Posts Tagged ‘Sentencing Guidelines’

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“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 »

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 »

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 »

The District Court made procedural errors in applying the Guidelines.

Tuesday, July 28th, 2009

U.S. v. Gupta, 2009 WL 1749046 (11th Cir. June 23, 2009)

The defendants were convicted of conspiracy to submit false Medicare claims. This third appeal involves fundamental errors about the sentencing of the Defendant, Gupta, and whether to reassign the case to a Fourth District Judge for sentencing.  The court not only failed to calculate loss, but also, erroneously, it reduced the defendant’s offense level by two points for acceptance of responsibility. Because it employed an arbitrary approach, the District Court did not identify a basis for the loss found. Moreover, the court credited the defendant with two points for accepting responsibility but the defendant continuously challenged and contested the government and made clear that he thought he was innocent.

The District Court imposed an unreasonable sentence.

The court believed that the District Court’s refusal to set aside its feelings is more pronounced after a third appeal and second reassignment request, therefore, to preserve in the public mind the image of absolute impartiality and fairness of the judiciary, the case had to be reassigned.

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Posted in Resentencing, Sentencing Guidelines | 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 »

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 »

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 »

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 »

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