Posts Tagged ‘downward variance’

“Except” clause in 18 U.S.C. Section 924(c) does not limit consecutive sentences and does not violate the Double Jeopardy clause.

Friday, January 29th, 2010

U.S. v. Tate, 586 F.3d 936 (11th Cir. 2009)

Convicted of four counts of armed bank robbery, three counts of using a firearm during a crime of violence, and one count of bank robbery, the defendant was sentenced to a total of 946 months to be served consecutively. Among other issues on appeal, the defendant maintained that the district court erred when it sentenced him to consecutive terms of imprisonment because the “except”  clause in 18 U.S.C Section 924 (c) only requires a total sentence of 25 years on the multiple violations of the section. Moreover, he argued that it was unreasonable for the district court not to vary downward under 18 U.S.C. Section 3553(a).

The appellate court disagreed with all of the defendant’s arguments on appeal, and affirmed the conviction and sentence imposed. The Court held that, in accordance with every circuit other than the Second Circuit, the plain language of Section 924(c) does not limit consecutive sentences imposed for the section offenses and underlying drug crimes and does not violate the Double Jeopardy Clause. It also found that the defendant failed to meet his burden of showing that the district court imposed an unreasonable sentence. Considering the totality of the circumstances, including the fact that the defendant’s criminal career began when he was a teen, the court considered the sentence substantively reasonable.

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Posted in Resentencing, Sentencing Guidelines | 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 »