Federal Sentencing

Published on: May 15, 2014

No ineffective assistance because the defendant could not prove he would have pled guilty to the mandatory minimum sentence

In Osley v. United States, the Eleventh Circuit rejected the defendant’s section 2255 claim that his counsel failed to advise him he faced a mandatory sentence, because he had turned down a plea offer prior to trial that would have given him only 70 months. Osley was convicted of multiple counts commercial sex trafficking of a minor by means of force fraud and coercion, including a violation of 18 U.S.C. § 1591. Following the Miami federal criminal trial Osley was sentenced to 365 months and his sentence and conviction were affirmed. He filed a motion to vacate sentence pursuant to 28 U.S.C. 2255 claiming (1) his counsel was ineffective for failing to inform him of the mandatory minimum 15 year sentence for violating § 1591, (2) appellate counsel was ineffective for failing to challenge an obvious double counting violation of his sentencing guidelines, and (3) counsel failed to advise him he faced life term of supervised release.

Prior to trial his counsel discussed the possibility of a plea agreement. Both counsel and the prosecutor agreed that the guidelines calculation would be 97 to 121 months. At a status hearing held by the district court the prosecutor also informed the court there was no mandatory sentence under the sentencing guidelines and if found guilty he would be facing 97 to 121 months. The defendant had previously rejected a plea offer of 80 months. Osley chose a trial where the government’s star witness was a 17 year old victim was a run-away from home who said Osley promised to buy her ticket to Miami and discovered that she would have to become a prostitute for him, and described how he threatened her with a gun because she did not bring in enough money. After the trial and an during the Presentence Investigation interview, the probation officer informed the defendant and his counsel that the statute had been amended by Congress prior to the date Osley violated the statute, making the penalty a 15 year mandatory minimum sentence. The PSI also recommended a four level enhancement for uncharged conduct, giving him a range of 210 to 260 months. The judge also imposed a variance up by three levels.

While the Eleventh Circuit had serious doubts about whether counsel’s performance satisfied the standard of reasonableness required by the Sixth Amendment, it found that the defendant could not meet the prejudice pronged of Strickland. It rejected the Osley’s claim that he would have taken the 15 year mandatory sentence had he known he was facing 262 months under the guidelines, because Osley had rejected the government’s offer of 70 to 87 months. The 15 year deal that the defendant claims he would have taken was substantially more time than the deal he rejected. The court did not accept his claim that he would have taken 15 year deal even if he had known he would be facing a guideline range of up to 262 months. Furthermore, the defendant’s denial of guilt was a factor in determining whether he would have accepted the government’s plea offer.

Published on: May 9, 2014

Sentencing judge has no authority to reduce a restitution amount by the value of a forfeiture

by The Swartz Law Firm

In U.S. v. Joseph, the defendant was convicted mail fraud and theft from the government for filing false income tax returns using false information. As a result of his committing this federal crime, the Internal Revenue Service actually disbursed $37,196. Before sentencing the government obtained an order from the district court entering a preliminary order of forfeiture under 18 U.S.C. § 3663A and 28 U.S.C. § 2461 for $29,514 in currency seized by government officials that were the proceeds of Joseph’s fraud. Joseph objected to the presentence investigation report because it recommended restitution in the amount of $37,196 to the IRS without reducing by the value of the funds forfeited to the government. At the sentencing, the government argued that the defendant was not entitled to an offset and the district court seemed to agree but announced that the restitution would be offset by the forfeiture amount. Following the sentencing, the government noticed the sentencing judge that the restitution and forfeiture laws do not permit the district judge to offset restitution by the amount forfeited. It argued the discretion whether to apply the forfeited funds to restitution belonged to the government. The sentencing court later entered a written order that required Joseph to pay $37,196 restitution to the IRS and directed the forfeiture of $29,514. There was no mention of an offset.

