Federal Sentencing

Published on: May 20, 2017

Police officer’s stop of a driver for a partially obscure license plate upheld following fourth amendment challenge

McCullough was arrested and convicted for marijuana distribution. His conviction was affirmed by the Eleventh Circuit Court of Appeals in United States v. McCullough. This is how the facts unfold. He was initially pulled over by an Alabama police officer for driving with a partially obscure license plate. While the numbers on the Alabama issued plate were visible, a license bracket in the shape of an eagle with outstretched wings obscured pares of the license plate including the state of issue. Alabama law provides that every motor vehicle operator shall at all times keep the license tag or license plate plainly visible on the rear end of a mother vehicles. The officer stopped McCullough because the officer believe that he had violated this law by having the eagle bracket. When McCullough was stopped, the officer issued him a ticket for failing to have a plainly visible license plate.

The officer then smelled marijuana coming from the inside of the truck and a search of the truck led to the discover of $8,335 and a marijuana. After the officer seized $4,000 and a key to a hotel room, the officer obtained a search warrant for the room and found $1,000, bags of marijuana and a gun.

He was charged with possession with the intent to distribute marijuana, possession of a firearm in furtherance of a drug trafficking crime, and being a felon in possession of a firearm. He moved to suppress on the grounds the officer lacked probable cause or reasonable suspicion to stop him for partly obscuring the license plate because Alabama law only requires that the alphanumeric symbols be visible not the full license plate. The district court denied the motion. He pleaded guilty to each count before a magistrate judge. Prior to sentencing the probation officer calculated the guideline range to be 262-327 base on his status as a career offender with a career history e category of VI and a consecutive mandatory minimum of five years for being a felon in possession of a firearm.

Published on: April 13, 2017

Sentencing enhancement only requires that the conduct involve sadistic or masochistic conduct regardless who it is directed against

by The Swartz Law Firm

In U.S. v Scheels the Defendant pled guilty to one count of production of child pornography and one count of receipt of child pornography and received a 600-month sentence of imprisonment. In calculating his sentencing guideline range, the district court imposed a four-level enhancement under 2G2.1(b)(4) of the U. S. Sentencing Guidelines. This guidelines provision requires the imposition of a four-level enhancement where a defendant’s “offense involved material that portrays sadistic or masochistic conduct or other depictions of violence.” The defendant conceded that the pornography he produced does depict sadistic or masochistic conduct and admitted that it contained among other things images involving whipping and bondage. But the defendant argued that the enhancement should not apply to him because the sadistic or masochistic conduct in the pornography was directed at him not the child victim.

Published on: April 4, 2017

Sentence in securities fraud case reversed because the government failed to show evidence that thousands of investors relied on the fraudulent information disseminated by the defendant

by The Swartz Law Firm

After a two-week trial, defendant in U.S. v Stein was convicted of mail, wire, and securities fraud based on evident that he fabricated press releases and purchase money orders to inflate the stock price of his client, Signalife, Inc, a publicly traded manufacturer of medical devices. The district court sentenced Stein to 205 months in prison, ordered $5 million in forfeiture, and $13 million in restitution. In his appeal Stein argued that the government failed to disclose Brady v. Maryland material to the defense before trial and knowingly relied on false testimony to make its case. As for the sentence, Stein argues that the district court erred in calculating actual loss for the purpose of the Mandatory Victims Restitution Act of 1996 (MVRA) and § 2B1.1 of the U.S. Sentencing Guidelines. He argued that in estimating actual loss the district court erroneously presumed that all purchasers of Signalife stock during the period the fraud was ongoing relied on false information advanced by Stein. He also argued that the district court failed to take into account other market forces that likely contributed to the investors losses.

After the Department of Justin conducted a criminal investigation of Stein and his work with Signalife, he was charged with money laundering and wire and securities fraud. Prior to his trial Stein moved to produce documents in the Security and Exchange Commission’s (SEC) files. The government’s response was that is lacked control over the SEC and it did not conduct a joint investigation with the SEC. Prior to trial Stein learned that in the course of its investigation the DOJ had accessed a very small subset of documents in the SEC’s date base which the DOJ then provided to him. As a result he filed a motion to dismiss on the basis of this Brady violation. Following his conviction at trial, he obtained additional documents from the SEC that he believed were exculpatory and he filed motion for a new trial based on the Brady violation.

