Tag Archives: sentencing guidelines

8th Circuit Says Minnesota Riots Aren’t Necessarily Violent – Update for July 27, 2017

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


Ryan McMillan was a felon with a gun, conduct that violates 18 USC 922(g)(1). The district court sentenced him based in part on Ryan’s prior Minnesota conviction for third degree riot. Under Sec. 2K2.1(a)(2) of the federal sentencing guidelines, that crime of violence jacked up his sentencing range to 92-115 months.

riot170727Rioting sounds to just about anyone to be a crime of violence. The district court thought so, determining that the riot conviction qualified because it had “as an element the use, attempted use, or threatened use of physical force against the person of another.” But Ryan did not think so, and earlier this week, the 8th Circuit agreed with Ryan.

kick170727Minn. Stat. Sec. 609.71, subd. 3 stated that “when three or more persons assembled disturb the public peace by an intentional act or threat of unlawful force or violence to person or property, each participant therein is guilty of riot third degree… “ A prior conviction like this one only qualifies as a crime of violence under the force clause if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.”

Ever since Mathis v. United States, the courts have started their analysis of potential crimes of violence by determining whether the “categorical” or “modified categorical approach” can be used to parse the statute. If a statute provides that only one set of elements must be present to prove a violation, the courts use a “categorical” approach, asking whether the statute can theoretically be violated without employing force or the threat of force against a person. If, however, the statute has alternative elements – sort of like a Chinese restaurant menu – then it is “divisible,” and the court may look at what the defendant actually did to violate the state law, and ask itself whether the way the defendant violated the statute made it a crime of violence.

menu170727Mathis provided a whole new set of rules for a court to use in figuring out whether a statute is divisible. First, it figures out which terms in the statute set out the elements, as opposed to the means of committing the crime. Say, for example, a statute prohibits one from “purposely insulting, taunting or kicking a person or his dog, and if anyone insults, he is guilty of a third-degree felony, if he taunts, a second-degree felony, and if his kicks, a first-degree felony.” Our hypothetical jury instructions require that the jury unanimously find whether the offensive conduct was insulting, or taunting, or kicking. But because the degree of felony (and thus punishment) is the same whether the victim is a person or a dog, the jury does not have unanimously find that the injured party was Waldo as opposed to Fido.

Had Ryan’s prior offense been a violation of our hypothetical, the federal district court could use the modified categorical approach to find out from state court records whether he had been convicted of insulting or taunting (neither one violent conduct), as opposed to kicking (definitely violent conduct). However, because whether the victim is a human or canine is a single element (just alternative means of fulfilling that element, as opposed to kicking a cat or a trash can), the district court could not look at whether Ryan had used his size 12 on a dog versus on its owner. Any way you slice it, because the hypothetical offense could be committed without using force against a person, it would not be a crime of violence (as unfair to Rover as that may seem).

splithair170727In Ryan’s case, the Circuit noted that “the text of Minnesota’s third-degree riot statute does not provide helpful guidance as to whether the phrase ‘person or property’ lists alternative means or alternative elements, because there is a uniform punishment for commission of third degree riot. Two Minnesota appellate courts have held that to convict a defendant of a riot offense, the state only must show that the defendant was one of ‘three or more persons assembled’ and the assembly ‘disturb[ed] the public peace by an intentional act or threat of unlawful force or violence to person or property.'” The appellate panel said, “That statement of the second element of a riot offense suggests that a jury is not required to agree unanimously on whether a person or property was affected by the crime and therefore indicates that they are alternative means, not elements.”

The 8th also reviewed Minnesota’s model jury instructions, which direct that the phrase “person or property” is a list of alternative means, not elements. The model instructions list the same two elements of third degree riot, not separating “person” and “property.”

The government argued that because the disjunctive “or” separates “person” from “property,” those two terms are necessarily elements and not means. The Circuit disagreed, noting that “Mathis held that ‘or’ is not determinative one way or another. Indeed, we have concluded elsewhere that a list of alternatives was a list of means even though the statute used the word ‘or’ between the alternatives.”

Ryan will get resentenced with a substantially lower sentencing range.

United States v. McMillan, Case No. 16-2436 (8th Cir., July 24, 2017)

– Thomas L. Root


Two Outta Three Ain’t Bad – Update for May 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.


Back in the good old days, when the Executive Branch pretended to care about rational federal sentencing policies (and we’re not saying that the prior inhabitant of the White House really did, other than to the extent he could use sentence reform to burnish his legacy) the U.S. Sentencing Commission adopted an amendment to the federal sentencing guidelines that reduced by two the offense levels assigned to drug quantities. The 2014 change reduced defendant’s sentencing ranges accordingly.

USSC170511Unlike most changes in the Guidelines, the Sentencing Commission made the 2-level reduction retroactive to people already sentenced. Retroactivity under the Guidelines is not an automatic thing: a defendant must petition his or her sentencing court under 18 USC 3582(c)(2) for a sentence reduction pursuant to the retroactive Guideline. If eligible, an inmate still must convince the court that a reduction of his or her sentence ought to be awarded. Sentencing courts have wide discretion as to what to do with a sentence reduction motion, and district court decisions are nearly bulletproof.

The Sentencing Commission released a report Tuesday on the fallout from the 2014 2-level reduction. Slightly more than 46,000 people applied for the reduction, of whom a few more than 30,000 receive sentence cuts, for a 66% grant rate. Like Meatloaf said, “Two outta three ain’t bad.”

funwithnumbers170511Actually the odds for defendants were even better than that: 24% of the people who applied were not even eligible for the reduction, for reasons ranging from not having been sentenced under the drug guidelines to being locked in place by statutory mandatory minimum sentence. Only 8% of the 46,000 were denied on the merits (although due to sloppy district court records, the number could have been as high as 13%).

sentence170511The average sentence was cut from 144 to 119 months, a 17% reduction. Of those receiving sentence reductions, 32% were convicted for methamphetamines, 28% for powder cocaine, 20% for crack, 9% for pot and 7% for heroin. The racial and ethnic distribution was 30% white, 33% black, and 41% Hispanic. Curiously enough, the defendant’s criminal history seemed to have no effect on likelihood of receiving a sentence cut, with novices and pros alike getting cuts at about the same rate.

Defendants were better off in Chicago than they were in sunny California. The 7th Circuit gave the largest sentence cuts, 33 months off on the average (20% of the original sentence). The 9th Circuit was the stingiest, giving an average cut of 20 months (16% of the sentence).

U.S. Sentencing Commission, 2014 Drug Guidelines Amendment Retroactivity Data Report (May 10, 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


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