (210) Defendant pled guilty to robbery and second-degree murder in Indian Country, in violation of 18 U.S.C. §§ 1153, 1111(a) and 2111. The robbery guideline, § 2B3.1(c)(1), directs a court to apply § 2A1.1, the first-degree murder guideline, if “a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing taken place within the territorial or maritime jurisdiction of the United States.” Defendant argued that this cross-reference applies only if the victim was killed outside the jurisdiction of the United States, and therefore it did not apply to him. The Eighth Circuit rejected this reading, which would result in a lesser punishment for a killing committed in the course of a federal robbery within the jurisdiction of the U.S. than a killing committed in the course of a federal robbery of a bank outside federal jurisdiction. The district court correctly applied the cross reference to defendant. Defendant pled guilty to second-degree murder during the course of a robbery within federal jurisdiction, a crime meeting the definition of murder under § 1111. Although not convicted of first-degree murder, defendant was properly sentenced under the first-degree murder guideline. U.S. v. Bear, 356 F.3d 839 (8th Cir. 2004).
8th Circuit upholds use of aggravated assault guideline for felon convicted of possessing firearm. (210) Section 2K2.1 provides for a base offense level of 14 for possession of a firearm by a felon. However, if the defendant used or possessed the firearm in connection with the commission of another offense, the court is to apply the offense level from the other offense if it is greater than the firearms offense level. § 2K2.1(c)(1)(A). The district court found that defendant used the firearm in connection with the offense of aggravated assault, and thus applied § 2A2.2. The Eighth Circuit affirmed. Defendant had a heated argument with the victim, left the bar, and returned carrying a gun and wearing a ski mask. He tried to find the victim, and when unsuccessful, sought him out at another bar. When the victim came outside the bar, defendant aimed his gun at him and eventually shot him. These facts established that defendant’s conduct fell within at least one of the commentary’s definitions of aggravated assault. U.S. v. White, 354 F.3d 841 (8th Cir. 2004).
8th Circuit says scar from removal of bullet and presence of bullet in body was “permanent” bodily injury.” (210) In a § 2255 motion, defendant argued that he improperly received a four-level increase under § 2A2.1(b)(1) (A) for “permanent or life threatening bodily injury.” In rejecting the argument, the Eighth Circuit noted that the argument was beyond the scope of the district court’s remand and could have been raised in defendant’s first appeal. In any event, the contention failed. The victim’s permanent scar from removal of a bullet from his neck and the presence of a bullet inside his body supported the permanent injury enhancement. U.S. v. Miner, 345 F.3d 1004 (8th Cir. 2003).
8th Circuit upholds use of homicide cross-reference where victim was killed in meth lab fire. (210) During defendant’s drug activity, a wooden building containing defendant’s methamphetamine lab exploded and burned, killing one person. Section § 2D1.1(d)(1) of the drug guideline directs the application of § 2A1.1 (First Degree Murder) if “a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111 …” Section 1111 defines murder as “the unlawful killing of a human being with malice aforethought.” Defendant challenged the district court’s use of the murder cross-reference, arguing that the circumstances surrounding the victim’s death did not support a finding of malice. The Eighth Circuit disagreed, upholding the use of the cross-reference. Defendant had been manufacturing methamphetamine and soliciting others to join him in doing so for a year. The process of manufacturing meth involves flammable material and chemical reactions, and the potential hazards of manufacturing meth are well documented. Thus, it was entirely reasonable to infer that, given defendant’s familiarity with the process of manufacturing meth, he was “aware of a serious risk of death or serious bodily harm” associated with the operation of a meth lab. Defendant’s conduct was “reckless and wanton, and a gross deviation from a reasonable standard.” U.S. v. Graham, 323 F.3d 603 (8th Cir. 2003).
8th Circuit approves departure where aggravated assault guideline did not adequately account for psychological injury. (210) 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 says defendant could withdraw from agreement requiring illegal sentence for first-degree murder. (210) The federal murder statute, 18 U.S.C. § 1111, dictates a sentence of death or life imprisonment for first-degree murder. See also § 2A1.1 (setting base offense level of 43 corresponding to life sentence for first-degree murder). Nevertheless, and despite abundant evidence that defendant committed a premeditated murder, the government agreed to recommend a 35-year sentence in exchange for defendant’s guilty plea to first degree murder. Later, he attempted to withdraw from his plea, contending that his attorney coerced him to take the deal. The court denied defendant’s motion, finding no coercion, and then imposed the agreed-upon 35-year sentence. The Eighth Circuit held that the 35-year sentence for the first-degree murder was illegal. Congress has provided two limited mechanisms for departing below a statutorily prescribed penalty: a departure for substantial assistance and the safety valve provision. Neither provision was applicable here. There can be no plea bargain to an illegal sentence. Even when a defendant, prosecutor and court agree on a sentence, the court cannot give the sentence effect if it is not authorized by law. Thus, when a defendant has entered a plea bargain that contemplates an illegal sentence, the defendant is generally entitled to withdraw the guilty plea, unless the sentence can be corrected to give the defendant the benefit of his bargain. U.S. v. Greatwalker, 285 F.3d 727 (8th Cir. 2002).
8th Circuit says life sentence proper even if defendant only acted as aider and abettor in murder. (210) Defendant was convicted of various drug crimes, including killing another person with a firearm during a drug trafficking crime. The district court sentenced defendant to life imprisonment on the murder counts. Defendant argued that his sentence should be reduced because at most he only aided and abetted Jackson in committing the murder. However, even if it accepted defendant’s argument that he was not the shooter, the Eighth Circuit found that defendant would not be entitled to a lesser sentence. The guidelines provide that aiders and abettors receive the same offense level as if convicted as a principal, § 2X2.1, and there was no evidence that would support a mitigating role reduction. U.S. v. Miller, 283 F.3d 907 (8th Cir. 2002).
8th Circuit says court could not depart below statutory minimum. (210) Defendant was convicted of first-degree felony murder, the underlying felony being arson. He argued that the district court erred in stating that it had no discretion to depart from the statutory minimum sentence of life imprisonment under § 1111(a). The Eighth Circuit disagreed. “The only authority for the district court to depart below the statutorily mandatory minimum sentence is found in 18 U.S.C. §§ 3553(e) and (f), which apply only when the government makes a motion for substantial assistance or when the defendant qualifies under the safety valve provision.” U.S. v. Villar, 184 F.3d 801 (8th Cir. 1999). Neither of these conditions existed here. U.S. v. Auginash, 266 F.3d 781 (8th Cir. 2001).
8th Circuit finds cross-reference to murder guideline did not violate due process. (210) Defendant was convicted of robbery, conspiracy, gun-trafficking, and use of a gun in a crime of violence. The recommended guidelines sentence of life imprisonment was adjusted to comply with the statutory maximum sentences set for each of defendant’s offenses, yielding a total sentence of 540 months. Defendant argued that his sentence violated due process because this was a case where “a sentencing enhancement factor becomes ‘a tail which wags the dog of the substantive offense.’” The Eighth Circuit disagreed. This was not a case where a defendant received a life sentence based on the federal court’s finding that it “was more likely than not” that he committed murders for which he had been acquitted. Defendant was convicted by a federal judge of armed robbery. Section 2B3.1(c)(1) provides that “if a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111” the court should apply § 2A1.1 (First Degree Murder). Section 111(a) defines “murder” to include felony murder. There was no question that defendant could have been convicted of felony murder. U.S. v. Al-Muqsit, 191 F.3d 928 (8th Cir. 1999), vacated in part on other grounds by U.S. v. Logan, 210 F.3d 820 (8th Cir. 2000).
8th Circuit applies force enhancement in sexual abuse case. (210) Defendant was convicted of sexually abusing a young girl living in his mother’s house. The district court applied a four-level enhancement under § 2A3.1(b)(1) [incorrectly cited in the case as 2A.1(b)(1)] for an offense committed by means set forth in 18 U.S.C. § 2241(a) or (b). Since four of defendant’s convictions were under § 2241(a), the Eighth Circuit affirmed the enhancement. Force sufficient to obtain a conviction under 18 U.S.C. § 2241(a) will also sustain an enhancement under USSG § 2A3.1(b)(1). U.S. v. Running Horse, 175 F.3d 635 (8th Cir. 1999).
8th Circuit approves use of aggravated assault guideline for vehicular battery. (210) Defendant pled guilty to vehicular battery after driving drunk and causing a serious car accident in which three passengers were injured. Because there is no expressly promulgated guideline for vehicular battery, § 2X5.1 directed the court to apply the most analogous guideline. The Eighth Circuit upheld the district court’s decision to use aggravated assault as the most analogous guideline for vehicular battery. Assault resulting in a serious bodily injury only requires a general intent to commit the acts of assault, and not a specific intent to do bodily harm. The applicable South Dakota statute similarly required only a general intent. Defendant’s conduct fell well within the aggravated assault guideline. He chose to drive a motor vehicle in a highly intoxicated state, despite being warned that he was weaving out of his lane and that he should let someone else drive. The accident and consequential injuries followed naturally from his decision. Defendant had the general intent comparable to that required for an assault resulting in a serious bodily injury under federal law. U.S. v. Osborne, 164 F.3d 434 (8th Cir. 1999).
8th Circuit affirms use of involuntary manslaughter guideline for vehicular battery. (210) Defendant pled guilty to vehicular battery after driving drunk and causing an accident which seriously injured the driver of another car. Because there is no expressly promulgated guideline for vehicular battery, § 2X5.1 directed the court to apply the most analogous guideline. Despite the factual similarity between this case and U.S. v. Osborne, 164 F.3d 434 (8th Cir. 1999), a companion case in which the Eighth Circuit upheld the use of the aggravated assault guideline for a vehicular battery, the Eighth Circuit here approved the district court’s decision to use the involuntary murder guideline. Both involuntary manslaughter and vehicular battery contemplate that the defendant did not have the specific intent to cause harm. Like vehicular battery, involuntary manslaughter requires that the defendant’s conduct cause serious bodily harm, although involuntary manslaughter contemplates the death of the victim. However, the court did err when it added the specific offense characteristic of aggravated assault to the base offense level of involuntary manslaughter. The guidelines call for upward departures, not the combining of guidelines, when the district court finds that the total offense level arrived at by applying the analogous guideline is not adequate. U.S. v. Allard, 164 F.3d 1146 (8th Cir. 1999).
8th Circuit cannot review where court was aware of its discretion to depart. (210) Defendant and several friends started a fire that resulted in the death of six firefighters. The district court applied § 2A1.1, the first-degree murder guideline, to calculate defendant’s base offense level for arson resulting in death. Under § 2A1.1, the court may depart downward if the defendant did not cause the death intentionally or knowingly. Defendant argued that the district court erred in not departing downward for this reason. The Eighth Circuit held that it had no jurisdiction to review the refusal to depart because the district court was aware of its discretion to depart. U.S. v. Edwards, 159 F.3d 1117 (8th Cir. 1998).
8th Circuit finds serious bodily injury based on stress disorder that required hospitalization. (210) Defendant and his brother attempted to kill an undercover agent. The Eighth Circuit affirmed a serious bodily injury enhancement under § 2A2.1(b) (1)(B) based on the injuries the officer received in the attack. The victim was struck on the head multiple times and received several stitches to the resulting lacerations. He received bruises to both arms and left shoulder. Additionally, the victim developed Post-traumatic Stress Disorder (PTSD), for which he was subsequently hospitalized. He suffered irrational, debilitating fear, night terrors and nightmares, depression, and anxiety attacks that generalized into all other areas of life management. While PTSD may not always rise to the level of serious bodily injury, it certainly can, and in combination with the other injuries suffered, it did here. U.S. v. Rodgers, 122 F.3d 1129 (8th Cir. 1997).
8th Circuit upholds dangerous weapon enhancement for defendant who committed aggravated assault. (210) Defendant, a member of a motorcycle gang, was convicted of RICO and drug charges. The district court used the aggravated assault guideline for a RICO count based on a beating defendant inflicted with a baseball bat and tire checker. Defendant argued that a § 2A2.2 dangerous weapon enhancement was impermissible double counting. The Eighth Circuit, relying on U.S. v. Dunnaway, 88 F.3d 617 (8th Cir. 1996), found no double counting problem. U.S. v. Fairchild, 122 F.3d 605 (8th Cir. 1997).
8th Circuit uses relevant conduct for bodily injury enhancement. (210) Defendant was convicted of two counts of aggravated assault with a dangerous weapon. He challenged an enhancement under § 2A2.2(b)(3)(A) for bodily injury, contending that his victim’s injuries were not caused by the dangerous weapons, but by his fists and feet. The Eighth Circuit held that the relevant conduct was properly considered in applying the bodily injury enhancement. The victim sustained a large cut on her right forearm, bruises on her face and chin, a swollen nose, scraped knees and shins, bruising on her shoulder, face and shin areas, lacerations on her forearm, and a hairline rib fracture. These injuries occurred during defendant’s nearly continuous assault on the victim. The district court was not required to assign the use of a specific dangerous weapon to a particular resulting injury. U.S. v. LeCompte, 108 F.3d 948 (8th Cir. 1997).
8th Circuit considers relevant conduct in applying aggravated assault cross-reference. (210) Defendant became involved in an altercation with federal park rangers. The altercation continued as a state conservation agent arrived. Defendant told his son to shoot the state agent. Defendant was convicted in federal court of forcibly assaulting and interfering with the park rangers. The applicable guideline, § 2A2.4 (Obstructing or Impeding Officers), directs a court to apply § 2A2.2 if the conduct constituted aggravated assault. The Eighth Circuit held that a November 1992 amendment to § 2A2.4 allowed the district court to consider relevant conduct in determining whether to apply the § 2A2.2 cross-reference. Defendant’s conduct toward the state conservation agent was relevant conduct, and constituted an aggravated assault because it involved a dangerous weapon with intent to do bodily harm. The court’s consideration of defendant’s conduct toward the state agent did not constitute double jeopardy, even though the state already prosecuted him for that conduct. The consideration of relevant conduct is not punishment for double jeopardy purposes. U.S. v. Street, 66 F.3d 969 (8th Cir. 1995).
