Archive for the ‘Pre-Sentence Investigation Report’ Category

Child pornography defendant diagnosed paraphiliac yet low risk re-offender and sentenced at statutory minimum.

Wednesday, November 25th, 2009

U.S. v. RILEY, —F.Supp. 2d—2009 WL 2899896 (S.D. Fla. September 4, 2009)


A twenty-four year old married man initiated an instant messaging conversation with an undercover FBI agent posing as single mother with a 10 year old daughter. He expressed an interest in engaging in sexual activity with the agent and daughter and sent four pornographic pictures, including 2 depicting children 5 years or younger engaged in sexual activity with adult males. After making contact with the defendant, FBI agents discovered an additional 900 images of child pornography on his computer as well as 10 videos. Consequently, the defendant lost his job as an inventory manager at Walmart.
The defendant had been attending psychiatric therapy sessions, where it was opined that defendant was an excellent candidate for a community based treatment program, did not pose a risk of acting out sexually with children, and that his risk of re-offending was low. Another professional, who conducted a Sex Offender Specific Psychological Evaluation, opined that although the defendant qualified for a diagnosis of a paraphilia, he represented a low risk of re-offending and could be safely maintained in the community with supervision and outpatient mental health treatment.
The PSI calculated the offense level to be 37, making Guidelines range 210-260 months, but the statutory maximum was 240 the range was 210-240 months. Quoting at length from United States v. Hanson, 562 F.Supp. 2d 1004 (E.D. Wis. 2008), the court agreed with recent judicial criticism of Section 2G2.2 “which weighs against imposing a sentence within the Guideline recommendation.” The court concluded that a sentence at the near maximum should be reserved for the worst offenders and not those that are typical in this type of case. After reviewing the factors under §3553(a)(2), the court found that a sentence at the statutory minimum was a serious punishment and that it would adequately deter the defendant and others from committing the crime.

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Posted in Computer Sex Crimes, Internet Crime, Pre-Sentence Investigation Report, Sentencing Guidelines, Supervised Release Conditions, kiddie porn | No Comments »

Guidelines Section 3B1.1 role enhancement as an organizer or leader requires findings to be based on reliable and specific evidence.

Wednesday, November 25th, 2009

U.S. v. MARTINEZ, 584 F.3d 1022 (11th Cir. October 5, 2009)

The Eleventh Circuit Court of Appeals vacated the sentence and remanded the defendant’s case back to the district court for clear error based on its determination that the defendant was subject to a Section 3B1.1 role enhancement as an organizer or leader with respect to his conviction for conspiring to distribute and to possess with intent to distribute 100 kilograms or more of marijuana. The defendant pleaded guilty to the one count indictment of the above mentioned offense and admitted to having “orchestrated” weekly mail shipments of marijuana from Texas to Central Florida. At sentencing, the government relied entirely on the PSI report, recommended the role enhancement and characterized the entire conspiracy as the defendants’. The defendant objected to each finding that argued for the four-level enhancement and renewed those objections at the sentencing. However, the district court rejected the defendant’s objections, adopted the PSI findings, and sentenced the defendant to 78 months imprisonment.
On appeal, the defendant argued that the government failed to meet its burden by preponderance of the evidence that the defendant exercised control, influence, or decision making over another participant in the conspiracy. The court found that the government failed to establish the disputed fact or any of the essential factual statements in the PSI, nor did it establish any of the seven factors identified in Comment Four of Section 3B1.1: 1)decision making authority, 2) nature of participation, 3) recruitment, 4) larger share in profits, 5) degree of participation in planning and organizing, 6) nature and scope of the offense, and 7) the degree of control and authority exercised. The court instructed the district court to base its findings on reliable and specific evidence rather than conclusory language in the PSI and sparse evidence.

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Posted in Conspiracy, Drug Crimes, Pre-Sentence Investigation Report | No Comments »

Carrying a concealed firearm and escape are not properly considered violent felonies so as to trigger a sentence enhancement under ACCA.

