Federal Sentencing

Published on: June 14, 2012

The 11th Circuit disapproved a modified jury instruction on constructive possession but found that overall the jury was not misled

In U.S. v. Cochran the issue before the jury was whether drugs and drug related materials inside of a house belonged to a defendant or someone else who could have had access to the house. Though this happened in the Middle District of Florida, it is a common issue seen in federal drug cases in Miami as well. To prove the case the government offered a modification to the constructive possession jury instruction given in a drug possession case. The 11th Circuit disapproved of the modification; however it did not amount to reversible error. The facts leading to the Defendants arrest are this.

1. Agents executed a search warrant at house where they suspected he was staying.

2. Inside they found a small quantity of cocaine and a digital scale drugs along with forks and a measuring cup bearing drug residue in various parts of the house.

Published on: June 12, 2012

Unlawful entry into defendant’s home by police did not taint Defendant’s subsequent consent to search his home

by The Swartz Law Firm

In U.S. v. Welch the 11th Circuit found the entry into a defendant’s home was illegal, but the illegal entry did not taint the subsequent consent by the defendant to a search. Welch was charged with being a felon in possession and sentenced to 15 years as an Armed Career Criminal Act because he had three prior violent felony convictions. Welch moved to suppress the gun found in his home and the statements made in the police car because they were the result of an unlawful entry into his home. The district court did find the initial entry into Welch’s apartment was unlawful, but it found the Welch’s subsequent consent to the search was voluntary. The 11th Circuit agreed and affirmed the district court’s denial of the motion to. Here are the relevant facts.

1) While Broward County Sheriffs were searching for a suspect of a convenience store robbery, they had reason to belief the suspect could found at defendant Welch’s apartment.

2) After knocking at the door, someone answered the door but it was not the suspect. When the officers asked if anyone else was in the apartment, he said there was but did not say who.

Published on: May 31, 2012

Prior Florida conviction for a lewd assault qualified as a crime of violence under the sentencing guidelines enhancement for reentry after deportation

by The Swartz Law Firm

Again the 11th Circuit addressed a common sentencing issue facing Miami federal criminal courts as well as federal courts nationwide: whether a prior offense is considered a crime of violence under the sentencing guidelines. Defining a crime as a crime of violence will determine whether a defendant will receive an significantly enhanced sentence as a career offender or an armed career criminal. In U.S. v. Cortes-Salazar, the 11th Circuit addressed a recurring sentencing guidelines question facing federal criminal courts in Miami and around Florida: whether a prior offense is considered a crime of violence under the sentencing guidelines. How a crime of violence is defined can determine whether a defendant is sentenced as a career offender or as an armed career criminal and the sentence enhancement imposed is very significant. In this case, the definition of a crime of violence meant a significant enhancement for a defendant convicted of reentry after deportation. Here, Cortes-Salazar appealed his 57 month sentence for illegal reentry. His sentence had been enhanced 16 levels under the sentencing guidelines because the sentencing court determined that a prior Florida conviction for a lewd assault act was a crime of violence under the sentencing guidelines provision 2L1.2. In his challenge he claimed his prior conviction did not qualify as sexual abuse of a minor and, therefore, was not a crime of violence. The 11th Circuit disagreed and found it did qualify as a crime of violence for the following reasons.

Under the applicable sentencing guidelines provision 2L1.2, a prior conviction for a crime of violence requires a 16 level enhancement of a defendant’s offense level. The guidelines define a crime of violence to include among other offenses, the sexual abuse of a minor. The 11th Circuit decided in tow earlier cases that prior convictions for sexual abuse of a minor were found to be crimes of violence. In U.S. v. Padilla-Reyes the defendant was convicted of the same Florida offense of sexual abuse of a minor. At the time Padilla Reyes was decided, the guidelines enhanced the sentence for an aggravated felony, which included in its definition the crime of sexual abuse of a minor. The 11th Circuit applied Padilla Reyes to the amended version of the guidelines which enhance a reentry after deportation for having a crime of violence. In U.S. v. Ramirez-Garcia the 11th Circuit again held that the defendant’s prior conviction of “taking indecent liberties with a child” constituted “sexual abuse of a minor” and therefore fell under the guidelines definition of a crime of violence. The Ramirez-Garcia court rejected the defendant’s argument that the prior offense should be interpreted by its plain meaning and found it fell under the definition of a crime of violence.