8th Circuit uses aggravated assault guideline where defendant knocked out officer to steal seized drug proceeds. (210) Defendant was stopped at the airport carrying $16,000 cash. While a police detective counted the money, defendant struck of detective in the back of the head with his fist, causing the detective to fall forward and be knocked unconscious. Defendant grabbed the cash and fled. The Eighth Circuit held that defendant was properly sentenced under § 2A2.2, aggravated assault, rather than § 2A2.4, obstructing or impeding an officer. The offense involved both serious bodily injury and intent to commit another felony. The detective’s injury required hospitalization, albeit briefly, and involved the impairment of his mental faculties when he was knocked unconscious. In addition, defendant struck the officer to facilitate the robbery of the seized drug proceeds. U.S. v. Thompson, 60 F.3d 514 (8th Cir. 1995).
8th Circuit upholds official victim increase even though victim’s status was element of offense. (210) Defendant pled guilty to threatening the life of the president. He was sentenced under § 2A6.1 (Threatening Communications) and received an official victim enhancement under § 3A1.2(a). The 8th Circuit held that the official victim enhancement was not double counting, even though the victim’s status was an element of the offense of conviction. Note 3 to § 3A1.2 states that the only Chapter Two offense which specifically incorporates the factor is § 2A2.4 (Obstructing or Impeding Officers). Section 2A6.1 does not specifically incorporate the official victim factor. U.S. v. Fann, 41 F.3d 240 (8th Cir. 1994).
8th Circuit reverses ruling that knife wound to kidney was not “serious bodily injury.” (210) Defendant was convicted of assault for stabbing the victim in the kidney. After announcing its intent to impose a sentence as close as possible to that reversed on a previous appeal, the district court concluded that the victim’s wound was not a serious bodily injury, although the court admitted on the record to being “less than intellectually honest.” The 8th Circuit reversed the determination, noting that the victim’s wound resulted in four days’ hospitalization, the loss of one-third of her blood supply, and excruciating pain. The court also reversed the district court’s downward departure designed to give defendant “credit” for time she had spent in a shelter for abused adults. U.S. v. Desormeaux, 4 F.2d 628 (8th Cir. 1993).
8th Circuit upholds cross-reference from firearms to aggravated assault guideline. (210) Defendant was convicted of being a felon in possession of a firearm, but based on the cross references in §2K2.1(c)(2) and §2X1.1, he was sentenced under §2A2.2, the aggravated assault guideline. The 8th Circuit rejected defendant’s claim that it violated his rights to due process and to a jury trial to apply the sentencing provisions for a crime with which he had not been charged. Consideration of uncharged conduct in sentencing does not violate a defendant’s constitutional rights if the government proves the conduct by a preponderance of the evidence. The court also rejected defendant’s claim that under the 1991 version of note 2 to §2X1.1, a prerequisite for applying §2X1.1 is a conviction for aggravated assault. When read in context, this commentary applies only if §2X1.1 is applied directly, rather than as a cross-reference from §2K2.1. Senior Judge Bright dissented. Judge Gibson agreed with the portion of Judge Bright’s dissent which stated that the guideline system “cries out for change.” U.S. v. Smith, 997 F.2d 396 (8th Cir. 1993).
8th Circuit holds defendant responsible for more than minimal planning by other conspirators. (210) Defendant was convicted of offenses relating to his involvement in a murder-for-hire scheme. He contended that a more than minimal planning enhancement was improper since even if the conspiracy involved such planning, he was not personally involved in it. The 8th Circuit upheld the enhancement. Defendant made several trips to Arkansas with others for the purpose of killing the victim before the actual assault. Additionally, defendant admitted others in the conspiracy engaged in more than minimal planning. This planning was reasonably foreseeable in a conspiracy to murder scheme, and defendant was therefore responsible for such planning. U.S. v. Parker, 989 F.2d 948 (8th Cir. 1993).
8th Circuit says victim who was in pain and needed crutches to walk suffered serious bodily injury. (210) Defendants ambushed a woman victim at night as she was walking towards her apartment. They fired five times with a shotgun, and she suffered over 100 pellet wounds to her body. The 8th Circuit affirmed an enhancement based on the victim’s serious bodily injury under section 2A2.1(b)(3) (Nov. 1989). The district court did not just rely on an unsupported assumption that the victim suffered terror from being ambushed at night. Medical records indicated the victim was prescribed crutches to walk. The victim’s sister testified that the victim was in pain, and needed the crutches to walk. She also stated that the victim was in shock and could not return to her job because of mental trauma. U.S. v. Parker, 989 F.2d 948 (8th Cir. 1993).
8th Circuit applies enhancement where others in murder conspiracy were motivated by money. (210) Defendant was convicted of offenses relating to his involvement in a murder-for-hire scheme. The 8th Circuit upheld an enhancement under section 2A2.1(b)(4) for a conspiracy motivated by a payment of money or other thing of value, even though there was no evidence that defendant ever received any payment. Defendant admitted the payment of money motivated the conspiracy. The increase applied to him because it was reasonably foreseeable that others in the conspiracy were motivated by money. Moreover, evidence at trial indicated a co-conspirator promised to pay defendant if he killed the intended victim. Defendant had no other motive to commit the crime. U.S. v. Parker, 989 F.2d 948 (8th Cir. 1993).
8th Circuit says enhancement for physical contact during assault was not double counting. (210) Defendant was convicted of assaulting an IRS agent. He argued that the enhancement he received under section 2A2.4(b)(1) for an assault involving physical contact was impermissible double counting, because the conduct proscribed by 18 U.S.C. section 111 involved forcible assault. The 8th Circuit rejected the argument, ruling that physical contact is not an element of forcible assault under section 111. U.S. v. Wollenzien, 972 F.2d 890 (8th Cir. 1992).
8th Circuit affirms enhancement for striking IRS agent. (210) Defendant was convicted of assaulting an IRS agent during the performance of his official duties. The 8th Circuit upheld an enhancement under section 2A2.4(b)(1) for an offense involving physical contact, because defendant struck the agent and subjected him to a considerable degree of violence. Defendant testified that he had grabbed the agent’s clothes and treated him somewhat roughly. However, the court credited the agent’s testimony that defendant had made a “cowardly attack” on the officer from behind, and had struck a severe blow at the back of the agent’s neck. U.S. v. Wollenzien, 972 F.2d 890 (8th Cir. 1992).
8th Circuit affirms use of weapon enhancement for defendant who gave informant gun to kill witness. (210) Defendant hired a confidential informant to kill a government witness. As part of the conspiracy, defendant gave the informant a gun to use to kill the witness. The 8th Circuit affirmed a three-level enhancement under section 2A2.1(b)(2)(C) for threatened use of a dangerous weapon. The court rejected defendant’s claim that neither he nor the informant actually threatened to use the gun against the witness since the informant actually turned the weapon over to DEA agents. From the point of view of the victim, defendant’s offense involved the threatened use of a dangerous weapon. U.S. v. Sims, 952 F.2d 1014 (8th Cir. 1991).
8th Circuit enhances sentence for serious bodily injury despite defendant’s acquittal. (210) Defendant was charged in Count I with assault with a baseball bat and in Count II with assault resulting in serious bodily injury. He was found guilty of Count I and guilty of the lesser-included offense on Count II of assault by striking, beating or wounding. Defendant’s base offense level under guideline § 2A2.2(a) was 15, but the district court enhanced the offense level by four under guideline § 2A2.2(b)(3)(B) for inflicting serious bodily injury on the victim. The 8th Circuit upheld the enhancement despite defendant’s acquittal on that charge. Conduct which is the subject of an acquittal may be used to enhance a sentence under the guidelines. Here, the district court properly concluded that the jury’s determination under the statutory definition of serious bodily injury did not preclude a finding of serious bodily injury under the guidelines definition. Here, the guidelines’ definition of serious bodily injury was met: the victim’s skull fracture required hospitalization. U.S. v. Slow Bear, 943 F.2d 836 (8th Cir. 1991)
8th Circuit upholds use of aggravated assault guideline for ex-felon in possession of firearm. (210) Guideline § 2K2.1 ordinarily governs the crime of possession of a firearm by an ex-felon. However, § 2K2.1(c)(1) provides that if the defendant “used the firearm in committing or attempting, another offense,” the guideline for that offense should apply if it is higher. Here the defendant pulled a .357 magnum revolver from his car and struggled with store employees who suspected him of shoplifting. The gun discharged during the scuffle, and defendant shouted, “I will kill you you son of a bitch.” The 8th Circuit held that the trial court’s use of the aggravated assault guideline (§ 2A2.2) was not clearly erroneous. U.S. v. Shinners, 892 F.2d 742 (8th Cir. 1989).
8th Circuit affirms downward departure where victim provoked assault. (210) The government appealed from the sentencing judge’s downward departure from the sentencing guidelines in an assault case. The 8th Circuit affirmed the downward departure, ruling that the evidence at trial supported the trial court’s determination that the victim provoked the assault. Section 5K2.10 specifically authorizes a downward departure in such circumstances. U.S. v. Yellow Earrings, 891 F.2d 650 (8th Cir. 1989).
9th Circuit upholds life sentence for trying to topple Cambodian government. (210) Defendant, a former resident of Cambodia, was convicted of several offenses arising out of his effort to organize an armed uprising against the government of Cambodia. The presentence report calculated defendant’s offense level at 48, which at criminal history category I yields a life sentence, and the district court imposed a life sentence. The Ninth Circuit upheld that sentence against claims that the district court had failed to consider the political nature of the offense, the government’s failure to charge any other person involved in the uprising, and the government’s decision to bring the prosecution close to the end of the limitations period. The court also rejected defendant’s claim that the sentence was substantively unreasonable. U.S. v. Chhun, 744 F.3d 1110 (9th Cir. 2014).
9th Circuit reverses cross-reference for lack of malice in car accident deaths. (210) While driving an SUV loaded with illegal aliens, defendant tried to swerve around a spike strip. The sudden shift in weight caused the SUV to roll, killing 10 of the illegal aliens. After being convicted of transporting illegal aliens, defendant was sentenced to 10 life sentences. In defendant’s first appeal, the Ninth Circuit vacated the sentence, ruling that the district court erred in calculating defendant’s offense level by cross-referencing to the second-degree murder guideline without finding that defendant acted with “malice aforethought” or using a clear-and-convincing-evidence standard. U.S. v. Pineda-Doval, 614 F.3d 1019 (9th Cir. 2010). On remand, the district court again imposed 10 life sentences. The Ninth Circuit vacated the sentence, finding that the district court clearly erred in finding by clear and convincing evidence that defendant acted with malice aforethought. U.S. v. Pineda-Doval, 692 F.3d 942 (9th Cir. 2012).
9th Circuit holds that assault statute is not facially unconstitutional under Apprendi. (210) A federal statute, 18 U.S.C. § 111, makes it a federal crime to assault a federal officer. A defendant who violates § 111 is subject to an enhanced sentence if he used a deadly or dangerous weapon or inflicted bodily injury. At trial, the jury was instructed that it had to determine whether defendant used a dangerous weapon or inflicted bodily injury. Defendant argued, however, that § 111 was facially unconstitutional under Apprendi v. New Jersey, 530 U.S. 446 (2000), because Congress intended the facts that increase a defendant’s sentence to be sentencing factors decided by the court, not facts found by the jury. Judge Canby, joined by Judge Rawlinson, held that § 111 is not facially unconstitutional. Judge N.R. Smith dissented on other grounds. U.S. v. Vela, 624 F.3d 1148 (9th Cir. 2010).
9th Circuit requires clear and convincing proof to use murder guideline in immigration offense. (210) Defendant was convicted of transportation of illegal aliens resulting in death, in violation of 8 U.S.C. § 1324(a)(1). If the district court had used the guideline for that offense, 2L1.1, defendant would have had an offense level of 168 to 210 months. Section 2L1.1 provides, however, that if the death of an alien constituted murder as defined under federal law, the court should use the murder guideline. The district court followed the reference, used the murder guideline, and sentenced defendant to life imprisonment. The Ninth Circuit held that a court could not follow the cross-reference in § 2L1.1 unless it found that defendant acted with malice aforethought. It then held that because the finding of malice aforethought had a disproportionate impact on the sentence imposed, the district court was required to make that finding by clear and convincing evidence. U.S. v. Pineda-Doval, 614 F.3d 1019 (9th Cir. 2010).
9th Circuit finds use of murder guideline for fatal immigration offense requires malice aforethought. (210) Defendant was convicted of transportation of illegal aliens resulting in death, based on the death of 10 illegal aliens in an SUV that crashed while defendant was attempting to bring 20 illegal aliens to the U.S. The guideline for transportation of illegal aliens, § 2L1.1, requires use of the guideline for murder if any person was killed under circumstances that would constitute murder. At sentencing, the district court followed the cross-reference, found that defendant engaged in reckless driving, and used the guideline for second-degree murder, 2A1.2. Defendant argued that he did not act with malice aforethought, as required by the federal murder statute, and instead acted recklessly and that the court should therefore have used the illegal transportation guideline. The Ninth Circuit held that to use the cross-reference in § 2L1.1, the district court had to find that defendant had malice aforethought and that the court’s finding that defendant acted recklessly did not necessarily satisfy that requirement. The court of appeals remanded for resentencing. U.S. v. Pineda-Doval, 614 F.3d 1019 (9th Cir. 2010).
