Tag Archives: guidelines

A Good Idea is Not Necessarily the Law – Update for December 8, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


There’s the old public service tagline about seat belts not just being a good idea, but being the law as well. It spawned more than one parody. But one kiddie-porn possession defendant learned last week that the meme does not have legs.

gravity171208The Circuits are strongly split over how to treat defendants subject to child porn Guidelines, which in the past 14 years have become draconian even by the normally harsh advisory Sentencing Guidelines. The 2nd Circuit started off the principled opposition to the stratospheric child porn sentencing ranges mandated by Congress in the 2010 case of United States v. Dorvee, holding that courts could pay little deference to child porn Guidelines because they were not set by the reasoned professional judgment of the Sentencing Commission, but instead by the political hacks in Congress. Two years later, the 6th Circuit ruled in United States v. Bistline that the fact that Congress told the Commission to set the ranges high meant the child porn guidelines were entitled to even more deference than the normal Guidelines.

anarchy171208In 2014, the 7th Circuit held in United States v. Price that it agreed with Dorvee, and said a sentencing judge could vary downward because of policy differences with Congress. But last week, the Circuit reminded defendants that “while district courts may disagree with the Guidelines’ policies and impose a lower sentence, it is not true that they must” do so.

bereasonable171208Terry Obetz questioned the usefulness of the Guidelines in child pornography cases, because the Guidelines were shaped by Congress instead of sentencing experts, and thus lack a basis in empirical data. He argued that Price requires sentences in child pornography cases to fall below the Guidelines’ range in order to be reasonable.

The judge listened to Terry’s policy argument but was not convinced: after all, the judge said, Congress created the Sentencing Commission, and it was free to give the USSC “some direction” when it wanted to. After all, what is a sentence but a political expression of appropriate punishment.

The sentencing court knew it was not bound by the Guidelines, but the judge said he believed the Guidelines’ recommendation – even if it was authored by Congress (or maybe especially because it was authored by Congress) – was appropriate.

judges171208On appeal, the 7th observed that the exercise of discretion shown by Terry’s judge  was “exactly what the judge was supposed to do.” Just as the judge in Price exercised her discretion when she reasonably deviated down from the Guidelines on policy grounds, Terry’s judge exercised his discretion, too, when he reasonably chose not to do so.

Judges judge, the Circuit said. That’s what they do, and as long as they are reasonable about it, the Court of Appeals was not going to tell them differently.

United States v. Oberg, Case No. 17-1546 (7th Cir. Dec. 1, 2017)

– Thomas L. Root


Newspeak Redux: Another Violent Crime is not a Crime of Violence – Update for November 2, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


angels170726The debate over whether criminal offenses that any viewer of Law and Order would have no problem labeling as violent are in fact “crimes of violence” continues to rage. In the Newspeakean world that remains after United States v. Curtis Johnson and United States v. Mathis, determining whether a violent crime is a “crime of violence” has come to occupy the same station as counting the number of angels on the head of a pin.

Whether a crime is a “crime of violence” has great relevance, because it can qualify the unlucky defendant for a 15-year mandatory minimum sentence (Armed Career Criminal Act), a mandatory consecutive sentence of at least five years (use of a firearm during crime of violence under 18 USC 924(c)), a much higher Guidelines sentencing range as a “career offender,” and a host of other statutory and Guidelines burdens. That’s not to mention the impact on legal residents subject to deportation for crimes of violence, an issue that is part of the Sessions and Dimaya case awaiting decision in the Supreme Court.

The latest entrant into the debate comes from the 10th Circuit, where Darnell O’Connor faced a Guidelines enhancement under USSG 2K2.1(a)(4)(A) because he had a prior conviction for a Hobbs Act robbery. Darnell’s advisory sentencing range for his felon-in-possession-of-a-gun conviction (18 USC 922(g)(11)) was increased by about six months because of the prior.

There are three ways a prior offense may be a crime of violence under the Guidelines. It may be either (1) an enumerated offense listed in the Guidelines (burglary, arson, extortion or use of explosive”); (2) an offense that has as an element the threatened use or actual use of physical force against a person; or (3) an offense that presents a significant risk of physical harm to others.

Robber160229The first clause is called the “enumerated clause,” because it enumerates certain offenses that count, period. The second is called the “force clause” or “elements clause,” because it relates to crimes that include elements of purposeful force. The third is called the “residual clause,” because it sweeps up what’s left. The “residual clause” was declared unconstitutionally vague two years ago in United States v. Johnson, at least as it applies to the ACCA, but the Supreme Court subsequently decided it could be applied in the Guidelines definition of “crime of violence.”

The definition of a “crime of violence” is the same whether its figuring out whether someone is an armed career offender under the ACCA or whether figuring out whether it’s a crime a violence under 18 USC 16(b), or whether figuring out whether the Guidelines make one a “career offender” under the Guidelines.

violence160110On appeal, Darnell argued that a Hobbs Act robbery was not a “crime of violence” under the Guidelines definition – which is fundamentally the same as the statutory definition – because it encompassed conduct that was broader than “robbery.” If some conduct that would be a crime under the statute would not be a “crime of violence” under the Guidelines, then any conviction under that statute will not qualify as a “crime of violence” for a sentence enhancement under the Guidelines, regardless of whether the conduct that led to the prior conviction was in fact violent.

Under the force clause, the court looks at whether the statute underlying the prior conviction “has as an element the use, attempted use, or threatened use of physical force against the person of another.” If the statute criminalizes only conduct that fits within the force clause, then a sentencing enhancement is valid. But if the Hobbs Act robbery statute covers conduct that falls outside the force clause—such as threatening property rather than “the person of another”—then Hobbs Act robbery would not categorically be a crime of violence under that clause.