On appeal Joseph argued the district court had the authority to offset restitution by forfeiture, and argued that the sentencing court’s pronouncement at sentencing correctly intended to make the victim whole. The defendant relied on the rule that when an oral pronouncement of sentencing unambiguously conflicts with the judgment, the oral pronouncement controls. But the 11th circuit held that the rule does not apply here because the oral pronouncement was contrary to law. It found that under the language of the Mandatory Victim Restitution Act (MVRA) and the forfeiture act, the judge had no authority to offset the restitution amount by the forfeiture. The MVRA only permits a reduction for an amount later recovered for compensatory damages for the same loss by the victim in a civil proceeding.

In addition, the MVRA requires the court to order the forfeiture of property traceable to certain criminal offenses. The statute provides that the Attorney General has sole responsibility for disposing of petitions for remission or mitigation “or to transfer the property on such terms and conditions as he may determine, including as restoration to any victim of the offense giving rise to the forfeiture.” A defendant is not entitled to offset the amount of restitution owed to a victim by the value of the property forfeited to the government because restitution and forfeiture serve distinct purposes. Restitution is compensatory for the victim and forfeiture is punitive. The district court has no authority to offset a defendant’s restitution by the value of forfeited property except that the MVRA does allow for reduction of a restitution order for amounts “later recovered as compensatory damages for the same loss by the victim in” a federal or state civil proceeding. This only applies to compensatory damage awards recovered by a victim in a civil proceeding after the sentencing court enters a restitution order.

Published on: May 8, 2014

Defendant’s failure to object with specificity results in the court affirming a sentence enhancement for a prior burglary conviction as a crime of violence

by The Swartz Law Firm

After the defendant in U.S. v Ramirez-Florez pleaded guilty to reentry after deportation, he received a 16-level enhancement in his sentencing guidelines range because of a prior conviction for burglary of a dwelling in violation of the South Carolina conviction for burglary of a dwelling conviction that the district court determined was a crime of violence. The statute encompasses more than the generic definition of a burglary which is the unlawful entry into a residence. It also encompasses the unlawful entry into non-generic structures such as outhouses, sheds, or other buildings that are within two hundred yards of an appurtenant to a residence. Following the sentencing and after the briefs were filed on appeal, the Supreme Court decided Descamps v. U. S. and the defendant raised the argument for the first time at oral argument that the South Caroline statute is not divisible under Descamps and the district court erred in applying the modified categorical approach. In a divisible statute, where the statute sets out one or more elements of the offense in the alternative that in effect creates several different crimes, the courts must apply the modified categorical approach. If at least one of the alternative elements matches the generic definition, the court may consult a limited class of documents, such as the indictment and jury instructions to determine which element formed the basis of the defendant’s prior conviction.

Viewed the challenge to the defendant’s argument that the statute was divisible under the plain error because the argument was not raised before the district court or in the briefs on appeal. The defendant could not show that that the error was plain or obvious that the South Carolina statute is not divisible and found the issue is subject to interpretation.

In his second argument raised in the brief, he argued that his prior South Carolina conviction did not qualify as a crime of violence because the Shepard documents do not prove that he burglarized a generic dwelling. Because Ramirez-Flores could not show that the statute was indivisible, the court decided it was appropriate to consider Shepard documents. As the presentence investigation (psi) report presented evidence to the district court that the defendant’s prior burglary conviction involved the burglary of a residence. A court applying the modified categorical approach may consider undisputed facts in the psi which in this case said that the defendant forcibly entered the victim’s residence with a codefendant and removed property from the residence. Ramirez-Flores claims he objected at the sentencing hearing to these facts in the psi and therefore cannot rely on its description of his conduct. The court found that his objection was only a general objection to the factual and legal statements in the particular paragraph relating to the narrative of this prior conviction. The court held that vague assertions of inaccuracies are not sufficient to raise a factual dispute. “We require objections to the psi to be made with specificity and clarity in order to alert the government and the district court to the mistake of which the defendant complains.” The only factual objection made by the defendant to the psi was that the prior crime was not a crime violence and this did not fairly apprise the government or the court of any objections. Therefor the district court properly relied on undisputed facts.