Published on: February 9, 2017

Categorical, generic, or modified categorical: It may be confusing but Florida’s burglary of a dwelling offense is not a crime of violence

by The Swartz Law Firm

In this case Garcia Martinez pleaded guilty to reentry after deportation in violation of 8 U.S.C. Sec. 1326(a) and his guidelines sentence was enhanced 16 levels by the district court who found his Florida conviction for second degree burglary of a dwelling, for which he was deported, was a crime of violence. He appealed the district court’s conclusion arguing that the facts of the Florida conviction for burglary of a dwelling as set forth in the presentence report do not qualify for a 16- level increase in his guideline range.

The court of appeals reversed after determining that the Florida statute does not fall under the enumerated offense clause definition for crime of violence under the sentencing guidelines.

The court arrived at this decision by first determining that the generic definition of the enumerated offense of burglary requires the unlawful entry into a building or structure with intent to commit a crime. However, the sentencing guidelines specifies that the offense must be a burglary of a dwelling. This required the court to determine the generic definition of a dwelling. It concluded a generic dwelling is a building or portion thereof, a tent, a mobile home, a vehicle, or other enclosed space which is used or intended for use a s a human habitation.

Published on: November 10, 2016

Illegal sentence imposed where the court considered the failure to pay full restitution

by The Swartz Law Firm

In U.S. v Plate the defendant worked at Wells Fargo in Orlando Florida as a financial advisor. One of her long time clients was an elderly couple for whom she managed their securities and bond portfolio. She became close friends with the couple. As their mental capacities diminished with age Plate began to perform personal duties for the couple beyond the traditional financial advisor role. After Plate’s husband died, she eventually induced the husband to execute a Wells Fargo ACH authorization agreement allowing for the transfer of funds from the couples’ Wells Fargo trust account into a separate account. Plate manipulated the husband into writing her personal checks and then she liquidated the securities in the trust account by making a number of unauthorized sales. In total she defrauded the couple of $176,079 and left noting in the account.

She was charged with a single count of embezzlement by a bank officer in violation of 18 U.S.C. § 656 and pled guilty to the offense. The PSI came back with a guideline range of 27-33 months. Prior to sentencing Plate filed a memorandum asking for a probation sentence and to show remorse she sold her house to pay restitution and expressed determination to pay everything back. She argued probation was appropriate because her crime was an anomaly brought on by depression and reduced mental capacity following the death of her husband. To support her position she attached a forensic evaluation by a licensed psychologist who concluded that she had developed a maladaptive coping style of avoidance characterized by apathy and impaired emotional understanding and reduced mental capacity brought on by the loss of her husband.

Published on: September 30, 2016

Life term of supervised release was not an unreasonable sentence for sex offender

by The Swartz Law Firm

U.S. v. Trailer is an appeal from a sentence impose for violation the terms of supervised release that was part of the defendant original sentence for failing to register as a sex offender in violation to 18 USC §2255. A special condition of the original supervised release condition what the defendant was prohibited from having contact with children under the age of 18. A few months after the defendant’s supervised release began, the probation officer filed a petition seeking revocation of his supervised release stating that the defendant was living with his new wife’s four minor children; failing to follow the probation officer’s instruction to have no contact with these children, and failing to answer truthful inquires by his probation officer relating to whether he was having contact with children. The court revoked his supervised release and imposed a sentence of 18 months and a life term of supervised release.

The sole issue on this appeal is whether the life term of supervised release is substantively unreasonable because it is greater than necessary to accomplish the goals of sentencing and is not reasonably related to the 18 USC § 3553 factors.

Published on: September 29, 2016

Sentencing guidelines require a sentencing enhancement for vulnerable victims despite prior case dicta

by The Swartz Law Firm

In this appeal Birge was convicted of one count of mail fraud pursuant to 18 U.S.C. section 1341 for writing herself $767,218.99 while serving as the Chief Clerk of the probate court of Chatham County, Georgia. The checks were drawn from the conservatorship accounts belonging to 31 minors, two incapacitated adults, and two estates. She was sentenced to 72 months imprisonment and appealed that sentence raising the issue that the district court erred in applying the vulnerable victim enhancement when it calculated her guidelines range.

Under the federal sentencing guidelines a vulnerable victim of an offense is a victim who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.

Birge argued that the district court should not have applied the enhancement to her because there is no evidence that she targeted the vulnerable victims. The court found that amended versions of the language of commentary to section 3A1.1 of the guidelines revised the language to only require that the defendant knew or should have known of the victims’ unusual vulnerability.

The Sentencing Commission amended the commentary to the guideline to include language that the adjustment applies to offenses involving an unusually vulnerable victim in which the defendant knew or should have known of the victim’s unusual vulnerability. The court pointed to precedent holding that commentary in the guidelines Manual interpreting or explaining a guideline is binding on the courts unless it violates the Constitution or a federal statute.