The Hobbs Act defines robbery is the unlawful taking of someone’s personal property against his will by use or threat of force “to his person or property.” The Government argued that the Court had to focus on the “minimum conduct” criminalized by the underlying statute without applying “legal imagination” to consider hypothetical situations that technically violate the law but have no “realistic probability” of falling within its application. It argued it Darnell could point to no case where the government would prosecute” threats to property as a Hobbs Act robbery.

The Court held that was immaterial, because Darnell “does not have to make that showing.

Hobbs Act robbery reaches conduct directed at “property” because the statute specifically says so. We cannot ignore the statutory text and construct a narrower statute than the plain language supports.” Because Hobbs Act robbery can be committed against property, where generic robbery cannot, it is broader than enumerated robbery, and cannot qualify as violent crime under the “enumerated clause.”

Likewise, the enumerated offense of extortion cannot include the Hobbs Act within its sweep, because the Guidelines now define extortion as being focused only on physical injury to a person. Hobbs Act extortion includes threats to property, and thus is too broad under that term as well.

Finally, the Court said, Hobbs Act robbery cannot qualify as a crime of violence under the Guidelines “force clause,” because Hobbs Act robbery can include force against property, while the “force clause” requires physical force against a person.

Darnell’s two prior Hobbs Act convictions thus were not crimes of violence, despite the fact that they were undoubtedly violent crimes.

United States v. O’Connor, Case No. 16-3300 (10th Cir., Oct. 30, 2017)

– Thomas L. Root


“Any Last Words?” — Allocution Prejudice Is Once Again Presumed – Update for May 30, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


For more than 300 years, courts have recognized that a criminal defendant has a right to speak directly to the court before sentence is imposed. The judge’s failure to ask a defendant if he had anything to say – known as the right of allocution – traditionally has always required reversal. After all, as the Supreme Court put it, “the most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.”

allocution170530The allocution cases that make it to appeal inevitably result because the judge forgets to offer the defendant the right, and the defense attorney fails to notice the omission. In those cases – because no objection has been lodged – in order to complain about the mistake, a defendant had to show “plain error” that prejudiced him, affected his “substantial rights” as Federal Rule of Criminal Procedure 52 puts it.

Until the Guidelines came along in 1987, the courts always assumed that a defendant had been prejudiced if he or she was denied allocution, because the right had “symbolic meaning that lent legitimacy to the sentencing process.” But after the Guidelines, courts ruled that prejudice could be found only if a defendant was not “given the opportunity to speak to the court when the possibility of a lower sentence existed.” Until United States v. Booker – that is, for about 18 years – the Guidelines were mandatory, meaning the judge had virtually determined by the Guidelines’ confusing calculus.

This meant that if a defendant had a mandatory sentencing range of, say, 108-121 months, and the judge sentenced him or her to 108 months, the defendant could not claim prejudice because he or she was denied a chance to speak, because practically speaking, the defendant had already gotten the best deal he or she could possibly get. No harm, no foul.

guidelines170530Then the Guidelines became advisory. Yet in the 12 years since Booker, no court has bothered to change the “no prejudice” rule. Thus, when Tony Doyle appealed the fact the district court forgot to give him his right of allocution, the government argued that because Tony had gotten sentenced at the bottom of his Guideline range, the denial of the right to allocate did not hurt him.

Last week, the 11th Circuit said it was time to pitch the old Guidelines “no prejudice” presumption. Pointing out that Booker brought a “sea change” in sentencing practices, the Circuit said “a sentence outside the guidelines range is not the extraordinary event that it once was.” In fact, during 2016 almost half of the sentences handed out in the 11th Circuit were below the Guidelines range.

“Because Booker knocked out” the premise that the bottom of the Guidelines range was as good as it was going to get for the defendant, the Circuit said, “a defendant will generally be entitled to a presumption that he was prejudiced by the district court’s failure to afford him his right of allocution, which will satisfy the plain error rule’s third requirement, even if he received a sentence at the low end of his advisory guidelines range.”

United States v. Doyle, Case No. 14-12818 (May 25, 2017)

– Thomas L. Root


5th Circuit Finds Sentencing Commission Mitigating-Role Amendment to be ‘Clarifying’ – Update for May 25, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


whore170525When a cop stopped Frank Sanchez-Villarreal in Texas., he found six kilos of coke and a gun. Frank admitted that he had been hired by someone he only knew as “Chaparro” to deliver the cocaine to someone he did not know, for which he would be paid $1,000.00. He said the guy who hired him had given him the gun for protection.

At sentencing, Frank’s lawyer argued that he should get a 2-level mitigating-role adjustment under the sentencing Guidelines for having played a lesser part in the drug trafficking than the average conspirator. He argued that Frank was just a “standard ‘mule’” who had been ordered to transport drugs without knowing the end location or coordinating the drug trafficking. If the conspiracy had been a whorehouse, his lawyer argued, Frank was only the piano player.

The district judge reluctantly concluded that Frank’s conduct did not warrant the USSG Sec. 3B1.2 mitigating-role adjustment. She said she “probably had some disagreement with the guidelines,” but while Frank “may be not the person gaining the most financially from this, but – but he is – I’m hesitating to use the word “critical,” but I’ll go ahead and use the word “critical.” He is critical to the operation as far as moving the drugs, and – and also, especially here, where by his own admission this was the second time he’d done this – and in that regard I do consider that, his admission – he’s –he’s entrusted, obviously to get this work done.”

mule170525While Frank’s appeal was pending, the Sentencing Commission adopted Amendment 794, and changed the commentary to 3B1.2. The changed commentary makes it clear that the standards for a minor-role adjustment are not as stringent as a number of courts had said they are. In particular, the Commission added this:

The fact that a defendant performs an essential or indispensable role in the criminal activity is not determinative. Such a defendant may receive an adjustment under this guideline if he or she is substantially less culpable than the average participant in the criminal activity.