Published on: March 30, 2014

Money laundering sentence incorrectly enhanced by defendant’s role in the drug conspiracy

by The Swartz Law Firm

The defendant in U.S. v. Salgado was indicted and convicted of the federal crimes of drug conspiracy, money laundering conspiracy, and possession with intent to distribute as least one kilogram of heroin. Prior to sentencing the presentence investigation report (psi) calculated his guidelines sentence range by grouping his convictions together under USSG § 3D1.2(c) because the drug conspiracy and distribution offenses were “the underlying offenses from which the laundered funds were derived.” The psi used the money laundering guideline, USSG § 2S1.1 to determine the defendant’s base offense level. To calculate the offense level under § 2S1.1, the psi set his base offense level using the guideline for the underlying conspiracy to distribute heroin. Under the facts of this case it came to a level 34. It then determined that certain enhancements applied under § 2S1.1, including a role enhancement, for his role in the heroin transactions that qualified him as a manager, leader or supervisor.

The issue in this appeal was not whether Salgado’s role in the heroin distribution conspiracy made him a manager, leader, or supervisor. Instead, the issue was whether the district court misapplied the guidelines by using Saldgado’s conduct in the underlying drug conspiracy to impose a role enhancement when calculating his offense level for money laundering under USSG § 2S1.1(a)(1).

According to §1B1.5(c), if the offense level adjustments is determined by reference to another guideline, the Chapter Three adjustments also are determined in respect to the referenced offense guideline “except as otherwise expressly provided.” This means that where a guideline determines a defendant’s offense level by reference to another offense, the Chapter Three adjustments are to be based on the guideline and rules for that other offense. But the 11th Circuit pointed out that this is a default rule because the “except as otherwise” provided language. Application note 2(c) of § 2S1.1 is one of the otherwise provided exceptions. It instructs courts that when setting an offense level under § 2S1.1(a)(1), a court should make Chapter Three adjustments based on the defendant’s conduct in the money laundering offense itself, and not based on his conduct in the offense from which the money that was laundered was obtained. This meant that when the district court calculated Salgado’s offense level under § 2S1.1(a)(1), it could base his role enhancement on conduct in the money laundering conspiracy but not on his conduct in the underlying drug offense.

Published on: March 16, 2014

Prior felony convictions which enhance a sentence are not elements of an offense that need to be submitted to a jury

by The Swartz Law Firm

The defendant in U.S. v. Harris was convicted of three counts of a Hobbs act robbery and four counts relating to possession and use of firearms during those robberies. Under federal sentencing laws, his prior convictions for violent crimes resulted in a life sentence of imprisonment and a consecutive sentence of 57 years. In this appeal Harris challenges the imposition of a mandatory life sentence without a finding by a jury as to the fact of his prior convictions. He argued that this is inconsistent with Alleyne v. U. S. He also challenged the constitutionality of 18 USC § 3559(c) which provides for a mandatory life sentence for persons convicted of certain felonies. He argued that the statute impermissibly removes the sentencing discretion from the courts and delegates it to the executive branch.

Following a 3-day trial the defendant was convicted of three Hobbs act robberies and for using a firearm during those robberies. Because he had prior felony convictions for robbery with a firearm and a battery and law enforcement officer, the defendant qualified for the career offender enhancement under sentencing guidelines § 4B1.1. Also, under 18 USC 3559(c), a defendant convicted of a serious violent felony and previously been convicted of a combination of two or more serious violent felonies or serious drug offenses is subject to a mandatory sentence of life imprisonment. Because the defendant met those criteria, the district court imposed of the statute early mandated life sentence and also impose a consecutive 57 year sentence.

