Archive for the ‘downward variance’ Category

Even after third remand, district court refuses to sentence defendant to term of imprisonment and insists on probation.

Thursday, February 4th, 2010

U.S. v. Livesay, 587 F.3d 1274 (11th Cir. 2009)

Giving new meaning to the phrase “some guys have all the luck,” this case involves a defendant who, in 2004, pled guilty to conspiracy to commit wire fraud, securities fraud, and falsifying books and records; falsely certifying financial information filed with the SEC; and a forfeiture count. At sentencing, the district court considered the PSI, which recommended a sentence from 78 to 97 months, 2 to 3 years of supervised release and a fine range of $12,500 to $1million and then granted the government’s motion for a downward departure and imposition of 60 months imprisonment. However, after the recommendations, the judge sentenced the defendant to 60 months of probation.

The government appealed and the Eleventh Circuit Court reversed, holding the district court failed to state reasons for its extreme downward departure. At the resentencing, the same district court judge imposed the same sentence as before. Again, the government appealed and the appellate court reversed, finding both the district court’s departure and the sentence imposed unreasonable given the defendant’s role in a massive fraud scheme.

The defendant filed a writ of certiorari and the Supreme Court granted the petition, vacated the appellate decision and remanded for reconsideration with Gall v. United States, 552 U.S. 38 (2007). At the second resentencing, the original judge recused himself. The new assigned judge agreed with the sentencing range of 78 to 97 months and granted the government’s 5k1 motion, yet only imposed 5 years of probation.

The government appealed for the third time and the appellate court, considering Gall, and the §3553(a)(2) factors, reversed, stating “only the imposition of a meaningful period of incarceration will meet the goals that Congress laid out in the sentencing statute”. To be continued.

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Posted in Conspiracy, Resentencing, downward variance | No Comments »

District court must consider Section 3553(a) factors in deciding to reduce a sentence under Amendment 706.

Friday, August 7th, 2009

U.S. v. Douglas, 2009 WL 2244519 (July 29, 2009)

The defendant was sentenced to 188 months for crack-cocaine conviction and filed a motion to reduce his sentence under Amendment 709 to the Sentencing Guidelines. The District Court summarily granted the motion without a hearing or a response from the government. The court used a standard form order but did not mention 18 U.S.C. Section 3553(a) or the factors, nor did it explain its decision to sentence the defendant to 162 months-the high end of the recalculated guidelines. The Eleventh Circuit affirmed the District Court’s refusal to grant defendant’s request for a sentence below the amended guidelines range, but vacated the newly imposed sentence and remanded back to the district court for further consideration of the Section 3553(a) factors and explanation.

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Posted in Booker, Resentencing, Sentencing Guidelines, downward variance | No Comments »

Defendant not entitled right to counsel for Section 3582(c)(2) motion.

Monday, July 20th, 2009

United States v. Webb, 565 F.3d 789 (11th Cir. April 13, 2009)

The District Court properly denied defendant’s §3582(c)(2) motion.

The defendant was convicted of drug charges in 2000 and his base offense level was 38 under the Guidelines Section 2D1.1(c). However, being a career offender and having a category VI criminal history, his guideline range was 360 months to life imprisonment. The court departed downward to 264 months. In 2008, the defendant filed a Section 3582(c)(2) motion to reduce his sentence based on Amendment 706 of the Sentencing Guidelines. The government also filed a second Rule 35(b) motion and the court reduced the sentence to 228 years. Although Amendment 706 lowered defendant’s offense level from 42 to 40, his amended guidelines range still remained 360 months to life and therefore the court had no authority to reduce the sentence. As such, the court did not need to examine the Section 3553(a) factors.

The defendant was not entitled the right to counsel for a Section 3582(c)(2) motion.

The Constitutional right to counsel does not extend to the statutory reduction motions because they are more like “a continuation of a criminal case” than a habeas petition. The decision to appoint an attorney is left to the discretion of the District Court and here, the court did not abuse its discretion.

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Posted in Right to counsel, Sentencing Guidelines, Sixth Amendment, downward variance | No Comments »

Sufficient evidence established that defendant’s pipe bombs were designed as weapons.

Tuesday, July 7th, 2009

United States v. Spoerke, 2009 WL 1424042 (C.A.11 (Fla.))

The defendant was convicted of conspiracy to unlawfully make destructive devices, unlawfully making one or more destructive devices, and possessing unregistered destructive devices at two different locations.  The defendant argued that the US failed to prove the devices were designed to be used as weapons. To be a destructive device under the National Firearms Act, the critical inquiry is whether the device, as designed, has any other value other than as a weapon. The defendant’s devices were destructive devices even if they contained no additional projectiles, because they have no social value.

The defendant was not entitled to a sentence reduction for acceptance of responsibility; and the imposition of a 44-month sentence did not amount to an unwarranted sentencing disparity.

The defendant challenged the calculation of his guidelines and the reasonableness of his sentence. Where a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse, he has not accepted responsibility and is not entitled to a reduction. Therefore, when the district court imposes a sentence within the advisory Guidelines range, it is ordinarily expected to be reasonable.

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Posted in Motion to Suppress Evidence, Sentencing Guidelines, Uncategorized, downward variance, sentence enhancement | 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 »

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 »

Downward variance upheld for a defendant convicted of making sexually explicit films with minors where the sentencing factors supported the sentence as reasonable.

Monday, April 27th, 2009

U.S. v. IREY, 2009 WL 806860 (11th Cir. March 31, 2008)

Mr. Irey was convicted of using minors outside the United States for the purpose of making child pornography. The defendant made repeated trips to Cambodia on sex tours and videotaped himself having sex with minors, some of which depicted graphic sex acts and torture. The appellate court described the crime as “horrific.” Nevertheless it pointed out that defendant presented evidence through a psychologist who submitted a psychosexual report, that the defendant was treatable, was a medium to medium low risk of recidivism, and could be successful in supervised release after treatment. The defendant’s family testified he was a wonderful husband father and person and that he embraced treatment, he had been acting as a peer mentor to others in narcotics and alcoholic anonymous, and that the family would remain supportive. The district court also noted his age of 50. His guideline range was the statutory maximum of 360 months with a minimum sentence of 180 months, the statutory minimum. Though he was sentenced to 210 months and given a lifetime of supervised release, the government appealed. The Court reaffirmed that a party challenging the sentence has the burden of establishing the sentence is unreasonable in light of both the record and the factors of § 3553(a) factors. It reviewed the procedure a sentencing court must follow: First, consult the sentencing guidelines and calculate the correct guidelines sentence; Second, consider the factors listed in 3553(a). The Court found no procedural error in determining the applicable guidelines sentence; it rejected the government’s argument that the sentence was too lenient. The Court said that even though it may disagree with a sentence, it would not second guess the district court decision where as here the sentencing judge took the sentence seriously, proceeded thoughtfully and the sentence was reasoned. The court did consider the factors of §3553(a). The Court of Appeals did not second guess the district court as it respects the district court as a sentencer and accepted the sentence as it “was within the outside borders for a reasonable sentence for this kind of case.”

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Posted in Sentencing Guidelines, downward variance, kiddie porn, sentence enhancement | No Comments »