The Commission said it made the change because courts had been denying mitigating-role adjustments solely because defendants were “integral” or “indispensable” to the criminal activity. The Commission explained that such a standard was inconsistent with the primary issue of relative culpability. The Amendment Commission was intended to address a circuit split as to what an “average participant” might be.

This week, the 5th Circuit agreed with Frank that he should be considered for the 2-level reduction. In so doing, the Circuit held it could consider Amendment 794, even though it was “not effective at the time of the commission of the offense or at the time of sentencing” because it was intended only to clarify, rather than effect substantive changes.

Bit170525The 5th joined three other circuits agreed with the parties that Amendment 794 is a clarifying amendment. In determining whether a Guidelines amendment is clarifying or substantive, a court looks (1) whether the Commission declared the amendment to be clarifying; (2) whether the amendment is intended to address a circuit split (which generally indicates that the amendment is substantive, not clarifying); (3) whether the amendment was made retroactively applicable by the Commission; and (4) whether the amendment alters the language of the commentary rather than the language of the Guideline itself (which may suggest that it is clarifying). Because Amendment 794 altered the text of the commentary but not the guideline itself, and because the change was to better reflect the Commission’s intent and provide “additional guidance to sentencing courts,” Amendment 794 was clarifying.

The Circuit concluded the district judge erred in her application of Sec. 3B1.2 “by giving conclusive weight to the finding that Sanchez-Villarreal’s role was ‘critical’.” After that conclusion, the district court did not consider whether, despite playing a critical role, Frank was “substantially less culpable than the average participant in the criminal activity.” Because his culpability is the central issue in a 3B1.2 reduction, Frank was entitled to resentencing where that issue would be resolved.

United States v. Sanchez-Villarreal, Case No. 15-41303 (5th Cir., May 23, 2017)

– Thomas L. Root


2nd Circuit Holds “In Guidelines” Sentence to be Unreasonable – Update for April 20, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


We have to begin, as always, with our usual disclaimer: child pornography is odious. The creation of it has a terrible impact on the children forced into such conduct. And of course, we – like the overwhelming majority of people – are repulsed by child porn itself. Even reading details of it in appellate court decisions often has us getting up frequently to wash our hands.

childporn170420As a result, there is hardly a crime easier to demagogue than child pornography. Congress has juiced the kiddie porn sentencing guidelines repeatedly, because – after all – who could object to hammering depraved people who looked at kiddie porn with what are effectively life sentences? Certainly not legislators. And can you imagine a senator or House member who voted against dictating guideline levels to the Sentencing Commission (who is expert in sentencing matters)? Any challenger at reelection time is going to point at the unfortunate solon and shout, “My opponent voted to let child molesters out of prison early!!!”

pork170420It’s the kind of thing (along with eating one too many pork-chops-on-a-stick) that will keep a politician awake at night.

Seven years ago, the U.S. Court of Appeals fired the first warning shot at the child porn guidelines in United States v. Dorvee. After reviewing in detail the politically-charged and commonsense-challenged history of the child pornography guideline, the Court “encouraged” district judges “to take seriously the broad discretion they possess in fashioning sentences under § 2G2.2 – ones that can range from non-custodial sentences to the statutory maximum – bearing in mind that they are dealing with an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results.”

shot170420Last Monday, the 2nd Circuit revisited the question, and in a remarkable decision – a real shot across the bow for the child pornography Guidelines – held that a child porn sentence that fell within the calculated Guidelines range was nevertheless substantively unreasonable. And it did so even where the defendant was rather unsympathetic.

To our knowledge, no court has ever before held that a within-range Guidelines sentence was substantively unreasonable. That alone makes today’s decision a remarkable case.

Joe Jenkins – a man with no prior criminal conduct – was on his way to Canada to meet his parents for a family vacation. When Joe crossed into Canada, Canadian customs people thought he was acting squirrely, and so they inspected his laptop and a couple of thumb drives he had with him. They found a lot of kiddie porn.

Joe was charged in Canada, but – being released on bail – he beat feet back to the US. The Mounties, deciding that getting mad was not as rewarding as getting even, asked US Homeland Security whether they might be interested in Joe’s collection. They were. Joe was charged with a count of possession of child porn, and another of transportation of such porn across state lines.

bound170420At trial, Joe was obstreperous, sharp-tongued and uncooperative. He was convicted, and the court figured his Guidelines as 210-240 months. Joe was sentenced to 120 months for possession, the statutory maximum. On the transportation count, he got a concurrent sentence of 225 months, with a supervised release term of 25 years after the sentence ended. The district court thought Joe’s disrespect for the judicial process – not to mention some of the whoppers he told on the stand – suggested he was likely to possess child porn again after he got released.

The 2nd Circuit, in an unprecedented decision, held that Joe’s “in Guidelines” sentence was excessive. Noting that “in view of Jenkins’s age [43], this sentence effectively meant that Jenkins would be incarcerated and subject to intense government scrutiny for the remainder of his life,” the Court rejected the sentence as violating § 3553(a)’s “parsimony clause,” which instructs a district court to impose a sentence “sufficient, but not greater than necessary,” to achieve § 3553(a)(2)’s goals.