9th Circuit upholds official victim enhancement for assault on Border Patrol officer. (210) The Guideline for an offense involving an official victim, § 3A1.2, provides for a three-level increase in offense level if the offense was motivated by the defendant’s official status. Defendant assaulted a Border Patrol officer who tried to arrest him shortly after defendant illegally crossed the border into the U.S. Based on that conduct, he was convicted of assaulting a federal officer, in violation of 18 U.S.C. § 111. At sentencing, defendant argued that the official victim enhancement should not apply because the assault was motivated by his desire to escape, not the victim’s status. The district court rejected this argument, and the Ninth Circuit affirmed. The court held that defendant knew of the victim’s official status and his conduct was motivated by that knowledge. U.S. v. Rivera-Alonzo, 584 F.3d 829 (9th Cir. 2009).
9th Circuit says unlawful restraint is not an element of assault. (210) Defendant held the victim while a third man stabbed the victim. He was convicted of aiding and abetting an assault with a dangerous weapon, in violation of 18 U.S.C. § 113(a). At sentencing, the district court increased defendant’s offense level under § 3A1.3, which provides for a two-level enhancement if the victim was physically restrained during the offense. The commentary to that Guideline states that the adjustment should not be applied when unlawful restraint is an element of the underlying offense. The Ninth Circuit held that the district court properly applied the enhancement because defendant’s restraint of the victim “added to the basic crime.” U.S. v. Old Chief, 571 F.3d 898 (9th Cir. 2009).
9th Circuit upholds enhancement for using dangerous weapon in assault. (210) The Guideline for assault, § 2A2.2, provides for a four-level increase in offense level if a dangerous weapon was used. Defendant participated in an assault by restraining the victim while defendant’s accomplice stabbed him. Prior to the assault, defendant’s accomplice had flashed his knife, and the accomplice had held the knife in his hand while he and defendant chased the victim. Defendant was convicted of aiding and abetting an assault with a dangerous weapon. At sentencing, the district court relied on § 2A2.2 to increase defendant’s offense level. The Ninth Circuit held that the district court properly applied the enhancement because it was reasonably foreseeable that defendant’s accomplice would use the knife. U.S. v. Old Chief, 571 F.3d 898 (9th Cir. 2009).
9th Circuit finds 32 months reasonable for involuntary manslaughter. (210) During a domestic dispute, defendant’s boyfriend drunkenly assaulted her. In response, defendant grabbed a knife, swung it at her boyfriend, and stabbed him. The knife severed an artery, and the boyfriend died. Defendant was charged with voluntary manslaughter, but the jury convicted her of the lesser-included offense of involuntary manslaughter. Defendant’s Guideline range was 27 to 33 months, and the district court imposed a 32-month sentence. The Ninth Circuit found the sentence reasonable, rejecting defendant’s claims that the district court ignored evidence of the victim’s behavior and that the sentence was unreasonably long. U.S. v. Crowe, 563 F.3d 969 (9th Cir. 2009).
9th Circuit rules minimum sentence for racketeering murder is life. (210) The Violence in Aid of Racketeering statute, 18 U.S.C. § 1959, provides that whoever commits murder in aid of racketeering “shall be punished by death or life imprisonment, or a fine under this title, or both.” Defendant argued that § 1959 allowed the court to impose a sentence of only a fine. The Ninth Circuit held that the minimum sentence for a violation of § 1959 involving a murder was life imprisonment. U.S. v. Rollness, 561 F.3d 996 (9th Cir. 2009).
9th Circuit affirms 36-year sentence for double murder. (210) Defendant was convicted under 18 U.S.C. § 2280 of murdering the captain and first mate of the ship on which he was a crew member while the vessel was on the high seas. The district court imposed a sentence of 36 years. In imposing sentence, the court noted that defendant had no prior criminal record but that defendant’s offense had put the lives of the entire crew of the ship at risk. The Ninth Circuit held that the sentence was not unreasonable. U.S. v. Shi, 525 F.3d 709 (9th Cir. 2008).
9th Circuit upholds upward departure for manslaughter by drunk big rig driver. (210) While driving an 80,000-pound tractor trailer and with a blood-alcohol content twice the legal limit, defendant ignored multiple attempts to pull him over and ran 20 cars off the road before finally crushing a passenger car and killing its driver. Defendant pleaded guilty to involuntary manslaughter. The guideline for that offense, § 2A1.4(a), sets the offense level at 10 for criminally negligent conduct and 14 for reckless conduct; it also provides that driving under the influence should be treated as reckless. The district court set defendant’s offense level at 14, then departed upward four levels because defendant’s conduct showed an extremely reckless disregard for life. The Ninth Circuit upheld the departure, finding that although the guideline accounted for reckless driving while intoxicated, it did not take into account defendant’s driving a loaded truck while drunk. U.S. v. Semsak, 336 F.3d 1123 (9th Cir. 2003).
9th Circuit affirms increase for “serious bodily injury” based on crime of conviction. (210) The Ninth Circuit held that defendant’s conviction established that the assault resulted in serious bodily injury for purposes of guideline § 2A2.2(b)(3)(B) because defendant had pleaded guilty to assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 1153 and 113(a)(6). Although the parties and the district court had “considered at length” whether the assault actually fit within the definition of “serious bodily injury” as that term was defined in defendant’s crime of conviction and in the guidelines, the panel said that “such extended consideration was unnecessary,” because “[t]he sentencing factor of serious bodily injury was established by [defendant’s] conviction.” That was sufficient for the court to impose the four-level upward adjustment. U.S. v. Upshaw, 226 F.3d 1101 (9th Cir. 2000).
9th Circuit affirms seven-level upward departure for murdering wife on honeymoon. (210) On the final night of their honeymoon aboard a cruise ship, defendant beat and choked his wife until she lost consciousness and then threw her from the ship’s upper deck into the ocean, where she drowned without regaining consciousness. The sentence was twice vacated and remanded for a more complete explanation and justification for an upward departure. In this third appeal, the Ninth Circuit noted that the Supreme Court had changed standard of review in Koon v. U.S., 518 U.S. 81, 99 (1996), so the sentence could be reviewed only for abuse of discretion. Applying that standard, the court affirmed a seven-level upward departure to 405 months, in this second-degree murder case. The district court properly relied on § 5K2.8 – extreme conduct – in finding that the facts of this case were unusually cruel or brutal, as compared to other second-degree murder cases. The judge observed that he had never seen a case in which a honeymoon ended in such a chilling and heartless manner. U.S. v. Roston, 168 F.3d 377 (9th Cir. 1999).
9th Circuit uses “categorical approach” to find maximum sentence for soliciting murder for hire. (210) Defendant was convicted of solicitation of murder for hire, in violation of 18 U.S.C. § 373. The underlying felony – murder for hire – provides a sliding scale of punishment that depends on the outcome of the intended crime. 18 U.S.C. § 1958. If no injury occurs, there is a ten-year maximum. If personal injury results, the maximum is 20 years, and if death results, the maximum is death or life imprisonment. Defendant argued that since the victim was unharmed, the maximum sentence under § 1958 was ten years, and thus the maximum for solicitation under § 373 was five years. The 9th Circuit rejected this argument, noting that § 373 takes as its reference point “the crime solicited,” and imposes a maximum sentence of 20 years if “the crime solicited” is punishable by life imprisonment or death. This “categorical approach” is consistent with the structure of the statute, and with the legislative history. U.S. v. Devorkin, 159 F.3d 465 (9th Cir. 1998).
9th Circuit reverses upward departure for multiple counts. (210) 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 applies attempted murder cross-reference in felon-in-possession case. (210) Defendant helped a prisoner escape by shooting a deputy in the face, and then taking the deputy’s gun. He did not shoot the deputy’s gun, but “used it for a back up.” He was arrested in possession of the deputy’s gun, (the other gun was never found), and was convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g). At sentencing, the court applied the cross-reference in § 5K2.1(c)(1), and sentenced defendant under the attempted murder guideline, § 2A2.1. On appeal, defendant challenged the use of the cross-reference because he did not “use” the deputy’s gun in the attempted murder of the deputy. The Ninth Circuit rejected this argument, holding that the deputy’s gun enabled him “to complete the commission of the attempted murder by having a loaded gun in his hands as he made his escape from the scene of the crime.” The court added that the government need not show that the gun traveled in interstate commerce in order to use it to enhance a sentence. U.S. v. Gallant, 136 F.3d 1246 (9th Cir. 1998).
9th Circuit finds most analogous offense was manslaughter for prisoner transferred from Mexico. (210) Defendant, a U.S. citizen, was convicted in Mexico of “homicidio simple.” She was transferred to the United States to complete her sentence pursuant to the Treaty on the Execution of Penal Sentences, Nov. 25, 1976, U.S.-Mex., 20 U.S.T. 7399. Under the law, the U.S. Parole Commission was required to compute a guideline sentence for her. The Commission found that the most analogous U.S. crime was second degree murder and sentenced her accordingly. On appeal, however, the Ninth Circuit held that the facts did not show that she acted with malice and therefore the comparable U.S. offense was voluntary manslaughter. The Parole Commission found that defendant was in an extremely irrational and paranoid state of mind when she killed the victim. Malice cannot exist in such circumstances. Kleeman v. U.S. Parole Commission, 125 F.3d 725 (9th Cir. 1997).
9th Circuit says aggravated assault guideline does not require “intent” to commit serious bodily injury. (210) On its face guideline § 2A2.2 requires only that the assault “involve” serious bodily injury. Notably, assault on a federal officer in violation of 18 U.S.C. § 111, is only a general intent crime. The law presumes that a person intends the natural and probable consequences of his voluntary acts, so holding defendant accountable for the serious bodily injury the Border Patrol Agent suffered as a consequence of defendant’s assault did not turn § 111 into a strict liability offense. The officer broke his ankle while trying to subdue the defendant after the defendant lunged at him. Section 2A2.2 applies “even where there is no finding that a defendant had the specific intent to cause serious bodily injury.” U.S. v. Garcia-Camacho, 122 F.3d 1265 (9th Cir. 1997).
9th Circuit does not decide level of causation required for assault to “involve” serious bodily injury. (210) The Ninth Circuit said that appellant made a “valid point” that there “may be circumstances where an injury is so attenuated that a defendant should not be held accountable.” For example, if the Border Patrol agent in this case had tripped and twisted his ankle while walking a handcuffed and subdued appellant back to the patrol car, “then perhaps appellant should not be held accountable for that injury.” However, the court found it unnecessary to decide what level of causation is required because in this case, the agent was engaged in a struggle with the appellant at the time the agent broke his ankle. The injury was a direct result of the struggle with the defendant. Defendant’s argument that it was merely a “job hazard,” was unavailing. U.S. v. Garcia-Camacho, 122 F.3d 1265 (9th Cir. 1997).
9th Circuit finds threat to use weapon even though no weapon was present. (210) Section 2A2.2(b)(2)(C) provides for a three-level increase when a dangerous weapon “was brandished or its use was threatened.” In this case, the defendant told the victim he had a gun in the trunk of his car, and said he was going to kill her with it. In fact, there was no gun in the trunk. Nevertheless, the Ninth Circuit upheld the increase for threatened use of a dangerous weapon. The court found support in U.S. v. Sims, 952 F.2d 1014 (8th Cir. 1991), which upheld and enhancement where defendant gave a gun to an informant to kill the victim. The Eighth Circuit held that defendant’s conduct threatened the victim, even though the defendant never made any direct threats to the victim. U.S. v. Chee, 110 F.3d 1489 (9th Cir. 1997).
9th Circuit upholds enhancement based on defendant’s intent to kill. (210) Defendant was convicted of causing another person to mail a destructive device to be delivered with intent to kill or injure in violation of 18 U.S.C. § 1716. The district court found that defendant intended to murder the victim, and therefore increased his base offense level to 28 under guideline § 2A2.1. The evidence showed that defendant was angry at a Nevada state trooper who had arrested him for a traffic violation. Over a period of years, defendant stalked the officer at three different residences. He then made three prototypes of a destructive device based on an article in the “Anarchist’s Cookbook.” An explosives expert testified that the bomb was sufficient to kill the person who opened it and that staples, screws and nails were added to enhance fragmentation to cause severe pain and death. This evidence was sufficient to demonstrate that defendant had the intent to murder. U.S. v. Collins, 109 F.3d 1413 (9th Cir. 1997).
9th Circuit permits departure for intent to maximize victim’s pain and injuries. (210) Guideline § 2A2.1(b)(1)(A) provides for an increase of four levels for a permanent or life threatening injury, but the court departed upward eight offense levels because an explosives expert testified that staples, screws and nails were added to the explosive device to enhance fragmentation in order to cause severe pain and death. The bomb was intended to kill a Nevada state trooper who had arrested defendant earlier. Based on this evidence, the Ninth Circuit upheld the departure, ruling that the guideline “does not address the appropriate punishment for someone who acts with the deliberate intent to maximize his victim’s pain and injuries.” U.S. v. Collins, 109 F.3d 1413 (9th Cir. 1997).
9th Circuit says Appendix A is not mandatory; court should have used guideline for impeding federal officer. (210) Defendant argued that the court should have used guideline § 2A2.4, which deals with obstructing or impeding federal officers, rather than relying on the statutory index to the guidelines which referred to the obstruction section, 2J1.2. The Ninth Circuit agreed, holding that the guidelines cross-referenced in the statutory index are not mandatory. Appendix A says that “if in an atypical case the guideline section indicated for the statute of conviction is inappropriate because of the particular conduct involved [the court should] use the guideline section most applicable to the nature of the offense conduct charged in the count of which the defendant was convicted.” The Ninth Circuit held that defendant’s conduct was more analogous to impeding a federal officer than to obstructing justice, and therefore remanded the case for resentencing under § 2A2.4. U.S. v. Fulbright, 105 F.3d 443 (9th Cir. 1997), overruled on other grounds by U.S. v. Heredia, 483 F.3d 913 (9th Cir. 2007).