Cortes-Salazar tried to persuade the 11th Circuit that under the analysis used by the Supreme Court’s decisions in Johnson v. U.S. and Begay v. U.S., the 11th Circuit was required to find this prior was not a crime of violence. Unfortunately, the Supreme Court decisions interpreted the definition of violent felonies under the Armed Career Criminal Act, which differed from the definition of crime of violence given in the the sentencing guidelines.

Published on: May 24, 2012

Florida crime of false imprisonment is a crime of violence under the 18 U.S.C. §924(e) mandatory minimum enhancement

by The Swartz Law Firm

In U.S. v. Schneider, the defendant at age 71 had the misfortune of selling oxycodone pills to an undercover police officer. Things for him got worse when his federal sentence was enhanced the statutory mandatory minimum 15 years because he was caught with a pistol and charged with possession of a firearm as a convicted felon. Under 18 U.S.C. § 924(e) a defendant with three or more priors for crimes of violence or drug offense faces a 15 year mandatory sentence if convicted of a firearm possession. The sentencing judge determined Schneider qualified for the enhancement because it counted a 25 year old Florida false imprisonment conviction as a crime of violence.

Schneider argued his Florida false imprisonment conviction should not be treated as a crime of violence under 924(e) because the language constituting a violation included “secretly confining” and did not necessarily require violence but could take place in the context of a nonviolent white collar crime. Under the Florida law False imprisonment means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.”

Applying the analysis set forth by the Supreme Court in Sykes v. U.S., the 11th Circuit found the Florida was a crime of violence. Under Sykes a crime qualifies as a crime of violence under the residual clause of §924(e) if it categorically poses a serious potential risk of physical injury that is similar to the risk posed by one of the enumerated crimes in the statute. The 11th Circuit reached the same conclusion in an earlier case, U.S. v. Chitwood, where the court held that the Georgia false imprisonment was a crime of violence. Though the Georgia statutes lacked the “secretly confining” provision found in the Florida statute, 11th Circuit reached the same conclusion as in Chitwood. The court found that the Florida false imprisonment crime possesses a potential risk of physical injury. It cited examples of Florida cases where the term “secretly” was defined in the context of kidnapping or abducting of a victim who was unaware that he or she was being abducted such as a victim secretly separated from a location in order to commit rape or molestation. Used in this context, the court determined that if a victim is likely to realize he or she is being secretly abducted, the victim could suffer injury from trying to escape from a perpetrator. As Sykes held, the injury need not be from the force applied by the perpetrator.

Published on: May 21, 2012

Aggravated identity theft offense applied to defendant’s use of a dead person’s identity

by The Swartz Law Firm

The issue in U.S. v. Zuniga-Arteaga is whether the defendant can be convicted of aggravated identity theft under 18 U.S.C. §1028A(a)(1) where the person whose identity was stolen is no longer living. The 11th Circuit Court of Appeals held in this decision that the person whose identity was stolen does not have to be a living person. Using a fictitious name, the defendant first attempted to enter to the U.S in 1995, she had claimed to be born in Texas but she was returned to Mexico when immigration officers discovered she was not the person she claimed. Subsequently she returned to the U.S. and arrested for drug offense. She gave the name M.S.G. (the opinion only gives the initials) and provided false identification. At her initial appearance in the drug case, she admitted she was Zuniga-Arteaga, the person named in the indictment. Eventually she was convicted in federal court of drug conspiracy and sentenced. Some eight years later I.C.E. agents encountered her at the federal prison while serving her sentence where she claimed to be MSG born in Mercedes Texas. She gave ICE agents a date of birth belonging to MSG who lived and died prior to the defendant’s use of the name. On two subsequent occasions she told ICE agents that she was MSG and presented ICE agents with a valid birth certificate for MSG. Meanwhile law enforcement officials found the defendant was not MSG and eventually located MSG’s brother who told them MSG died as a child in 1960.

The defendant was indicted for falsely representing herself as a U.S. and with using the means of identification of another person in relation to the 18 U.S.C. §911 offense, making this aggravated identity theft, in violation §1028A(a)(1). This section makes it a crime for anyone to knowingly transfer, possess, or use, without lawful authority, a means of identification of another person, in relation to the any of the felony violations listed in the statute.