The Court noted that “bringing a personal collection of child pornography across state or national borders is the most narrow and technical way to trigger the transportation provision. Whereas Jenkins’s transportation offense carried a skittyporn170420tatutory maximum of 20 years, the statutory maximum for his possession offense was “only” 10 years. Jenkins was eligible for an additional 10 years’ imprisonment because he was caught with his collection at the Canadian border rather than in his home.” What’s more, the Court said, the Sentencing Commission’s own statistics suggest that Joe’s age makes him much less likely to reoffend after a 10-year prison stint, which is at odds with the district judge’s holding to the contrary.

The Circuit reserved its most withering criticism for the enhancements that applied to Joe’s Guidelines calculations. The four most common include a 2-level increase for use of a computer and another increase for “more than 600 images.” The Court said that in Dorvee,

we noted that four of the sentencing enhancements were so “run-of-the-mill” and “all but inherent to the crime of conviction” that “[a]n ordinary first-time offender is therefore likely to qualify for a sentence of at least 168 to 210 months” based on an offense level increased from the base level of 22 to 35… The concerns we expressed in Dorvee apply with even more force here and none of them appears to have been considered by the district court. Jenkins received precisely the same “run-of-the-mill” and “all-but-inherent” enhancements that we criticized in Dorvee, resulting in an increase in his offense level from 22 to 35. These enhancements have caused Jenkins to be treated like an offender who seduced and photographed a child and distributed the photographs and worse than one who raped a child…

kporn160124The Circuit cited Sentencing Commission stats showing that 96% of child porn possession defendants received the enhancement for an image of a victim under the age of 12, 85% for an image of sadistic or masochistic conduct or other forms of violence, 79% for an offense involving 600 or more images, and 95% for the use of a computer. When nearly everyone qualifies for the enhancement, it ceases being an enhancement and begins being merely a characteristic of the underlying offense.

The 2-1 majority observed that

a sentence of 225 months for a first-time offender who never spoke to, much less approached or touched, a child or transmitted explicit images to anybody is unreasonable. Additional months in prison are not simply numbers. Those months have exceptionally severe consequences for the incarcerated individual. They also have consequences both for society which bears the direct and indirect costs of incarceration and for the administration of justice which must be at its best when, as here, the stakes are at their highest.

The appellate court concluded that “on remand, we are confident that Jenkins will eventually receive a sentence that properly punishes the crimes he committed. But Judge Suddaby, in imposing his sentence, went far overboard.”

United States v. Jenkins, Case No. 14-4295 (2nd Cir., Apr. 17, 2017)

– Thomas L. Root


Does the Beckles Cloud Have a Silver Lining? – Update for March 7, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


In a decision long awaited by federal inmates, the Supreme Court yesterday held that unlike criminal statutes, the federal sentencing guidelines can never be void for vagueness. But in so ruling, the Court may have weakened the guidelines rather than strengthened them.

silverlining170307The history: In 2015, the Supreme Court ruled in Johnson v. United States that a part of the definition of “crime of violence” found in the Armed Career Criminal Act – the “residual clause” that swept up offenses with a significant chance that someone might get hurt as being violent – was unconstitutionally vague. That ruling made sense: crimes such as drunk driving and not stopping for the police were being called “violent,” and on the strength of such dubious definitions, the law was making 51-month sentences into 15-year bits.

Unfortunately, the definition of “crime of violence” (along with the “residual clause”) was not just an ACCA provision. Instead, the same definition had metastasized throughout the criminal code and guidelines. Under the legal principle that quid est ius gander anserem condimentum (“what’s sauce for the goose is sauce for the gander”), inmates whose sentences had been shot into low-earth orbit by the guidelines’ “career offender” provision immediately began arguing that their sentences were based on an unconstitutionally vague “residual clause” as well.

sauce170307The United States Sentencing Commission lent some support to the argument. After Johnson, the Commission changed the guidelines’ “crime of violence” definition to comport with Johnson. But a few courts of appeal held that guidelines are different from statutes, and could never be void for vagueness.

Yesterday’s Decision: Beckles v. United States was such a case. Travis Beckles had been sentenced to double prison time for possessing a sawed-off shotgun under the “career offender” guideline. If the ACCA “crime of violence” definition was unintelligible, Travis argued, so was the guidelines definition that matched it word for word.

Yesterday, the Supreme Court disagreed. Because guidelines are merely advisory and judges hold the final authority on sentences, the Court held, defendants cannot successfully argue that a sentencing guideline is so vaguely worded as to violate the constitutional right to due process. Laws that “fix” the sentencing range can be challenged in ways that “advisory guidelines” simply cannot.

The Fallout: Beckles hobbles what has up to now been a well-honed defense tool, while exposing contradictions between the guidelines in theory and in practice in a way that almost guarantees further litigation.

Not if it's in the guidelines...
Not if it’s in the guidelines…

One former federal prosecutor notes, “Saying those guidelines can’t be challenged for vagueness takes away a tool for review and puts the onus on the Sentencing Commission to keep going back and looking at how they are being applied.”

Up to 2005, judges had been required by law to apply the Guidelines in sentencing. But in United States v. Booker, the Supreme Court decided mandatory guidelines the Sentencing Reform Act of 1984 created were unconstitutional. Instead of throwing the whole law out, the court decided the guidelines should be considered advisory.

The broad opinion Justice Clarence Thomas wrote in Beckles built on Booker, differentiates between sentencing provisions in laws like the ACCA and the guidelines, which are subject to district courts’ discretion.

A former associate deputy attorney general who is now a law professor said the Beckles decision is a symptom of the hybrid situation that flowed from Booker: “You live in this weird world where the guidelines are both advisory and highly influential.”