9th Circuit upholds refusal to find serious bodily injury in Rodney King case. (210) In sentencing the police officers for violating Rodney King’s civil rights, the district court imposed a two level upward adjustment for bodily injury rather than a four level adjustment for serious bodily injury under § 2A2.2(b)(3). On appeal, the government argued that a four level adjustment was warranted by the blow administered forty-three seconds into the video tape, which fractured King’s leg. The district court acknowledged that this blow caused serious bodily injury, but found that the officer was not acting criminally when he delivered it, because the force did not become excessive until later during the incident. The 9th Circuit found no clear error, noting that the district court provided a reason to distinguish between the officers’ intent at the time of the leg-breaking blow and their intent during the nineteen seconds of the video tape in which the court concluded that criminal activity occurred. Those latter nineteen seconds were preceded by a period in which King lay on his stomach, and posed no threat. U.S. v. Koon, 34 F.3d 1416 (9th Cir. 1994), dissent from denial of reh. en banc, 45 F.3d 1303 (9th Cir. 1995), reversed on other grounds, Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996).
9th Circuit upholds credibility finding that “money was exchanged.” (210) Defendant was convicted of conspiracy and murder for hire. At sentencing the district court found that “money was exchanged to carry out the crime,” and added four levels pursuant to §2A2.1(b)(2). On appeal, defendant argued that this finding should not stand because it was based on his codefendant’s testimony which was disputed, and the payment of the money was only a “miniscule part of the conspiracy charged.” The 9th Circuit upheld the district court’s determination noting that “credibility determinations should not be disturbed on appeal.” U.S. v. Dota, 33 F.3d 1179 (9th Cir. 1994).
9th Circuit reverses adjustment for using car as dangerous weapon where no intent to injure. (210) Defendant was convicted of involuntary manslaughter and aggravated assault as a result of his drunk driving. The district court departed upward under § 2A2.2(b)(2)(B) on the ground that defendant used a “dangerous weapon,” i.e. his automobile, in the commission of the offense. The 9th Circuit reversed, holding that “when a motor vehicle is involved in an aggravated assault, a district court may not add four levels pursuant to U.S.S.G. §2A2.2(b)(2)(B) unless the defendant used the vehicle with an intent to injure with it.” Here, the district court found only that defendant’s conduct was reckless, not intentional. U.S. v. Dayea, 32 F.3d 1377 (9th Cir. 1994).
9th Circuit upholds enhancement for inflicting “life-threatening injury.” (210) Defendant kicked and stabbed his wife, and then, as she bled profusely, tried to prevent her from obtaining medical treatment. Viewed in conjunction with defendant’s threat to kill his wife, it was proper for the district court to find that the defendant had inflicted a “life-threatening injury,” justifying a four-level enhancement under § 2A2.1(b)(1)(B). U.S. v. Hinton, 31 F.3d 817 (9th Cir. 1994).
9th Circuit upholds departure for extreme conduct on dead victim but remands as to extent of departure. (210) Defendant was convicted of voluntary manslaughter in the death of his 2 year old daughter. The district court departed upward from a range of 70-87 months to a sentence of 108 months based on defendant’s post homicide conduct of burning the child’s body and cutting off her head to hinder identification. The Ninth Circuit upheld the departure under either § 5K2.8 (extreme conduct) or § 5K2.0 finding no evidence the Sentencing Commission considered the extreme acts committed by defendant. Nothing indicates § 5K2.8 is limited to conduct involving a live victim and even if it were, the general departure language of § 5K2.0 would permit departure. However, remand was required for the district court to adequately explain the extent of the departure. U.S. v. Quintero, 21 F.3d 885 (9th Cir. 1994).
9th Circuit upholds two level increase for serious injuries in assault case. (210) Based on the jury verdict for obstructing an officer, the court arrived at an offense level of six under § 2A2.4(a). The court then added three offense levels for striking, beating or wounding, for an offense level of 9. This was increased by two levels because there were two victims, and by an additional level to level 12 because defendant was a career offender under § 4B1.1. The district court then increased defendant’s offense level by two levels to level 14 because one of the wounds inflicted by him had taken nine months to heal. On appeal, the 9th Circuit affirmed, finding no abuse of discretion in the two level increase for the serious injuries suffered by both victims. U.S. v. Streit, 17 F.3d 306 (9th Cir. 1994).
9th Circuit upholds departure for profit motive and more than minimal planning. (210) 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 finds aggravated assault guideline proper and fractured elbow was “serious injury.” (210) Defendant was a police officer convicted of various federal civil rights violations in which he fractured the elbow of one victim. The fractured elbow resulted in the victim wearing a sling and being unable to write. The 9th Circuit found that the was a “serious” injury as defined in §1B1.1. The aggravated assault guideline was also properly applied. The district court’s comment on defendant’s prior history of violence played only a negligible role in the court’s determination of the proper guideline. U.S. v. Reese, 2 F.3d 870 (9th Cir. 1993).
9th Circuit permits application of aggravated assault offense level and offense characteristics in civil rights case. (210) In applying the guideline for deprivation of civil rights, §2H1.4 (1989), the district court used the assault guideline, §2A2.2, for several of the underlying excessive force counts. It also increased the base offense level under §2A2.2 for use of a dangerous weapon and serious bodily injury. The 9th Circuit held it was proper to double count the aggravated assault by using the assault guideline and also by increasing the offense level, because this was required by the guidelines. Some aggravated assaults do not involve either the use of a dangerous weapon or serious bodily injury. Double counting is permitted when either or both of the factors are used to increase the base offense level for this guideline. U.S. v. Reese, 2 F.3d 870 (9th Cir. 1993).
9th Circuit finds that defendant used or possessed firearm in connection with assault. (210) Guideline section 2K2.1(b)(5) provides for an increase of four levels if “the defendant used or possessed any firearm or ammunition in connection with another felony offense.” The defendant argued that the increase could not be applied unless the firearm was used as a firearm and not as a club. The 9th Circuit rejected the argument, noting that the guidelines explicitly refer not only to use of the firearm but to possession of it. Moreover, there was sufficient evidence that defendant assaulted the victim by holding the victim by the hair while he held the sawed off shotgun in the other hand. Regardless of whether the defendant pointed the gun at the victim, this was sufficient to put the victim in fear of bodily injury, thus committing the crime of assault. U.S. v. Shackley, 995 F.2d 166 (9th Cir. 1993).
9th Circuit rejects departure for “intended death” in second-degree murder case. (210) Defendant was convicted of second-degree murder. The district court recognized that it would be improper to depart under section 5K2.1 because the guideline for second-degree murder already considered the fact that death resulted. Instead, the court focused on the last sentence of section 5K2.1 which allows departure “if death was intended.” The 9th Circuit held this was error, because a conviction of second-degree murder requires the jury to find that the defendant killed with malice, i.e. intentionally. “Accordingly, the fact that [defendant] killed his wife, standing alone, could not be used to depart upward.” U.S. v. Roston, 986 F.2d 1287 (9th Cir. 1993).
9th Circuit rules that assault with a dangerous weapon is not an “aggravated assault.” (210) The commentary accompanying section 2A2.2 says that aggravated assault means an assault involving (a) a dangerous weapon with intent to do bodily harm, (b) serious bodily injury, or (c) an intent to commit another felony. Aggravated assaults are assigned a base offense level of 15, whereas the base level for a minor assault with a dangerous weapon is only 6. Here defendant pleaded guilty to two counts of assault with a dangerous weapon and was sentenced for aggravated assault under 2A2.2. The 9th Circuit reversed, holding that the fact that defendant “committed the assaults with a dangerous weapon is not, in itself, justification for classifying them as aggravated.” The district court should have applied the base offense level for a minor assault with a dangerous weapon, as provided in section 2A2.3(a)(1). U.S. v. Luscier, 983 F.2d 1507 (9th Cir. 1993).
9th Circuit requires mandatory life sentence for first degree murder. (210) 18 U.S.C. section 1111(b) directs that a defendant convicted of first degree murder “shall . . . be sentenced to imprisonment for life . . . .” The 9th Circuit found that this language required a defendant convicted of first degree murder to be sentenced to life in prison. The statute “leaves the sentencing court no discretion to impose a lesser sentence.” Thus the court held that section 1111(b) “is a minimum sentence within the meaning of section 5G1.1.” The court found no inconsistency between its ruling and 18 U.S.C. 3559, which defines first degree murder as Class A felony, nor section 3581 which states that the authorized terms of imprisonment for a Class A felony are “the duration of the defendant’s life or any period of time.” The court agreed with the 2nd and 3rd Circuits that section 3581 “is simply not intended to modify established statutory sentences.” Judge Norris dissented. U.S. v. U.S. v. LaFleur, 971 F.2d 200 (9th Cir. 1991).
9th Circuit reverses departure for extreme psychological injury to the victim’s family. (210) In departing upward the district court cited the “extreme psychological injury” to the victim’s family, relying on guideline § 5K2.3. The 9th Circuit reversed, noting that the term “victim” in the applicable guidelines § 2A2.2(b) “includes only the direct victim of the crime charged and not others affected by it.” The court noted that if § 5K2.3 applies to those affected by crimes such as the victim’s family, “then the justice system would punish the murderer of the head of a household more harshly than the murderer of a transient.” U.S. v. Hoyungowa, 930 F.2d 744 (9th Cir. 1991).
9th Circuit reverses departure where firearm discharge was already taken into account by assault guideline. (210) The district court justified a portion of the upward departure on the ground that a firearm had been discharged during the commission of the assault with a deadly weapon. The 9th Circuit reversed, holding that the court overlooked the fact that the computed adjusted offense level on this count had taken the firearm discharge into account, increasing the offense level by five. U.S. v. Brady, 928 F.2d 844 (9th Cir. 1991), abrogated on other grounds by U.S. v. Watts, 519 U.S. 148 (1994).
9th Circuit finds that car was a dangerous weapon. (210) Defendant was convicted of assaulting a border patrol officer with his automobile. He claimed that his car was not a dangerous weapon under guideline § 2A2.2(b)(2)(B). The 9th Circuit rejected his argument as “frivolous” because the guidelines define a dangerous weapon as “an instrument capable of inflicting death or serious bodily injury.” The court also found no merit to defendant’s argument that he merely “brandished” his car. U.S. v. Sanchez, 914 F.2d 1355 (9th Cir. 1990).
9th Circuit upholds “official victim” adjustment, based on answer to “Questions Most Frequently Asked.” (210) Defendant was convicted of assault on a federal officer. He argued that his sentence should not have been adjusted upward for “official victim” under § 3A1.2 because the aggravated assault guideline, § 2A2.2, “already incorporates that factor.” The 9th Circuit rejected the argument, relying on the Sentencing Commission’s answer to “Questions Most Frequently Asked About the Sentencing Guidelines.” Although “this informal statement of the Commission is not binding on this court,” the answer “clearly indicated that the Sentencing Commission intended the official victim adjustment to apply when a defendant is convicted under § 111 and sentenced under guidelines § 2A2.2.” U.S. v. Sanchez, 914 F.2d 1355 (9th Cir. 1990).
9th Circuit applies assault guideline, rather than obstruction guideline, where appellant rammed agent’s car. (210) Appellant was convicted of assault on a federal officer after he rammed a border patrol vehicle with his car. The district court applied the “aggravated assault” guideline, § 2A2.2. The appellant argued that the court should have applied § 2A2.4, “obstructing or impeding officers.” The 9th Circuit characterized the appellant’s attempt “to recharacterize his actions” as “disingenuous,” because at trial defendant’s counsel agreed to eliminate instructions defining resisting, opposing, or impeding arrest. The district court properly applied the aggravated assault guideline. U.S. v. Sanchez, 914 F.2d 1355 (9th Cir. 1990).
9th Circuit finds that car was a dangerous weapon. (210) Defendant was convicted of assaulting a border patrol officer with his automobile. He claimed that his car was not a dangerous weapon under guideline § 2A2.2(b)(2)(B). The 9th Circuit rejected his argument as “frivolous” because the guidelines define a dangerous weapon as “an instrument capable of inflicting death or serious bodily injury.” The court also found no merit to defendant’s argument that he merely “brandished” his car. U.S. v. Sanchez, 914 F.2d 1355 (9th Cir. 1990).
9th Circuit limits bodily-injury adjustment to victim of charged assault. (210) Defendant pled guilty to assaulting agent Love with a handgun. The sentencing judge increased defendant’s offense level under § 2A2.2(b)(3) by two levels because defendant caused bodily injury to agent Purdy by colliding with his car while fleeing the assault on agent Love. The 9th Circuit held the adjustment improper because § 2A2.2(b)(3) calls for an adjustment in the case of injury to “the victim.” The court concluded that the section applied only when injury occurs to the victim of the assault charge on which the defendant has been convicted. While noting that § 1B1.3 authorizes considering all acts committed by a defendant during or while attempting to escape from the offense of conviction, the court concluded that this provision was overridden by the more specific language of § 2A2.2(b)(3). U.S. v. Graves, 908 F.2d 528 (9th Cir. 1990).
9th Circuit affirms 36-year sentence for double murder. (210) Defendant was convicted under 18 U.S.C. § 2280 of murdering the captain and first mate of the ship on which he was a crew member while the vessel was on the high seas. The district court imposed a sentence of 36 years. In imposing sentence, the court noted that defendant had no prior criminal record but that defendant’s offense had put the lives of the entire crew of the ship at risk. The Ninth Circuit held that the sentence was not unreasonable. U.S. v. Shi, __ F.3d __ (9th Cir. April 24, 2008) No. 06-10389.