On appeal the defendant argued that his mandatory life sentence is inconsistent with the U.S. constitution as interpreted by the Supreme Court in Alleyne. He argued that the Supreme Court stated in Alleyne that any fact that increases the penalty for that crime is an element that must be submitted to the jury and found beyond a reasonable doubt. The court rejected this argument based on the Apprendi decision, which held that “other than the fact of a prior conviction, any fact that increases the penalty for crime beyond the prescribed statutory maximum must be submitted to a jury in proved beyond a reasonable doubt.” The Supreme Court in Alleyne did not address the specific question at issue here: whether a sentence can be increased because of prior convictions without a jury finding the fact of those convictions. That issue is still governed by Almendarez-Torres v. U. S. which states that the fact of a prior conviction is not an element that must be found by a jury. Applying the Apprendi and Amendarez-Torres decisions, the 11th Circuit held that the district court did not commit error by imposing a mandatory life sentence without any jury findings about the existence of the defendant’s prior convictions.

Published on: March 15, 2014

Sentencing enhancement reversed where defendant was not aware of an FTC judgment against him for deceptive practices

by The Swartz Law Firm

In U.S. v. Mathauda the defendant was convicted of conspiracy to commit mail and wire fraud in violation of federal criminal law. The case arose from his operation and of a business offering fraudulent business opportunities. From a call room in Costa Rica, the defendant would entice victims by advertising business opportunities in the United States. Toll free numbers connected people to the call center where promotional materials were sent and interested persons were connected with the co-conspirators posing as references who claimed to make money through the defendants companies. The defendant made millions of dollars from victims.

The one issue that the court considered an appeal was whether the district court erred in adding a two level sentence enhancement and for violation of a prior court order. Prior to the criminal case, the defendant was the subject of a civil action brought by the Federal Trade Commission. The FTC complaint alleged he was involved in unfair and deceptive acts and commercial practices. After the complaint was served on the defendant, he received a copy of a temporary restraining order. In response he hired an attorney to represent him in the case and in the meantime you continue to operate his conspiracy. Unknown to the defendant his attorney did nothing about the FTC case and had a default judgment was entered against him.

At sentencing, the presentence investigation report and recommended a two-level enhancement against a defendant, based on a knowing violation of a prior the judicial order. The defendant objected and claiming that he retained counsel and did not know his attorney failed to respond and that a default judgment had eventually been entered against him. He did not know that he had been judicially ordered to cease his fraudulent activity. The government argued that the enhancement was proper up because the defendant was willfully lying to the court’s order and that willful blindness to an order constitutes knowledge of the order.

Published on: March 5, 2014

Attorney’s failure to comply with deadline was fatal to the sentencing objections

by The Swartz Law Firm

In U.S. v. Edwin Aguilar-Ibarra the defendant was convicted of a conspiracy to commit a Hobbs Act robbery, which is a federal crime under 18 U.S.C. 1951. The facts of this conviction arose from a robbery of a Florida warehouse by four masked man brandishing pistols. The intruders bound gagged and force the warehouse employee into a warehouse into a back office where they assaulted him the assailants took off with one million dollars’ worth of cellular phones. The defendant’s presentence investigation report recommended a two-level of his sentencing guideline section 2B3.1(b)(3)(A) because the robbery victim sustained bodily injury. The presentence investigation report recommended the enhancement because the warehouse employee went to the hospital suffering minor injuries as a result of the assault.

The defendant did not file the objections within the 14 days required by Federal Rule of Criminal Procedure 32 (f)(1). The defense attorney objected to the enhancement at sentencing arguing there was no evidence the employee sustain bodily injuries and claimed the enhancement had not been applied that the co-conspirators sentencing. At sentencing the probation officer confirmed that the co-conspirators did receive the enhancement at their respective sentencing hearings.

On appeal the defendant argued that the district court erred in rejecting his objection to the bodily injury enhancement as untimely. The defendant claimed that the time limit was an applicable here because he and the government agreed the enhancement should not apply. In any event, the court exercised its discretion to waive the timeliness requirement by reconsidering and ruling on the merits of the objection.