Justice Sonia Sotomayor concurred in Beckles with a scathing rejection of the majority’s reasoning. She argued that while the guidelines may be “advisory” in name, in practice judges often consider them a default, meaning they should get the same treatment as a law under the constitution. Ironically, this is the same argument that helped carry the day in a 2011 decision, Peugh v. United States, which held the guidelines could be subject to an ex post facto analysis.

Sotomayor argued that Booker tweaked the guidelines’s status but left them at the heart of the sentencing consideration — or as the court put it last year in Molina-Martinez v. United States, the “basis” for the sentence. “It follows from the central role that the guidelines play at sentencing,” Sotomayor wrote, “that they should be susceptible to vagueness challenges under the due process clause,” she wrote.

sweetbrown170307Another law professor who filed an amicus brief in Beckles argued yesterday that the majority’s ruling ignores the “messy reality” of federal sentencing. “It reads as though the federal sentencing guidelines are just advice for district court judges that they can take or leave as they want, but that’s just not true,” she said.

An optimistic footnote to Beckles: Justice Kennedy’s short concurring opinion may hint at another option for defendants. He wrote that while the legal tests for constitutional vagueness are ill fitted to the sentencing guidelines, a defendant might still run into a sentence that is “so arbitrary that it implicates constitutional concerns.” Kennedy said, “In that instance, a litigant might use the word vague in a general sense — that is to say, imprecise or unclear — in trying to establish that the sentencing decision was flawed.”

Most notably, Beckles underscores to district court judges that the guidelines are not just purely advisory, but occupy a place in the law that is considerably less that statute, and perhaps much less than regulation as well. “It sends a signal to district court judges and reinforces the message that is already out there that these guidelines are purely advisory,” one lawyer said.

That may embolden courts to deviate from guidelines to an even greater extent than they have before. Courts have repeatedly held that a within-guidelines sentence is “presumptively reasonable.” If those guidelines can be so vague as to defy fairness – too vague to survive a constitutional analysis were they statutes – how long can such a reasonableness presumption endure?

Beckles v. United States, Case No. 15–8544 (March 6, 2017)

– Thomas L. Root


How Much Explanation is Enough? – Update for March 3, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


Many of us vowed that when we became parents, we would never dismiss our kids’ demand for an explanation with the peremptory ipse dixit “because I said so.” And just as many of us kept that promise only until our children began to talk.

Saidso170303There was a time when a judge only had a statutory sentencing range, and could sentence anywhere within the range on any whim he or she had. The judge could slap someone with 10 years, and the heavy lifting of figuring out where within that 10-year period the prisoner was released fell to the Parole Commission.

The Sentencing Guidelines, now approaching 30 years of age, changed all of that. The judge now did all the work, assigning a criminal history score to the defendant, determining the total offense level in points, and then using a matrix to determine a sentencing range. The range – much narrower that the statutory punishment specified in the U.S. Code – left the court with scant discretion. A crime might carry a 0-10 year statutory sentencing range, but the Guidelines gave the court a sentencing range of 71-87 months.

With the district court’s greater involvement in the sentencing calculus came greater demands that the district court do more than just impose a sentence without an explanation, the “because I say so” approach. After United States v. Booker made the Guidelines “advisory” – giving back to the judges some of the discretion the Guidelines had originally taken away – a collection of Supreme Court cases laid down the requirements that sentences be “procedurally reasonable” (that the Guidelines be calculated accurately) and that they likewise be “substantively reasonable,” in other words, not appear to be too unfair.

Because courts of appeal cannot review a sentence for reasonableness without knowing why the district court decided on the sentence it imposed, appellate courts imposed on trial judges the responsibility to explain their sentencing decisions rather than imposing a sentence simply because the judge says so.

A group hug of legislators is not nearly as cute...
A group hug of legislators is not nearly as cute...

Mark Wireman, a serial kiddie porn offender, had a sentencing range of 210-262 months, due to his lengthy criminal history, and to the child porn Guidelines, which pile on enhancements for number of images stored, for use of a computer, and a host of other offense attributes that apply in virtually every kid porn offense. There is little doubt that society finds child pornography odious. Congress certainly finds it an issue that draws lawmakers of both parties into a group hug and chorus of “kumbaya,” followed by unanimously-passed legislation in which each legislator tries to out-tough the other in being harsh on kiddie porn.

As a result, most of the child porn Guidelines were written not after a reasoned consideration of data but because Congress, in a bipartisan tough-on-porn frenzy, dictated how it should read. More than one court has complained that it should have to pay deference to the Draconian sentences recommended by the child-porn Guidelines, because those Guidelines were not data-driven.

Mark was lucky enough to have a team of public defenders representing him. As a group, federal public defenders deliver spirited and experienced representation seldom seen in retained counsel until one gets to blue-chip law firms. Mark’s defenders wrote a top-drawer sentencing memorandum that the policy underlying the child porn Guidelines was flawed:

First, that § 2G2.2(a)(2)’s base offense level of 22 is “harsher than necessary” under the 18 U.S.C. § 3553(a) sentencing factors; second, that courts should be hesitant to rely on § 2G2.2 because the Sentencing Commission did not depend on empirical data when drafting §  2G2.2; and third, that the Specific Offense Characteristics outlined in § 2G2.2 are utilized so often ‘that they apply in nearly every child-pornography case’ and therefore fail to distinguish between various offenders.

Mark also that his own circumstances – including a traumatizing childhood where he was repeatedly sexually abused by family members and the fact that in this case he shared a relatively small amount of child pornography with only one other – of warranted a downward variance from this excessive guideline range.