10th Circuit upholds use of voluntary manslaughter guideline even though no evidence that defendant fired fatal shot. (210) Based on his participation in a gun fight that left one participant dead, defendant pled guilty to being a felon in possession of a firearm. 18 U.S.C. §922(g)(1). If death resulted from the offense, and it would result in a higher offense level, §2K2.1 directs a court to apply the most analogous offense guideline from the homicide guidelines. The district court found that the voluntary manslaughter guideline was the most analogous, and applied §2A1.3. Defendant contended that there was no evidence that he fired the fatal bullet. The Tenth Circuit affirmed. First, the panel doubted that proof that defendant fired the fatal shot was necessary. Criminal liability for homicide does not turn on proof that the defendant was the actual instrument of the death. Defendant precipitated the gun battle that led to the victim’s death and he had the requisite intent for voluntary manslaughter. It was only fortuitous if his shot was not the one that killed the victim. U.S. v. Cherry, 572 F.3d 829 (10th Cir. 2009).
10th Circuit finds assault by co-conspirators was relevant conduct. (210) Members of a white separatist organization were convicted of charges stemming from two racially-motivated assaults in Salt Lake City. Two defendants who participated in the first assault, but not the second, challenged the district court’s finding that the second assault was relevant conduct, but the Tenth Circuit affirmed. Defendants were convicted of conspiracy to interfere with civil rights from December 2002 to March 2003. This established that defendants had an agreement to harm “non-white” persons. An assault against a “non-white” individual by co-conspirators is related to the conspiracy to injure and intimidate “non-whites.” Moreover, the second assault followed the same pattern as the first assault: in both instances, members of the conspiracy encountered a non–white person in a public place, lured the victim outside and then jointly assaulted him. Furthermore, defendants were in the company of the assailants earlier in the evening on the night of the second assault, and when the assailants told defendants what happened the following morning, one defendant responded “good job,” and the other laughed. U.S. v. Egbert, 562 F.3d 1092 (10th Cir. 2009).
10th Circuit rejects serious bodily injury enhancement where no evidence of “protracted” impairment. (210) The district court applied a seven-level enhancement for serious bodily injury to an assault victim. However, the only evidence regarding the extent of the victim’s injuries was the testimony of two witnesses. A co-conspirator testified that when the fight stopped, the victim was not moving and the conspirator believed him to be “knocked out.” A bystander testified that when the fight ended, the victim was unconscious and bleeding from his head. She believed him to be seriously hurt or dead. A second bystander reported similar observations. The Tenth Circuit found insufficient evidence to uphold the district court’s finding that the victim suffered serious bodily injury, as opposed to bodily injury. The evidence did not establish a “protracted impairment of a function of a bodily member, organ, or mental facility.” Even if the witnesses were correct that the victim lost consciousness, there was no evidence whether the injury was “protracted,” and a brief loss of consciousness without more does not satisfy the definition of serious bodily injury. U.S. v. Egbert, 562 F.3d 1092 (10th Cir. 2009).
10th Circuit upholds grouping of multiple counts of assault and rape. (210) Defendant was convicted of two counts of rape and two counts of assault for brutally attacking his girlfriend. The district court grouped the charges together as one transaction. Defendant argued that the court should not have grouped the counts together, and that once the charges were not grouped, the 4-level enhancement for serious bodily injury (under § 2A3.1(b)(1)) would apply only to the assaults and not to the rapes. The Tenth Circuit ruled that it was proper to group the charges together. The Guidelines require grouping when counts involve the same victim and either the same act or transaction or two or more acts or transactions connected by a common criminal objective. All four charges were sufficiently connected. The beatings and rapes happened over the course of a few hours with little break, as part of one prolonged brutal attack. Moreover, it was also proper to apply the bodily-injury increase to the rapes, for reasons unrelated to the grouping. Section 2A3.1(b)(4)(A) provides for a specific offense enhancement when “the victim sustain[s] permanent or life-threatening bodily injury.” Defendant’s crime was using force to procure sex, so this enhancement includes injuries sustained because the rapist was beating the victim into submission. U.S. v. Martin, 528 F.3d 746 (10th Cir. 2008).
10th Circuit finds injury was “life-threatening” where victim could have bled to death. (210) Defendant pled guilty to assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 113(a)(6) and 1153. The ER doctor stated that the arterial laceration to the back of the victim’s head posed a substantial risk of death at the time of the injury because of the amount of blood loss, and that if unchecked, the victim would have bled to death. The Tenth Circuit affirmed a seven-level enhancement for causing a life-threatening injury. Defendant argued for a five-level increase for “serious” bodily injury, because he pled guilty to causing a serious bodily injury, not a life-threatening injury. The Tenth Circuit found no error, finding defendant confused the statute with the Guidelines. For purposes of § 113(a)(6), serious bodily injury is defined to include injury involving a substantial risk of death or extreme physical pain. However, under Guideline § 2A2.2(b)(3), “serious bodily injury” includes injury involving extreme physical pain, while “permanent or life-threatening bodily injury” includes injury involving a substantial risk of death. See § 1B1.1, Note 1(J). The doctor’s undisputed statement, that the victim would have died if the bleeding had not been stopped, supported the seven-level enhancement for a life-threatening injury. U.S. v. Tindall, 519 F.3d 1057 (10th Cir. 2008).
10th Circuit approves two-level upward departure for excessive recklessness in drunk driving case. (210) 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 holds that work boots used to kick restrained inmate was dangerous weapon. (210) Defendants, all former correctional officers, were convicted of offenses related to an assault on an inmate. The court found that the defendants subjected the inmate to an aggravated assault, defined as a felonious assault involving a dangerous weapon (i.e. one defendant’s uniform boots) with intent to do harm. The Tenth Circuit held that the work boots were properly characterized as a dangerous weapon. There was no question that one defendant, surrounded by other correctional officers, repeatedly used his boots with sufficient force to cause the victim, who was on the ground at the time, head injuries. In order to characterize the boots as dangerous weapons, the district court was not required to find that the boots would cause more serious injury than any other type of normal footwear. In proper circumstances, almost anything can count as a dangerous weapon. U.S. v. Serrata, 425 F.3d 886 (10th Cir. 2005).
10th Circuit holds kicking car door into officer was an aggravated assault. (210) After defendant was in handcuffs, a military police officer arrived to identify him, standing one or two feet away from the partially open passenger door of the patrol car. Defendant became enraged, and violently kicked the door into the lower half of the officer’s body, striking his kneecaps, upper legs and waist. The district court found that defendant used the door as a dangerous weapon and therefore sentenced defendant under the aggravated assault guideline, § 2A2.2. On appeal, defendant argued that he should have been sentenced under § 2A2.4 which covers “Obstructing or Impeding Officers.” The Tenth Circuit affirmed the use of the aggravated assault guideline, even though recognizing some overlap in the two guidelines. The court held that the car door was a dangerous weapon and that defendant undoubtedly used it is an “instrument” to physically assault the officer. U.S. v. Sherwin, 271 F.3d 1231 (10th Cir. 2001).
10th Circuit bars departure from second-degree murder guideline on grounds of premeditation and robbery. (210) After defendant pled guilty to second-degree murder, the government moved for an upward departure on the grounds that (1) the murder was premeditated; (2) the murder was committed in order to facilitate a robbery, and (3) defendant’s conduct was unusually heinous, cruel and brutal. The district court ruled that it could not depart on these grounds. The Tenth Circuit agreed that an upward departure from the second-degree murder guideline on the grounds that the murder was premeditated would be improper. In U.S. v. Kelly, 1 F.3d 1137 (10th Cir. 1993), the court rejected a similar departure, reasoning that the question of premeditation had already been considered by the guidelines in setting the different offense levels for first-degree and second-degree murder. Moreover, although Kelly does not specifically address robbery as a departure factor, its holding also applies to robbery. However, the district court erred in ruling that it could not depart under § 5K2.8 because the victim was no longer alive at the time defendant committed the extreme conduct. In order to be heinous, cruel or brutal, the defendant’s conduct need not be consciously experienced by the murder victim. U.S. v. Hanson, 264 F.3d 988 (10th Cir. 2001).
10th Circuit holds that defendant used force in raping 10-year old daughter. (210) Defendant raped his 10-year old daughter. He challenged a § 2A3.1(b)(1) use of force increase, contending that the victim never physically struggled or tried to push him away and escape the contact. However, “force may be inferred by such facts as disparity in size between victim and assailant, or disparity in coercive power, such as that between an adult and a child.” U.S. v. Reyes Pena, 216 F.3d 1204 (10th Cir. 2000). The Tenth Circuit found that the facts amply supported the use of force increase. Defendant weighed 290 pounds and his daughter was an average size 10-year-old girl. As her natural father, defendant had obvious authority over the girl. On the night of offense, the victim attempted to evade her father by asking her sister to sleep on the same couch with her. Moreover, during the two-year history of abuse, defendant threatened his daughter with removal from her home, threatened her with spanking, spanked her with a belt, spanked her with a wire, and spanked her with pliers. The victim cried out from pain on several occasions when her father penetrated her, and told him he was hurting her when he raped her. Physically transporting his daughter from the zone of safety she attempted to create on the couch with her sister, when combined with the history of abuse and threats, was sufficient force to support the enhancement. U.S. v. Willie, 253 F.3d 1215 (10th Cir. 2001).
10th Circuit says force increase and enhancement based on age of rape victim not double counting. (210) Defendant raped his ten-year old daughter. He argued that a § 2A3.1(b)(1) increase for the use of force constituted double counting since he also received an increase under § 2A3.1(b)(2)(A) because his victim was under the age of 12. He argued that because “a child never consensually participates in a sexual act with an adult,” there is implicit force whenever an adult and a child engage in sexual activity. The Tenth Circuit found no double counting problem. In U.S. v. Reyes Pena, 216 F.3d 1204 (10th Cir. 2000), the court found that not all child sexual abuse involved actual physical force and that some cases involve factually consensual sexual activity. The force enhancement is appropriate only where there is a lack of factual consent. The age enhancement, on the other hand, is always appropriate when the victim is under 12 years old, because no child can give legal consent to a sexual act. U.S. v. Willie, 253 F.3d 1215 (10th Cir. 2001).
10th Circuit affirms departure where defendant could foresee proceeds being used for bombing conspiracy. (210) 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 applies first-degree murder guideline where victim accidentally killed during robbery. (210) During defendant’s robbery of a restaurant, his handgun accidentally discharged, killing a restaurant employee. He argued that he should not be sentenced under § 2A1.1, the first-degree murder guideline, because the employee was killed accidentally and without “malice aforethought.” The Tenth Circuit held that the district court correctly applied § 2A1.1. The commission of the robbery constituted the “malice aforethought” required for § 1111(a) felony murder. The appellate court had no jurisdiction to review the district court’s refusal to depart under note 1 to § 2A1.1. The transcript of the sentencing hearing did not indicate that the district court misunderstood its authority to depart. Rather, the district court stated, correctly, ‘that the accidental nature of the killing [did not] somehow cancel[] the felony murder rule.” U.S. v. Pearson, 203 F.3d 1243 (10th Cir. 2000).
10th Circuit rejects first-degree murder guideline even though proceeds from gun sales financed bombing. (210) Defendant was friends with the men responsible for bombing the federal building in Oklahoma City. Although defendant did not join the bombing conspiracy, he did help the conspirators sell some stolen firearms. The proceeds of the sales were used to finance the bombing. Section 2K2.1 provides that if the defendant used or possessed a firearm in connection with another offense and death resulted, the court should apply the most analogous homicide guideline. Assuming without deciding that the cross-reference was applicable, the Tenth Circuit held that the district court erred in applying § 2A1.1, the first-degree murder guideline. A court may only select § 2A1.1 as the most analogous guideline if (a) defendant harbored malice aforethought and premeditation, or (b) the offense of conviction could serve as a predicate to the felony-murder rule. U.S. v. Nichols, 169 F.3d 1255 (10th Cir. 1999). Neither factor was present here. Likewise, § 2A1.2 (second-degree murder) and § 2A1.5 (conspiracy to commit murder) also require malice aforethought. Section 2A1.3, voluntary manslaughter, was inapplicable because defendant’s actions did not evolve from a sudden quarrel or in the heat of passion. The remaining guideline for involuntary manslaughter, § 2A1.4, although not a perfect fit, was the most analogous. However, since this did not result in a higher offense level than under § 2K2.1, the cross-reference was not applicable. U.S. v. Fortier, 180 F.3d 1217 (10th Cir. 1999).
10th Circuit says first-degree murder guideline is most analogous for Oklahoma City bombing conspiracy. (210) Defendant was convicted of conspiring to use a weapon of mass destruction, in violation of 18 U.S.C. § 2332a, for his role in the bombing of the Alfred P. Murrah Federal Building in Oklahoma City. The Statutory Index for the 1994 guidelines does not specify a guideline section for § 2332a violations. The Tenth Circuit upheld the district court’s use of § 2A1.1, the guideline for first-degree murder, as the most analogous guideline for defendant’s § 2332a offense. Section 2A1.1 clearly was sufficiently analogous. Effective November 1, 1995, the Statutory Index was amended to specify that a violation of § 2332a may be handled under either § 2A1.1 or § 2K1.4. The most analogous offense can be determined either from the face of the indictment or from defendant’s relevant conduct. The Tenth Circuit did not resolve which method was proper because the court’s choice of § 2A1.1 was proper under either approach. The indictment alleged that defendant intended with premeditation to kill people in the federal building, and that the object of the conspiracy was to kill and injure innocent persons. Even if the indictment had omitted the allegations of intent to kill and premeditation, the murder guideline would remain the most analogous because the doctrine of felony-murder implies the malice as a matter of law and obviates the need for premeditation. Defendant’s relevant conduct also supported the court’s decision to use § 2A1.1. The record contained sufficient information from which the judge could reasonably conclude that defendant harbored the necessary malice and premeditation. U.S. v. Nichols, 169 F.3d 1255 (10th Cir. 1999).