Published on: November 23, 2013

Prior state court sentence was an aggravated felony but dissent disagreed

by The Swartz Law Firm

In U.S. v. Garza-Mendez, the defendant pleaded guilty to the federal crime of reentry after deportation by an aggravated felon in violation of 8 U.S.C. §1326(a). His deportation resulted from a prior conviction under a Georgia-family-violence-battery statute for striking his girlfriend. In that case, he was sentenced to confinement to 12 months, but the state judge gave him credit for 30 hours of time served and permitted him to spend the rest of his sentence on probation. Prior to his sentencing, Garza-Mendez sought clarification of his sentence from the Georgia court and Judge Pamela Smith issued a clarification order stating that Garza-Mendez was sentenced to 12 months of probation with the first 30 hours to be served in custody. The clarification stated that “the court did not sentence Defendant to 12 months of incarceration.” The judge who issued the clarification was not the same judge that sentenced him five years earlier. At his federal sentencing for the reentry offense, Garza-Mendez argued that the clarification order showed that he had not been sentenced to 12 months of imprisonment and that he should not receive an 8-level increase in guidelines under USSG § 2L12(b)(1)(C) for the prior Georgia conviction. The district court denied his objection and gave him the increase. The district judge also denied his request for a variance for cultural assimilation and imposed a reporting requirement from Mexico as a special condition of his supervised release. He appealed the 8-level increase, the denial of cultural assimilation and the reporting requirement.

In this appeal he argued that he should not have an 8-level increase because the sentence was not 12 months of confinement. Under USSG § 2L12(b)(1)(C) a defendant who was previously deported defendant and has a conviction for an aggravated felony is subject to the 8-level increase. An aggravated felony is defined as a crime of violence in which the term of imprisonment is at least one year. 8 U.S.C. § 1101(a)(43). The the majority of this panel disagreed for several reasons. First, it found that the state judge who issued the clarification order was not the sentencing judge. Second, the state judge did nothing more than review Garza-Mendez’s August 30, 2007 sentence to issue the clarification order. Third, the August 30, 2007 sentence was clear that Garza-Mendez’ was sentenced to 12 months of confinement. The court pointed to a prior Eleventh Circuit case, U.S. v. Guzman-Bera, which held that a term of imprisonment includes the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part. The court determined that the issue involves interpretation of the sentencing guidelines and a federal judge is in a better position to interpret the effect the state sentence order has on the Garza -Mendez’ federal sentence.

The defendant made a cultural assimilation departure argument pursuant to USSG § 2L1.1 arguing that his parents brought him when he was 7 to the United States, learned English and attended schools in Atlanta. The district court’s reasoned that his poor criminal record, both before and after his deportation, had outweighed the other 3553(a) factors and the court of appeals upheld the district court’s decision.

Published on: November 20, 2013

No suggestive identification procedure where the police did not cause prior viewings

by The Swartz Law Firm

In U.S. v. Elliot, the defendant was convicted of the federal crime of robbery and brandishing a firearm during and in relation to a crime of violence. The district court in Alabama imposed a life sentence after determining that two of his prior felony convictions qualified him for a career enhancement under the federal sentencing guidelines, U.S.S.G. §4B1.1. On appeal Elliot challenge a photo lineup on grounds that it was unduly suggestive because there was a substantial likelihood existed that the witness’s eyewitness identification was not based on her own independent recollection, but instead was tainted by her observation of photos of him on the internet, on printed flyers, and on a portion of a surveillance videotape. The Eleventh Circuit federal court of appeals found no federal due process violation because the photo lineup arranged by the police was not suggestive. The lineup contained photographs of the defendant and five other men who were selected by a computer program for their physical similarities to the defendant. The officer conducting the lineup did not suggest which person should be picked not did he pressure the witness to pick anyone. Furthermore the police had no involvement in the witness’ independent viewing of Elliot’s photos at the store or on the internet, or the surveillance video.

Prior youthful offender conviction qualified for career offender status.