The sentencing court said, “Frankly, I’m struggling with a lot of the issues that have been raised in… Defendant’s counsel’s memorandum…” but made no further reference to the filing. Ultimately, the court, concerned with the risk that Mark would keep committing the same or similar offenses, sentenced him within the advisory Guidelines range to 240 months.

This week, the 10th Circuit affirmed the sentence, rejecting Mark’s complaints that the district court ignored his counsel’s sentencing memorandum. Specifically, Mark argued that where the defendant attacked the Guidelines on policy grounds – an attack becoming increasingly common in child sex cases – a district court is obligated to address the claim.

kittyporn160829The 10th disagreed, nothing that while “a district court must explain its reasons for rejecting a defendant’s nonfrivolous arguments for a more lenient sentence,” and while a district court may even “vary from the Sentencing Guidelines based on a policy disagreement with those Guidelines,” the manner in which a district court must explain its reasons for rejecting a defendant’s arguments is not “set in stone across all cases.” Where, as in this case, “the district court has imposed a sentence within the Guidelines, our cases have noted that the district court need not specifically address and reject each of the defendant’s arguments for leniency so long as the court somehow indicates that it did not rest on the guidelines alone, but considered whether the guideline sentence actually conforms, in the circumstances, to the 18 U.S.C. § 3553(a) statutory factors.”

The Circuit said it was “not persuaded that the principle we note… that a district court need not specifically address and instead may functionally reject a defendant’s arguments for leniency when it sentences him within the Guidelines range — should differ just because the defendant critiques the applicable Guideline itself on policy grounds, as Defendant does in the case before us today. In our circuit, a within- guideline-range sentence that the district court properly calculated… is entitled to a rebuttable presumption of reasonableness on appeal… We would be disregarding the spirit of this appellate presumption if we were to require the district court to defend § 2G2.2 or any other Guideline that leads to such a presumptively reasonable sentence.”

United States v. Wireman, Case No. 15-3291 (10th Circuit, Feb. 28, 2017)

– Thomas L. Root


11th Circuit Holds Florida 2nd Degree Burglary No Crime of Violence – Update for January 13, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


Idust170113t’s been rough sailing for “crimes of violence” in the last few years, as courts have repeatedly limited the types of prior offenses that may be considered by federal courts as crimes of violence. This week, another one – a Florida burglary offense – fell.

This may seem rather dry to a lot of people. Who cares whether a past conviction was violent or not? A lot of people, it turns out, because whether a defendant’s prior crimes are crimes of violence or not makes a dramatic difference in sentencing. Under the Armed Career Criminal Act, for example, a convicted felon caught during deer season with a shotgun faces a maximum sentence of 10 years for violating 18 USC 922(g). But if his criminal history includes three crimes of violence, the minimum sentence starts at 15 years and maxes out at life. A number of other statutes and Guidelines also mete out additional punishment depending on whether a defendant’s criminal history is violent or not.

But doesn’t that sound like a good idea? Who needs violent criminals stalking our streets? After all, you convicted felons out there, sow the wind, reap the whirlwind. If you can’t do the time, don’t do the crime…

kermit170113Sure, piling on additional punishment for already-punished misdeeds is viscerally appealing, until you get into the fine print of what the law considers a violent crime to be. Right now, it’s defined as any burglary, extortion, arson or crime involving an explosive. Additionally, it’s any other crime that involves force or the threat of force.

Most of that sounds good, but what about the guy who 20 years ago, used to sneak into the neighbors’ chicken coops and steal some eggs? Or boosted some Twinkies from Walmart? Those are burglaries in most states. Those “crimes of violence” hardly make him a likely chainsaw killer on a rampage.

Part of the problem is that the parameters of the law of burglary vary widely from state to state. What’s called a burglary in one state may be called a simple breaking and entering elsewhere. In other words, the “crime of violence” definition was punishing people depending on whether state legislatures decided to use the “b”-word – burglary – in a statute.

shoplift170113In Taylor v. United States, the U.S. Supreme Court limited the term “burglary” to “generic” burglary – unlawful entry into a building or other fixed structure. Breaking into a car, boat, or airplane wouldn’t count. Taylor further made the fateful determination that the analysis of whether a prior conviction for “burglary” satisfied the generic definition of burglary was to be performed on a “categorical” basis. That is, the sentencing court was not to look at the actual facts of the case to decide whether the defendant’s conduct constituted generic burglary; rather, the court was to analyze the statute under which he was convicted to determine whether it “categorically” qualified as generic burglary.

The Supreme Court followed that decision in 2013 with Descamps v. United States, which expanded the use of the “categorical” approach. Johnson v. United States followed two years later, in which the Supreme Court eviscerated the statutory definition of “crime of violence” by invalidating the catch-all residual clause, which included in the definition any offense that carried the risk of harm to a victim, regardless of a defendant’s intent.

burglary160502Then, last summer, the Supreme Court decided Mathis v. United States, which resoundingly endorsed and further broadened the use of Descamps’ “categorical approach.”

One of the guys who cares about it is Juan Gabriel Garcia-Martinez. In 2009 Juan, a Mexican citizen in the United States illegally, was convicted in Florida of 2nd-degree burglary of a dwelling under Florida Statute § 810.02(3).

Florida defines burglary as “[e]ntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein…” with the intent to commit an offense or a forcible felony. A 2nd degree burglary is one in which while committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive. A “dwelling” is “a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof.” § 810.011(2)

deport170113After his Florida 2nd degree burglary conviction, Juan got booted from the United States and told never to come back. But he did. However, four years later, Juan was back, and immigration agents caught up with him in a Florida jail after he had been arrested for battery. He later pled guilty to illegal reentry after deportation.