10th Circuit says no findings required when deciding whether to depart downward from murder guideline. (210) Defendant conspired with Timothy McVeigh in the planning and subsequent bombing of the Alfred P. Murrah Building in Oklahoma City. Note 1 to § 2A1.1, the first-degree murder guideline, states that a court may depart downward if the defendant did not cause the death intentionally or knowingly. The extent of the departure should be based upon the defendant’s state of mind and certain other factors. In U.S. v. Prevatte, 16 F.3d 767 (7th Cir. 1994), the Seventh Circuit read this note to require a district court to make findings regarding a defendant’s mental state before deciding whether to depart. The Tenth Circuit disagreed with Prevatte, holding that nothing in the guideline requires a district court to make any findings when deciding whether to depart. The note merely states that if a court chooses to depart, the extent of that departure should be based on a number of enumerated factors. The initial determination of whether to depart under § 2A1.1 remains wholly discretionary, just as it is with all other decisions to depart. Thus, the court’s failure to make findings in rejecting defendant’s request for a departure was not erroneous. U.S. v. Nichols, 169 F.3d 1255 (10th Cir. 1999).
10th Circuit says excessive recklessness can justify upward departure. (210) 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 holds gunshot victim who required minor eye surgery suffered serious bodily injury. (210) Defendants racially taunted and then chased 3 black men in a car. The chase ended when one of the defendants fired a gun several times into the rear window of the victims’ car, shattering the window and injuring the occupant of the back seat. The victim had holes in his shirt and baseball cap consistent with either shotgun pellets or fragmented bullets. Several pellets lodged in his face and back. A metal fragment was removed from his eye in an outpatient surgical procedure. As a result of the shooting, the victim’s retina was permanently scarred. He has a permanent spot in his field of vision, experiences blurriness, and has an increased risk of retinal detachment. The Tenth Circuit held that the gunshot victim suffered serious bodily injury, even though the surgery lasted only 5-10 minutes and was done on an outpatient basis. It was still surgery. There is no temporal limitation on seriousness. In addition, the victim had residual damage that impaired a bodily organ¾his eye. U.S. v. Woodlee, 136 F.3d 1399 (10th Cir. 1998).
10th Circuit approves use of aggravated assault guideline for civil rights crimes. (210) Defendants and several friends verbally taunted 3 black men at a bar. When the black men left the bar, defendants gave chase in their own cars. One of the friends fired a gun several times into the victims’ car, shattering the car’s rear window and injuring the occupant of the back seat. Defendants were convicted of various civil rights violations. Section 2H1.1 provides that the offense level shall be the greater of twelve and the offense level for any underlying offense. The Tenth Circuit upheld the court’s cross-reference to the aggravated assault guideline. The conduct was an assault under Oklahoma law. An aggravated assault under the guidelines is defined as a felonious assault involving a dangerous weapon with intent to do bodily harm. The court clearly found that defendants’ conduct met this definition. U.S. v. Woodlee, 136 F.3d 1399 (10th Cir. 1998).
10th Circuit upholds cross-reference to first-degree murder guideline despite acquittal. (210) Defendant was convicted of kidnapping and second-degree murder, and acquitted of first-degree murder. As directed by the kidnapping guideline, § 2A4.1(c)(1), his offense level was set at 43, the first degree murder offense level, because the kidnapping victim was killed under circumstances that would constitute murder. Defendant argued that his acquittal of first-degree murder required that his sentence be based on the second-degree murder guideline or the kidnapping guideline. The Tenth Circuit found that he was properly sentenced. He could not receive less than a life sentence, because the kidnapping statue provides that where the death of any person results from the kidnap, the punishment is life imprisonment or death. U.S. v. Sarracino, 131 F.3d 943 (10th Cir. 1997).
10th Circuit holds dangerous weapon not counted twice even if weapon is not inherently dangerous. (210) Defendant was convicted of assault with a deadly weapon after attacking a man with a baseball bat and a knife and attempting to hit him with his car. The district court sentenced defendant under the aggravated assault guideline and then enhanced his offense level under § 2A2.2(b)(2)(B) for use of a dangerous weapon. Defendant argued that the dangerous weapon enhancement was double counting because the use of the dangerous weapon had already increased in his base offense level by making the crime an aggravated assault. The Tenth Circuit, rejecting U.S. v. Hudson, 972 F.3d 504 (2d Cir. 1992), held that the dangerous weapon enhancement was not double counting regardless of whether the object used in the assault was an “inherently dangerous weapon.” In Hudson, the Second Circuit held that a § 2A2.2(b) enhancement is not double counting when the assault is committed with an inherently dangerous weapon. However, the plain language of the guidelines indicates Congress intended for double counting to occur under § 2A2.2. Hudson creates a difficult standard for court to apply, particularly when dealing with objects such as a knife or a car. U.S. v. Duran, 127 F.3d 911 (10th Cir. 1997).
10th Circuit affirms dangerous weapon enhancement for assault with firewood. (210) Defendant assaulted his girlfriend with a piece of firewood. When the girlfriend’s father attempted to intervene, defendant threw the firewood at the father, putting out his right eye. The Tenth Circuit affirmed a § 2A2.2(b)(2)(B) enhancement for using a dangerous weapon in the course of an aggravated assault. The guidelines define dangerous weapon as an instrument capable of inflicting death or serious bodily injury. There was no question that the piece of firewood qualified as a dangerous weapon since it was used to inflict serious bodily injury. The district court did not impermissibly double count by relying upon the weapon to categorize the assault as an aggravated assault and to increase the base offense level. Because the assault resulted in a serious bodily injury, note 1 to § 2A2.2 required it to be treated as an aggravated assault. The fact that the assault also involved a dangerous weapon made little difference because the assault was aggravated even without regard to the dangerous weapon. U.S. v. Tissnolthtos, 115 F.3d 759 (10th Cir. 1997).
10th Circuit upholds aggravated assault guideline where assault caused serious bodily injury. (210) Defendant was convicted of two counts of assaulting federal officers, in violation of 18 U.S.C. § 111. He argued that the district court should have sentenced him under § 2A2.4 rather than § 2A2.2. The Tenth Circuit ruled that defendant was properly sentenced under § 2A2.2 because he caused serious bodily injury. One of the prison officers testified he suffered extreme pain and impaired function in his leg, which injury required hospitalization and physical rehabilitation. This supported the court’s finding of serious bodily injury. U.S. v. Segien, 114 F.3d 1014 (10th Cir. 1997), abrogation on other grounds recognized by U.S. v. Hathaway, 318 F.3d 1001 (10th Cir. 2003).
10th Circuit holds that § 111(b) is sentencing enhancement rather than separate assault offense. (210) Defendant was convicted of two counts of assaulting federal officers, in violation of 18 U.S.C. § 111. Section 111(a) provides for a three-year maximum sentence. Section 111(b) provides for a maximum ten-year sentence if the defendant inflicted bodily injury. Defendant argued that § 111(b) creates a separate offense from § 111(a), and therefore to sentence him under § 111(b) the prosecution had to prove beyond a reasonable doubt to the jury that the victim suffered bodily injury. The Tenth Circuit held that § 111(b) is a sentencing enhancement provision rather than a separate offense from § 111(a). When Congress separated § 111 into two subsections, it explicitly entitled the latter subsection “Enhanced penalty” in bold print. The section simply serves to increase the penalty imposed on certain individuals who commit the offense prohibited by § 111(a) in a fashion Congress has determined warrants an additional sanction. U.S. v. Segien, 114 F.3d 1014 (10th Cir. 1997), abrogation on other grounds recognized by U.S. v. Hathaway, 318 F.3d 1001 (10th Cir. 2003).
10th Circuit rules that firearm discharge occurred during and not after assault. (210) Defendant broke into his ex‑wife’s home with a gun and told her she was going to die. He struck his niece with the gun and ordered her and his children into a bedroom closet. Defendant then repeatedly struck his ex‑wife on top of her head with his rifle. When defendant went into the kitchen to light a cigarette, his ex‑wife fled out the front door. Defendant went out the front door and fired several shots. Defendant challenged a § 2A2.2(b)(2)(A) enhancement for discharging a firearm, claiming that the shots were fired “after” the assault for which he was convicted. The Tenth Circuit held that the firearm discharge took place during the assault. Defendant testified that he fired the shots in an attempt to stop his wife’s flight. If defendant had succeeded, he could have continued his attack and delayed or avoided detection. U.S. v. Murray, 82 F.3d 361 (10th Cir. 1996).
10th Circuit says accessory must know murder was premeditated to be held accountable for first‑degree murder. (210) Defendant and others left a bar in the same car. Two of the men had been arguing. One man pulled a knife and stabbed the other repeatedly. He then told defendant, “Finish it.” Defendant took the knife, and struck the victim two or three times with the knife. The killer was convicted of first‑degree murder and defendant later pled guilty to being an accessory after the fact. Defendant objected to the PSR’s conclusion that he was an accessory to first degree murder, claiming he did not know that the murder was premeditated. The Tenth Circuit held that the district court erred by adopting the PSR’s conclusion without addressing this objection. Defendant was an accessory to a murder under 10 U.S.C. § 918. Section 918 does not distinguish between first and second degree murder. To determine the most analogous guideline, the district court must determine defendant’s state of mind. Defendant could only be punished as an accessory to first degree murder if he knew the murderer acted with premeditation. U.S. v. Henning, 77 F.3d 346 (10th Cir. 1996).
10th Circuit reverses death penalty where jury may have relied on duplicative aggravating factors. (210) Defendant was convicted of murder in furtherance of a continuing criminal enterprise under 21 U.S.C. § 848(e) and was sentenced to death. The Tenth Circuit held that the district court erred in submitting duplicative and cumulative aggravating factors to the jury. The court submitted to the jury the § 848(n)(1)(C) statutory aggravating factor “intentionally engaged in conduct intending that the victim be killed or that legal force be employed against the victim, which resulted in the death of the victim.” It also submitted the non‑statutory aggravating factor “committed the offenses as to which he is charged in the indictment.” These two factors substantially overlap each other. Such double counting of aggravating factors, especially under a weighing scheme, has a tendency to skew the weighing process and create the risk that the death sentence will be imposed arbitrarily and thus, unconstitutionally. U.S. v. McCullah, 76 F.3d 1087 (10th Cir. 1996).
10th Circuit upholds reliance on non‑statutory aggravating factors in death penalty under 848(e). (210) In imposing the death penalty under 21 U.S.C. § 848(e), the district court submitted four non‑statutory aggravating factors to the jury: (1) use of a deadly weapon, (2) defendant’s two or more prior convictions, (3) defendant’s commission of the charged offense, and (4) repeated attempts to rehabilitate defendant had been unsuccessful. The Tenth Circuit reversed on other grounds, but held that the prosecutor’s power to promulgate non‑statutory aggravating factors did not amount to an unconstitutional delegation of power to the Executive Branch. The statutory aggravating circumstances circumscribe the class of persons eligible for the death penalty. But the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death. U.S. v. McCullah, 76 F.3d 1087 (10th Cir. 1996).
10th Circuit upholds statutory aggravating factors for death penalty under 848(e). (210) Defendant was convicted of murder in furtherance of a continuing criminal enterprise under 21 U.S.C. § 848(e) and was sentenced to death. The district court submitted four statutory aggravating factors to the jury under 21 U.S.C. § 848(n)(1)(C) and the jury found all four. In reversing on other grounds, the Tenth Circuit held that the statutory factors were properly submitted to the jury. The (n)(1) factors were not merely eligibility factors, but were aggravating factors to be weighed against mitigating factors in the selection phase of sentencing. The factors adequately narrowed the class of death‑eligible defendants. The jury properly found that defendant committed the offense after substantial planning and premeditation. “Substantial planning” does not require “considerably more planning than is typical,” but rather means “considerable” or “ample for commission of the crime.” The jury also properly found that defendant committed the offense for compensation, even though defendant killed the wrong victim. U.S. v. McCullah, 76 F.3d 1087 (10th Cir. 1996).
10th Circuit reviews jury’s non‑unanimous findings regarding absence of mitigating factors in death penalty case. (210) Defendant received the death penalty for his conviction of murder in furtherance of a continuing criminal enterprise under 21 U.S.C. § 848(e). He argued that the jurors erred in failing to find three mitigating factors. The Tenth Circuit held that it could review the non-unanimous jury findings. One juror refused to find that defendant’s I.Q. was 80. This was reasonable in light of the anomalous test results and defendant’s incentive to distort his abilities. The finding of four jurors that defendant did not suffer from a brain dysfunction was also reasonable since the defense expert lacked “hard medical evidence” to support his theory and was relying on neuropsychological evidence. The finding of ten jurors that defendant did not prove he suffered from attention‑deficit disorder was also reasonable. U.S. v. McCullah, 76 F.3d 1087 (10th Cir. 1996).
10th Circuit reverses life sentence for second-degree murder. (210) Defendant was convicted of one count of first-degree murder and one count of second-degree murder. The 10th Circuit upheld a life sentence for the first-degree murder count, but reversed a life sentence for the second-degree murder count. The statutory language of 18 U.S.C. section 1111 requires that a defendant convicted of first-degree murder serve a minimum sentence of life imprisonment. However, the life sentence for the second-degree murder count was inconsistent with guidelines sections 2A1.2 and 3D1.4(c). U.S. v. Joe, 8 F.3d 1488 (10th Cir. 1993).
