Articles Posted in Federal Sentencing

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In U.S. v. Martinez-Gonzalez, the defendant appealed the 24 month sentence he received for illegal reentry into the U.S. after having been deported. What led to his deportation was his felony conviction in Alabama for possession of forged instruments – a forged permanent resident card and a forged Social Security card. Following his deportation to Mexico, he entered the U.S. illegally. He then pled guilty to entering the U.S. without permission, in violation of 8 U.S.C. 1326(a).

Under the sentencing guidelines calculation for his offense, he receives an 8 level bump in his offense level if the prior felony conviction is considered an aggravated felony. The definition of aggravated felony (8 U.S.C. §11011(a)(43)) includes an offense “relating to forgery” The main issue raised here was whether Martinez-Gonzalez’ prior conviction for possession of the forged documents was a conviction relating forgery.

Martinez-Gonzalez argued that merely possessing a forged document does not amount to committing a crime relating forgery. He also argued that §11011(a)(43) is ambiguous requiring the application of the rule of lenity to be construed in his favor. The 11th Circuit did not buy in – mainly because four other Circuit Courts have upheld the 8 level increase for possession of false documents, and Martinez-Gonzalez could not cite any cases supporting his position.

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In U.S. v. White, former Commissioner White of Jefferson County, Alabama, was convicted of the federal crime of conspiracy to take a bribe in connection with federal funds. White was also convicted of the substantive federal crime of bribery in violation of 18 U.S.C. § 666. In writing the opinion, Judge Carnes had this comment about the overall integrity of the Jefferson County Commissioners.

‘Kleptocracy’ is a term used to describe ‘a government characterized by rampant greed and corruption.” [Citing the American Heritage Dictionary of the English Language] To that definition dictionaries might add, as a helpful illustration: ‘See, for example, Alabama’s Jefferson County Commission in the period from 1998 to 2008.’ During those years, five members or former members of the commission that governs Alabama’s most populous county committed crimes involving their ‘service’ in office for which they were later convicted in federal court. And the commission has only five members. One of those five former commissioners who was convicted did not appeal. We have affirmed the convictions of three others who did. This is the appeal of the fifth one.

First, some background. Jefferson County Alabama had entered into an agreement with the U.S. Environmental Protection Agency following a lawsuit against the county for untreated sewage released into the county’s rivers and streams. The agreement required the county to fix its sewer system at the cost of $3 billion. The county hired engineering firms to do the repair and renovation work. One of Whites responsibilities as Jefferson County Commissioner was to oversee the hiring of the engineering firms that contracted with the county to perform the sewer construction work. One of those engineering firms won lucrative contracts with the county because the firm’s owner bribed White. In exchange for the contracts totaling $1 million, White collected $22,000 in cash from its owner.

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The court of appeals held that the 5-level enhancement for distributing child pornography to a minor requires proof it was intended for an actual child or a fictitious child created by law enforcement. In U.S. v. Fulford, the Defendant was convicted of possessing and distributing child pornography and given a 5 level enhancement under sentencing guidelines section 2G2.2(b)(3). According to the presentence investigation report (PSR), Fulford entered into an on-line chat room with children to whom he distributed child pornography. At sentencing, the district court made a fact finding which showed that Fulford chatted over the internet with a person named “Dawn” who claimed she was a 13 year old female. Because the court found the defendant sent child pornography to Dawn, who he believed to be a minor, it applied the 5 level increase even though the sentencing court did not make a finding about whether Dawn was actually a minor. Fulford objected to this enhancement arguing that the government never proved that Dawn was in fact a minor, as defined by the guidelines, and the enhancement did not apply.

The government did not show that any of the individuals whom he sent images were in fact minors. The government argued that the evidence showed he distributed child pornography to a minor based on the user’s name and purported age. The government also argued that regardless of her actual age and identity, it was sufficient to apply the enhancement if the government can show the defendant thought she was a minor and intended to distribute the child pornographic images to her. At sentencing the government offered testimony from its case agent that an examination of his computer showed that Fulford exchanged images with people who, the agent inferred, were minors. Yet there was no proof any were in fact minors.

Under the definition of a “minor” given under this guidelines enhancement, Dawn would have to be one of the following:

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In U.S. v. Perez, the defendants were charged with a Hobbs Act conspiracy for planning to rob a fictitious cocaine stash house in Miami. The Hobbs Act makes it a federal crime to conspire to commit a robbery that has some affect on interstate commerce. They were also charged with carrying a firearm in connection with the attempted robbery, and defendant Del Monte was charged with possession of a firearm by a convicted felon. In this case, the Informant (CI) tried to convince the defendants to rob a fictional cocaine stash house by explaining how they could pull it off with the cooperation of a disloyal drug courier who would pass on information about the location of the drug stash house so the co-conspirators could steal the drugs. He told the coconspirators that the stash house was guarded by armed guards. They discussed obtaining five guns including a machine gun. They decided to transport the weapons in a separate vehicle. The weapons were placed in a car driven by the CI while the coconspirators followed. When law enforcement stopped the cars, they found the guns in the CI’s car and stocking hats, pepper spray, and knives were found in the car driven by the defendants.