The presentence investigation report assigned a base offense level of 8 under USSG § 2L1.2(a) and a 16-level increase under USSG § 2L1.2(b)(1)(A)(ii) for having committed a crime of violence – the 2nd degree burglary – prior to being deported. As a result, Juan faced a sentence of 41 to 51 months imprisonment.

On Wednesday, the 11th Circuit vacated the sentence. It held that the Florida 2nd-degree burglary statute was broader than the generic definition of burglary. The Florida definition of a “dwelling” included not just the building itself, but the curtilage as well. Curtilage is defined in Florida as an enclosure around a residence, such as a law surrounded by a hedgerow or a fenced-in backyard. The Circuit said, “Florida’s inclusion of curtilage in its definition of dwelling makes its burglary of a dwelling offense non-generic. Curtilage… is not categorically used or intended for use as a human habitation, home or residence because it can include the yard and, as the State acknowledges, potentially even outbuildings as long as they are located within the enclosure.”

Everywhere inside the stockade is curtilage...
                                                  Everywhere inside the stockade is curtilage…

Because Florida law defined curtilage as part of the dwelling for purposes of burglary, the 11th held the statute was indivisible, and thus – no matter what the facts of Juan’s burglary might have been – it was not a crime of violence.

The effect of the holding will be to cut Juan’s Guidelines range to a maximum of 14 months.

United States v. Garcia-Martinez, Case No. 14-15725 (11th Cir.  Jan. 11, 2017)

– Thomas L. Root


Saying It Doesn’t Make It So – Update for January 12, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


Because170112Serial college football coach Terry Bowden – who spent sojourns between his many coaching gigs as a TV sports analyst – delighted in quoting his father, legendary Florida State coach Bobby Bowden. “Daddy says…” Terry would start out, and then deliver a gem of football wisdom like Moses delivering the stone tablets.

We almost regret that Bobby’s been busy the past year coaching the University of Akron Zips to a lackluster 5-7 season, because we would like hearing him tell us “Daddy says… boys without fathers wear earrings to be like their mommas…” Yeah, really. Bobby said that.

Our point is that just because “Daddy says” it, it doesn’t mean it’s so. That’s the same point the 5th Circuit made in a decision handed down earlier this week.

fraud170112Euneisha Hearns was a mortgage loan officer involved in a rather plain vanilla conspiracy. She held customers lie to get mortgages, which was something of a sport in the halcyon days before the market collapsed in 2008. In Euneisha’s case, buyer interested in purchasing property on Brownstone Court in Dallas lacked the cash for a down payment. Hearns whipped up a loan application for him that puffed the value of the place and his ability to pay, netting enough for the buyer to close the deal and use some of the loan proceeds for the down payment (sort of like a snake eating itself).

Unsurprisingly, the buyer defaulted, the false statements came to light, and Euneisha was indicted. An old lawyer we used to work with liked to say, “no thief only steals once,” and this maxim apparently held here. There wasn’t just one bad loan at Euneisha’s. There were at least ten the government knew of.

Euneisha figured she was on the hook for about $180,000 (the amount of the Brownstone loan, an amount that will probably buy a storage shed in San Francisco). But the Sentencing Guidelines let a court set the loss based on the offense itself and related conduct. The presentence report prepared after trial said the conspiracy was responsible for total loss of $866,000, which included the Brownstone loan and “loss amounts related to nine other properties.”

“What other properties?” asked Euneisha. The PSR retorted that  “the Government has identified 10 properties [including the Brownstone Property] that involved fraud in the mortgage loan process. Government records reflect that with respect to these properties… Hearns [and her co-conspirators] were all involved in the scheme to defraud.”

Ah, the “Daddy says…” gambit. The PSR otherwise provided no information or evidence to support the loss amounts or Euneisha’s involvement in the other nine deals. The government presented evidence with respect to three of these properties at trial, but the remaining six properties were not mentioned either at trial or at sentencing. Nothing in the record showed when the six remaining transactions occurred, whether criminal activity was associated with the transactions, or whether Euneisha had even heard of them. Who bother? The government says, the PSR repeats. Game, set, match.

history170112Euneisha did not offer evidence to show that she was not involved with the other properties. It would have been hard to do so, to prove a negative. It’s especially tough in loss calculation, because loss amounts “need not be determined with precision” and “all that is necessary is that the finding be plausible in light of the record as a whole.” What’s more, PSRs – which, like history, are written by the winners – are generally considered “reliable evidence for sentencing purposes.” The district court concluded that “the information contained in the presentence report has sufficient indicia of reliability to support its probable accuracy.” It held Euneisha responsible for all $866,000.

Bcorso170112ut as another sportscasters, the equally legendary Lee Corso, likes to say, “Not so fast, my friend!” This week, the 5th Circuit vacated the sentence. Sure, the Court said, “a district court may adopt the findings of the PSR without additional inquiry if those facts have an evidentiary basis with sufficient indicia of reliability and the defendant does not present rebuttal evidence or otherwise demonstrate that the information is materially unreliable.” What’s more, a defendant has the burden of showing that the information in the PSR is materially unreliable.

However, the problem here is that the PSR contained no information to support the loss amounts and no evidence Euneisha had anything to do with the other transactions. The government only mentioned three of the nine properties at trial. As for the others, “the facts contained in the PSR regarding these six properties lack an evidentiary basis with sufficient indicia of reliability,” the Circuit said. “Although a PSR may be considered as evidence by the court when making sentencing determinations, bare assertions made therein are not evidence standing alone.”

negative170112The appellate panel made clear that Euneisha was not at fault for failing to disprove the PSR’s loss claim. “If the factual recitation in the PSR lacks sufficient indicia of reliability,” the Court held, “then it is error for the district court to consider it at sentencing — regardless of whether the defendant objects or offers rebuttal evidence.”