Published on: September 21, 2016

Child pornography sentence of 151 months found to procedurally and substantively reasonable

by The Swartz Law Firm

In United States v. Cubero the Defendant appealed from his 151 month sentence and life-term of supervised release after pleading guilty to one count of distribution of child pornography and two count of possession of child pornography in violation of 18 U.S.C. 2252(a)(4)(B). For various reasons he argued that his sentenced was procedurally and substantively unreasonable. His procedural challenges were anchored to a double counting argument that he received a two level increase under the sentencing guideline provision U.S.S.G. 2G2.2(b)(3)(F) for the distribution of child pornography, in that both the base offense level and the section 2G1.2(b)(3)(F) cover the act of distribution. The court of appeals rejected the argument by finding that the base offense level covers multiple possible violations of §2252(a)(2) including knowing distribution, knowing receipt, and knowing reproduction, and the guideline addressed the range of harms associated with child pornography distribution through various offense level increases and decreases.

He argued he was entitled to a two level decrease under USSG § 2G2.2(b)(1), which provides for a two-level decrease if the defendant’s conduct was limited to receipt or solicitation of child pornography and the defendant did not intend to traffic in or distribute the material. Unfortunately, the argument failed because the defendant used a peer to peer file sharing network to obtain hundreds of images and he elected to make them available to others.

Published on: June 13, 2016

Above guidelines sentence for federal supervised release violation reversed for sentencing court’s failure to state reasons

by The Swartz Law Firm

After serving his 195 month federal sentence for possession of a firearm Defendant Parks went on federal supervised release. Fifteen months later Parks was arrested by state authorities for burglary and grand theft. Parks plead guilty to the state court charges and was sentenced to 455 days, with credit for time served. On the day of his sentencing he was taken into federal custody and charged with a violation of his federal supervised release based on the facts of his state court charges. When he went before the federal judge for his violation hearing he admitted having committed the violation because he had just pleaded guilty in state court. The federal judge then sentenced him to 60 months incarceration, though his sentencing guidelines were 21-27 months. The sentencing judge did not announce how he arrived at that sentence and did not mention the 18 U.S.C. §3553(a) factors.

Parks appeals the sentence on the grounds that the trial court failed to consider or even acknowledge the statutory factors under 18 U.S.C. §3553(a). Furthermore, he argued the trial court failed to give a specific reason for his upward departure guideline sentence as required by 18 U.S.C. §3553(c)(2). Under §3553(c) the court is required to state in open court the reasons for its imposition of the particular sentence. If the sentence is outside the applicable guideline range the court must give the specific reasons for the imposition of that sentence.

Published on: August 27, 2015

Sentence of 151 months for possession and distribution of child pornography found to be reasonable

by The Swartz Law Firm

In U.S. v Cubero the Defendant appealed from his 151 month federal sentence and life-term of supervised release. He was sentenced in federal court after pleading guilty to one count of distribution of child pornography and two count of possession of child pornography in violation of 18 U.S.C. 2252(a)(4)(B). For various reasons he argued that his sentenced was procedurally and substantively unreasonable. His procedural challenges were anchored to a double counting argument that he received a two level increase under the sentencing guideline provision U.S.S.G. 2G2.2(b)(3)(F) for the distribution of child pornography, in that both the base offense level and the section 2G1.2(b)(3)(F) cover the act of distribution. The court of appeals rejected the argument by finding that the base offense level covers multiple possible violations of §2252(a)(2) including knowing distribution, knowing receipt, and knowing reproduction, and the guideline addressed the range of harms associated with child pornography distribution through various offense level increases and decreases.

He argued he was entitled to a two level decrease under USSG § 2G2.2(b)(1), which provides for a two-level decrease if the defendant’s conduct was limited to receipt or solicitation of child pornography and the defendant did not intend to traffic in or distribute the material. Unfortunately, the argument failed because the defendant used a peer to peer file sharing network to obtain hundreds of images and he elected to make them available to others.

The court rejected the Defendant’s next procedural challenges: the district court treated the guidelines range as presumptively reasonable; failed to properly consider non-guideline § 3553(a) factors; failed to properly consider the Defendant’s argument for variance, and failed to adequately explain its sentence. It found the sentencing court heard all the factual and legal arguments in favor of a variance but was “not convinced that based upon the images, [it] should go below the guidelines”, while stating that it would not “sentence below the guidelines in the exercise of its discretion.”
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