Defendants argued there is no evidence they had constructive possession of the firearms transported by the CI. The appellate court disagreed finding the evidence supports a reasonable conclusion that defendants:
1. had knowledge of the guns being transported to the robbery site in the other car, and
2. had intent that those guns be used by the coconspirators in the robbery of the fictional stash house.
The evidence shows the defendants were aware of the dangerous nature of the operations, i.e. robbing armed guards of 30 kilograms of cocaine and other undercover discussions by the coconspirators.

The appellate court found the evidence was sufficient to prove Del Monte constructively possessed the guns. The evidence required a showing Del Monte had the intention to later exercise dominion and control over the guns, whether personally or through others. In Del Montes’ car were found the stocking hats, which implicated him in the armed robbery, together with the intent of the coconspirators to use guns to overcome the guards in order to carry out the robbery.

Defense witness had the right to remain silent
The codefendants subpoenaed Rojas to a pretrial deposition but Rojas exercised his right to remain silent. The defendant asked the court to compel Rojas to answer questions by defendants counsel. The district court denied the request. The defendant argued the district court should have held a hearing to determine if Rojas had reasonable cause to refuse to answer counsel’s questions. The court found no abuse of discretion
for the district court to find that Rojas could plausibly fear his answers could lead to a perjury charge by the government.

Warrant for electronic surveillence was proper
The defendant moved to suppress all evidence obtained through court ordered electronic surveillance of calls to and from cell phones. The defendants argued that because the government had success in obtaining evidence prior to receiving permission to intercept electronically, the necessity requirement was not met. Even if the government possessed sufficient evidence to prosecute defendant prior to the wire tap, it only had limited knowledge of the full extent of his criminal activities and of the coconspirators activities.

Failure to address the defendant was error and new sentencing ordered
The sentencing allocution for one defendant was error because the district court did not address the defendant directly. The court directed its question about the defendant allocating to the attorney and not the defendant directly. The Court never got a response from the defendant, and the case was remanded for resentencing. The court found the defendant’s substantial rights were affected because there was a chance of a lower sentence under the sentencing guidelines.
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On October 4, 2011, the Eleventh Circuit Court of Appeals vacated U.S. v. Rojas decision. A majority of the judges on the Court have voted to rehear the case en banc. This means that the issue of whether the Fair Sentencing Act of 2010 (FSA) applies to defendants sentenced after the Act but whose offense occurred before the Act will now be resolved by the entire court.

In U.S. v. Rojas the Court held the FSA applies to the defendants convicted of a federal drug crime, who were sentenced after its enactment but who committed their offense prior to August 3, 2010, enactment date. By passing the FSA the court found that Congress intended to restore fairness to Federal cocaine sentencing. The legislation attempted to reduce the disparity between federal criminal penalties for crack cocaine and powder cocaine offenses by lowering the gram – penalty ratio from 100:1 to 18:1. It also raised the drug quantities that triggered mandatory minimums.

Rojas, charged in Miami with conspiracy to possess with intent to distribute 50 grams or more of cocaine base, pled guilty prior to the August 3, 2010 enactment. Because she conspired to distribute 71.8 grams of crack cocaine, she was facing the ten year mandatory minimum. After enactment of the FSA the amount triggering the ten year mandatory minimum was raised from 50 to 280 grams, she then faced a lower mandatory sentence of 5 years under the new law. Because her sentencing took place after the enactment, she wanted the new law to apply to avoid the pre-FSA 10 year mandatory minimum sentence.

In the panel decision, the appellate court ruled that the FSA should apply to those offences that occurred prior to enactment but who are sentenced afterwards. The appellate court rejected the government’s argument that the FSA is prohibited from applying to prior offenses under the Savings Clause unless the statute expressly provides.

Prior to Rojas, there was a contrary decision in U.S. v. Gomes, which held that the FSA is not retroactive to offenses committed prior to the FSA enactment. In Gomes the defendant’s offense took place before the FSA enactment and the sentencing took place prior to enactment. In Rojas the sentencing took place after enactment. Rojas court rejected the language in Gomes as dicta.
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In U.S. v Mckay, the defendant pled guilty to a federal drug crime, charging him with possession with intent to distribute cocaine base (crack cocaine.) His pre-sentence report classified him as a career offender under the sentencing guidelines §4B1.1. McKay qualified as a career offender if he had two prior felony convictions for either: (1) a controlled substance offense or (2) a crime of violence. One of McKay’s was selling a controlled substance. The other was for carrying a concealed weapon, which at the time counted as a crime of violence. After his sentence was imposed, he did not appeal his sentence of 262 months (21 years, 10 months.)