The defendant argued she could not be convicted of the aggravated felony because the term person in the statute refers to the living and does not cover theft of the identity of a person who has died and her use of M.S.G. identity falls outside the scope of the statute. In attempting to determine whether Congress meant the word “person” to include living as well as dead person, the 11th Circuit considered the context the word was used. The Court found that the term “means of identification” was not meant to be limited to living persons. A further analysis of other provision in the statute convinced the court that Congress intended the term “person” in section1028 to include living and dead individuals. Furthermore, the 11th Circuit concluded that the purpose of the statute is supported by this interpretation because the theft of deceased person’s identities is not a victimless crime and has a real consequence for the living such as the beneficiaries of the decedents and businesses who are misled into relying on the stolen identity information. The Court also concluded that Congress likely recognized this form of identity theft needed deterrence because stolen identities of real people have a broad range of uses, for example, using a real persons birth certificate to obtain and authentic passport and freely enter and depart the U.S. A dead person is not going to create conflicting paper trail or notice strange activity on their credit reports.

Published on: May 18, 2012

Defendant’s prior Georgia conviction for false imprisonment qualified as a crime of violence under the career offender provision of the sentencing guidelines

by The Swartz Law Firm

In U.S. v. Chitwood, the defendant pled guilty to possession with intent to distribute methamphetamine, and was sentenced to 188 month because the federal district court found Chitwood was a career offender under sentencing guideline §4B1.1(a). Under this provision a defendant with two or more drug offense or a crime of violence will be subject to a higher sentencing guidelines range. The sentencing court found he had two prior crimes of violence convictions making him eligible to be sentenced as a career offender. One of the two convictions was a Georgia conviction for false imprisonment statute. Chitwood challenged and argued the crime was not a crime of violence under the categorical approach because there was no physical force. While this case took place in Georgia, this is a common issue in Miami where Florida has a false imprisonment offense.

Under 18 U.S.C. §4B1.2, the career offender provision of the sentencing guidelines, a prior offense is a crime of violence if the offense:

1) has as an element the use, attempted use, or threatened use of physical force against a person,

Published on: May 11, 2012

The safety valve sentencing reduction does not apply to Title 46 U.S.C. §70503 for trafficking on the high seas

by The Swartz Law Firm

Pertuz-Pertuz pleaded guilty to a drug trafficking on the high seas. Specifically, his offense involved a conspiracy to distribute five or more kilograms of cocaine while aboard a vessel subject to the U.S. jurisdiction, in violation of Title 46 U.S.C. §70503(a)(1). In U.S. v. Pertuz-Pertuz, the 11th Circuit said the defendant was not eligible for the safety valve sentence reduction. Congress enacted 18 U.S.C. §3553(f), the safety valve statute, giving defendants relief from the mandatory minimum penalties found under the federal drug laws. If the defendant met the criteria, he could receive a reduction of his sentencing guidelines range and receive a sentence below the mandatory minimum sentence. To qualify, the defendant must have no criminal convictions, no leadership role, and must not possess a firearm as part of the offense.

At his sentencing, his guideline calculation which the sentencing judge adopted gave him a two-point reduction under §5C1.2(a)(1-5) for qualifying under the safety valve. He also received a three-level reduction for accepting responsibility and timely notifying the authorities of his intent to plead guilty. The language of §70503 refers to §960 for the penalty provision when there is a §70503 violation. Normally a defendant who meets the criteria set forth in the safety valve statute would be eligible for an additional two level reduction in the sentencing guidelines. The safety valve statute specifically states that the safety valve provision applies only to the five specified offenses listed in §3553(f).

The statute Pertuz-Pertuz was charged with and to which he pleaded guilty is not listed in the safety valve statute. The sentencing court denied the Defendant’s request for a safety valve reduction because §3553(f). Without the safety valve relief, Pertuz-Pertuz faced a 10 year mandatory sentence because his offense involved trafficking in five or more kilograms of cocaine. Though the defendant’s guideline range would be 108-135 months in prison with safety valve relief but because the sentencing court found the safety valve did not apply to the §70503, he faced the 10 year penalty of 21 U.S.C. §960.

Published on: May 4, 2012

Income tax evasion convictions should have been grouped together under the sentencing guidelines

by The Swartz Law Firm

Defendant Register pled guilty to 17 counts of tax related offenses. Thirteen counts concerned his failure to pay to the I.R.S. taxes that had been withheld from wages of his company’s employees. The remaining counts concerned falsifying his individual federal income tax return. The defendant challenged the district court’s guideline calculation, claiming the court erred in refusing to group all the counts in a single group as “counts involving substantially the same harm.” In U.S. v. Register the 11th Circuit reversed the sentence.