Tuesday, August 11th, 2009

U.S. v. Canty, 570 F.3d 1251 (11th Cir. June 11, 2009)

The defendant was convicted of possessing counterfeit federal reserve notes and being a felon in possession of a firearm. The government argued to enhance his sentence under the ACCA (Armed Career Criminal Act). The defendant was sentenced, pursuant to ACCA, to 186 months in prison on each count, to be served concurrently. Case law dictated that carrying a concealed weapon could not be a crime of violence under the Guidelines and the court read the definition of violent felony under ACCA Section 924 to be virtually identical to the definition of crime of violence. Therefore, the defendant’s crimes were considered violent felonies or serious drug offenses to apply under the statute.

The government had the opportunity to offer evidence and seek rulings from the sentencing court, but failed to do so.

The government did not voice any objection to predicate the ACCA enhancements or offer whether the crimes were committed on occasions different from one another. Rather, the government adopted the PSR. Therefore, it was not entitled to a remand to present additional evidence and seek additional findings to support an enhancement when it failed to do so when the initial sentence was imposed.

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Posted in Drug Crimes, Pre-Sentence Investigation Report, Sentencing Guidelines, Uncategorized, sentence enhancement, upward variance | No Comments »

The 1200 month sentence was presumed to be reasonable because it was within the Guidelines.

Tuesday, July 21st, 2009

U.S. v. Sarras, 2009 WL 1661152 (June 16, 2009)

The defendant’s expert failed to show his expert’s methodology in comparing the defendant’s penis with the penis in sexually explicit photos was sufficiently reliable for admission on identification issue.

The defendant was convicted of persuading his step daughter to engage in sexually explicit conduct for taking photos of the conduct and for possession of child pornography. Though the defendant was separated from the mother, the child would stay in his house. At some point the step daughter went to authorities and reported that several times when the step daughter stayed at his house he began having oral sex and sexual intercourse with her and took digital photos of this and downloaded to his computer. After one mistrial, the defendant was convicted. At trial, Sarras argued that he was not the man in the laptop photos because he has a mole on his penis, and no mole was visible in the laptop photos. However, the government contended that no mole is visible in the laptop photos because they show only the top of the penis and that Sarras’ mole is actually near the bottom of his penis. The dispute at trial was the location of the mole on the Sarras’ penis. The defendant called a urologist to give his expert opinion but the trial court would not let him give his conclusion that the defendant’s penis was not the same as the one in the photos. The court ruled that the defendant had not shown that the “doctor’s methodology-comparing veins in erect penises was a sufficiently reliable identification technique for Dr. Ferdon to opine that Sarras was not the person in the laptop photos. In fact, no record evidence explains the so-called methodology of comparing veins in erect penises as an identification technique.”

The 1200 month sentence was presumed to be reasonable because it was within the Guidelines.

The PSI calculated the guideline range as 30 to life but the statutory maximum was 30 years for three counts and 10 years for one count. (100 years). Under 5G1.2(d) the Guidelines call for a consecutive because the maximum on each count is less than the total punishment under the Guidelines, which the PSI determined was life. The Court upheld the Guidelines calculation and that because the sentence was within the Guideline, it was presumed to be reasonable.

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Posted in Computer Sex Crimes, Pre-Sentence Investigation Report, Sentencing Guidelines, kiddie porn | No Comments »

The defendant was not entitled to notice of District Court’s intention to impose special conditions of supervised release.

Tuesday, July 14th, 2009

United States v. Moran, 2009 WL 1874374 (C.A.11 (Fla.))

The defendant appeals his conviction of being a felon in possession of a firearm.  The court was not required to notify the defendant before it imposed special conditions to address his proclivity for sexual misconduct. Said conduct was detailed in the PSI and knew the court would likely consider his criminal history in determining his sentence.

The District court did not abuse its discretion by imposing special conditions of supervised release.

The defendant’s history and characteristics support the imposition of mental health treatment as treatment could deter future misconduct and protect the public. He was also required to register as a sex offender, limit contact with minors, restrict his access to certain media including the internet, and submit to reasonable searches. Based on defendant’s past violation of his terms of supervised release, the District court was not improper to impose special conditions

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Posted in Pre-Sentence Investigation Report, Sentencing Guidelines, Sex Offender Registration | No Comments »

Reasonable suspicion of drug transaction led to probable cause to arrest defendant for possession of methamphetamine.