10th Circuit rejects departure for premeditation, restraint of victim, and dangerous instrumentality; approves extreme conduct. (210) 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 affirms sentencing under section 2A2.2 for assaulting prison guard with hypodermic needle. (210) Defendant, a federal inmate, stabbed a prison guard three times with a homemade hypodermic syringe, and struck another guard in the face. He pled guilty to forcibly assaulting, resisting or impeding a federal correctional officer in violation of 18 U.S.C. section 111. The 10th Circuit affirmed that defendant was properly sentenced under section 2A2.2 (Aggravated Assault) instead of section 2A2.4 (Obstructing or Impeding Officers). Both sections cover violations of section 111. However, section 2A2.4 is applicable if the defendant merely obstructs or impedes an officer. If there was physical contact or if the use of a dangerous weapon was threatened, then the base offense level is increased from six to nine under 2A2.4. In contrast, section 2A2.2 should be used if a dangerous weapon was in fact used with intent to a bodily harm. Here, defendant committed a felonious assault upon a guard with a dangerous weapon and with the intent to do bodily harm. The enhancement under section 3A1.2 for an official victim was also proper. While section 2A2.4 incorporates this factor, section 2A2.2 does not. U.S. v. Rue, 988 F.2d 94 (10th Cir. 1993).
10th Circuit affirms that loss of a partially-sighted eye was permanent or life-threatening injury. (210) Defendant was convicted of assault resulting in serious bodily injury. He received an enhancement under section 2A2.2(b)(3)(C) because the victim sustained permanent or life-threatening injury. The 10th Circuit affirmed the enhancement, despite defendant’s claim that the removal of the victim’s right eye did not constitute permanent or life-threatening bodily injury because the victim was blind in his right eye prior to the assault. The district court found that the victim had some sight in that eye; he could see figures and light, and could distinguish colors. Defendant offered no support for his argument that the jury did not find the assault resulted in permanent or life-threatening bodily injury. U.S. v. Talamante, 981 F.2d 1153 (10th Cir. 1992).
10th Circuit affirms that district court could not depart downward from life sentence for murderer. (210) Defendant was convicted of first degree murder pursuant to 18 U.S.C. 1111 and 1153. The 10th Circuit affirmed that the district court was required by section 1111 to impose a life sentence and it did not have the discretion to depart downward. Section 1111 provides that a defendant convicted of first degree murder “shall…be sentenced to imprisonment for life.” Thus, section 1111 provides a statutorily required minimum sentence which would control over any other lesser sentence suggested under the guidelines. The sentencing scheme established by 18 U.S.C. section 3581(b)(1) in conjunction with 3559(a) does not supplant the statutory minimum sentence in section 1111. U.S. v. Sands, 968 F.2d 1058 (10th Cir. 1992).
10th Circuit upholds sentencing felon in possession of firearm on the basis of underlying state crime. (210) Defendant committed a “drive-by shooting” and was convicted of being a felon in possession of a firearm. The 10th Circuit found that defendant was properly sentenced under the aggravated assault provisions of guideline § 2A2.2. Defendant claimed that the district court used the superseded version of guideline § 2K2.2(c)(1), which provided that if the defendant used the firearm to commit another offense, a court should apply the guideline for such other offense or § 2X1.1. The new version of the guidelines deleted the reference in § 2K2.2(c)(1) to “for such other offense or,” and provide that a court should apply § 2X1.1. The 10th Circuit found that both versions call for cross reference to § 2X1.1, and through that section the court is directed to look at the underlying conduct. Section 2X1.1 is a conduit which directs a court to look at the underlying offense — in this case aggravated assault. The 10th Circuit also rejected defendant’s argument that it was beyond the sentencing commission’s authority to enhance his firearms sentence on the basis of the state offense of aggravated assault. This did not federalize a state crime, but merely allowed the sentence for the charged crime to reflect the reality of the crime. U.S. v. Willis, 925 F.2d 359 (10th Cir. 1991).
11th Circuit approves large upward variance for unscored criminal history and use of fake bombs to rob banks. (210) Defendant pled guilty to robbing two banks using what turned out to be fake bombs. His guideline range was 78-97 months, but the district court sentenced him to 210 months. The court found that guidelines did not adequately account for defendant’s criminal history because some of his older convictions were not scored. His criminal history score also did not reflect the sustained nature of his criminal conduct. The court found that defendant’s use of fake bombs was “extremely serious,” creating terror in the tellers, customers, inducing the use of bomb squads, and causing commerce to shut down. The Eleventh Circuit held that the sentence was substantively reasonable. Although the upward variance was substantial, the sentence was still well below the statutory maximum of 900 months. For the past 36 years, defendant has been unable to conform his conduct to the requirements of law. His criminal history was so extensive that he had been incarcerated virtually all of his adult life. When he was out of prison, he committed more crimes, many of them very violent. The district court also gave great weight to defendant’s three bank robberies within a week, and to his substantial criminal history. U.S. v. Early, 686 F.3d 1219 (11th Cir. 2012).
11th Circuit upholds use of kidnapping and murder guideline for defendant convicted under Torture Act. (210) Defendant was convicted under the Torture Act, 18 U.S.C. § 2340, of committing numerous acts of torture and other atrocities in Liberia. He argued that the district court erred in using the kidnapping guideline, § 2A4.1, and the murder cross-reference it authorizes under § 2A4.1(c), because he did not unlawfully detain his victims, the murders did not result from torture, and he was neither charged with nor convicted of kidnapping or murder. The Eleventh Circuit upheld the district court’s application of the Guidelines. Even if defendant’s victims were initially detained under lawful circumstances, the extended length and nature of their detention, coupled with the utter lack of access to courts, attorneys or any information about their arrest, rendered the duration of their imprisonment wholly unlawful. The district court properly applied the murder cross-reference. The four murders constituted relevant conduct – they all occurred in the course of and in furtherance of the conspiracy to commit torture. Three of the murder victims were shot after refusing to answer questions at the same checkpoint where other torture victims were kidnapped. U.S. v. Belfast, 611 F.3d 783 (11th Cir. 2010).
11th Circuit applies sexual abuse cross-reference to pimp who used violence to keep prostitute working for him. (210) Defendant, a pimp, pled guilty to sex trafficking of children by force, fraud or coercion. Guideline § 2G1.3(c)(3) provides that if the offense involved conduct described in 18 U.S.C. § 2241 or § 2242 (engaging in, causing another person to engage in, a sexual act with another by threatening or placing the minor in fear), then the court should apply U.S.S.G. § 2A3.1 (Criminal Sexual Abuse). The Eleventh Circuit held that the cross-reference properly applied to defendant. After learning one of his minor prostitutes was contemplating leaving him for another pimp, defendant beat her until he was restrained and later attempted to hit her with his car. He later reconciled with her over the phone, and the minor resumed engaging in sexual acts for defendant’s benefits. Although defendant contended that his objective during the confrontation was to keep the minor in his employ rather than compel her to engage in sexual acts, defendant specifically employed her to perform sexual acts. U.S. v. Madison, 477 F.3d 1312 (11th Cir. 2007).
11th Circuit applies guidelines in the order listed in § 1B1.1. (210) Defendant argued that the district court erred in “prematurely” departing downward to reduce his offense level for felony murder from 43 to 37 and thereafter applying the grouping rules, which resulted in his offense level rising back to 41. He argued that the grouping rules should have been applied first, before the departure. The Eleventh Circuit disagreed relying on guideline § 1B1.1, which instructs the court to apply any special instructions in the Chapter 2 guidelines before applying the grouping rules in § 3D. Application Note 1 to the murder guideline, § 2A1.1, says a court may depart downward if “the defendant did not cause the death intentionally or knowingly.” Thus, it was proper for the court to depart downward pursuant to this instruction before applying the grouping rules in § 3D. U.S. v. Nguyen, 255 F.3d 1335 (11th Cir. 2001).
11th Circuit finds insufficient evidence to use murder as object of multi-object conspiracy. (210) A jury convicted five members of defendant’s family of various charges related to the murder-for-hire of the night watchman at their family business warehouse, the burning of that warehouse and the ensuing fraud on the warehouse’s insurer. Defendant was convicted of a conspiracy, the objects of which were murder-for-hire, arson, and mail fraud. Under note 5 to § 1B1.2(d), where the verdict does not establish which offense was the object of a multi-object conspiracy, the court can only apply the guideline for a particular object offense if it finds beyond a reasonable doubt that the defendant conspired to commit that object offense. The Eleventh Circuit found insufficient evidence that, for § 1B1.2(d) purposes, defendant conspired to commit murder-for-hire. Defendant’s acquittal on the substantive murder count did not foreclose conviction on the related conspiracy count. However, the government proved nothing more than defendant was present during the planning of the murder. The witness who overheard the conspirators’ discussion did not testify that defendant participated in the discussion. Defendant’s father, one of the conspirators, had tyrannical control of his family members, especially defendant, who was only 18 at the time of the murder. It was not unlikely that the father would permit his son to be present during the conspiratorial discussions even though his son was not a member of the conspiracy. U.S. v. Hernandez, 141 F.3d 1042 (11th Cir. 1998).
11th Circuit affirms increases for multiple victims and offering cash for murder. (210) Defendant was convicted of conspiring to murder a federal officer. The Eleventh Circuit affirmed a § 2A5.1(b)(1) enhancement for offering something of pecuniary value in exchange for the murder. Defendant sent $500 to an undercover agent. The agent testified that, based on his conversations with defendant, he understood the $500 to be a downpayment to commit the murders. There was also ample evidence to support the court’s finding that defendant intended to kill two federal officers. A cooperating co-conspirator testified that defendant repeatedly spoke to him about killing both an Assistant U.S. Attorney and a task force agent. In addition, an undercover agent hired by defendant testified that defendant wanted both officers killed. The Assistant U.S. Attorney’s wife testified that she received a phone call from a person threatening to kill her husband. Finally, the cooperating conspirator, at defendant’s direction, conveyed information to the undercover agent about both intended victims. U.S. v. Francis, 131 F.3d 1452 (11th Cir. 1997).
11th Circuit upholds cross-reference from arson to murder guideline for death of co-felon. (210) Defendant was convicted of arson in connection with a fire at his restaurant. Section 2K1.4(c) provides that if death resulted from the arson, the court should apply the most analogous guideline. The district court sentenced defendant under the first-degree murder guideline because the fire caused the death of his brother, a co-felon. The Eleventh Circuit upheld the cross-reference to the first-degree murder guideline based on the death of a co-felon. The cross-reference is not limited to cases where a non-participant dies. The district court properly analogized the underlying arson to first-degree murder since the first-degree murder guideline covers felony-murder. The malice aforethought requirement did not bar sentencing defendant under the first-degree murder guideline. Even though defendant did not intend to kill his brother, he did intend to commit the arson that killed his brother. Finally, contrary to defendant’s claim, the federal felony-murder can apply to situations in which an arsonist’s accomplice dies during the commission of the underlying felony. U.S. v. Tham, 118 F.3d 1501 (11th Cir. 1997).
11th Circuit rejects challenges to federal death sentence. (210) In this appeal of the first death sentence imposed under the Anti-Drug Abuse Act of 1988, the 11th Circuit rejected numerous challenges. The court did not violate §848(k) or the 5th and 8th Amendments by withholding from the jury the authority to impose a sentence other than death. Section 848 does not require the jury to be told what sentence the defendant might receive in the absence of death. Evidence from the guilt stage of the proceeding, including the apparent murder of two others, was not erroneously admitted during the sentencing hearing. The jury need only consider whether the aggravating factors sufficiently outweigh the mitigating factors to justify a sentence of death; the weighing process is not governed by a burden of proof. Finally, the fact that defendant faces a death sentence without knowing when or how that sentence will be carried out does not constitute cruel and unusual punishment. U.S. v. Chandler, 996 F.2d 1073 (11th Cir. 1993).
11th Circuit holds murder is offense underlying transportation of explosives with intent to kill. (210) The 11th Circuit upheld the use of first degree murder as an underlying offense of interstate transportation of explosives with intent to injure or kill. The guidelines permit a court to impose a sentence based upon relevant conduct even where the defendant has been acquitted of the specific charge alleging such conduct. The court could not and did not sentence defendants for murder. U.S. v. Sanchez, 992 F.2d 1143 (11th Cir. 1993), amended, 3 F.3d 366 (11th Cir. 1993).
11th Circuit bars reliance on relevant conduct in applying assault cross-reference. (210) Defendant was convicted of simple assault on one corrections officer and acquitted of aggravated assault on another. The applicable guideline, section 2A2.4 (Obstructing or Impeding Officers), says that if the conduct constituted aggravated assault, section 2A2.2 (Aggravated Assault) should be applied. The district court sentenced defendant under section 2A2.2, based on the conduct for which defendant had been acquitted. The 11th Circuit reversed, holding that a court cannot consider relevant conduct in applying the cross-reference in section 2A2.4. The “conduct” must be related to the offense of conviction in order to be considered relevant conduct under 1B1.3. U.S. v. Jennings, 991 F.2d 725 (11th Cir. 1993).
11th Circuit rejects official victim enhancement for assault on corrections officer. (210) Defendant, a federal prisoner, assaulted a corrections officer. The 11th Circuit found that an official victim enhancement under section 3A1.2 was erroneous for two reasons. First, defendant should have been sentenced under guideline section 2A2.4, and application note 1 to that section states that the base offense level already reflects the victim’s official status. Second, to apply the official victim enhancement, the offense must have been motivated by the victim’s status or when the assault is committed during the course of another offense. The district court here applied the increase for the latter reason; however there was no other offense. U.S. v. Jennings, 991 F.2d 725 (11th Cir. 1993).
11th Circuit affirms that defendant who threatened agents with metal pipe committed aggravated assault. (210) The 11th Circuit affirmed that defendant was properly sentenced under section 2A2.2 (aggravated assault) rather than section 2A2.3 (minor assault). Witnesses testified that defendant held a metal pipe, swinging it as though it were a bat and threatening to bash their heads in if they did not comply with his demand. Defendant was angry and at least one witness feared for her life. Although defendant testified at sentencing that he did not intend to harm the agents, in the face of the other evidence, the court was not required to believe defendant’s testimony. U.S. v. Park, 988 F.2d 107 (11th Cir. 1993).