One of Elliot’s prior convictions arose when he was 20 years old when he robbed a man of $150 and a pack of cigarettes while armed with a pistol. He was charged with a first degree robbery and received a youthful offender adjudication and placed on probation. He violated probation with a subsequent robbery. He argued on appeal that his youthful offender adjudication does not qualify for a conviction under the career offender provision of 4B1.1 because under the Alabama youthful offender adjudication cannot be counted under Alabama law. The Alabama law youthful offender Act applies to anyone who is under the age of 21 at the time the offense was committed.

Published on: November 14, 2013

Evidence sufficient to convict defendant of running a fraudulent business but not sufficient to prove more than 10 victims

by The Swartz Law Firm

The defendant in U.S. v. Rodriguez was convicted and sentenced to 120 months for conspiracy to commit the crime of federal wire fraud. He raised two issues on appeal. First he argued the evidence was not sufficient to support the conviction. The evidence at trial showed that from 2003 through 2007 Rodriguez owned and operated four different companies that sold coffee machines and other vending machines to the public. His companies tried to generate sales by posting ads on the internet seeking investors looking to a own their own small business by offering investment in new coffee machine, vending machine or drinking water machine. Rodriguez or his associates induced customers to buy products by offering a number of guarantees. Sales people would routinely guarantee the amount of money that customers would make each day and how quickly they would recoup their money. They promised to provide advanced marketing analytics to secure high-end locations where machines would have plenty of potential patrons. The companies also promised technical support and assistance and if not satisfied they could return the machines for a full refund. These guarantees were too good to be true. The machines arrived in months rather than weeks, if they arrived at all. When they did arrive, many customers found they did not work or they cost more to operate than they had been advertised. The locations the machines were placed in were in remote locations rather than high-end venues and they could barely cover their operational costs. Many customers testified their machines generated zero profits or substantial losses. None said they were able to recoup the cost of the initial investment. When they asked Rodriguez for help with the machines, there was no technical support as promised. Rodriguez almost never honored the money back guarantee when customers asked for a refund. Furthermore, the evidence showed that Rodriguez knew that this was happening and yet he continued to sell the machines to customers and guaranteed profit figures he knew were not real. Even after receiving a cease and desist order from the Maryland Attorney General, he created new companies selling different machines. While trying to hide his ties to the earlier companies from his prospective customers.

To support a conviction for wire fraud the evidence must show the defendant intentionally participated in a scheme to defraud another of money or property and used or caused the use of wires for executing the fraud. Evidence to sustain a conspiracy conviction requires proof the defendant knew and willfully joined the unlawful scheme to defraud. While puffing or sellers talk is not a crime under the federal fraud statutes, fraud requires proof of a material misrepresentation or the omission of a material fact calculated to deceive another out of money or property. The evidence showed Rodriguez did not simply puff up the profitability of his machines to prospective customers, rather he made material misrepresentations of fact in the course of an ongoing scheme to defraud. Rodriguez guaranteed specific profit figures and provided a definitive time for when his customers would recoup their investments, and he did this knowing his representations were completely unfounded. He knew his sales associates did no research on the placement of the machines and placed them in haphazard locations. He was not just overstating the facts to sell his product but he was actively concealing relevant information from potential customers. This type of federal crime is commonly prosecuted in Miami and the Southern District of Florida.

Rodriguez argued against the 4 level enhancement based on the number of victims. At sentencing he argued the government only proved 10 victims. At the sentencing the government presented 42 affidavits from victims who suffered losses and presented a summary chart indicating there were 238 victims but it provided no witnesses nor did it provide any underlying data for the chart. The court erred in finding the offense involved more than 50 victims because the government presented no witnesses to authenticate what the chart represented, how it was prepare, or by whom. While the district court could consider trial evidence, there was no testimony or evidence tying the summary chart to any of the trial evidence. There was no witness to verify that the information on the chart was correct. The summary chart amounted to little more than an allegation by the government on a piece of paper that Rodriguez’ offense involved more than 50 victims.