Monday, July 13th, 2009

United States v. Lopez-Garcia, 565 F.3d 1306 (11th Cir. 2009)

The defendant was convicted of being unlawfully found in the United States after having been previously removed and deported.

The defendant was pulled over for violating a traffic law in an area well-known for narcotics activity, after an officer observed his car stopped in the roadway and someone leaning into the passenger window. When asked for his driver’s license, the defendant showed the officer a Mexican license and said he had resided in the U.S. for several years. The defendant consented to the search of his car and the officer found a bulb-shaped glass tube containing a white residue believed to be methamphetamine.

He was arrested for possession and booked, and an ICE agent assigned to the jail performed a preliminary computer search where he learned that the defendant was born outside of the U.S. The ICE agent told the defendant that his purpose was to determine his immigration status. After this meeting, the agent received the Immigration Action Query that was run as part of the jail’s ordinary booking procedure, which indicated that the defendant had been deported, removed, or excluded in 2003 and no record of a legal entry was found.

At the second meeting, the agent read the defendant his Miranda warnings in Spanish from a standardized form which the defendant signed. The agent questioned the defendant in Spanish for about ten minutes and gave the defendant a copy of all the questions and answers, which he again willingly signed.

The defendant was indicted on federal charges of having been unlawfully found in the U.S. after having been previously removed and deported. The defendant moved to suppress the statements made to the ICE agent regarding his immigration status and the documentary evidence obtained. A magistrate judge held an evidentiary hearing and issued and R&R concluding that the arresting officer violated the Fourth Amendment when he stopped the defendant’s vehicle because he did not have either probable cause or reasonable suspicion. The judge then recommended that the evidence obtained at the scene of the arrest be suppressed. However, the R&R concluded that the defendants subsequent statements and documentary evidence should not be suppressed.

The officer had reasonable suspicion that defendant was engaged in hand-to-hand drug transaction and had probable cause to arrest defendant for possession of methamphetamine.

The District court held that officer’s suspicion was supported by several articulable facts including the location of the vehicle, physically, and in a high-crime area, an unknown individual leaning into the window, and the defendant leaving the scene once he noticed the officer. Furthermore, based on the substance and paraphernalia recovered from the consensual search, the officer reasonable believed that the defendant was in possession of methamphetamine.

The District court correctly concluded that the statements made to ICE agent were too removed from arrest to have suffered any taint.

Since the defendant’s seizure and arrest were not found to be unconstitutional , the fruit of the poisonous tree argument fails. In the alternative, even if the statements were tainted, they were too attenuated from the arrest to be regarded as fruit of the poisonous tree: the statements were made the day after the arrest; the arrest and questioning were done by two different individuals with two different objectives-immigration status and suspected drug activity; and neither the stop of the vehicle nor the immigration inquiry were made with an ulterior motive to prosecute the defendant for being illegally in the U.S.

The District court did not err in imposing the Guideline’s sixteen offense-level enhancement.

The defendant, prior to his removal, had a conviction for a felony firearms offense in Georgia, which, he argues, does not fall within the Guidelines 2L1.2 definition. The Court of Appeals found that the prior conviction met the Guidelines definition; and based on the facts set forth in the PSI, the District court correctly concluded that the defendant’s conduct from the previous conviction would have constituted a violation of Section 924(c) and therefore, the court was correct to impose the sixteen offense-level enhancement.

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Posted in Arrest Warrant, Fourth Amendment, Motion to Suppress Evidence, Pre-Sentence Investigation Report, Probable Cause, Procedure, Search and Seizure, Search incident to arrest, Sentencing Guidelines, sentence enhancement, upward variance | No Comments »

District Court’s reliance on PSI’s characterization of firearm defendant convicted of possessing was correct for enhancing his sentence.

Thursday, July 9th, 2009

United States v. Beckles, 565 F.3d 832 (11th Cir. 2009)

The defendant was convicted of being convicted felon in possession of firearm.  Even assuming that the district court, in treating defendant’s current offense as a “crime of violence,” committed error that was plain or obvious based on its reliance on the PSI’s characterization of the firearm that defendant was convicted of possessing as “sawed-off shotgun,” the error was not shown to have affected defendant’s substantial rights, and therefore could not be corrected on plain error review, given the complete lack of evidence that the firearm that defendant possessed was not a sawed-off shotgun.