Over two years after his sentence, the Supreme Court decided U.S. v. Begay which held that a D.U.I. conviction is not a “violent felony” under the Armed Career Criminal Act. Following that decision the Eleventh Circuit decided U.S. v. Archer which held that in light of Begay, it would have to find that carrying a concealed weapon is not a crime of violence.

Following the Archer decision, McKay filed a motion to vacate his sentence pursuant to 28 U.S.C. §2255 arguing that pursuant to Begay and Archer, his sentence was incorrectly enhanced. McKay argued that his conviction for carrying a concealed firearm no longer qualified as a crime of violence and should not have been sentenced as a career offender. The court of appeals found that the actual innocence exception does not apply to excuse his default. Under the procedural default rule of §2255, a defendant must raise a challenge to a conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a 2255 motion. McKay’s problem was that he did not raise the issue of whether his conviction for carrying a concealed weapon was a crime of violence in a direct appeal from his sentencing. For that reason, he had procedurally defaulted on his 2255 sentencing claim.

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In U.S. v. Jose Padilla, the court of appeals upheld the conviction of Padilla, commonly known as the “dirty bomber” who was held in solitary confinement for 3 years as an enemy combatant before he was indicted in Miami. Padilla along with Adham Hassoun and Kifah Jayyousi were charged with conspiracy to commit murder overseas and with providing material support intended to be uses in carrying out a conspiracy to murder overseas. The charges stem from activities in support of Islamic violence overseas. The case presented by the government showed the defendants formed a support cell linked to radical Islamists outside the United States and conspired to send money recruits and equipment overseas to groups the defendants knew use violence in efforts to establish Islamic states. This case had its roots in the South Florida area but extended across the globe to Egypt, Afghanistan, and Kosovo.

The evidence against Padilla consisted of a mujahideen identification form recovered from Afghanistan. Fingerprints on the form were linked to Padilla as well as his date of birth and country of origin. The form sated that the applicant had traveled to Egypt for study, Saudi Arabia for hajj, and Yemen for jihad.

The government’s case against the defendants consisted mainly English translations of secretly recorded phone conversations in Arabic. The case agent for the government testified as a lay witness giving his opinions about code words which he interpreted as code words for jihad or violent jihad related activities. He was questioned about each of the calls giving his opinion throughout the calls about the jihadist related groups and activities the defendants were involved with throughout the time period of the calls. He said that people involved in terrorism related cases use code in their communications. He then after reviewing the call transcripts gave his meaning or a long list of code works.

The main issued in the case is the admission of Kavanaugh’s testimony about his interpretation of the alleged code words used by the defendants. The defendant’s argued he could not give lay opinions about the conversations because he was not present during the conversations and did not have a rationally based perception of what the individuals meant. The court majority concluded that Kavanaugh testimony was rationally based on hid perceptions and his perceptions were he having read through the wiretap summaries plus hundreds of verbatim transcripts and listening to calls in English. The court concluded that lay witness FBI agents have been allowed to base opinion testimony on the examination of documents even when the witness was not involved in the activity about which he testified, relying primarily on U.S. v. Hamaker and U. S. v. Gold. Below are a few comments by the panel majority about Kavanaugh’s opinions:
1. “Kavanaugh could testify about the meaning of code words that he learned through his examination of voluminous documents during a five year investigation.”
2. “Kavanaugh’s knowledge of the investigation enabled him to draw inferences about the meanings of code words that the jury could not have readily drawn.”
3. “He limited his testimony to what he learned during this particular investigation and he testified that he interpreted code words based on their context.”

The panel found the evidence was sufficient against Padilla for a reasonable jury to find that he trained with al-Qaeda and shared the co-conspirators intent to support violent jihad overseas. The evidence was sufficient for a reasonable jury to find that both Padilla and Jayyousi were supporting mujahideen overseas engaged in murder maiming and kidnapping. The evidence supported the jury’s reasonable inference that Padilla and Jayyousi knew the training camps trained recruits in war tactics and they shared a common purpose to support violent jihad to regain lands that were once under Islamic control.

The district court did not abuse its discretion in allowing government to call Dr. Rohan Gunaratna as an expert witness in the area of al-Qaeda and its associated groups.