11th Circuit affirms upward departure based upon physical injuries and property damage caused by drunk driver. (210) Defendant was convicted of DUI manslaughter in connection with an accident in which one person was killed, several others were injured, and property damage occurred. The 11th Circuit affirmed an upward departure from a guideline range of 24 to 30 months and sentenced defendant to 60 months. Defendant conceded that the guideline for involuntary manslaughter does not take into account physical injury sustained by persons other than the decedent, or property damage, and that physical injury and property damage are grounds for departure under guideline sections 5K2.2 and 5K2.5. Given the type of personal injuries and property damage sustained as a result of defendant’s conduct, the extent of the departure was not unreasonable. U.S. v. Sasnett, 925 F.2d 392 (11th Cir. 1991).
11th Circuit says court may use acquitted conduct in sentencing manslaughter defendant. (210) Defendant contended that since he had been acquitted of involuntary manslaughter, which requires reckless conduct, and convicted of DUI manslaughter, which only requires a lack of care, his conduct should not have been classified as reckless for sentencing purposes. The 11th Circuit rejected this contention, noting that a district court is free to consider conduct for which defendant was acquitted. However, in this case, the district court did not make an independent determination, but relied on a misinterpretation of state law. Therefore, the case was remanded for the district court to make an independent determination as to whether defendant’s conduct should have been classified as reckless or criminally negligent. U.S. v. Sasnett, 925 F.2d 392 (11th Cir. 1991).
D.C. Circuit upholds use of attempted murder guideline for firearms defendant. (210) Defendant was convicted of possessing a firearm while subject to a court order, in violation of 18 U.S.C. § 922(g)(8). Based on evidence that defendant pulled the gun’s trigger while it was pointed at his estranged wife, the district court applied cross-references in § 2K2.1(c) and § 2X1.1 to sentence defendant under the attempted murder guideline. Defendant argued that the sentencing court erred in using the attempted murder guideline, because § 2X1.1 directs a court to use the offense level for the “substantive offense.” Note 2 to § 2X1.1 defines “substantive offense” as “the offense that the defendant was convicted of … attempting … to commit.” The D.C. Circuit upheld the cross reference to the attempted murder guideline. Note 2, which defines “substantive offense,” “applies only if section 2X1.1 is applied directly, rather than as a cross-reference from section 2K2.1.” U.S. v. Branch, 91 F.3d 699, 743 (5th Cir. 1996). Therefore, § 2X1.1(c) required the court to apply the offense level for attempted first-degree murder as prescribed in § 2A2.1. U.S. v. Drew, 200 F.3d 871 (D.C. Cir. 2000).
D.C. Circuit agrees that pulling trigger while pointing gun at wife’s face was attempted first-degree murder. (210) Defendant was convicted of possessing a firearm while subject to a court order, in violation of 18 U.S.C. § 922(g)(8). The district court found that defendant attempted to commit first-degree murder while possessing the gun. His estranged wife testified that after defendant broke into her house, he pointed the gun at her, and she heard the trigger. A police officer corroborated this story. At sentencing, defendant did not contest that the gun was pointed at his wife when he pulled the trigger. Finally, the government introduced the shotgun recovered from the wife’s residence the night of the offense as well as the indented shell. The D.C. Circuit held that sentencing court did not clearly err in finding that defendant “took sufficiently premeditated actions to constitute attempted first-degree murder.” U.S. v. Drew, 200 F.3d 871 (D.C. Cir. 2000).
D.C. Circuit considers underlying conduct in applying cross-reference to aggravated assault. (210) Defendant was convicted of assaulting a federal officer after he attempted to hit an INS agent with his car. Section 2A2.4(c)(1) provides that the court should apply § 2A2.2, the aggravated assault guideline, if the conduct constituted aggravated assault. Defendant argued that the district court improperly considered relevant conduct in applying the cross-reference. The D.C. Circuit adopted the analysis of U.S. v. Street, 66 F.3d 969 (8th Cir. 1995), and held that the 1992 amendment to § 2A2.4(c)(1) allows a court to consider relevant or underlying conduct in deciding whether to apply the cross-reference to § 2A2.2. The amendment removed certain language regarding convictions under 18 U.S.C. § 111 and stated that § 2A2.2 should be applied “on the basis of the underlying conduct.” Defendant’s conduct with the car was an aggravated assault. His claim that he only intended to frighten the INS agent was inconsistent with his accelerating despite the agent’s warning that the car was about to hit him. U.S. v. Valdez-Torres, 108 F.3d 385 (D.C. Cir. 1997).
D.C. Circuit says increase for auto as dangerous weapon was not double counting. (210) Defendant was convicted of assaulting a federal officer after he attempted to hit an INS agent with his car. Applying the cross-reference in § 2A2.4(c)(1), the district court applied the aggravated assault guideline, § 2A2.2. Defendant argued that the enhancement under § 2A2.2(b) (2)(B) for using his car as a dangerous weapon was impermissible double counting. The D.C. Circuit, agreeing with a majority of circuits, held that using the vehicle both to select § 2A2.2 and to enhance the sentence under § 2A2.2(b)(2)(B) was not improper double counting. Section 2A2.2(b)(2)(B) calls for a four point enhancement if a dangerous weapon is used. The Commission expressly forbids double counting where it is not intended. In the absence of a caveat that the enhancement does not apply in these circumstances, the enhancement should be applied in accordance with the plain language of the guidelines. U.S. v. Valdez-Torres, 108 F.3d 385 (D.C. Cir. 1997).
D.C. Circuit upholds official victim increase where cross-reference to § 2A2.2 is used. (210) Defendant was convicted of assaulting a federal officer after he attempted to hit an INS agent with his car. Applying the cross reference in § 2A2.4(c)(1), the district court applied § 2A2.2, the aggravated assault guideline. Defendant argued that because the assault on the INS agent was his only offense, the official victim enhancement in § 3A1.2(b) was improper. The D.C. Circuit found no error because § 2A2.2 was used as the guideline. Note 1 to § 2A2.4 says the official victim adjustment should be applied if § 2A2.4(c)(1)’s cross-reference to § 2A2.2 has been invoked. Although the official victim enhancement does not apply if the applicable guideline already incorporates assaulting an official victim, § 2A2.4 is the only guideline that incorporates that factor. U.S. v. Valdez-Torres, 108 F.3d 385 (D.C. Cir. 1997).
California District Court sentences Rodney King defendants in civil rights case. (210) Sergeant Stacey Koon and Officer Laurence Powell were convicted respectively of violating the civil rights of Rodney King. In sentencing, the district court focused on the point during the arrest that the officers’ conduct crossed the line and became illegal. The court found that initial body blows which caused multiple broken bones were not illegal, and the 5 or 6 later blows caused only bruises. The court applied §2H1.4, and cross referenced to the aggravated assault guideline because it found that Officer Powell intended to harm King. The use of a dangerous weapon, a side handle baton, resulted in a 2-level increase. Although King suffered serious bodily injury, the illegal blows caused only “bodily injury,” so the offense level was increased by only 2 additional levels. None of the Chapter Three adjustments applied, including obstruction, even though Sergeant Koon testified at trial. Koon did not willfully intend to provide false testimony. The total offense level was 27, from which the court departed downward 8 levels and imposed sentences of 30 months. U.S. v. Koon, 833 F. Supp. 769 (C.D. Cal. 1993), affirmed in part, reversed in part by Koon v. U.S., 518 U.S. 81, 116 S.Ct. 2035 (1996).
Virginia District Court determines that downward departure cannot be based upon victim’s conduct. (210) Defendant was convicted of aggravated sexual assault, and moved for a downward departure based on the contention that “victim’s wrongful conduct contributed signifycantly to provoking the offense behavior.” Defendant alleged that he and the victim smoked crack cocaine together the night of the rape and that she was reputed to have, in the past, engaged in sexual relations in exchange for drugs. The Eastern District of Virginia found that none of these circumstances justified a downward departure and did not “significantly contribute[] to provoking” the rape. U.S. v. Saunders, 743 F.Supp. 444 (E.D. Va. 1990).
Commission creates Chapter Three adjustment for serious human rights offenses. (210) In the Human Rights Enforcement Act of 2009, Pub. L. 111–122 (Dec. 22, 2009), Congress defined “serious human rights offenses” as “violations of Federal criminal laws relating to genocide, torture, war crimes, and the use or recruitment of child soldiers under sections 1091, 2340, 2340A, 2441, and 2442 of title 18, United States Code.” In response, the Commission established a new Chapter Three adjustment at §3A1.5 if the defendant was convicted of a serious human rights offense. The adjustment generally provides a four-level increase if the defendant was convicted of a serious human rights offense, and a minimum offense level of 37 if death resulted. If the defendant was convicted of an offense under 18 U.S.C. §1091(c) for inciting genocide, however, the adjustment provides a two-level increase in light of the lesser statutory maximum penalty such offenses carry compared to the other offenses covered by this adjustment. Amendment 765, effective Nov. 1, 2012.
Commission increases offense levels for homicide and manslaughter. (210) On May 30, 2003, the Commission increased the base offense level for kidnapping by 8 levels, in response to a directive in the Protect Act. This increase brought kidnapping without injury to within one level of the base offense level 33 for second degree murder. The Commission examined data on second degree murder offenses and found that in 2002, courts departed upward from the guideline range in 34.3% of the cases. The Commission also received public comment expressing concern that an individual convicted of second degree murder who accepted responsibility might serve as little as eight years imprisonment. In response, the Commission increased the base offense level for second degree murder to level 38, an approximate 20-year sentence. The Commission made a commensurate increase of five levels from level 28 to level 33 in the attempted first degree murder guideline and proportional increases for voluntary manslaughter and conspiracy or solicitation to commit murder. For drunk driving and similar offenses, the Commission added a third alternative base offense level in § 2A1.4 of level 22. Amendment 663, effective November 1, 2004.
Commission increases penalties for assaults on official victims. (210) In response to a directive in the Department of Justice Appropriations Act, the Commission added a two-level increase in the aggravated assault guideline, § 2A2.2, if the defendant was convicted under 18 U.S.C. § 111(b) or § 115. The Commission also amended the guideline to decrease the base offense level from level 15 to level 14, based on information received from the Native American Advisory Group and studies indicating that federal aggravated assault sentences generally are more severe than many state aggravated assault sentences. However, to ensure that individuals who cause bodily injury to victims do not benefit from this decrease, the specific offense characteristics addressing degrees of bodily injury each were increased by one level. To maintain proportionality, the two non-aggravated assault guidelines were also amended. In addition, the official victim guideline, § 3A1.2 was restructured to increase the adjustment to six levels if the defendant’s offense guideline was from Chapter 2, Part A (offenses against the person). Amendment 663, effective November 1, 2004.
Commission creates guideline for transporting minors for illegal sexual activity and related crimes. (215) Before this amendment, offenses like 18 U.S.C. § 2422 (coercion and enticement) and 2423 (transportation of minors), were referenced by Appendix A to either § 2G1.1 or § 2A3.2. Until recently, the majority of cases sentenced under § 2A3.2 were statutory rape cases that occurred on federal property or native American lands. Recently however, the majority of cases sentenced under the statutory rape guideline were coercion, travel and transportation offenses. The Commission said that removing these cases from § 2A3.2 would permit it to more appropriately tailor that guideline to actual statutory rape cases. In addition, in response to a new offense provided by the Protect Act, 18 U.S.C. § 2252(B) (Misleading Domain Names on the Internet), the Commission referred the new offense to § 2G3.1 and provided a two-level enhancement if “the offense involved the use of a misleading domain name on the internet with the intent to deceive a minor into viewing material on the internet that is harmful to minors.” Amendment 664, effective November 1, 2004.
Commission increases penalties for sexual abuse of a ward, abusive sexual contact, and sexual contact without permission. (215) In response to a directive in the Protect Act, the Commission increased the base offense level in § 2A3.1 from level 27 to level 30. It also increased the offense levels for two specific offense characteristics in § 2A3.2, increasing the enhancement for custody, care or supervisory control from 2 to 4 levels, and the enhancement for misrepresentation or undue influence from 2 to 4 levels. The Commission also increased the base offense level for sexual abuse of a ward under § 2A3.3 from level 9 to level 12 and increased the alternative base offense levels in § 2A3.4 (abusive sexual contact) to level 20, 16, or 12, depending on the conduct involved in the offense. The levels are presently 16, 12, or 10. Amendment 664, effective November 1, 2004.
Commission increases base offense level for involuntary manslaughter. (210) The Department of Justice, some members of Congress, and an ad hoc advisory group on native American sentencing issues expressed concern that most federal involuntary manslaughter cases involve vehicular homicides, and these offenses appeared to be underpunished, compared to comparable cases arising under state law. Accordingly, the Commission increased the base offense level in § 2A1.4(a)(2) for reckless involuntary manslaughter from level 14 to level 18 and for criminally negligent involuntary manslaughter in § 2A4.1(a)(1) from level 10 to level 12. Amendment 652.
Commission says increase for dangerous weapon in aggravated assault is not improper double counting. (210) The Fourth Circuit, in U.S. v. Williams, 954 F.2d 204, 205-08 (4th Cir. 1992), found no improper double counting in applying the dangerous weapon enhancement under § 2A2.2(b)(2)(B) even though defendant’s use of a chair as a dangerous weapon was also the basis for applying the aggravated assault guideline. On the other hand, the Second Circuit, in U.S. v. Hudson, 972 F.2d 504, 506-07 (2d Cir. 1992), held it was improper double counting to consider defendant’s use of an automobile to (1) classify the crime as an aggravated assault, and (2) increase the base offense level under § 2A2.2(b) for use of the same, non-inherently dangerous weapon. The Commission resolved the conflict in favor of the Fourth Circuit, providing that both the base offense level of 15 and the weapon use enhancement in subsection (b)(2) shall apply to aggravated assaults that involve a dangerous weapon with intent to cause bodily harm. Amendment 614, effective November 1, 2001.