A sentence of 360-months imprisonment imposed on armed career criminal convicted of unlawfully possessing sawed-off shotgun was not unreasonable.

Based on a total offense level of 37 and a criminal history category of VI, the guidelines range was 360 months’ to life imprisonment, including a mandatory minimum sentence of 15 years under the statute. The sentence was not unreasonable, though the district court allegedly failed to adequately consider the statutory sentencing and mitigating factors such as defendant’s troubled childhood and drug addiction, where the district court explicitly stated that it had given careful consideration to those statutory factors, and that the sentence imposed was needed to account for the serious nature of the offense and needed to provide deterrence in order to safeguard the community.

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Posted in Pre-Sentence Investigation Report, Sentencing Guidelines, sentence enhancement, upward variance | No Comments »

Booker and Kimbrough do not apply to 18 U.S.C. Section 3582(c)(2) proceedings.

Monday, July 6th, 2009

United States v. Smith, 2009 WL 1374590 (C.A. 11 Fla.)

The District Court did not err in failing to grant defendant a greater sentencing reduction after the court granted defendant’s 18 U.S.C. Section 3582(c)(2) motion.

The defendant was convicted of a crack cocaine offense in 1993 and sentenced to 295 months imprisonment. In 2008, defendant filed a motion to modify his sentence pursuant to Amendment 706 of the Guidelines. The defendant asked that the court sentence him at the low end of or below his amended guideline range of 151 to 188 months. The district court sentenced him to 248 months. Defendant argued that the court abused its discretion by sentencing him at the high end of his amended guideline range.

Booker and Kimbrough do not apply to 18 U.S.C. Section 3582(c)(2) proceedings.

The Eleventh Circuit maintained that a district court is bound by the limitations on its discretion imposed by Section 3582(c)(2) and the applicable policy statements by the Sentencing Commission. (held in United States v. Melvin, 556 F.3d 1190 (11th Cir. 2009)).

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Posted in Pre-Sentence Investigation Report, Sentencing Guidelines, downward variance | No Comments »

Extraterritorial application of 18 USC Section 2251 warranted as part of a comprehensive scheme to eradicate sexual exploitation of children.

Wednesday, June 10th, 2009

United States v. Kapordelis, No. 07-14499 (11th Cir 2009)

Defendant was convicted for producing, receiving, and possessing child pornography in violation of 18 U.S.C. §2251(a), 2252A(2)(A), and 2252A(a)(5)(B). Defendant appealed his 420 month sentence and argued that the district court erred by: (1) denying his motion to dismiss Counts 1 and 3 of the Fourth Superseding Indictment; (2) denying his request for a Franks hearing and his motion to suppress evidence obtained under certain search warrants; (3) admitting testimony concerning his solicitation of sex from boys, under the age of eighteen, while in the Czech Republic under Federal Rule of Evidence 404(b); (4) applying the 2003 US Sentencing Guidelines instead of the 2002 Guidelines in imposing a sentence; (5) finding that one of his victims was vulnerable, pursuant to U.S.S.G. Section 3A1.1; (6) double counting the number of images of child pornography and imposing a 2-level enhancement pursuant to U.S.S.G. Section 2G2.4(b)(2), and a 5-level enhancement under Section 2G2.4(b)(5)(D); (7) accepting a written victim impact statement during sentencing; and (8) imposing an unreasonable sentence.

Defendant was initially indicted on two counts of engaging in sex tourism. Then additional evidence was gathered and several superseding indictments were issued. The Fourth Superseding Indictment charged him with producing child pornography photographs and video on four separate occasions in violation of 18 U.S.C. Section 2251(a), receiving child pornography on a desktop computer and then a laptop computer, Section 2252A(2)(A), and possessing child pornography, Section 2252A(a)(5)(B). The PSR assigned an offense level of 41 and recommended a Guidlelines range of 324-405 months.