Register was the owner and operator of Criminal Research Bureau, Inc., a provider of background-check service for employers. To manage his payroll, he used a payroll processing company that prepared his employee paychecks and submitted the necessary quarterly paperwork to the IRS. Register was responsible for paying the taxes withheld over to the IRS. For about 4 years he withheld federal income tax (FICA) from his employees but he never turned it over these funds to the IRS.

He also falsified his individual federal income tax returns during this same period by paying his personal expenses directly from the company bank account. When he file his own personal returns, (filed late) he generated W-2 Forms that falsely indicated that he had been paid wages and that federal income taxes had been withheld. He used those figures to enable him to fraudulently collect refunds for the tax years 2003 and 2004. In 2005 and 2006 he added himself to the CRB payroll as an employee with an annual salary of $234,000, but he falsified his 1040 to show his federal taxes had been withheld from his salary when in fact none had been withheld. As a result he collected refunds when in reality he owed large amounts of money for 2005 and 2006.

Published on: April 25, 2012

Sentencing enhancements for prior conviction upheld in two illegal reentry decisions

by The Swartz Law Firm

In U.S. v Acuna-Reyna, the 11th Circuit held an uncounseled misdemeanor conviction resulting in probation and a fine would still be counted for criminal history points under the guidelines. The defendant was convicted of illegal reentry after deportation and at his sentencing he was assessed a criminal history point for a prior uncounseled misdemeanor conviction for driving under the influence. The defendant pled guilty to driving under the influence of alcohol, a misdemeanor, and was sentenced to 12 months probation and a fine of $940. Defendant argued that the uncounseled conviction was presumptively void and relied on Alabama v. Shelton to support his argument that the mere threat of incarceration in a future proceeding to revoke his probation entitled him to counsel.

In rejecting this argument, the 11th Circuit held that the prior conviction would still count because the court had imposed a fine. Even if the court disregarded the sentence of probation, the remaining portion of the sentence of the imposition of a fine was still a constitutionally valid and counted as a criminal history point.

In U.S. v Romo-Villalobos, the 11th Circuit held that a prior conviction for resisting arrest with violence will support a 16 level enhancement for reentry after deportation. The defendant appealed his 16 level enhancement for a prior Florida conviction for resisting an officer with violence. The defendant argued it was not a crime of violence because under Florida law, the element of violence can be satisfied by de minimus force. In considering whether a prior conviction is a qualifying offense for sentencing enhancement purposes, the 11th Circuit applies the categorical approach – the fact of the conviction and the statutory definition of the prior offense.

Published on: April 9, 2012

The Florida False Imprisonment conviction did not qualify as a crime of violence under the sentencing guidelines enhancement for reentry after deportation

by The Swartz Law Firm

In this illegal reentry case the 11th Circuit once again faced the question of whether a prior conviction for a crime of violence triggered the steep sentencing enhancement imposed by the sentencing guidelines. The prior conviction in question here was a Florida conviction for false imprisonment. In U.S. v. Rosales-Bruno the defendant did not have to face the sentencing enhancement that face many defendants in federal criminal court in Miami who have been whose only crime was to reenter the U.S. after deportation. The sentencing court enhanced the defendant’s sentence based on the court’s finding that a prior Florida conviction for false imprisonment qualified as a crime of violence under sentencing guidelines. The Florida law defines false imprisonment as “forcibly, by threat, or secretly confining abducting, imprisoning, or restraining another person…against his or her will.” The applicable guideline section 2L1.2 requires a 16 level increase in calculating a defendant’s offense level if a defendant was deported after a conviction for a crime of violence. The defendant argued of course that the Florida law was not a crime of violence for the reason that one could violate the false imprisonment statute by secretly detaining a person, meaning without employing the physical force contemplated in the sentencing guidelines for a crime of violence. Rosales-Bruno further argued that the government had not proven that he did employ physical force when he committed the false imprisonment offense.

In determining whether the prior conviction was a crime of violence, the 11th Circuit took what it termed a “modified categorical approach” By this, the court looks at the fact of conviction, the statutory definition of the offense, any charging papers and jury instructions in an effort to determine whether committing the offense required committing a crime of violence. However, where the statutory definition of the prior offense encompasses both violent and non-violent criminal conduct, the court looks beyond the fact of conviction and the elements of the offense to determine whether the prior conviction falls under a particular statutory phrase that qualifies it as a crime of violence.

The 11th Circuit concluded the false imprisonment was not a crime of violence. The offense was not a categorically a violent offense.