The district court did not err in admitting a 1997 CNN interview with Osama bin Laden. In admitting the tape, court only allowed a 7 minute portion, explained to the jury there was no indication the defendants were connected to 9/11, and instructed the jury not to consider the evidence for its truth but for the state of mind evidence against Hassoun and Jayyousi.
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In U.S. v. Smith the defendant Smith pled guilty in Miami to the crime of distributing 50 grams or more of cocaine base. His plea agreement in federal court contained an agreement to waive an appeal of his sentence, except in three very limited circumstances:

  • if the sentence exceeds the maximum permitted by the statute;
  • if there is an upward departure, or
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    The Eleventh Circuit Court of Appeals decided that a district court can limit the issues that will be heard at a defendant’s resentencing. In U.S. v. Willis, the defendant was convicted in federal court of a felony drug trafficking offense and sentenced as a career offender because of his prior convictions. He appealed his conviction to the court of appeals in Atlanta but his conviction was affirmed. After his appeal process was complete, Willis filed a 2255 motion to vacate his conviction arguing, among other issues, that his counsel had been ineffective for failing to challenge his career offender enhancement. The government agreed that he was not eligible for the enhancement, but it did not agree to the several other issues raised in the 2255 motion. The sentencing court denied the 2255 motion except for the career offender issue and directed the probation office to prepare a new presentence investigation report reflecting the fact that Willis was not a career offender. Willis filed objections to certain enhancements the report. These same objections had been raised prior to the first sentencing hearing and had already been denied.

    The Probation Officer responded to those objections and the judge set the sentencing for two days later. The judge found he was not a career offender, but refused to continue the sentencing, refused to hear any arguments challenging the guidelines range, and refused to grant the governments motion for downward departure for cooperating.

    After some effort, the appellate court discerned the issues Willis was appealing. Willis’ brief was apparently less than adequate, judging from the unflattering comments in this opinion. As a result of the failure to raise an appeal from the other 2255 issues, the court found that Willis waived his right to challenge the adverse 2255 rulings. The appellate court decided that the district court did not err by refusing to allow Willis to argue any of his objections, except for the career offender issue.

    The other issue on appeal was Willis’s claim that under §3552(d) his federal criminal sentencing hearing should have been set no less than 10 days from the date his attorney received the Probation Officer’s response to his objections to the Presentence Investigation Report. An attorney for a defendant convicted of a crime in Miami as in any other area can object to the inaccuracies in this report. The court noted that Rule 32(g) requires a 7 day period between the Probation Officer’s response and the sentencing date. Though it was a technical error, it was harmless because the PSR was substantially the same as the version in his first sentencing and the defendant was not prejudiced.
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    U.S. v. Singletary is a classic example of mortgage fraud seen in Miami and other parts of Florida. Singletary was charged with conspiracy to defraud a federally insured bank in violation of 18 U.S.C. §1344 and other federal criminal charges stemming from a scheme to defraud mortgage lenders and the Federal Housing Authority (F.H.A.) which insured mortgages loans issued by the banks. The defendants pleaded guilty and sentenced to federal prison, but they appealed the criminal restitution order, which is the amount of loss caused by their fraud.

    The defendants purchased and repaired homes in need of substantial work to be marketable. After restoring the property the defendants would place the homes on the market. Potential buyers would be referred to mortgage companies controlled by the defendants. The mortgage officers would then assist the potential buyer obtain a mortgage that would be insured by the F.H.A. The F.H.A. would insure a mortgage up to 97% of the sale price as long as the buyer was able to invest a minimum 3% down payment of the price at which the defendants agreed to sell. If the buyer received a portion as a gift, it had to come from a relative or employer, and the lender had to document the gift with a gift letter specifying the nature of the relationship, the source of the funds, and had to be signed by the parties donor and borrower. Of course the defendant’s mortgage brokers committed mortgage fraud by sending bogus gift letters to verify the buyer’s down payment. Other times they created false employment verification letters or provide false “credit explanation” letters to beef up creditworthiness.

    The issue here is the amount of restitution the defendants owed. The sentencing court determined the amount was a loss to the F.H.A. of $3 million in expenses as a result of the 89 foreclosed properties. The defendant objected to the loss determination. The government had the burden at sentencing of establishing by a preponderance of the evidence the amount of the F.H.A. losses and the sentencing court was required to explain its findings with sufficient clarity to enable the appellate court to conduct review.
    At the sentencing, there were obvious credibility problems with loan officers that handled the false gift letter files. These were some of their credibility problems:

    • They could not recall some of the closings
    • They could not say with certainty that some of the gift letters identified were false; and
    • They could not say that the buyers had not received the gift.

    The appellate court ordered a new hearing on the issue of the amount of restitution. It ruled the government failed to meet its burden with respect to each mortgage for which it sought restitution. The sentencing court pegged the loss at $1 million but gave no explanation for how it came up with that estimate. Furthermore, the sentencing court did not identify the particular false loans mortgages that had caused losses.
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