The case will go back for resentencing.

United States v. Hearns, Case No. 16-40222 (5th Cir., Jan. 9, 2017)

– Thomas L. Root


Bootstrapping Your Way to Enhanced Sentences – Update for January 11, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


About one out of ten federal offenders is charged with a firearms offense, and just about all of them are charged as felons-in-possession.

guns170111The shorthand is misleading, because literally, 18 USC 922 nowhere uses the word “felony.” But it does talk about a lot of other things. You can commit the offense colloquially called felon-in-possession if you own a firearm or ammunition that has traveled in interstate commerce after (1) being convicted of a crime punishable by more than a year in prison; (2) being under indictment for such a crime; (3) being convicted of any misdemeanor involving domestic violence; (4) being a fugitive from justice; (5) being a drug abuser; (6) being under a civil protection order; (7) being an illegal alien; (8) being dishonorably discharged from the armed forces; or (9) having renounced your citizenship.

The statute’s a hot mess, and its byzantine requirements would almost be laughable if the penalty – up to 10 years in prison – were not so serious. We just talked to a Navy veteran the other day who wanted to expunge a domestic violence misdemeanor he had gotten while on leave 22 years ago. He was shocked when we told him that he was committing a 10-year federal felony by owning the shotgun he hunted deer with every year.

Today’s case isn’t about the flaws in the statute, however, but rather the flaws in the system. Dasean Taylor was very much a felon-in-possession. In fact, he must have caught the authorities’ attention as a bona fide bad guy, because law enforcement sent an informant to buy guns from Dasean on three separate occasions.

                            Not a business license…

Catching Desean the first time he sold a gun would have been plenty to hang him as a felon-in-possession. But the Sentencing Guidelines include an arsenal of enhancements that can jack up the sentencing range of a felon-in-possession, and the government pretty clearly wanted Dasean’s hide.

Dasean’s case centered around a 4-level enhancement for trafficking in firearms. The enhancement would apply to Desean if he sold two or more guns, and knew or had reason to know possession of the guns by the buyer was illegal or the buyer was going to use the guns illegally.

To be sure they could hammer Dasean, the authorities had their undercover buyer tell Dasean he was going to file the serial numbers off one of the guns. One of other guns sold was a sawed-off shotgun, illegal to own unless it was registered under 26 USC 5841. The district court held that the sale of those two guns satisfied the trafficking enhancement.

An unfortunate effect of the adoption of the federal sentencing guidelines was to institutionalize the practice of sentence manipulation. The drug guidelines increased according to the weight of the drugs sold, so law enforcement would not just make one buy, but rather a number of buys, until a weight threshold was reached. If the offense carried an enhancement for possession of a firearm, the undercover would beg the defendant to find a gun, any gun, that the undercover could buy. The worst examples are the “stash house” robberies, where the ATF agents running the sting would tell tales of a fictitious safe house stacked with kilos and kilos of cocaine. Why tell the perps they could knock over a place and get 4 kilos of coke when it was just as easy to promise 25 kilos?

§ 924 tacks a few years onto a sentence for carrying a gun during a violent or drug crime.
                                           Some guns you just know aren’t for plinking at cans…

In today’s case, Desean complained on appeal that there wasn’t enough evidence to apply the 4-level enhancement to his sentence (giving him 71 months instead of 46 months). Monday, the 1st Circuit affirmed the enhancement and sentence.

The district court found that “the cooperating witness [said] that he [was] going to take the serial number off” and that therefore “Mr. Taylor as a supplier would know [that the transfer] involved some unlawful possession or the use or disposal of the firearm unlawfully.” Dasean said the audio didn’t prove he heard the buyer say that, but the Circuit concluded otherwise., holding that because Taylor must have heard the statement,

then the District Court committed no clear or obvious error — or, for that matter, any error at all — in concluding that Taylor knew or should have known that the removal of a serial number is indicative of “anticipation that the gun will be used in criminal activity,” and thus that Taylor knew or should have known that CW-1 intended to use or dispose of the firearm unlawfully.

Now that’s a totem pole of inferences! The Court inferred from the audio that Dasean heard the buyer saw he’d remove the number, it inferred that Dasean knew that removing serial numbers indicates the buyer plans to be up to no good with the gun, and therefore it inferred that Dasean knew or should have known that the buyer intended to use or dispose of the firearm unlawfully.

Maybe so, but we think that begs the question. The cooperating witness did not intend to use the firearm unlawfully, or, for that matter, to remove the serial number. Instead, he was buying the firearm (and making the claim) at the behest of law enforcement, without any intention of carrying out his promise. It’s pretty obvious the buyer claimed he wanted to remove the serial number solely to trap Dasean with a higher guideline range. But can a defendant be said to know a b uyer will do something the buyer has no intention of doing when he claims to plan to do so?

It’s just unseemly to lie to someone, and then punish them because you assert they must have believed their lie.

boot170111Of course, there was a sawed-off shotgun, too. Under the National Firearms Act, one may not possess a sawed-off shotgun without registering it with the ATF. But the district court conceded that proper registration of the shotgun was possible, just unlikely. The Court of Appeals agreed, noting among other things that Dasean knew the buyer was up to no good because he “was on notice that CW-1 had expressed during the September transaction an intention to remove the serial number from a firearm.”

We don’t excuse selling guns to people who intend to misuse them, but the entire exercise in pumping up Dasean’s sentence struck us a serious case of bootstrapping.

United States v. Taylor, Case No. 15-1775 (1st Circuit, Jan. 9, 2017)

– Thomas L. Root