The court found that the extraterritorial application of 18 USC Section 2251 was warranted as the statute is a part of a comprehensive statutory scheme to eradicate sexual exploitation of children, and that “punishing the creation of child pornography outside the United States that is actually, is intended to be, or may reasonably expected to be transported in interstate or foreign commerce is an important enforcement tool.” (referencing United States v. Thomas, 893 F.2d 1066, 1069 (9th Cir. 1990). The court then considered the violation of Section 2251(a) alleged in Counts 1 and 3 to be a continuing offense, affirming the district court.

As to the Franks hearing, the court found that the magistrate judge undertook the evaluation prescribed by Franks and considered the affidavit in support of the search warrant with the omissions and additions proposed by Defendant and therefore did not err in declining to hold a hearing. Regarding the probable cause issue of the search warrant, the court found that the necessary nexus existed between the facts surrounding Defendant’s overseas travels and the facts that suggested he met and engaged in sexual activity with young boys, thus establishing the likelihood that evidence would be found in his home.

As to Defendant’s argument that evidence of trysts with young boys was precluded under FRE 404(b), the court ruled that “whether unlawful in the jurisdiction where they take place or not,” evidence “is admissible under Rule 404(b) if there is sufficient proof to support a jury’s finding that the defendant committed the similar act and the other act is probative of a material issue other that the defendant’s character.” The probative value of this evidence was found to outweigh its prejudicial nature.

The district court varied upward to the statutory maximum, giving the Defendant the longest sentence possible, based on his long history of abuse, parity, and the need for incapacitation. The Eleventh Circuit ruled that while the use of the 2002 Guidelines would have resulted in fewer enhancements, the overall record indicates that the district court would have imposed the same 420 month sentence had it applied the 2002 Guidelines.

Next, the court found the application of the vulnerable victim enhancement under U.S.S.G. Section 3A1.1 was not error as the boys qualified as “vulnerable victims” because they were asleep or otherwise nonresponsive and thus unable to object or respond in any way when Defendant took pornographic pictures of them.

Defendant’s arguments regarding double counting and the victim impact statement were rejected and the court then addressed the upward variance and reasonableness of the sentence by showing that the district court did not abuse its discretion and did take into consideration the Section 3553(a) factors, finding that “the 420 month sentence (1) promoted respect for the law, (2) illustrated the seriousness of the offense, and (3) will serve as a deterrent. Based on the totality of the circumstances, including the Defendant’s history of abuse, number of images in his possession, and the need to protect society, the Eleventh Circuit court found compelling justification to support the upward variance and reasonableness of the Defendant’s sentence.

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Posted in Computer Sex Crimes, Fourth Amendment, Internet Crime, Motion to Suppress Evidence, Pre-Sentence Investigation Report, Probable Cause, Procedure, Search Warrant, Search and Seizure, Sentencing Guidelines, kiddie porn, sentence enhancement, upward variance | No Comments »

No clear error in the sentencing court’s calculation of intended loss in a FEMA fraud.

Monday, April 27th, 2009

U.S. v. WILLIS, 2009 WL 514313 (11th Cir. March 3, 2009)

Bernetta Willis was convicted of theft of government property and for submitting 17 fraudulent applications for FEMA aid following Hurricane Katrina. The defendant challenged the PSI’s calculation that the intended loss calculation was $471,600 based on the defendant’s 20 fraudulent claims and the maximum aid of $26,200 available for each claim. The defendant argued that the sentencing guidelines should be calculated based on the actual loss of $79,607.45. The Court affirmed the intended loss calculation finding that the district court was presented with sufficient circumstantial evidence of the defendant’s intent to obtain the maximum possible amount through the fraudulent claims. While the district court may not speculate concerning the existence of a fact that might lead to more severe sentence, the district court did not speculate here in arriving at its decision.

The sentence was reasonable and no basis found for downward variance.

The defendant also challenged her sentence on the grounds that the court should have given her a variance. Specifically the court should have considered her diminished capacity which prevented her from accepting guidance from her lawyers. The court rejected the challenge as the forensic evaluation showed defendant “was likely malingering and that she was possibly motivated by external incentives.”

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Posted in Pre-Sentence Investigation Report, Sentencing Guidelines, downward variance, sentence enhancement | No Comments »